An important relationship that is under strain

The judiciary and the executive have a residual image of each other from various constitutional provisions. Conflict arises when the executive acts inconsistently with this picture.

Published: 26th November 2021 09:36 PM  |   Last Updated: 27th November 2021 08:45 AM   |  A+A-

Judiciary, Constitution

For representational purposes (Express Illustrations| Amit Bandre)

An uneasy relationship between the judiciary and the executive does not augur well for a democracy. Arguably, it is the mandated role of the judiciary to review, revise or revoke any decisions of the government that are incompatible with the provisions and values of the Constitution. The courts striking down laws enacted by the legislature or annulling some provisions or reversing certain decisions of the government is nothing new. In fact, this judicial watchfulness is the sign of a healthy democracy that guarantees the unimpeachable rights of its citizens. Indisputably, Indian polity has immensely benefited from the continuous judicial interpretations of the Constitution. However, in recent times, this well-settled relationship seems to have been repeatedly challenged and the strain can no longer be hidden or ignored.

The manner in which the Central government has taken executive authority to its dangerous brinks has repeatedly forced the Supreme Court to interfere with unusual vehemence. Several instances are still in the memory of the nation where justice would have been denied to the needy if it were not for the timely reprimand of the apex court. The massive reverse migration of workers, trekking hundreds of kilometres, after the unplanned announcement of the lockdown in March 2020, had forced the court to interfere and prod the government to act. It also brought out not only the absence of statistics with the government but also its shocking lack of anticipation, planning, preparedness and even willingness to provide succour. When the government announced an ab initio flawed vaccine pricing policy that discriminated against the people, it was the Supreme Court that felt the shock waves and forced the Centre to retrace its steps and make the scheme more equitable. The same dynamics were repeated when a reluctant state was made liable to financially compensate the families who lost their dear ones to Covid-19. It was again the Supreme Court that directed the government to formulate a policy to take care of children orphaned by the pandemic. Recently, an irate apex court had to reject as unsatisfactory an affidavit filed on behalf of the government explaining how it was difficult to formulate a comprehensive programme to feed the needy and the hungry.

Whenever the executive takes liberties with the innate values of the Constitution and trifles with the freedom and honour of the citizen, the judiciary will act with sternness. But such repeated acts do not augur well as ultimately all the players come out weaker

Though the court has the power to constitute expert committees to help in adjudicating technically complicated matters, it is an instrument that is sparingly used. When such disputes arise, the government would normally explain all the dimensions of the matter and the court would hear both parties at length and take a judicious view. However, when the government that is privy to all information and inputs turns reticent, it effectively makes judicial review difficult. It is then that the court invokes the option of constituting expert committees. This was demonstrated in the cases of the much castigated (and eventually withdrawn) farm laws and the Pegasus snooping allegation. Repeated straight questioning by the Supreme Court on whether the Centre has bought the Pegasus spyware has failed to elicit a clear answer. The court had then no alternative but to constitute a committee to help itself.

This running test of relative strength and authority between the Union government and the top judiciary has two immediate uncomfortable fallouts. One, this  inadvertently conveys the lack of compassion and thoughtfulness on the part of the executive. Decisions that ought to have emanated naturally from an elected government to protect the welfare and well-being of its citizens appear to be taken as the unwilling afterthought and an inescapable response to the compulsive direction of the judiciary. Second, the frequent recurrence of such instances stretches the judiciary's powers to its imaginable limits, beyond which it could encounter its helplessness. Even the hints that constitutional remedies are getting exhausted are indeed ominous. 

It is not that the Constitution has not foreseen such conflicts, but there are times when the remedies provided become unequal to the challenges posed, as demonstrated in the stasis in several crucial matters. The constitutionality of reading down Article 370 and bifurcating Jammu and Kashmir is yet to be decided. Even in the Lakhimpur-Kheri case of homicide in public view, the court had to resort to a commission to enquire. Admittedly, it is not the judiciary that precipitates this situation. It is entirely the creation of the executive. What is the trigger for such instances leading to an uneasy coexistence? Both the judiciary and the executive have an ideal picture of each other, which is the residual image that comes out of the various provisions of the Constitution. Conflict arises when the executive acts inconsistently with this ideal. At all levels of decision-making, the executive ought to be constantly aware of how the courts would react to its decisions. When this caution and legal concern are brushed aside and the lofty ideals of the Constitution are grossly ignored by political exigencies, legally untenable acts of commission and omission are inevitable. 

In the history of our Republic, such instances have been rare, though not entirely absent. However, at no time had such instances recurred with alarming frequency. Whenever the executive takes liberties with the innate values of the Constitution and trifles with the freedom and honour of the citizen, the judiciary will act, and act with sternness. But such repeated acts do not augur well as ultimately all the players come out weaker. The onus is on the part of the government to avoid this kind of tightrope tricks by constant reiteration of and commitment to not only the written provisions but also the abiding values and ideals enshrined in the Constitution. Knowing one's freedom to act is important, but it is equally important to know the limits.

(The writer is former Kerala chief secretary and ex-VC of Thunchath Ezhuthachan Malayalam Varsity. He can be reached at


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