The intervention of Judiciary in the Role of Executive: Addressing the Legitimate Needs of Society
Author: Gagneet Singh*
The basic principle underlying behind the concept of Horizontal Separation of Powers is that the powers should not be absolutely vested in a single organ of government. The three organs of government such as Legislature, Judiciary, and Executive should function independently beyond exceeding their limits and powers and should accordingly function in accordance with the provisions of the Indian Constitution. The executive is not able to properly execute the work allocated to it and the Judiciary is interfering with the works of the executive when Public Interest Litigation is filed before it. Independence of Judiciary has become a highlighted issue with regard to the interference of Executive in the matter of appointment of Judges but at the same point of time, Judiciary has a good stand under article 50 of the Indian Constitution which calls for “Separation of Judiciary from Executive”. A question arises that when Article 50 of Indian Constitution talks about the separation of Judiciary from the executive and also the Judiciary is defending itself from the interference of the executive in the appointment of judges by terming independence of Judiciary as a basic structure, then how judiciary is entitled to interfere in the domain of executive. The Judiciary is interfering in the domain of executive as Article 142, Article 32 and Article 226 of Indian Constitution empowers the judiciary to pass any order in the public interest to do complete Justice, Therefore; the Judiciary has addressed the needs of society through the concept of Public Interest Litigation whenever the executive has failed to perform its functions. For the economic and social development of a country, strict adherence to the rule of separation of powers should not be exercised. Interference of one organ of government into the other may be important at times to address the needs of the society.
The concept of public interest litigation has been taken from American jurisprudence and was considered for the first time in India through Mumbai Kamgar Case and Justice P. N. Bhagwati further gave an edge to the concept of Public Interest Litigation in Indian Judicial system. Public interest litigation was intentionally brought up as the executive at many times failed to address the underprivileged groups of society. The Indian PIL experience also shows us that it is critical to ensure that PIL does not become a facade to fulfill private interests, settle political scores or gain easy publicity. Judiciary in a democracy should also not use PIL as a device to run the country on a day-to-day basis or enter the legitimate domain of the executive and legislature.
“PIL is a weapon which must be used with great care and circumspection; the courts need to keep in view that under the guise of redressing a public grievance PIL does not encroach upon the sphere reserved by the Constitution to the executive and the legislature”
1. Regulating Khap Panchayats in the State of Haryana
More than 300 cases have been registered with regard to honour killings in the last three years. 28 cases were registered in the year 2014, 251 cases were registered in the year 2015 and 77 cases were registered in the year 2016. The police administration, district magistrate and superintendent of Police especially in the state of Punjab and Haryana have failed to prosecute the persons accused of committing the crime of honour killing for which a petition was filed before the Hon’ble Supreme Court in Shakti Vahini v. Union of India, wherein the Court issued certain guidelines to curb the menace of Honour Killings. Subsequently, in the month of March 2019, another Public Interest Litigation was filed before the Telangana High court by a social activist named Sexagenarian U. Sambashiva Rao requesting the high court to ensure that the guidelines issued by the Supreme Court in Shakti Vahini case are followed properly. He also submitted before High Court to declare the alleged failure of the police to contain honour killings as illegal and arbitrary, the petitioner said the police failed to conduct a fair and effective investigation in such cases. Such incidents prove how the executive fails to work even after the intervention of the Judiciary.
2. Prohibition of Smoking in Public Places
Prior to 2001, the executive’s bodies or individuals were not concerned about the victims of air pollution and there was no remedy against it and when there was no legislation governing the prohibition of smoking in Public Places, the Supreme Court through the PIL filed before it in Murli S. Deora vs Union Of India, held that it is the fundamental right of a citizen under Article 21 of Indian Constitution that there is no reason to compel non-smokers to be helpless victims of air pollution.
The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003 regulates the smoking in public places such as public officials, health institutions, hospital buildings, railways, libraries, etc. Section 4 of this act states that “No person shall smoke in any public place: Provided that in a hotel having thirty rooms or a restaurant having a seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made”
The executive bodies such as Inspectors of Central Excise / Income tax/ Customs/ Sales Tax/Health/Transport and above, Director/ Medical Superintendent/ Hospital Administrator, College / School/Headmaster Principal/Teacher, Officers of State Food & Drug Administration not below the rank of Sub-Inspector of Police and various others mentioned in Schedule 3 of The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003 are not concerned about the victims of Air Pollution even after legislation is in force. The executives even after legislation being in force are not catering to the needs of Society wherein the involvement of Judiciary is required to protect the fundamental right of a citizen.
3. Environmental Issues
3.1 Ban on sale and registration of Pollution causing BS-3 Compliant Vehicles
The Ministry of Road Transport and Highways was not concerned about the vehicles which were causing pollution and was supposed to refuse the registration of those vehicles causing pollution which didn’t do so. Subsequently, a PIL was filed before the Supreme Court by M.C Mehta, an environmental activist wherein the judiciary had to address the pertinent issue brought before it. The Supreme Court in M.C.Mehta v. UOI held that the health of the public is more important than the commercial interest of Manufacturers. So, as the executive authorities were not concerned about the health of citizens and the Judiciary interfered in the role of executive to protect the right to health of a citizen.
3.2 Executive bodies failing to maintain the cleanliness of River Ganga and Yamuna
In Mohd. Salim v. State of Uttarakhand and Ors, The Nainital High Court recognized Ganga and Yamuna River as a living entity with its own rights and values which are now given the legal status as that of a legal/Juristic Person.
4. Vacating Government Bungalows after the Tenure Period of Being a Chief Minister
In Lok Prahari v. The State of Uttar Pradesh and Ors , A petition was filed before the Supreme Court that the ex-chief minister after his tenure of being a CM is not entitled to reside in government bungalows. The Supreme Court held that the newly formed rules i.e., Ex-Chief Ministers residence allotment rules, 1997 are in contravention to the provisions of Uttar Pradesh ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 as the said rules are administrative in nature and are framed by the executives for their own purpose. So, the intervention of the judiciary was important to restrict the executive from exceeding their limits.
5. Prison Issues
Prisons in India are already filled with 2.5 Lakh prisoners within the capacity of 1.5 Lakh prisoners. The executive bodies such as the head of Prisons, Superintendent of Police, and Director General of Prisons were not concerned about the natural death in Prisons. In Re-inhuman Conditions in 1382 Prisons, the two benches of Supreme Court gave a landmark direction on prison reforms by taking data from the National Crime Records Bureau on un-natural deaths in Prisons.
6. Concerns Regarding Police Authorities
6.1 Failure to File Charge Sheet within a Statutory Period of 60 Days under Section 167 of Code of Criminal Procedure, 1973
The police authorities i.e., the executive were filing charge sheet even after the statutory period of 60 days or 90 days. Then the Supreme Court being concerned about the rights of accused in Rakesh kumar Paul v. State of Assam, held that the accused is entitled to default bail if the police fails to file charge sheet within a statutory period of 60 days or 90 days.
6.2 Online Uploading Of First Information Report on Official Websites of Police Station
Whenever an individual being an aggrieved approached before the concerned police station for registering First Information Report, the police authorities were habitual of convincing the aggrieved or by just writing their complaint in their normal dairy thereby gave fake assurance of having registered their First Information Report. Therefore, in Youth Bar Association of India v. Union of India, it was held by the Supreme Court that whenever a FIR is registered by the police, it must be uploaded on the website of the concerned police station.
6.3 Registration of First Information Report Made Mandatory
The police authorities often used to refuse the registration of FIR even after a valid case for which the judiciary intervened. In Lalita Kumari v Govt. of U.P. and Ors, The Supreme Court held that the registration of FIR cannot be denied and is mandatory if the facts substantiate a valid case. Under Section 154 of CRPC, the word “shall” is mentioned and not “may” thereby making it mandatory for the police to register FIR.
7. Supreme Court Guidelines to Prevent Fake Encounters by Police
In People’s Union for Civil Liberties v. Union of India and Ors, The Supreme court gave guidelines as to investigations into any police killings with guns that must be undertaken by experienced state CID or another police station, and magistrate and state Human Rights Commission or the National Human Rights Commission must be alerted.
8. Arrest Guidelines
One of the major drawbacks in the arrest guidelines was that the police arrested the accused without informing the near relatives, friends or family members of the accused. The members of the family would search for the accused as not being aware of his or her arrest. So, in D.K. Basu v. State of West Bengal, the court gave specific guidelines as a mandatory duty for the police to notify the time, place of arrest and venue of Custody to the family member, next friend or relative of the arrestee. This guideline was given by the judiciary to the executive as no legal provision existed at that time. In the year 2005, the said guidelines were added as a statutory provision under article 50 Clause A of Code of Criminal Procedure, 1973.
It is no doubt that the Judiciary being the final interpreter of the Indian Constitution has strived hard to protect the rights of the citizens either taking suo moto cognizance by establishing a committee, drafting reports as to issue guidelines to prevent societal crimes or through the Writs, Public Interest Litigation filed before it. The directive principles of state policy are non-justiciable but at the same point in time, it’s important for the citizens to abide by the directive principles. The executive has failed to uphold the spirit of directive principles and therefore, the Judiciary has many times converted directive principles into fundamental rights through its decisions which have been wrongly conceived as an interference of the Judiciary in the works of the executive. Separation of Powers in the Indian Constitution is not strictly followed in India as the Judiciary needs to interfere in the works of the executive for addressing the legitimate needs of society.
 Surya Deva, Public Interest Litigation in India: A Critical Review, Issue 1 CJQ (2009)
 Avani Mehta Sood, Gender Justice through Public Interest Litigation: Case Studies from India, 41Vand. J. Transnat’l L. 833, 847-850 (2008)
 Honour Killings: More than 300 cases in last three years, T.O.I, September 22, 2018
 Shakti Vahini v. Union of India, A.I.R. 2018 SC 1601
 Marri Ramu, PIL filed for SIT to probe ‘Honour Killings’ in Telangana, The Hindu, March 26, 2019
 Murli S. Deora v. Union of India, A.I.R. 2002 SC 40
 The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003,No. 34, Acts of Parliament, 2003 (India)
 M.C. Mehta v. Union of India, A.I.R. 2018 SC 5194
 Mohd. Salim v. State of Uttarakhand and Ors, 2017 (2) RCR (Civil) 636
 Lok Prahari v. The State of Uttar Pradesh and Ors, A.I.R. 2018 SC 2209
 Re-inhuman Conditions in 1382 Prisons, 2019 (1) ALL MR 493
 Rakesh kumar Paul v. State of Assam, A.I.R. 2017 SC 3948
 Youth Bar Association of India v. Union of India, A.I.R. 2016 SC 4136
 Lalita Kumari v Govt. of U.P. and Ors, A.I.R. 2014 SC 187
 People’s Union for Civil Liberties v. Union of India and Ors, JT 1995(3) SC 365
 D.K. Basu v. State of West Bengal, A.I.R. 1997 SC 610