Separation of Powers in India (Judiciary vs Legislature)

Vice President Jagdeep Dhankhar recently criticised the Supreme Court for setting timelines for the President to grant assent to bills and described the Court’s use of Article 142 as a “nuclear missile against democratic forces.” These remarks revive the foundational debate on the doctrine of separation of powers enshrined in the Indian Constitution.

Legislature’s Perspective:

• Legislative Sovereignty: Parliament is the primary law-making body in a representative democracy. It derives its legitimacy from the people. The Vice President’s concerns reflect fears that judicial actions are intruding into the legislative domain, affecting democratic processes.
• Presidential Discretion and Executive Primacy: The legislature, through the Council of Ministers, advises the President. Article 74(1) mandates the President to act on this advice. Imposing judicial timelines on the President could be viewed as a restriction on executive functioning and an erosion of constitutional conventions.
• Accountability vs Overreach: Elected representatives are directly accountable to the people through elections. If judges dictate legislative or executive timelines, it can shift the balance of accountability. The legislature fears it will be answerable for decisions not entirely under its control.

Judiciary’s Perspective:

• Interpretation vs Legislation: While the judiciary cannot legislate, it has the power to interpret and enforce constitutional norms. In the Tamil Nadu case, it held that indefinite withholding of assent to bills violates the spirit of the Constitution — thus, it acted within its interpretative role.
• Use of Article 142: Article 142 empowers the Supreme Court to deliver justice where the letter of the law is silent or insufficient. In the absence of a fixed time limit for gubernatorial assent, the Court filled the constitutional vacuum to uphold federalism and legislative supremacy of elected assemblies.
• Judicial Independence: The judiciary’s role is to act as a check on potential executive or legislative excesses. It invokes constitutional morality to prevent misuse of authority, such as arbitrary delay in bill assent, which may undermine democratic processes in states ruled by opposition parties.

What is the ‘Core Issue’ (Inaction as Constitutional Evasion)?

• Constitutional Silence ? Inaction License: Articles 200 and 201 do not prescribe a timeline for the Governor or President to act on bills. However, indefinite silence effectively amounts to a pocket veto, violating democratic and federal principles.
• Federal Structure and Political Abuse: When a centrally appointed Governor stalls state bills, especially in opposition-ruled states, it raises serious questions on the misuse of constitutional positions. Judicial intervention seeks to protect states’ autonomy and the “will of the people.”
• Invisibility of Inaction: Unlike active decisions, delays leave no paper trail and are harder to challenge. Courts stepping in to counter inaction is not overreach but a constitutional necessity to prevent paralysis of democratic governance.