Judiciary Vs. Executive: Who Is Superior?6 min read

-Divyanshu Joshi

INTRODUCTION (Judiciary Executive)

All of us are very familiar with the three pillars i.e. executive, judiciary and legislature of any democratic nation across the globe. These are the legislature (one who makes the law), the executive (one who implements the law) and the judiciary (one who safeguards and interprets the law in case of any vagueness). A well-maintained system of ‘checks & balances’ is very necessary among these 3 organs for their proper and effective functioning. However, this system of checks & balances often leads to conflict among the three and the final consequences of such tussle are faced by citizens. Hence, it is necessary to resolve any such conflict as soon as possible.

Discrimination is one of the most popular social evil. People tend to discriminate something or someone, due to the stereotypes or prejudices, they have in their minds, without even knowing that they are doing so. Discrimination can be on the grounds of race, age, or sex. However, a nation-state or any government should never discriminate among its citizens unless and until such discrimination is necessary for the upliftment of a particular category of citizens.



Poland is a Central-European country and the sixth most populous member of the European Union. In Poland, the judicial branch plays an important role in decision-making. Its major institutions include:

  • the Supreme Court (Sąd Najwyższy);
  • the Supreme Administrative Court (Naczelny Sąd Administracyjny);
  • the Constitutional Tribunal (Trybunał Konstytucyjny); and
  • the State Tribunal (Trybunał Stanu).

The Court of Justice of the European Union (CJEU) interprets EU law to make sure it is applied in the same way in all EU countries and settles legal disputes between national governments and EU institutions.

In 2017, the retirement age of ordinary judges and public prosecutors, as well as the judges of Supreme Court, was lowered by the Polish government, while implementing some controversial reforms.


CURRENT ISSUE (Judiciary Executive)

The Polish nationalist political party ‘Law and Justice’ is in a state of a continuous clash with the European Union on the matter of rule of law, since it took office in 2015. To get hold of the whole judicial system, and to exclude the judicial branch from the decision-making process, the ruling party implemented, in 2017, a resolution to reduce the retirement age of Supreme Court judges, ordinary judges and prosecutors from 67 to 65 for males and 60 for females. This resolution also empowered the Minister of Justice to extend the period of service of some judges, that too differed based on sex. This resolution was challenged in the Court of Justice of the European Union, situated in Luxembourg.

Although the law was changed and the retirement age was restored as 67 for both male and female in 2018, after huge protest but the government never reinstated or compensated the judges who were removed from office following this resolution. The CJEU has finally decided the case against the Polish government and declared the resolution discriminatory based on gender. The Court held that ‘the resolution is directly discriminatory on the ground of sex and contrary to EU law’. Compelling female judges to retire 5 years earlier than male judges is against EU’s equality law. The Court also objected the provision that empowered the Minister of Justice to allow some judges to work beyond the age of retirement. It said the minister would be able to make decisions on “vague and unverifiable” criteria and would help to create “reasonable doubts” that the new system “might have been intended to enable the minister to remove certain groups of judges while retaining others in the post”.


On the other hand, the Polish government was dissatisfied with the Court and said that the Court should have removed the complaint after the old law was restored in 2018. The Court’s decision is based on a historical condition that existed and is not in existence at present.

Several other nations including France, Germany etc. and the European Commission which launched the action against the Polish executive welcomed and appreciated the judgement by saying that it is an important judgement in the favour of the independence of the judiciary and against the discrimination based on gender.

This is Poland’s second defeat against the European Commission within the last 4 months. Earlier, in June the CJEU found that a 2018 law to force the retirement of 40% of supreme court judges, by calling them as having ‘old communist roots’, is in breach of EU law.


The most important question of law in this issue was whether the legislature has been given so much power by the Constitution that it can empower the executive in such a way to give it superiority over the judiciary. Another question is whether the retirement age of male and female public officers can be discriminatory on the ground of gender.

The Court of Justice of the European Union answered both these questions clearly and held in favour of the European Commission. The Court held that a law-making provision of different retirement age for male and female public officers is directly discriminatory thus cannot be implemented. Also, if it tries to give too much power to the executive, it is unlawful. The system of checks and balances cannot be removed at any cost.



To make a democratic system work smoothly, none of the organs of State, namely the legislature, executive and judiciary must be given preference over another. All the three must be kept at equal footing so that they can give their best contribution in the decision making and nation-building process. Discrimination must not be allowed at any cost, on any ground until and unless it is necessary for the upliftment of a particular class. The Nation-States must ensure a proper system of checks and balances. The government should also work under the ‘rule of law’ then only a particular country will be able to change according to the changing needs of the time.

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