INRODUCTION to remove down the amendments that are unconstitutional

INRODUCTION

In India there exists
the policy of separation of powers which depicts the thought that the functions
of the government must be based on a division of legislature, executive and
judiciary. Further, these major three organs should be different from each
other and supreme in its own area so that one does not intrude in the
activities performed by the other organ. Further, such kind of a clear segregation
is always desirable to keep pace with the democratic system of a nation intact.

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PURPOSE

As it can be seen and
experienced by many nations that if the legislative and the executive powers
are present in the same person, there would be no freedom. A similar kind of system
is being followed if the judiciary was different from the legislature and
executive. If all the powers are present in the same body it will lead to uncertainty
and arbitrariness. Further, giving the legislative power to judiciary body
would amount to biasness and the executive power would lead to despotism.

In spirit, Montesquieu who basically lays down that it
was in the nature of people in power to exploit it and that until various clear
limitations were laid down, which were inevitable. As per him the power which
existed should be exercised by the different organs of government and then
among these various organs of government there should be a proper system of
checks and balances so that one organ might not completely become all powerful.
This principle implies that each organ should be independent of the each
other and that no organ present should perform the functions that belong to the
other. 1

 

INDIA

Indian state
represents a contemporary approach in that constitutionalises the doctrine of
separation of powers. Essentially, there is no strict separation of powers
under constitution, both in principle and practice.

In
India, rather than separation of powers there is separation
of functions being followed and hence, the principle is not abided in
its rigidity. Further, the strict separation of powers is not followed but a
system of checks and balance has been embedded so that the courts are competent
to remove down the amendments that are unconstitutional and are made by the
legislature in various contexts. Therefore, the constitution makers have also
very carefully defined the functions of various organs of the state.

The legislature is basically the law making body, the
executive on the other side is responsible for the enforcement of all such laws
made by the legislature and further the judiciary deals with the cases that
arise from a breach of law by the people of the nation. Thus they are all
interlinked organs of the government and the roles and functions tend to
overlap with each other, as it isn’t possible to separate these three organs
from each other completely. This overlapping of organs has been the basis for
not only serious political debates among the leaders and people in our country
but has raised many jurisprudential debates among legal scholars. The topic of
discussion is whether there should be a complete separation of powers or
instead a well co-ordinated system of distribution of powers among the organs
which becomes the crucial point of consideration.

 

v  ANCIENT
INDIA

 Even in ancient India there existed separation
of power as  per the study the Smritis
which are one of the ancient sources of law, there is such kind of segregation.
During that time Deewan was the head of the executive wing of any legacy that
existed, senapati whereas did a job to maintain law and order and Kazi was the
judicial head. At the same time one had to bear in mind that they all are subordinate
to the king as he was the supreme authority who used to make the law and
therefore he was similar to present form of legislature. After all, king is
known as the supreme authority of all but the functions that were performed and
powers has been separated.

v  PRESENT
INDIA

The
article 50 of the constitution describes the separation of the executive from
the judiciary and this is the only article which talks about the separation
between these two organs. It means that there should be judiciary services that
are being provided without any executive control. This article of the
constitution is based upon the principle of the independence of the judiciary.
If, executive controls the judiciary then the result may be that rights of the
people cannot be protected, rule of law may not be achieved and judiciary work
in accordance to the executive only.

Independence
of judiciary has also been considered as a basic structure of the constitution2.
In the S.K. Gupta v. President of India3,
wherein it was stated that ‘independence of judiciary is a basic structure of
the constitution, but the said concept of independence has to be confined
within the four corners of the constitution. Basically, we have separate powers
and functions of judiciary kept to some extent. The independence of judiciary
has been accordingly adopted as a principle governing Article 50.

Various
other articles of the Indian constitution that supports and negates this
doctrine like article 74(1) and 153 that tells that the President of the nation
functions with the advice of the council of ministers and it acts as  a check on the functioning of the powers
presiding with the President as in the case Rai Sahib Ram Jawaya Kapur and Ors v The State of Punjab 4stated
that ‘in India we follow a separation of
functions and not of power thereby not abiding by the principle rigidly.51 The
question in this case was regarding the exercise of functions by the cabinet
ministers who exercise both legislative and executive function under the garb
of Article 74(1) making their aid and advice mandatory for the formal head.’

 Further, article 123A grants the President the
power to circulate the ordinance which is a law making power and article 361
where the President or the Governor are not  answerable to any court for the exercise and
performance of the powers and duties of his office. In the case Delhi Development Authority And Ors. v Uee
Electrical Engg. Ltd5  stated ‘the
objective of judicial review as a protection and not an instrument for undue
interference in the executive functions wherein it was declared that one can
conveniently classify under three heads the grounds on which administrative
action is subject to control judicial review. The first ground is illegality
the second irrationality and the third procedural impropriety. Therefore it has
been emphasized on the organs of the state to remain separated and this
position of the doctrine has been upheld.’

 

ANALYSIS

It
is well agreed that the organs of our constitution are not completely separable
and the major landmark judgment in the perspective of this doctrine in Kesavananda Bharati v The State of Kerala6
wherein it was held that ‘any exercise
which gave control of one organ over another would be unconstitutional, leaving
the Executive, the legislature and the Judiciary completely independent.’
By this judgment the court gave an indication that in India the separation of
power doctrine is not followed rigidly.

It
is now expected that it is in the overall interest of the country, yet though
the jurisdictions are separated and well divided, all the institutions would somewhere
work in accordance and with a motive to make the most for the public good.

The
constitution itself gives such authority to the government and authorities in
power. For instance, in the matter of judiciary, the main duty is to protect the
rights of individual and keep the rule of law in motion in the nation. It is
expected that not just one organ of the government should not exercise the
functions assigned specifically to any other organ. It means that functions or
duties related to one organ should not be exercised by another. But in India,
there is no absolute or rather properly demarcated separation of functions in
respect of organs that exists. Some way or another, functions are not
completely divided. Rationally we find that one organ of the government should
be empowered for all matters related to it but constitution somewhere empowers
some major functions to be done by another organ only. As the judges are the
subject matter of the judiciary but the allowances and other major facilities
are being decided by the legislature.

Another
instance is that the president of the nation in whom the executive authority of
India is vested exercises the law making power in the form of ordinance and
judicial making power under article 123 and article 213. The system of taking
consent of Indian constitution clearly shows that there is no completely
separation of functions in law making power of the legislative body. It is to
some extent true that constitution provides that after three times of sending
bill to the president for approval and if all three times president returns it
without approving, then the bill will be considered as passed bill. However,
the legislature cannot independently pass the laws.

The
parliament has the discretionary power to make laws and to decide on which
matter law should be formed, within the permissible limit of constitution. In the
As per the instance in the year of 2005, the disagreement was arisen on the
court’s judgment regarding reservation quotas in unaided colleges. The court lined
that if quotas were necessary, the government should make suitable alterations
in the relevant acts that already existed in the country. If not this,
compulsory reservation quotas in unaided colleges were not completely legal.
This judgment of court raised objections from the parliament. It can be argued that
the parliament is the ultimate law making body and the courts should not pass the
verdicts which have the effect of changing the legal position as approved by the
parliament of our country. It was further stated that the parliament is obligated
to pass the laws but the issue of the verdict still remains unless sorted by
the parliament.

In
Vineet Narain v. Union of India7
wherein the court ordered ‘the CBI to
handle the investigations into the corruption of politicians in a manner that
it thought fit. This was the starting point from when the Court started
interfering in decisions of policy by the executive and the working of
Investigative agencies.’

Ø  MERITS

Separation
of power has its own perks and benefits as it prevents abuse of power by checks
and balance method by keeping a watch on each others acts and functions. As
shown in the case Indira Nehru Gandhi v.
Raj Narain,8
wherein it is stated ‘that in the
Indian constitution there is separation of powers
which is in a broad sense only and a rigid separation of powers as under the
American constitution  does not apply to India. No
constitution can survive without a conscious adherence to the system of checks
and balance.’

 Further, it increases government’s efficiency
by making the members of the specific organs have the in depth knowledge about
the organ and its functions thus increasing expertise and prevents dictatorship.
It also protects the liberty and rights of the individuals and removes
despotism and oppression. The increased
concern for welfare and security has been responsible for transfer of more
powers to the executive, though the liberty is significantly dependent upon
balance among the three organs of government.

Ø  CRITICISM

There is inequality
among the organs as the supremacy
of the legislature is confirmed by the fact that it exercises control over the
finances of the state. By this power it exercises the control overall other
organs as well, in view of popular sovereignty and democracy, the executive and
the judiciary must be subordinated to legislative control.

There is has been no guarantee of a
person’s liberty as it is generally argued that separation of powers is
necessary for safeguarding the liberty of the individual. As in other countries
it is a matter of mutual experience that the British people enjoy which is no
less of a liberty than what the people in America experience, although the
english constitution is not exactly based on the theory of separation of powers.
This shows that the liberty and freedom of a person does not depend upon the
separation of powers or on any other political sprite of this nature. It can
actually be best secured by the vigilance of the people, and their love for
liberty. The citizens will have more freedom if the major activities of the
government are properly determined by law rather than if the government is
completely based on the theory of separation of powers.

CONCLUSION

Overall it is clear that the separation of powers is the principle
that has not been implemented in its complete and strictest form in our country
nor it has been given constitutional status but a weak and contemporary approach
is being followed to help and guide our parliamentary system that is followed
for governing the nation.

Further, it is also considered that the
complete separation and independence of the various departments of the
government would result in frequent general inefficiency. In practice it has
been observed that one organ of the system depends upon the other for its efficient
working. This application of the doctrine is not fully possible because the
executive has some role in rule-making, and the legislature also performs some
judicial functions like impeachment which is judicial in nature is done by the
legislature.

So,
it’s quite evident from the functions that are being performed that the constitutional
provisions themselves depict that India, being a democracy, does not really follow
an absolute separation and is, rather based upon the combination of powers,
where a close management amongst the principal departments is unavoidable.