Blurring Lines Of Separation

Judiciary must remain independent to safeguard people’s constitutional protections

- Manu Sharma

The Constitution of India conceived a tripartite government comprising executive, legislature and judiciary, separated in their powers but tethered by a system of checks and balances. The independence of these three institutions is sacrosanct, and is protected by the doctrine of separation of powers in the Constitution itself.

While they may each be discharging their separate mandates, the position of the judiciary is no doubt exalted by its power to review executive and legislative action, and inhibit abuse of power. Now more than ever, when the threat to personal liberty from draconian statutes looms large, an autonomous judiciary is required to safeguard the constitutional protections conferred on people. But the obliterating lines of separation don’t bode well for the future.

The doctrine of separation of powers, a basic structure of the Constitution, is under attack from the legislature’s frequent invasions into the territory of courts, undermining the sovereignty of the judiciary. Montesquieu’s potent warning is threatening to become a reality: “There’s no liberty if the judicial power isn’t separated from the legislative and executive power.”

The power to grant bail is the most prominent tool in the judicial armoury against executive tyranny, but Parliament is unscrupulously weakening it by enacting provisions to regulate this power of courts. These encroachments into judicial territory, disguised as statutory considerations for deciding bail, mock the ability of courts to independently perform their constitutional functions.