Doctrine of separation of powers is derived from Montesquieuâs Spirit of Laws (1748) and divides state power into Legislature, Executive, Judiciary to prevent concentration and arbitrariness.
Judicial legislation, i.e., when courts make laws or frame policies, is generally inconsistent with this doctrine.
Separation of Powers in India
Art. 245-246 & 368 – Only legislature can enact/amend laws under
Article 105, 194 – Executive cannot breach parliamentary privileges
Art. 122, 212 – Courts cannot inquire into parliamentary/state legislature proceedings ().
Art. 124(4) Judicial Conduct Immunity
Judicial Independence – Security of tenure, salaries, and contempt powers.
Judicial Legislation Antithetical to Separation of Powers
Encroachment on Legislative Domain undermines Separation of Powers.
Undermines Democratic Accountability – judges are unelected and not responsible for policy outcomes. Eg- Criticism of Ban on firecrackers (2017)
Creates judicial supremacy and Judicial governance (Bhikhu Parekh) – Eg- Prakash Singh guidelines on police reforms
Weakens Public trust in Legislature and Executive – Eg- Coal Allocation Case (2014) – Court cancelled 214 coal blocks, creating policy paralysis in the energy sector.
Courts lack technical and administrative expertise for framing complex policy guidelines. Eg- Ban on diesel vehicles in NCR (2016)
Judicial itself has warned against overreach in
Aravali Golf Club v. Chander Hass (2008)- Court warned against âjudicial enthusiasm turning into judicial adventurism.â
State of Tamil Nadu v. State of Kerala (2014)- Reiterated that courts should not enter the policy-making domain.
Justification for Filing Large Number of PILs
Executive Inaction or Policy Vacuum Eg- Vishaka guidelines on workplace sexual harassment.
Protection of Fundamental Rights – Eg- Hussainara Khatoon (1979) case Recognized right to speedy trial as FR under Article 21.
Accountability and Transparency – Eg- In Vineet Narain case, SC issued directions to make CBI independent from political interference.
Access to Justice – Liberal locus standi allows citizens to represent the poor and marginalized.
Legislative or Administrative Delay – Eg- Navtej Johar (2018)- Decriminalized homosexuality after years of legislative inaction.
Constitutional Mandate under Article 141 and 142 to uphold complete justice.
Rise of Civil Society Activism – NGOs and activists use PILs to expose violations and empower citizens.Eg- M.C. Mehta Cases on environmental protection.
Judicial Review powers under Article 13, 32, 226 to uphold Constitutional Supremacy
Speedy Justice – timely intervention in cases affecting public interest. Eg- Olga Tellis (1985)- Protected the right to livelihood.
Public Trust in Judiciary – Rise in PILs reflects citizensâ confidence in the judiciary as the last resort for justice.
Issues
Judicial Overreach- Encroachment into executive and legislative domains. Eg- SC ban on firecrackers was criticized for overreach.
Weak Enforcement Capacity- Eg- Prakash Singh Police Reforms (2006) – Non-compliance by most states.
Frivolous or Politically Motivated PILs increase pendency (more than 5Cr cases pending) Eg- Misuse in Election-related PILs delaying legitimate processes.
Lack of Judicial Accountability- Eg- In-House Inquiry (Justice Ramaswamy case) exposed inadequacies in judicial discipline.
Opaque Collegium System- criticised for lack of transparency and nepotism. Eg- uncle judge syndrome (law commission)
Inconsistency and Selective Intervention- Uneven judicial response to similar issues affects credibility. Eg- Contrasting stances in Bail cases.
Frequent judicial intrusion weakens separation of powers.
Way Forward
Institutional Restraint- Judiciary must uphold separation of powers
Enforce strict scrutiny of PILs to prevent misuse for personal, political, or publicity motives.
Develop a judgment-monitoring mechanism to ensure effective execution of court orders
Promote constitutional literacy and encourage responsible use of judicial remedies by citizens.
Dedicated PIL Cells in High Courts
PILs represent participatory constitutionalism, ensuring that justice remains accessible, accountable, and rights-oriented.