Saturday, 21 March, 2009

Supreme Court walks the tight-rope of Separation of Powers

A constitutional law student is invariably taught the hallowed doctrine of separation of powers, and is told that the Legislature makes the law, while the Judiciary interprets it. However, as one gets into the thick of constitutional jurisprudence, it quickly becomes apparent that Judges not only interpret the law, but also make it, as and when necessary or convenient.

This is not to say that it is necessarily a bad thing, and one may perhaps go to the extent of saying that had it not been for the activist Indian Supreme Court, Indian democracy would not have survived the turbulent 70s.

But as far as a layman, awed by the glorious legal traditions and jurisprudential tenets, is concerned, a look into how far legal doctrines find application in the seemingly mundane day to day affairs of the Court is always fascinating.

In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, AIR 2009 SC 103, the appellant-plaintiff had filed a suit for permanent injunction, praying for declaration that he was the owner of the suit land, and for injunction restraining the defendants from interfering in his possession of the same.

The trial court recorded a finding that the plaintiff had taken forcible possession of the land in 1960, which continued till 1986, and therefore he had become the owner of the land by adverse possession. (Adverse Possession is possession of property/land that is open and hostile against the claims of the true owner, and continues uninterrupted for a period of 12 years).

However, the first Appellate Court and the High Court found that the plea of adverse possession had not been taken by the plaintiff, and no issues had been framed by the trial court to that effect. Therefore, they set aside the judgment of the trial court.

The Hon'ble Supreme Court, could very well have relied on the reasoning of the High Court to reject the claim of the plaintiff-appellant. Yet, a Bench comprising of Dalveer Bhandari and H.S. Bedi, JJ chose to go a step further.

After holding that the appellant had failed to establish his claim, the Hon'ble Court launched into a discussion on the principle of adverse possession. Most notably, it referred to the observations of the European Court of Human Rights in JA Pye (Oxford) Ltd. v. United Kingdom, (2005) 49 ERG 90 to the effect that the principle of adverse possession is "illogical and disproportionate", and that the effect of such law is "draconian to the owner" and a "windfall to the squatter".

Eventually, the Hon'ble Court observed that the law of adverse possession is irrational, illogical, etc., and that it ought not to benefit a person who in a "clandestine" manner takes possession of the property of the owner. (Clandestine??? i thought adverse possession had to be openly hostile)

Therefore, the Hon'ble Court expressed an "urgent need of fresh look regarding the law on adverse possession", and recommended the Union of India to "seriously consider and make suitable changes in the law of adverse possession"!

Phew! This must be the first time the Hon'ble Court has made such a recommendation in an area of law that is completely personal and lacks the characteristics of Public law. Of course, the use of the word "recommendation" appears to have respected the separation of powers between the Legislature and the Judiciary, but whether the case itself presented compelling circumstances for the Court to walk the tight-rope of separation of powers is another matter altogether.

Rohit Sharma
Supreme Court of India


  1. Nice post. Remember something about ONGC v. Saw Pipes, SC adding an additional condition to those laid down in the statute, in order to challenge an arbitral award. Or was that something else? Anyway, look forward to more edification and emanation.

  2. Thank you for the comment John (sarcasm at the end ignored).. if you re referring to ONGC v. Saw Pipes Ltd., (2003) 5 SCC 705, the apparently additional ground was actually read into the phrase "public policy" occurring in Section 34 (2) (b) of the Arbitration and Conciliation Act, 1996. I don't think such interpretation can be classified in the same category as other activism instances.

  3. Perhaps the Supreme Court's judgment in Charan Lal Sahu went a step further?

  4. Having lived in the US for a year, I've seen many cases where there is a strict separation of powers. Courts merely interpret the law and even when something is obviously unfair, will let it slide because it's technically legal.

    IMHO a certain amount of judicial activism prevents grossly unfair judgements which are only technical legal. Moreover, it prevents the legislature from becoming too sure of its power. Without the Supreme Court, who knows what sort of dumb and even unconstitutional legislation might be passed?

    Unlike France, we don't have a Conseil Constitutinal to vet every law before it comes into force, and so we need a strong and ethically aware judicial system.