The Supreme Court’s order in the case concerning OBC reservations seems to yet again set the stage for serious awkwardness in the relationship between the judiciary and other branches of government. Recent decisions, subjecting clemency to judicial review and passing orders with respect to demolitions in Delhi, might suggest a titanic struggle in the making: representatives of the people up against the guardians of the law. There are good conceptual reasons to think that some degree of tension is inherent in any constitutionalism. For instance, lawyers readily trot out a separation of powers doctrine. But if you ask the question, who decides when separation of powers has been breached, the answer turns out to be the judiciary. Thus rather than establishing the equality of the three branches, the separation doctrine inevitably ends up undermining itself by privileging the judiciary. The formal letter of the Constitution, and lawyerly casuistry, will not solve the inner conflict of constitutionalism. What is required for harmonious relations between branches of government is more self-reflection in each branch: this is a challenge for politics and legal culture, not one lawyers can solve.

In the face of obvious parliamentary disregard for the delicacy of legislation, the judiciary can retort rightly, as it did in Indra Sawhney (II) that “unfortunately as a matter of political expediency governments tend to knowingly violate the Rule of Law and Constitution and pass on the buck to the courts to strike down the unconstitutional provisions. It would then become easy for the government to blame the Courts for striking down unconstitutional provisions.” Judges are correct in demanding legislation have constitutional integrity. For its part, the judiciary has also tied itself in knots. It would be otiose to deny that in the name of constitutional integrity, it frequently usurps executive functions. Its canons of interpretation pluck meanings out of thin air, making the whole project of constitutional integrity obscure, and often it has a misplaced sense of its own capacity to bring about change. While legislators will out of political compulsion play footloose with values and procedures, the answer cannot be indiscriminate judicial authority. How does this balance stack up in three recent cases?

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