The doctrine of separation of powers implies that each pillar of democracy – the executive, legislature and the judiciary – perform separate functions and act as separate entities.  The executive is vested with the power to make policy decisions and implement laws.  The legislature is empowered to issue enactments.  The judiciary is responsible for adjudicating disputes.  The doctrine is a part of the basic structure of the Indian Constitution[1] even though it is not specifically mentioned in its text.  Thus, no law may be passed and no amendment may be made to the Constitution deviating from the doctrine.  Different agencies impose checks and balances upon each other but may not transgress upon each other’s functions.  Thus, the judiciary exercises judicial review over executive and legislative action, and the legislature reviews the functioning of the executive. There have been some cases where the courts have issued laws and policy related orders through their judgements.  These include the Vishakha case where guidelines on sexual harassment were issued by the Supreme Court, the order of the Court directing the Centre to distribute food grains (2010) and the appointment of the Special Investigation Team to replace the High Level Committee established by the Centre for investigating black money deposits in Swiss Banks. In 1983 when Justice Bhagwati introduced public interest litigation in India, Justice Pathak in the same judgement warned against the “temptation of crossing into territory which properly pertains to the Legislature or to the Executive Government”[2].  Justice Katju in 2007 noted that, “Courts cannot create rights where none exist nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles. With a view to see that judicial activism does not become judicial adventurism the courts must act with caution and proper restraint. It needs to be remembered that courts cannot run the government. The judiciary should act only as an alarm bell; it should ensure that the executive has become alive to perform its duties.” [3] While there has been some discussion on the issue of activism by the judiciary, it must be noted that there are also instances of the legislature using its law making powers to reverse the outcome of some  judgements.  (M.J. Antony has referred to a few in his article in the Business Standard here.)  We discuss below some recent instances of the legislature overturning judicial pronouncements by passing laws with retrospective effect. On September 7, 2011 the Parliament passed the Customs Amendment and Validation Bill, 2011 which retrospectively validates all duties imposed and actions taken by certain customs officials who were not authorized under the Customs Act to do the stated acts.  Some of the duties imposed were in fact challenged before the Supreme Court in Commissioner of Customs vs. Sayed Ali in 2011[4].  The Supreme Court struck down the levy of duties since these were imposed by unauthorised officials.  By passing the Customs Bill, 2011 the Parliament circumvented the judgement and amended the Act to authorize certain officials to levy duties retrospectively, even those that had been held to be illegal by the SC. Another instance of the legislature overriding the decision of the Supreme Court was seen in the Essential Commodities (Amendment) Ordinance, 2009 which was passed into an Act.  The Supreme Court had ruled that the price at which the Centre shall buy sugar from the mill shall include the statutory minimum price (SMP) and an additional amount of profits that the mills share with farmers.[5] The Amendment allowed the Centre to pay a fair and remunerative price (FRP) instead of the SMP.  It also did away with the requirement to pay the additional amount.  The amendment applied to all transactions for purchase of sugar by the Centre since 1974.  In effect, the amendment overruled the Court decision. The executive tried to sidestep the Apex Court decision through the Enemy Property (Amendment and Validation) Ordinance, 2010.  The Court had issued a writ to the Custodian of Enemy Property to return possession of certain properties to the legal heir of the owner.   Subsequently the Executive issued an Ordinance under which all properties that were divested from the Custodian in favour of legal heirs by a Court order were reverted to him.  The Ordinance lapsed and a Bill was introduced in the Parliament.  The Bill is currently being examined by the Parliamentary Standing Committee on Home Affairs. These examples highlight some instances where the legislature has acted to reverse judicial pronouncements.  The judiciary has also acted in several instances in the grey areas separating its role from that of the executive and the legislature.  The doctrine of separation of powers is not codified in the Indian constitution.  Indeed, it may be difficult to draw a strict line demarcating the separation.  However, it may be necessary for each pillar of the State to evolve a healthy convention that respects the domain of the others.  


[1] Keshavananda Bharti vs. State of Kerala  AIR 1973 SC 1461

[2] Bandhua Mukti Morcha  AIR 1984 SC 802

[3] Aravali Golf Club vs. Chander Hass  (2008) 1 SCC (L&S) 289

[4] Supreme Court in Commissioner of Customs vs. Sayed Ali (2011) 3 SCC 537

[5] Mahalakshmi Mills vs. Union of India (2009) 16 SCC 569

By Rohit and Jhalak Some Rajya Sabha seats will be contested over the next year.  The Presidential elections are also scheduled to be held in 2012.  The recent assembly elections has implications for both these elections.  The Presidential elections will depend on the strenght in the assemblies, in Lok Sabha and in Rajya Sabha (which could change over the next year).  Implications for Rajya Sabha Elections The composition of Rajya Sabha may undergo some changes.  A total of 12 Rajya Sabha seats are up for election in 2011.  This includes 6 seats from West Bengal, 3 from Gujarat and 1 each from Maharashtra, Tamil Nadu and Goa.  Another 65 seats, across 18 states, go for elections in early 2012.  The largest chunk of these seats comes from UP(10), followed by Andhra Pradesh(6), Bihar(6) and Maharashtra(6). Since Rajya Sabha members are elected by the elected members of the Legislative Assembly of the State, a change in the composition of the assembly can affect the election outcome.  We used the current assembly compositions to work out scenarios for Rajya Sabha in 2011 and 2012.  There could be alliances between parties for the Rajya Sabha elections, so we have estimated a range for each grouping (Scenario I and II) for 2012.  See Notes [1] and [2]. 

Parties/ Coalitions 2010 Scenario 2011 Scenario 2012
      I II
UPA 89 94 95 97
NDA 65 65 67 66
Left 22 19 14 14
BSP 18 18 19 19
SP 5 5 6 6
AIADMK 4 5 5 5
BJD 6 6 5 5
Other parties 18 18 20 19
Independent 6 6 5 5
Nominated 8 9 9 9
Total 241 245 245 245

Implications for the election of the President The President is elected in accordance with the provisions of Article 54 and 55 of the Constitution.  The electorate consists of the elected members of Lok Sabha, Rajya Sabha and all Legislative Assemblies.  Each MP/ MLA's vote has a pre-determined value based on the population they represent.  The election is held in accordance with the system of proportional representation by means of a single transferable vote.  The winning candidate must secure at least 50% of the total value of votes polled. (For details, refer to this Election Commission document).  There is no change in the Lok Sabha composition (unless there are bye-elections). Position in Legislative Assemblies After the recent round of assembly elections, the all-India MLA count adds up to:

UPA 1613
NDA 1106
Left 205
BSP 246
AIADMK 155
BJD 103
SP 95
Others 597

The above numbers can now be used to estimate the value of votes polled by each coalition. See Note [3]:

Value of votes cast Scenario - 1 Scenario - 2
UPA 439,437 440,853
NDA 307,737 307,029
Left 51,646 51,646
BSP 77,243 77,243
SP 38,531 38,531
AIADMK 36,392 36,392
BJD 28,799 28,799
Others 119,097 118,389
Total 1,098,882 1,098,882
Min. to be elected 549,442 549,442

The UPA has the highest value of votes polled but the figure is not sufficient to get its candidate elected.  Assuming that there are at most three candidates with significant support (UPA, NDA, and Left/Third Front), the winner will be the one who manages to bridge the gap with second preference votes.  On this factor, the UPA backed candidate is likely to hold the edge over others.  Notes: [1] At present, there are four vacant seats in Rajya Sabha (1 Maharashtra, 1 TN, 1 WB and 1 Nominated).  It is assumed that all these seats are filled up in 2011. [2] Three of the 11 nominated members in the current Rajya Sabha have declared their party affiliation as INC.  These have been included in the UPA count in the above analysis.  For the sake of simplicity, it is assumed that members who get nominated in 2011/ 12 are not aligned to any party/ coalition. [3] The above analysis is based on the assumption that the next set of assembly elections happen after the Presidential election.