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 SEPARATION OF POWERS AND THE POTENTIAL
FOR CONSTITUTIONAL DIALOGUE IN INDIA

Rehan Abeyratne* and Didon Misri**

Abstract: Traditional separation of powers theory does not apply neatly to

India. The Indian Constitution mandates independent commissions that exert
additional checks and balances on the political system; it permits the President
to issue ordinances that function like legislation, and it has been interpreted
to require judges to have the final word on higher judicial appointments. This
article focuses on a creeping and more nebulous challenge to separation of
powers: the higher judiciary's expanding writ jurisdiction in fundamental
rights cases. Specifically, it examines the evolution of public interest litigation
(PIL) in the Supreme Court and High Courts over the past two decades,
where judges act in both quasi-executive and quasi-legislative roles. Drawing
on theories of constitutional dialogue, this article proposes how the Indian
higher judiciary might retrench in its PIL jurisdiction by directing public
attention to the most egregious executive failures and leaving the lawmaking
to Parliament.

Keywords: separation of powers; Constitution of India; public interest

litigation; Supreme Court of India; High Courts of India; constitutional
dialogue

I. Introduction

Traditional separation of powers theory does not apply neatly to India. This theory
is derived from Montesquieu, who famously argued that legislative, executive and
judicial powers should be kept separate.' The late eighteenth century Constitutions
of the United States and France adopted this framework for their governments, and
it has since become a fundamental - even essential - component of democratic
constitutions around the world.2 While separation of powers applies most clearly to
presidential systems of government, it also applies to the Westminster parliamentary
system in which the Crown and Parliament have separate authority.3

* Assistant Professor of Law, Chinese University of Hong Kong.

** 5th Year BA/LLB Student, Jindal Global Law School.
Many thanks to Jaclyn Neo and Po Jen Yap for helpful comments.
1 Charles de Montesquieu, in Anne M Cohler, Basia C Miller and Harold S Stone (eds), The Spirit of the
Laws (Cambridge: Cambridge University Press, 1989), Book 11, chapter 6, p. 15 7
.

2 Richard Albert, "The Fusion of Presidentialism and Parliamentarism" (2009) 57 American Journal of
Comparative Law 531, 533.
3 Ibid., pp.534-536.
[(2018) 5:2 JICL 363-385]
364 Journal of International and Comparative Law

The Constitution of India 1950 sets out a parliamentary system, which initially
resembles Westminster. A bicameral parliament exercises legislative power; the
Prime Minister, aided by a Council of Ministers, exercises executive power on
behalf of the President of India; and the President serves as the Head of State and
retains some residual authority.' Judges of the Supreme Court and High Courts
should be appointed by the President, on the advice of the Cabinet and senior
members of the judiciary.
On closer inspection, however, the exercise of governmental power in India
does not function like Westminster and, in some respects, does not even conform to
the constitutional text. First, the Indian Constitution provides for the establishment
of several independent commissions which exert additional checks and balances
on the political system. 6 Bruce Ackerman referred to this model as "constrained
parliamentarism" and highlighted the role of the Election Commission, whose
mandate is to safeguard the election process from partisan interference.7 Its Chief
Election Commissioner, who is appointed by the (non-partisan) President of India,
can only be removed by impeachment and presides over a secretariat comprising
more than three hundred officials.8
Second, the Constitution permits the President - and at the state level,
governors - to promulgate ordinances that increasingly serve as a substitute for
legislation. 9 As the President is required to act on the advice of his cabinet, which
is led by the Prime Minister, the ordinance power is effectively exercised by a
small number of elected, partisan leaders. Shubhankar Dam has shown that this
arrangement has become the "preferredlegislative method", as ordinances operate
effectively like legislation and avoid the messiness of parliamentary procedure
and debate.'0 The consequences for executive-legislative separation are grave.
As Dam puts it, ordinances "authorise a non-deliberative, non-majoritarian, and
'private' legislative method - one that reduces legislation to fiats"." Though
ordinances are only supposed to be used in exceptional circumstances and have to
be re-promulgated on an annual basis, they have been used to advance important
legislative ends, including upholding anti-terror laws and establishing national
commissions.12
Third, and perhaps most controversially, the Indian higher judiciary has
claimed the power ofjudicial appointment for itself. The Constitution mandates that
the President has the final word on appointments to the Supreme Court and High

4 Constitution of India 1950 arts.52, 53, 74 and 79.

5 Ibid., arts. 124(2) and 217(1).
6 Ibid., arts.315 and 324.
7 Bruce Ackerman, "The New Separation of Powers" (2000) 113 Harvard LR 633, 718-720.
8 Ibid.; see also Constitution of India 1950 art.324.
9 Constitution of India 1950 arts.123(1) and 213(1).
10 Shubhankar Dam, PresidentialLegislation in India (New York: Cambridge University Press, 2014) pp.4-
5 (emphasis in original).
11 Ibid.
12 Ibid., pp.4-9, 66-83.
 Separation of Powers in India 365

Courts. 3 However, the Supreme Court, over a series of judgments, has concluded
that such appointments must ultimately be approved by a "collegium" consisting
of the Chief Justice and a number of senior judges. 4 Parliament tried to wrest
this authority away from judges through a recent constitutional amendment and
legislation establishing a National Judicial Appointments Commission (NJAC)."
The NJAC divided the appointing authority between judges, political officials
and "eminent persons". However, the Supreme Court held that the NJAC was
unconstitutional, as judicial independence constituted part of the Constitution's
unamendable "basic structure", and the primacy of judges in the appointment
process was essential to judicial independence.1 6 As with the ordinances power,
this development undermines the separation of powers in India by removing a
significant executive and legislative check on judicial authority.
Each of these aspects of separation of powers in India has been discussed in
detail within the existing literature. In this article, we focus instead on a creeping
and more nebulous challenge to separation of powers: the higher judiciary's
expanding writ jurisdiction in fundamental rights cases. Specifically, we are
interested in the evolution of public interest litigation (PIL) in both the Supreme
Court and High Courts over the past two decades, where judges act in both quasi-
executive and quasi-legislative roles. This trend is especially apparent in cases
involving environmental law and socioeconomic rights.
The legal basis for PIL - and the interventionist judicial approach with which
it is associated - is art.32 of the Constitution, which empowers the Supreme Court
"to issue directions or orders or writs" that "may be appropriate, for the enforcement
of any of the . . [fundamental] rights."" Over a series of cases in the 1980s, the
Court interpreted the term "appropriate" broadly to permit the higher judiciary,
among other things, to accept writ petitions filed by NGOs and public-spirited
citizens alleging violations of fundamental rights on behalf of thousands (in some
instances, millions) of victims and to keep cases open for several years without
issuing a final judgment.' This authority to sustain litigation over long periods
termed as "continuing mandamus"- has permitted courts to monitor government
compliance by issuing several, often iterative, interim orders that responded to
changing circumstances and facts on the ground. In their PIL jurisdiction, the higher
judiciary may also appoint special committees, expert commissions and other

13 Constitution of India 1950 arts.124(2) and 217(1).

14 Rehan Abeyratne, "Upholding Judicial Supremacy: The NJAC Judgment in Comparative Perspective"
(2017) 49 George Washington International LR 569, 591-599.
15 Ibid., pp.571-572.
16 Ibid., pp.572-575; Supreme CourtAdvocates-on-RecordAssociationv Union ofIndia (2016) 5 SCC 1.
17 Constitution of India 1950 art.32. Article 226 of the Constitution similarly empowers "every High Court"
to issue "directions, order or writs" to enforce fundamental rights.
18 Surya Deva, "Public Interest Litigation in India: A Critical Review" (2009) 28 CJQ 19, 20-26; SP Sathe,
"Judicial Activism: The Indian Experience" (2001) 6 Washington University Journal of Law and Policy
29, 70-77.
366 Journal of International and Comparative Law

independent bodies to perform fact-finding and monitoring in lieu of the courts. 9

As we will show, these ad-hoc mechanisms further complicate the separation of
powers framework in India.
This article has three main sections. Section II examines the higher judiciary's
exercise of quasi-executive power. We look at cases in which the courts not
only take note of governance failures and hold them unconstitutional but also
issue specific directions to government officials to remedy those failures. In
doing so, the judiciary encroaches on executive power by taking on enforcement
responsibilities in addition to their traditional interpretive role. Section III analyses
cases in which the higher courts act as quasi-legislatures. In these cases, judges
identify gaps in the legal regime - as opposed to breakdowns in governance or
enforcement - and fill those gaps by essentially framing legislation themselves in
the form of detailed orders. In Section IV, we look at extreme examples of quasi-
executive and quasi-legislative orders and, drawing from the existing literature on
constitutional dialogue,2 0 propose how the Indian higher judiciary should retrench
its PIL jurisdiction. Instead of prescribing specific solutions, courts should focus
on directing public attention to the most egregious executive failures and leave
lawmaking to Parliament and state legislatures.

II. The Higher Judiciary as Quasi-Executive

In recent years, the higherjudiciary in India has become increasingly interventionist,

assuming responsibility for duties traditionally considered to be the prerogative
of other branches of government.2' Upon taking note of certain deficiencies in
governance, the courts have not always limited themselves to pointing out the failure
of the executive.22 Instead, they have found ways to intervene more directly.23 This
goes beyond the adjudicatory and interpretive roles that are normally ascribed to
the judiciary within the classic separation of powers framework. In this section, we
look at cases in which the judiciary has assumed a quasi-executive role in a way
that raises separation of powers concerns. Specifically, these cases illustrate the
tendency of the judiciary to stray into the executive realm and step into the shoes
of administrative bodies.

19 See Sathe, Ibid., pp.77-88.

20 Peter W Hogg and Allison A Bushell, "The CharterDialogue between Courts and Legislatures" (1997)
35 Osgoode Hall LJ 75; Po Jen Yap, ConstitutionalDialogue in Common Law Asia (Oxford: Oxford
University Press, 2015).
21 Nick Robinson, "Expanding Judiciaries: India and the Rise of the Good Governance Court" (2009) 8
Washington University Global Studies LR 1, 3.
22 Rajeev Dhawan, "Judges and Indian Democracy" in Francine Frankel et al. (eds), TransformingIndia:
32
Social andPoliticalDynamics ofDemocracy (New Delhi, India: Oxford University Press, 2002) p.
.

23 Lloyd Rudolph and Susanne H Rudolph, "Redoing the Constitutional Design: From an Interventionist
to a Regulatory State" in Atul Kohli (ed), The Success of India s Democracy (Cambridge: Cambridge
University Press, 2001) pp. 1 3 1- 1 3 2
.
 Separation of Powers in India 367

In some cases, the higher judiciary has gone further than simply checking the
arbitrary exercise of power by the executive branch. It has issued specific directions
requiring the executive to take particular actions or implement policies in order to
24
correct governance failures. In DeepakRanav State of Uttarakhand, the petitioner
filed a PIL against the State of Uttarakhand, alleging that government schools in
the state lacked basic infrastructural and educational facilities. The High Court of
Uttarakhand took judicial notice of the dilapidated condition of schools across the
state and directed the state government to provide basic supplies, facilities and
infrastructure in public schools across the state, including school uniforms, mid-day
meals, water purifiers, heaters and ceiling fans, blackboards, computers, libraries
and toilets, among other things. 25
The Court held, pursuant to art.21 A of the Constitution, that the phrase "free
and compulsory" education imposed a duty on the state to provide education to
every child by providing basic facilities that were vital to the successful operations
of schools. 26 The Court also chastised the state government for failing to improve
the quality of schools. In a subsequent order, it noted that the state government
had failed to implement its earlier orders and once again reprimanded the state
government for being responsible for "falling standards of education" and for
"miserably failing to provide bare minimum facilities" in public schools. 27 In
light of this failure, the Court prevented the state government from purchasing
mobile phones, cars, air conditioners and other "luxury" items for its members
until it successfully provided necessary amenities in all public schools across the
state. 28 In another order, the Court permitted the State to buy "need-based items,
eg, water purifiers, taking into consideration the summer season and that too with
the approval of the Chief Secretary, Government of Uttarakhand". 29 The Court
reiterated, however, that the state government would not be permitted to purchase
"luxury" goods until it complied with the earlier order.
Another example of the higher judiciary assuming a quasi-executive role is the
Allahabad High Court's judgment in ShivKumar PathakvState of UttarPradesh.30
The Court, while hearing several petitions related to the recruitment of junior
teachers in government schools in the state of Uttar Pradesh, took notice of the
dilapidated condition of many schools in the state. The Court identified three types
of schools.3 ' The first category comprised schools run by privileged individuals
and by members of the Christian minority. The Court found there was no room for
poor and lower-middle class children in these "elite" schools, as they were meant

24 WP (PIL) No 201/2014 (order dated 19 November 2016).

25 Ibid., [22].
26 Ibid., [4].
27 WP (PIL) No 201/2014 (order dated 22 June 2017), [6] and [10].
28 Ibid., [10].
29 MCC No 240/2017 in WP (PIL) No 201/2014.
30 (2016) 2 All LJ 374.
31 Ibid., [80].
368 Journal of International and Comparative Law

for scions of the elite, including high-ranking bureaucrats, ministers and members
of parliament.32 The second category comprised schools that were primarily run
by private bodies or individuals that the Court called "semi-elite schools".33 The
final category comprised primary schools operated and administered by the Uttar
Pradesh Board of Basic Education. The Court noted that these schools catered to
90 per cent of the concerned population and were deemed to be "common-men's
schools". Students enrolled in these schools were largely from rural and semi-urban
areas and could not afford to attend schools within the first two categories. 3 4
According to the Court, there were several reasons for the sorry condition of
government schools in this last category. They were, among other things, beset by
misappropriation, maladministration and widespread corruption. Given that these
schools lacked basic facilities and infrastructure, and their standard of teaching was
poor, those with adequate finances preferred to send their children to elite and semi-
elite primary schools. The Court found that these schools were neglected by the
public administration and the Board had not assessed what they required in order
to function properly.35 Accordingly, the Court declared that immediate attention
should be given to improving both the infrastructure and quality of education of
these schools.
The Court then took the extraordinary step to direct the Uttar Pradesh Chief
Secretary to take appropriate action in consultation with other concerned state
officials to ensure that all government servants, elected representatives, members
of the judiciary and those who received any salary or benefit from the state
exchequer or public fund send their children to primary schools administered by
the Uttar Pradesh State Education Board.3 6 According to the Court, the condition of
this third category of schools would only improve when those responsible for the
management of these schools were also incentivised to look after them. The Court
reasoned, therefore, that if officials and government servants were required to send
their own children to primary schools operated by the Board, they would ensure
that these schools were provided with basic facilities and proper infrastructure.37
The Court further stated that this move would "boost [the] social equation" between
students attending schools within the three categories and allow them to interact
with each other regularly.3 8
The Court did not stop there. It also directed the Chief Secretary to formulate
penal provisions in case of non-compliance.39 It provided an example in which if
an official's child was enrolled in a primary school not maintained by the Board,

32 Ibid., [81].
33 Ibid., [82].
34 Ibid., [83].
35 Ibid., [86].
36 Ibid., [90].
37 Ibid., [88].
38 Ibid., [87].
39 Ibid., [90].
 Separation of Powers in India 369

an amount equivalent to that paid in the form of fees by such government officials,
elected representatives, etc, should be deposited with the state exchequer each month
for as long as the child continued to attend those primary schools. According to the
Court, this amount could be collected and utilised for the betterment of schools
administered by the Board. The Court added that this was simply illustrative and
that the state government could formulate the appropriate provisions.40
What is striking about these cases is the paternalistic tone that the higher
judiciary adopted towards executive officials. Some of the orders are punitive in
nature, seeking to inflict hardship on government elites in the hope that they will
take seriously the business of improving public schools. This is beyond the pale of
legitimate judicial intervention. Furthermore, in practice, the judiciary's approach
is more likely to strain relations with the government than to achieve compliance.
The higher judiciary has also played a quasi-executive role in determining
environmental policy. India's environmental law regime consists of a number of
legislative policies and regulations that aim to preserve and protect its environment
and natural resources." Despite this extensive and intricate regulatory framework
laid down by the legislature, PIL, as a form of environmental governance, has
allowed the Supreme Court to emerge as a central player in India's environmental
regulatory landscape.42 The Court has regularly put pressure on the central
government to set up authorities and regimes as permitted under various statutes
and has issued a number ofjudgments, directions and ad-hoc orders to that effect. 43
As discussed, the Supreme Court has evolved a procedure termed "continuing
mandamus", where it issues a series of interim orders and monitors government
compliance through periodic progress reports.44
Public interest litigation brought about several procedural changes, such as
relaxing standing rules and simplifying petition-filing requirements.45 It also saw
numerous substantive innovations, especially with respect to the environment.
One of the most significant of these innovations was connecting the right to life
under art.21 of the Constitution with socioeconomic rights such as the right to
clean water, 46 the right to a clean environment 47 and the right to health.48 Under the
aegis of PIL, the Supreme Court intervened in a number of environmental matters

40 Ibid.
41 Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India: Cases, Materialsand
Statutes (New Delhi, India: Oxford University Press, 2012) p. 1
.

42 Lavanya Rajamani, "Public Interest Environmental Litigation in India: Exploring Issues of Access,
Participation, Equity, Effectiveness and Sustainability" (2007) 19 Journal of Environmental Law 293.
43 Upendra Baxi refers to this as creeping jurisdiction. Upendra Baxi, "Taking Suffering Seriously: Social
Action Litigation in the Supreme Court of India" (1985) 4 Third World Legal Studies 107, 122-124.
44 TN Godavarman v Union ofIndia (2012) 4 SCC 362, [2012] 1 SCR 923.
45 Anuj Bhuwania, Courting the People: Public InterestLitigation in Post-Emergency India (New Delhi,
India: Cambridge University Press, 2017).
46 Hamid Khan v State ofMadhya Pradesh (1997) (1) MPLJ 587.
47 MCMehta v Union ofIndia (1987) 4 SCC 463, [1988] 1 SCR 279.
48 Consumer Education andResearch Centre v Union ofIndia (1995) 3 SCC 42, [1995] 1 SCR 626.
370 Journal of International and Comparative Law

beginning in the early 1980s, including the Ganga pollution case,49 the Taj Mahal
pollution caseo and the Almitra Patel case concerning solid waste management.5
In the Delhi Vehicular Pollution Case,52 MC Mehta, an environmental activist
and Supreme Court advocate, filed a PIL in the Supreme Court claiming that
environmental laws obligated the government to take steps to reduce air pollution
in Delhi in the interest of public health. Through a range of unstructured and ad-
hoc orders beginning in the 1980s, the Supreme Court intervened to significantly
modify India's environmental policy. In 1990, the Court observed that heavy
vehicles including trucks, buses and defence vehicles were the primary contributors
to air pollution.53 Thereafter, in 1996, the Court held that all commercial transport
vehicles in the city should be converted to compressed natural gas (CNG).

"
The Court also authorised the establishment of the Environment Pollution
(Prevention and Control) Authority (EPCA) under the Environment (Protection)
Act 1986 for the National Capital Region (NCR). The EPCA, which was created
to provide technical and policy guidance, provided a series of reports to the
Court in which it considered various clean fuels before eventually recommending
CNG, a fuel that could not be adulterated, as the best option for India (since fuel
adulteration was widespread in India but difficult to notice)." Taking judicial note
of this recommendation, the Supreme Court in 1998 then ordered that the entire city
bus fleet be converted from diesel to CNG by 31 March 2001 .56
Under the aegis of the Supreme Court, Delhi has been able to break through
bureaucratic and institutional logjams to institute policies to curb harmful
emissions. 7 However, several critics have questioned the effectiveness of this
Court-driven process." They argue that it weakens the separation of powers, as the
judiciary makes environmental regulatory decisions that are normally within the
competence of specialised regulatory bodies in the executive branch.5 9 Furthermore,
the Court often lacks the necessary expertise to formulate policy, and as such its
orders are not always effective. While the Court may have had good intentions, its
actions seem more likely to impede capacity building in regulatory institutions and
pollution control agencies and thus compromise the long-term goal of sustainable
environmental management in India. 60

49 MCMehta v Union ofIndia (n.47).

50 MCMehta v Union ofIndia (1997) 2 SCC 353.
51 Almitra HPatelv Union ofIndia (1998) 2 SCC 416, [1998] 1 SCR 220.
52 MCMehta v Union ofIndia, WP (Civil) No 13029/1985.
53 Ibid. (See order dated 14 November 1990.)
54 Ibid. (See order dated 26 April 1996.)
55 See Rajamani, "Public Interest Environmental Litigation in India" (n.42) p.299.
56 MCMehta v Union ofIndia (n.52) (see order dated 28 July 1998).
57 Ruth Greenspan Bell, Kuldeep Mathur, Urvashi Narain and David Simpson "Clearing the Air: How Delhi
Broke the Logjam on Air Quality Reforms" (2004) 46 Environment 22.
58 Michael Jackson and Armin Rosencranz, "The Delhi Pollution Case: Can the Supreme Court Manage the
Environment?" (2003) 33 Environmental Policy and Law 88.
59 See Rajamani, "Public Interest Environmental Litigation in India" (n.42) p.320.
60 See Jackson and Rosencranz, "The Delhi Pollution Case" (n.58) p.91.
 Separation of Powers in India 371

III. The Higher Judiciary as Quasi-Legislature

Besides engaging in judicial policymaking, Indian judges have also played a

central role in the formation and development of law. In this section, we examine
cases which illustrate the higher judiciary's role in articulating norms and making
legal rules in response to social needs and welfare concerns. Indian judges have
been very active and creative in addressing what they see as the socioeconomic
needs of the Indian people. 6 ' In many instances, this has led them to bypass elected
representatives and frame legislation themselves.
The expansion of the judiciary's role in the legislative domain in recent years
may, at some level, be attributed to the litigiousness of the Indian people. Many
Indians have become sceptical of Parliament and view the institution as often
abdicating its governance function. Thus, they take their grievances to the courts.62
Courts have obliged by taking on several governance functions and issuing orders
which range from having taxis and buses switched to natural gas to regulating
encroachment on and preservation of public forests. 63
The judiciary may also feel compelled to intervene as a host of factors,
including partisan interests, a lack of will and resources, misplaced priorities and
bureaucratic sloth, often do not allow the government to move forward. In light of
the failure of representative institutions, High Courts, too, have taken on governance
functions similar to those of the Supreme Court in their respective jurisdictions,
thus expanding the reach of the higher judiciary.64
In Court on Its Own Motion v Union oflndia,65 a Division Bench of the Delhi
High Court took suo motu cognizance of newspaper reports relating to extreme
traffic congestion in Delhi, the alarming number of fatal road accidents and the
destruction of government property resulting from such accidents. 66 The Court
noted the fact that roads within the NCR were becoming increasingly unsafe and
hazardous. It stated that controlling traffic in Delhi was a matter of paramount
public safety and, hence, would fall within the ambit of the right to life under
art.21 of the Constitution. After considering several Supreme Court judgments
and directions issued with regard to road safety, the High Court issued 28 specific
directions to the appropriate authorities in the Delhi government.
A few of these orders are noteworthy for our purposes. For instance, the Court
banned smoking, tinted windows and the use of mobile phones while driving. The
Court also increased traffic fines, laid down strict guidelines for bus drivers and

61 See Baxi, "Taking Suffering Seriously" (a43) p.107.

62 See Robinson, "Expanding Judiciaries" (n21) p.12.
63 Lavanya Rajamani, "The Right to Environmental Protection in India: Many a Slip between the Cup and
the Lip?" (2007) 16 RECIEL 274, 276.
64 See Robinson, "Expanding Judiciaries" (a21) p.21.
65 (2007) 139 DLT 244.
66 Suo motu refers to the Court's jurisdiction to intervene on matters on its own authority without any party
filing a claim.
372 Journal of International and Comparative Law

issued directions for both heavy and light vehicles in the city.6 7 The Court's order
to hike traffic fines faced resistance from the government, which insisted that an
amendment to the Motor Vehicles Act 1988 was necessary in order to change the
fine. The Court skirted this objection and imposed a flat "compounding fee" to be
charged with every fine.68 In so doing, the Court arguably overstepped its role and
ventured into the legislative realm. While the Court responded to what it perceived
as a legitimate governance failure, it could have simply ordered the government to
amend the law, rather than usurping that role entirely.
In Jeet Singh Bisht v State of Uttar Pradesh,69 the High Court of Allahabad
noted the unsatisfactory functioning of Consumer Protection Forums at the district
and state level. 70 For instance, neither the district judges nor, indeed, any staff
had been appointed to the district level consumer protection forum, rendering
it ineffective.' The Court issued several orders directing the state government
to ensure the effective functioning of consumer courts. It began by addressing
whether the state had shown "inaction" and had not performed its duties under
the Consumer Protection Act 1986. It further noted that art. 14 of the Constitution
imposed a standard of reasonableness on the state in performing its administrative
duties.
The Court emphasised that the purpose of the Consumer Protection Act was
to ensure remedies for government negligence and to ensure that reasonable
compensation is granted to aggrieved parties. The Court also observed that the State
of Uttar Pradesh comprised dozens of districts and an extremely large population.
Furthermore, the purposes of the Act were to avoid lengthy and protracted civil
court procedures and to reduce costs, as parties need not pay court fees in consumer
protection forums. Taking these factors into consideration, the Court directed the
State Government to amend the Consumer Protection Act and to constitute at least
five state-level consumer forums. The Court even directed that retired High Court
judges would preside over consumer protection forums and would enjoy the same
benefits and amenities as sitting High Court judges.72
On appeal, a two-judge bench of the Supreme Court had contrasting
views on this matter.73 As to whether judges should determine the salary and
allowances of the members of district and state level consumer protection forums,

67 Court on Its Own Motion v Union ofIndia (a65), [55].

68 Ibid.
69 (1999) (1) AWC 22.
70 Consumer Protection Forums are established under the Consumer Protection Act 1986, which seeks to
provide a swift and simple redressal mechanism for consumer disputes relating to deficiencies in goods and
services. The Act creates quasi-judicial bodies at the district, state and central levels that are empowered
to provide consumers with relief and award compensation. Matters falling within the jurisdictions of
Consumer Disputes Redressal Fora (District Fora), Consumer Disputes Redressal Commissions (State
Commissions) and the National Consumer Disputes Redressal Commission (National Commission) are
specifically laid out in the Act.
71 Jeet Singh Bisht (a69), [12].
72 Ibid., [17].
73 (2007) 6 SCC 586, [20071 7 SCR 705.
 Separation of Powers in India 373

Justice Markandey Katju relied on the doctrine of separation of powers to argue

that the duty of determining such salaries fell squarely within the scope of the
government's powers. As he put it, "If a law clearly violates some provision of the
Constitution, it can be struck down, but otherwise it is not [the duty of] the Court to
sit in appeal over the wisdom of the Legislature, nor [is it the duty of the Court to]
amend the law." 74 The Court may feel that the law needs to be amended, or that the
consumer protection forums need to be made more effective, but it cannot take it
upon itself to amend the law and thereby take over legislative functions.
Justice SB Sinha, in a separate opinion, cited judgments from several
jurisdictions to suggest that the Court's jurisdiction was in fact expanding and that
it had an active role to play in governance. 75 According to Justice Sinha, "although
drafting of legislation and its implementation by and large are functions of the
legislature and the executive respectively, it is too late in the day to say that the
constitutional court's role in that behalf is non-existent. The judge-made law is now
well recognised throughout the world." 76 If the doctrine of separation of powers
was to be strictly interpreted, it would not have been possible for the apex court of
any country to create new rights through an interpretative process. 77 The traditional
role of the courts, Justice Sinha suggested, was to check governmental excesses and
violations. However, this minimal checks-and-balances role is no longer adequate. 78
According to Justice Sinha, in a world replete with socioeconomic rights, hybrid
administrative bodies and private representatives discharging public functions,
courts must execute their oversight function with more urgency and respond to
governmental inaction. 79
The contrasting opinions of Justices Markandey and Sinha display the tension
between a desire for judicial intervention prompted by governmental failure and
the traditional respect accorded to the separation of powers. It is worth noting that
the Supreme Court is a constitutional court and, under art. 142 of the Constitution,
it may "make such order as is necessary for doing complete justice in any cause or
matter pending before it"."o However, the discretion that the higher judiciary has
arrogated to itself in PIL cases, allowing judges to essentially tailor solutions to
problems, evolve policy where a vacuum exists and govern when they perceive a
governance deficit,8' has shifted the judiciary into a realm beyond its constitutional
mandate under art. 142.

74 Ibid., [47].
75 Ibid., [99].
76 Ibid., [77].
77 Ibid.
78 Ibid., [83].
79 Ibid.
80 Constitution of India 1950 art.142.
81 See Lavanya Rajamani, "Rights Based Climate Litigation in the Indian Courts: Potential, Prospects
& Potential Problems" (Center for Policy Research Climate Initiative, Working Paper 2013/1, 2013),
available at [Link]
LRajamaniClimate%20Litigation [Link] (visited 9 June 2018).
374 Journal of International and Comparative Law

An extreme example of this tendency is the case of TN Godavarmanv Union of

India,82 where the Supreme Court effectively took over the day-to-day governance
of Indian forests, which had far-reaching and undesirable social, ecological and
governance impacts.83 In TN Godavarman v Union of India, a writ petition was
filed before the Supreme Court under art.32 of the Constitution to protect the Nilgiri
Mountains from deforestation by illegal timber felling. One of the most significant
decisions, in this case, was to define a "forest" in the absence of a definition in
the Forest (Conservation) Act 1980 (FCA).8 4 The Court emphasised that the word
"forest" must be understood according to its dictionary meaning. The ordinary rule
of interpretation is that judges cannot introduce new meanings to an enactment that
conflict with clear legislative intent.85
However, in order to protect forests, the Court widened the definition of
"forest" which, in effect, expanded the protective framework of the FCA to all
forests, irrespective of the nature of its ownership or classification. Before the
Court's judgment, the term "forest" had not been specifically defined, and most
state governments applied the term only to "reserve forests" - forests that receive
the highest level of judicial and environmental protection. 86 The implication of
the Court's new and broader interpretation was that any forest, irrespective of
ownership, would be subject to s.2 of the FCA. If states wished to de-reserve
protected forests for commercial or industrial (non-forestry) purposes, they would
first have to obtain permission from the Central Government. 87
In the process of hearing over 800 interlocutory applications beginning in
1996, the Court took on the roles of policymaker, administrator and interpreter.8 8
Through various orders, it froze all wood-based industrial activity, reinforced the
scope of the embargo on the exploitation of forests, issued detailed directions for
the sustainable use of forests and created its own monitorng and implementation
machinery through regional and state level committees. 89 Thus, the Supreme Court
not only halted all forms of forest-related activity but also used this opportunity to
determine forest policy. The Court further directed that a High Power Committee
(HPC) be constituted to oversee the implementation of the orders and to guide the
Court in making further orders. The HPC was also empowered to permit the use

82 TN Godavarman v Union ofIndia (a 44).

83 Armin Rosencranz and Sharachchandra Lele, "Supreme Court and India's Forests" (2008) 43 Economic
and Political Weekly 11.
84 TN Godavarman Thirumulpadv Union ofIndia (1997) 2 SCC 267, [269].
85 PB Sahasranaman, Oxford Handbook ofEnvironmental Law (New Delhi, India: Oxford University Press,
2012) p.200.
86 See Divan and Rosencranz, EnvironmentalLaw and Policy in India (n.41) p.304.
87 Armin Rosencranz, Edward Boenig and Brinda Dutta, "The Godavarman Case: The Indian Supreme
Court's Breach of Constitutional Boundaries in Managing India's Forests" (2007) 37 Environmental Law
Reporter 10032, 10032-10033.
88 Ibid., p.10038.
2 94
89 See Divan and Rosencranz, EnvironmentalLaw and Policy in India (n.41) p.
.
 Separation of Powers in India 375

or sale of timber products if it was considered appropriate through the State Forest
Corporation.
Given the numerous environment-related laws and supervisory bodies that
are currently in place,90 environmental problems in India are not the result of
inadequate regulation. Nonetheless, in response to perceived - and sometimes
real - failures to effectively regulate the environment, the higher judiciary has
intervened by taking on regulatory functions. The Supreme Court further kept IN
Godavarman v Union of India open using the doctrine of continuing mandamus
and heard numerous matters related to the implementation of the FCA. More
than 100 interim orders have since been issued to consider recommendations of
the HPC, creating a parallel executive apparatus that was never envisaged by the
Constitution.
Even if the Court's intervention was warranted, its approach has not always been
effective. TN Godavarman v Union of India illustrates that judicial overreach not
only harms governance by undermining the role of the executive but also the content
of governance by producing flawed judgments: legal interpretations that are both
unsound and impracticable. 9 ' Armin Rosencranz and Sharachchandra Lele attribute
this tendency to several factors, including insufficient attention to detail in the rush to
produce "landmark" judgments, and the fact that judges cannot fully comprehend the
complexities of conditions and laws across such a diverse country.92
For instance, in Vellore Citizens Welfare Forum v Union oflndia,93 the Supreme
Court held that the principles of precaution and polluter pays in international
environmental law are part of the corpus of municipal law. According to the
Court, arts.21, 47, 48A and 5 1(g) of the Constitution, as well as India's plethora of
environmental statutes, were sufficient to make these principles binding in domestic
environmental law. In its analysis, the Court took an expansive interpretation of
fundamental rights and non-enforceable Directive Principles of State Policy but
did not review the specialised environmental statutes in any depth. 94 Lavanya
Rajamani notes that the constitutional provisions invoked by the Court require
environmental protection and improvement. Several environmental regulatory
instruments seek to further this mandate, but there is no specific reference to the

90 Articles 48A and 51A(g) of the Constitution of India direct the state and citizens of India, respectively, to
protect the environment, national forests, lakes, rivers and wildlife. See also The Forest (Conservation)
Act 1980 (prohibiting state governments from using forests for non-forestry purposes without prior
government approval); The Environment (Protection) Act 1986 (implementing environmental protection
measures discussed at the UN Conference on the Human Environment in Stockholm, 1972); The Water
(Prevention and Control of Pollution) Act 1974; The Air (Prevention and Control of Pollution) Act 1981.
91 See Rosencranz and Lele, "Supreme Court and India's Forests" (n.83) pp.11-14.
92 Ibid.
93 WP (Civil) No 914/1991.
94 Saptarishi Bandopadhyay, "Because the Cart Situates the House: Unrecognized Movements Underlying
the Indian Supreme Court's Internalization of International Environmental Law" (2010) 50 Indian Journal
of International Law 204.
376 Journal of International and Comparative Law

principles of precaution or prevention, and the Court has not identified any textual
basis either. 95 In fact, the Court simply noted the establishment of a "Pollution
Control Board" within certain statutes. It concluded that because these statutes
were meant to prevent pollution, they implicitly recognise precautionary and
preventive principles. 96 Hence, the Court asserted that these principles exist in
Indian law, though neither the Constitution nor the relevant statutes mention them.
It is important that the Indian judiciary is seen to be exercising its powers while
respecting the existing constitutional scheme, lest it be accused of the same excess
or arbitrariness in the executive or legislative sphere that it claims to be acting
against. It is clear from our analysis that the Court does not have the expertise to
frame policy in specific areas and should leave the lawmaking to legislators.

IV. Extreme Judicial Intervention: Is Dialogue Possible?

In this Part, we examine two recent cases in the Supreme Court in which PIL
jurisdiction was stretched to the maximum extent: one in which the Court acted
in a quasi-legislative capacity, and another in which it acted in a quasi-executive
capacity. We argue that the quasi-executive role is more amenable to dialogic
judicial review and detail how the higher judiciary in India might move towards a
more modest role in drawing public attention to government inaction or negligence,
rather than prescribing detailed solutions of its own.

A. Constitutional dialogue
Constitutional dialogue has become a popular theory of judicial review in
recent years. While originally developed in and applied to Western common law
jurisdictions, 97 Po Jen Yap has extended the theory to Hong Kong, Malaysia and
Singapore. 98 A dialogic approach to constitutional adjudication, as Yap explains,
is characterised by judicial decisions that do not "foreclose the constitutional
debate for the electorate and its representatives". 99 Rather, it recognises reasonable
disagreement on matters of constitutional interpretation in which legislative aims
can be "constructively modified . . but not impeded, by judicial input into the
law-making process".1oo In applying dialogic review, courts issue constitutional

95 See Rajamani, "The Right to Environmental Protection in India" (n.63) p.282.

96 Bandopadhyay, "Because the Cart Situates the House" (a 94) pp.22-23.
97 See Hogg and Bushell, "The Charter Dialogue between Courts and Legislatures" (n.20); Tom
Hickman, Public Law after the Human Rights Act (Oxford: Hart Publishing, 2010); RMW Masterman,
"Interpretations, Declarations and Dialogue: Rights Protection under the Human Rights Act and
Victorian Charter of Human Rights and Responsibilities" [2009] Public Law 112.
98 See Yap, ConstitutionalDialogue in Common Law Asia (n.20).
99 Ibid., p.2.
100 Ibid., p.3; Leighton McDonald, "New Directions in the Australian Bill of Rights Debate" (2004) Public
Law 22, 28.
 Separation of Powers in India 377

judgments that grant lawmakers sufficient space to harness the ordinary political
process to respond actively to those judgments, rather than issue judgments that
dictate the terms of legislative compliance.
As Yap argues, constitutional dialogue is normatively superior to the two
main alternatives: legislative supremacy and judicial supremacy. Legislative
supremacy - practised, to varying degrees, in Australia, New Zealand and the
United Kingdom - has the advantage of democratic legitimacy, since courts do
not prescribe constitutional meaning.' 0' However, this regime can be insufficiently
rights-protective, since legislators must answer to electoral majorities and may,
therefore, neglect the rights of minority groups. On the other hand, judicial
supremacy (in theory) provides superior rights protection 02 but runs up against the
classic counter-majoritarian difficulty: why should a few, unelected judges have the
final word on constitutional interpretation?1 03
Dialogic review envisions the legislature and judiciary working together to
resolve constitutional disputes in a way that capitalises on each of their institutional
strengths while avoiding some of their weaknesses. Yap argues that the central
justification for dialogic review is that legislatures may violate fundamental rights
unknowingly or negligently and courts can play a useful role in bringing those
0
violations to light.o' Rosalind Dixon has pointed out that "legislative blind spots"
occur when (1) elected representatives have too much on their agenda and fail to see
how individual laws might violate rights; (2) when they do not consider minority
perspectives; and (3) when they focus solely on their legislative aims and do not
make adequate accommodations for rights.05 All these blind spots can be mitigated
by the courts, who can force legislatures to deal better with rights protection.
By bringing such rights violations to light, but letting elected representatives
devise their own remedies, courts play a democracy-enhancing role and avoid
the counter-majoritarian difficulty. Indeed, this sort of dialogic role plays to the
courts' institutional strengths. David Law has argued that judicial review can best
be justified on democratic grounds - constitutional courts perform "monitoring,
signalling and coordination functions that facilitate the exercise of popular control
over the government". 06 Law contends that problems of coordination and collective
action pose a principal-agent problem in constitutional democracies, in which
the people (principal) may have trouble exercising control over the government
(agent). The courts, armed with legal expertise, provide the public with reliable

101 See Yap, ConstitutionalDialogue in Common Law Asia (a20) pp.8-16; Jeremy Waldron, "The Core of
the Case against Judicial Review" (2006) Yale LJ 1346.
102 Richard Fallon, "The Core of an Uneasy Casefor Judicial Review" (2008) 121 Harvard LR 1693.
103 Alexander Bickel, The Least DangerousBranch: The Supreme Court at the Bar ofPolitics (New Haven:
Yale University Press, 2nd ed., 1985) pp.16-19; see Yap, ConstitutionalDialogue in Common Law Asia
(n.20) pp. 16-21.
104 See Yap, ConstitutionalDialogue in Common Law Asia (n.20) pp.23-24.
105 Rosalind Dixon, "The Supreme Court of Canada, Charter Dialogue and Deference" (2009) 47 Osgoode
Hall LJ 235, 258-259.
106 David S Law, "A Theory of Judicial Power and Judicial Review" (2009) 97 Georgetown LJ 723, 730.
378 Journal of International and Comparative Law

information as to the constitutionality of government action (or inaction) and serve

as a forum to coordinate popular opposition to the government.1 07 While Law's
theory is not premised on constitutional dialogue, his principal insight - that courts
have democracy-enhancing institutional advantages vis-c-vis political branches
resonates with the dialogic approach to judicial review.
How would such an approach apply in the Indian context? India operates under
a regime of judicial supremacy, where the higher judiciary has the final word on
matters of constitutional interpretation. 0 8 As discussed in Sections II and III, the
Supreme Court and High Courts have taken this supremacy to extraordinary lengths,
acting in quasi-executive and quasi-legislative capacities in environmental and
socioeconomic rights' cases. Yet, even in this institutional context, constitutional
dialogue is possible.'09 As Yap points out, while dialogue is most commonly
discussed in jurisdictions employing weak-form judicial review,"o courts exercising
strong-form review,"' like the United States Supreme Court, have nonetheless
crafted doctrines to abstain from politically sensitive constitutional questions and
to produce minimalistic judgments that give the executive and legislative branches
"constitutional space to disagree".112
In India, too, there is some precedent for constitutional dialogue. Take,
for instance, the Supreme Court's landmark judgment in Vishaka v State of
Rajasthan."3 In that case, a three-judge bench heard a writ petition filed by several
social activists and NGOs to enforce the fundamental rights of working women.
While the immediate cause of the writ petition was the brutal gang rape of a social
worker in the state of Raj asthan, it alleged widespread violations of women's rights
to equality, non-discrimination and life, "' as well as the freedom to practise any
profession, occupation, trade or business."1
Justice Verma, writing for the Court, noted that there was no domestic
legislation addressing sexual harassment in the workplace. He also noted that

107 Ibid., pp.731-732.

108 But see Chintan Chandrachud, Balanced Constitutionalism:Courts and Legislatures in India and the
United Kingdom (New Delhi, India: Oxford University Press, 2017) p.58 (noting that Indian courts do
not always have the final word on matters of constitutional interpretation, as legislatures may respond to
judicial decisions by amending fundamental rights provisions or by invoking the Ninth Schedule of the
Constitution to make certain laws immune from judicial review).
109 Ibid., pp.12-13 (arguing that inter-branch dialogue between legislatures and courts occurs, inter alia,
when lawmakers enact legislation notwithstanding clear judicial authority to the contrary).
110 Mark Tushnet, Weak Courts, StrongRights: JudicialReview and Social Welfare Rights in Comparative
ConstitutionalLaw (Princeton: Princeton University Press, 2009) p. 2 3 (describing weak-form review
as providing "mechanisms for the people to respond to [judicial] decisions that they reasonably believe
mistaken that can be deployed more rapidly than the constitutional amendment or judicial appointment
process.").
111 Ibid., p.4 (explaining that strong-form review "insists that the courts' reasonable constitutional
interpretations prevail over the legislatures' reasonable ones.").
112 See Yap, ConstitutionalDialogue in Common Law Asia (a20) p.2.
113 (1997) 6 SCC 241.
114 Constitution of India 1950 arts.14, 15 and 21.
115 Ibid., art.19(1)(g).
 Separation of Powers in India 379

the Constitution provides that the "State shall endeavour to . . foster respect for
international law and treaty obligations."ll 6 International human rights treaties
most notably the Convention on Elimination of All Forms of Discrimination against
Women (CEDAW) prohibit gender discrimination, including sexual harassment
in the workplace." 7 Since India is a party to CEDAW, Justice Verma drew from the
Convention's language to formulate detailed sexual harassment guidelines to be
observed at all workplaces across India."'
This case may initially resemble those in which the Court exercised quasi-
legislative power. However, it has significant dialogical elements. First, Justice
Verma drew the guidelines from a well-established international human rights
instrument that the government had ratified. Second, and more importantly for
our purposes, he stated that the guidelines would only remain in force "until a
legislation is enacted" to address the concerns raised in the petition. Several years
later, Parliament enacted the Protection of Women from Domestic Violence Act.119
Thus, Indian legislators chose to engage in this constitutional dialogue, devising
their own statutory solution to some of the most pressing rights-based concerns the
Court identified in Vishaka v State ofRajasthan.

B. Mitigating extreme judicial intervention

However, Vishaka v State of Rajasthan is the exception rather than the norm in
the higher judiciary's fundamental rights and PIL jurisdiction. In most cases, the
Court acts even when statutes governing the relevant issue are in force, and does
not limit its orders as Justice Verma did. We argue that the separation of powers
tensions that arise from the judicial exercise of quasi-legislative and quasi-
executive powers in these cases can be mitigated if courts follow the Vishaka v
State ofRajasthan precedent and adopt a more dialogical approach. To illustrate
this, we will examine two recent Supreme Court cases that push the limits of PIL
jurisdiction - one in which the Court acts in a quasi-legislative capacity and
the other in which it acts as a quasi-executive. We conclude that while both are
problematic, the quasi-legislative role is particularly ill-suited to courts and poses
more serious separation of powers concerns.

(i) Re Networking ofRivers

One of the most controversial PIL cases in recent years was Re Networking of
Rivers. The Supreme Court had taken on a PIL using its suo motu authority to clean
up the Yamuna River after an article in the Hindustan Times drew attention to the

116 Ibid., art.51(c).

117 Convention on the Elimination of All Forms of Discrimination against Women art. 11, 1249 UNTS 13
(1979).
118 Jishakav State ofRajasthan (n.113), 251.
119 Protection of Women from Domestic Violence Act, No 43 of 2005.
380 Journal of International and Comparative Law

severity of the level of pollution in the river. The Court then appointed amicus
curiae to assist in its supervision of a 30 billion-rupee clean-up project.12 0 While
this case raises several procedural and judicial capacity-related concerns, it is
relevant for our purposes because of how it developed thereafter. 2

'
In 2002, the amicus curiae drew the Court's attention to a speech by the President
of India, who discussed the importance of linking the country's rivers so as to reduce
the risk of droughts in some regions and floods in others. The Court decided to act
on this information by instituting a separate PIL which it named "Re Networking
ofRivers".122 The Court then issued a notice to all the states, union territories and
central government soliciting their views on whether the country's rivers should be
interlinked. Only the central government and Tamil Nadu responded (with neither
objecting), leading the Court to issue an order in 2004 declaring that a "consensus"
existed among all these governments that this project should proceed.12 3
In its submission, the central government averred that it had been "studying
and planning for interlinking rivers for over two decades" and would institute a
"High Level Task Force" to work with the states to formulate a plan.' 24 Tamil Nadu
expressed its support for this course of action and submitted a 2000 report from
the National Water Development Agency, detailing projects to interlink rivers by
2043. The Court expressed its dismay at this timeline, noting that "it was difficult
to appreciate that in this country with all the resources available to it, there will be a
further delay of 43 years for the completion of the project to which no State has any
objection."'25 Explaining its limited constitutional role, the Court concluded that it
could not issue "any direction to Parliament to legislate", but that it was advised
by the Attorney General that the government would consider bringing appropriate
legislation on this matter.12 6
Eight years later, in 2012, the Court issued its final judgment in this case. By
this point, a High Level Task Force and the Court itself had already been monitoring
the progress on the interlinking rivers project through submissions from various
civil society organisations and status reports from state and central governments.' 27
After reviewing detailed submissions from all these parties, the Court found
that interlinking rivers was in the national interest but criticised the central and
state governments for their lack of "desire" to implement any of the proposed
projects. 2 8 No legislation on this matter had been passed. Moreover, only 10 states

120 See Bhuwania, Courting the People (n.45) p.43.

121 Ibid., pp.43-44.
122 Re Networking ofRivers (2012) 4 SCC 78 (order dated 16 September 2002).
123 Re Networking ofRivers (2004) 11 SCC 360, 361.
124 Ibid., 361.
125 Ibid., 362.
126 Ibid., 363.
127 Re Networking ofRivers (2012) 4 SCC 51, 58, [2012] 1 SCR 1118.
128 Ibid., 62.
 Separation of Powers in India 381

had submitted status reports, and the Court noted that "no minor or major project
has actually been implemented at the ground level", despite the case having been
pending for more than a decade.' 29
The Court then concluded by "realising its own limitations"; specifically, that
it "may not be a very appropriate forum" for the planning and implementation of
such a vast and complex project.'30 As a result, it finally ended the litigation with
a series of directions. Ironically, however, the directions do not indicate that the
Court had any real sense of its limited role. It directed the central government
to constitute a "Special Committee for Interlinking of Rivers" and specified the
officials and experts who should serve on that committee. It also prescribed the
procedures of that committee - how often it should meet, that it should submit
a biannual report to the Cabinet, etc and empowered the amicus curiae to file
contempt petitions with the Court "in the event of default or non-compliance"
with these directions.131
These orders are emblematic of the quasi-legislative authority that the higher
judiciary has assumed for itself The Court, in this case, has been rightly criticised
for overstepping its institutional role and creating new structures -like the Special
Committee - that undermine existing government mechanisms as well as add
unnecessary costs and bureaucracy to an already dysfunctional process.1 32 This is
not to mention the unorthodox and procedurally problematic manner in which the
Court took the case in the first place.1 33
While the Court should not have intervened at all on such a complex and
long-term infrastructural project, it could have lessened some of the separation
of powers concerns by asking the central government to nominate an existing
agency, or to create a supervisory body of its own, following consultations with
the states. This agency or body would have its own procedures and rules, not those
dictated by the Court. Since non-compliance and delay were legitimate concerns
in this case, the Court could have set deadlines by which this task would be
completed, and appropriate legislation on interlinking rivers would be enacted.
The Court could also have used its continuing mandamus authority to keep the
case open, not to issue additional specific directions, but to highlight legislative
blind spots down the line and to keep the public informed of governmental
progress or lack thereof 134

129 Ibid.
130 Ibid., 72.
131 Ibid., 73-74.
132 VidehUpadhyay, "Judicial Control of Policy Making, and Implementation: Interlinking Rivers" (2012)
47(13) Economic and Political Weekly 10; Ramaswamy Jyer, "River Linking Project: A Disquieting
Judgment" (2012) 47(14) Economic and Political Weekly 33.
133 See Bhuwania, Courting the People (n.45) p.44 (referring to this case as the "reductio ad absurdum" of
the legal process in India).
134 See Dixon, "The Supreme Court of Canada, Charter Dialogue and Deference" (a 105); Law, "A Theory
of Judicial Power and Judicial Review" (n.106).
382 Journal of International and Comparative Law

(ii) SwarajAbhiyan v Union of India

In Swaraj Abhiyan v Union of India,'35 an NGO filed a writ petition before the
Supreme Court under art.32 of the Constitution in response to a drought affecting
12 Indian states. While nine of these states officially declared that there was a
drought in some of their districts, three states - Bihar, Gujarat and Haryana

-
did not do so. The petitioner asked the Court, among other things, to direct those
states to declare a drought and to provide "essential relief and compensation" to
affected communities.1 3 6 It also requested directions to the central government and
the impugned states to enforce existing legislation that would provide employment,
payments and food grains to those harmed by the drought.1 37
Before proceeding to the merits, the Court, led by Justice Lokur, explained
the scope and nature of PIL. It said that PIL "presents the Court with an issue-
based problem concerning society and solutions need to be found within the legal
framework".1 38 It added that sometimes, "the cause of the problem is bureaucratic
inactivity and apathy", while in other instances the cause is "executive excesses"
or the "ostrich-like reaction of the executive". 139 This is a very broad and revealing
statement of quasi-executive judicial authority. On this account, PIL is not tethered
to fundamental rights protection; rather, the Court devises solutions to societal
problems in general. Moreover, the Court seems to view as legitimate any judicial
intervention to check either an overbearing or underperforming executive. Perhaps
anticipating criticism, the Court went on to say that its actions are "often pejoratively
and unfortunately described as judicial activism".1 40 But Justice Lokur dismissed
these concerns, noting that "those who benefit from judicial activism shower praise
and those who are at the receiving end criticise it. C'est la vie!" 4
'

To be sure, the role adopted by the Court, in this case, does not trigger the same
degree of separation of powers concerns as Re Networking ofRivers. It accepted the
case through regular procedures - a writ petition filed under art.32 - rather than
initiating a PIL under its suo motu authority. And it mostly did not seek to legislate in
this case; rather, it operated within the legal framework to enforce existing statutes.
For instance, the Court noted that s.44 of the Disaster Management Act 2005
requires the central government to constitute a "National Disaster Response Force
with its own regular specialist cadre".1 42 Since no such force had been constituted,
the Court directed the government to do so within six months.
In subsequent orders, the Court focused on the implementation of the National
Food Security Act 2013 (NFSA) and the Mahatma Gandhi National Rural

135 (2016)7 SCC 498.

136 Ibid., 508.
137 Ibid.
138 Ibid., 510.
139 Ibid.
140 Ibid.
141 Ibid., 511 (emphasis in original).
142 Ibid., 531.
 Separation of Powers in India 383

Employment Guarantee Act 2005 (MGNREGA) within drought-affected areas. On

the NFSA, the Court noted that many states had not implemented some of its key
provisions. It ordered all states named in the petition to establish internal grievance
mechanisms within one month and state food commissions within two months of
the order. It also required Bihar, Uttar Pradesh and Haryana to provide adequate
eggs, milk and other nutritional substitutes to children under the Mid-Day Meal
Scheme.14
As to the MGNREGA, the Court directed both the central and state
governments to ensure that workers, particularly farmers in affected rural areas,
would be compensated under the terms of the Act, as fewer than 50 per cent of
eligible recipients were receiving funds. It ordered the state governments to present
a realistic budget" and the central government to release "adequate funds" to the
states in a timely manner so that workers could be paid on time."' The central
government was also directed to provide compensation to workers whose payments
were delayed beyond 15 days, to constitute a Central Employment Guarantee
Council, and to "request the State Governments to establish the State Employment
Guarantee Council" within 45 days."'
In focusing on the implementation of existing statutory obligations, rather than
the content of the rights involved or what the state might be required to do in the
abstract, the Supreme Court in SwarajAblyan v Union ofIndia conforms to what
Madhav Khosla has termed the "conditional approach" to socioeconomic rights
adjudication.' 4 6 The Court did not rule that the rights to food and work were violated
per se; rather, it held the government accountable for instituting legislative schemes
to provide food grains and rural employment to the poor and not fully realising
them. By bringing these government failures to light, the Court did not overstep
its institutional role - to the contrary, it acted in a democracy-enhancing manner
by conveying important information to the public and continuing to monitor the
government."' At the end of its judgment, Justice Lokur stressed the importance
of the Court's continuous mandamus jurisdiction, calling it "an integral part of
our constitutional jurisprudence". 48 It ruled that the case would be kept open "to
monitor the implementation of its orders and . . monitor investigations into alleged
offences" when the government "stonewall[s]".1 49
However, certain aspects of the Swaraj Ablyan v Union of India judgment
and orders remain problematic from a separation of powers perspective. First, the
Court is dismissive, almost sarcastic, in its treatment of federalism. In describing

143 Ibid., 543.

144 Ibid., 558.
145 Ibid., 558.
146 Madhav Khosla, "Making Social Rights Conditional: Lessons from India" (2010) International Journal
of Constitutional Law 739, 742.
147 See Law, "A Theory of Judicial Powers and Judicial Review" (a 106).
148 SwarajAbhiyan v Union ofIndia (a 135), 564.
149 Ibid.
384 Journal of International and Comparative Law

the unwillingness of certain states to declare a drought, Justice Lokur expressed the
following view on central-state relations:

"To compound the problem, the [central government] . . has introduced

the concept of 'federalism' and canvasses the view that a disaster requires
. . primarily financial assistance and any other assistance if it is sought
by the State Government . . Surely, if a State Government maintains an
ostrich-like attitude, a disaster requires a far more proactive and nuanced
response from the Union of India . . where does the buck stop?" 5 0

The suggestion that federalism, which is an integral part of the constitutional

structure,' 5 ' should be cast aside in the service of other constitutional goals is
troubling. Justice Lokur later provided a more qualified analysis on this point,
stating that while the central government must maintain "a delicate and fine balance
between federalism and constitutionality . . it is ultimately the common person
who will suffer" if nothing is done to recognise and remedy the drought situation.1 52
While the concern for drought-affected citizens is admirable, the Court's desire
to problem-solve in this case led it to minimise the importance of structural
constitutional principles.
Second, the Court, in this case, makes determinations about state capacity
that are beyond its ken. For instance, when ordering the impugned states of
Bihar, Haryana and Uttar Pradesh to deliver eggs and milk to all children in need,
Justice Lokur made clear that "financial constraints shall not be an excuse for not
complying with this direction". 15 He added, "It is a sad commentary that we should
have to say this but need to in the interest of the children of our country."' 54 Again,
the concern for vulnerable communities is laudable, but it may well be the case
that these states have budgetary constraints that prevent the immediate delivery of
these services.

V. Conclusion

This article has sought to describe the separation of powers tensions that arise
from the higher judiciary's PIL jurisdiction. It distinguished between cases in
which courts exercise quasi-executive and quasi-legislative authority and provided
detailed examples of both. Normatively, the quasi-executive exercise of judicial

150 Ibid., 507.

151 Sudhir Krishnaswamy, Democracy and Constitutionalismin India (New Delhi, India: Oxford University
Press, 2009) (noting that federalism is part of the unamendable core (basic structure) of the Indian
Constitution) pp.160-161.
152 SwarajAbhiyan v Union ofIndia (a 135), 532.
153 Ibid., 543.
154 Ibid
 Separation of Powers in India 385

power is less problematic. Courts are institutionally better suited to information

gathering and dissemination, as well as monitoring roles. In the socioeconomic
and environmental protection cases on which we focused, the higher judiciary
effectively pointed out governance failures and gaps in legislative regimes. It
also usefully set timelines and long-term completion goals for both the state and
central governments and engaged in a dialogic exchange with government officials
through continuing mandamus. Courts went wrong in the quasi-executive context
when they ventured beyond their institutional capacity and expertise to formulate
specific rules and policies - much as they did in the quasi-legislative context.
Specific orders on policy matters often failed to appreciate budgetary and regulatory
hurdles, and in some cases, introduced additional burdens on the state in the form
of ad-hoc commissions and other oversight mechanisms.
Overall, the Supreme Court and High Courts in India should remain true to
their institutional strengths of publicising implementation failures and monitoring
government compliance. They should leave specific solutions to the state and
central governments, respect the federalism principles that divide authority among
them and recognise their limitations with respect to financial and resource-based
policy determinations. If they can achieve this fine balance, separation of powers
in India, though unconventional, can remain intact, and democratic governance
can be enhanced by careful judicial supervision where the judiciary engages in
constitutional dialogue with the other branches of government.