This Article is submitted by –
- Gaurav Sanghi, 9th Semester (5th Year) at Amity University Rajasthan.
- Ishant Prajapati, 9th Semester (5th Year) at Amity University Rajasthan.
“The governance of our Republic, in the totality of administration, is vested in the trinity of the executive, legislature, and the judiciary. In a democratic Republic like India, the constitution is supreme, and the rule of law requires that every organ of the state, adhere to the constitutional policy.”
—- Kuldip Nayar (Indian Journalist)
There are three organs of govt. namely, legislative, executive and judiciary and all are separated but dependent on each other, which causes a delay in performing their function because of their dependence on each other. The concept is also mentioned in our Constitution. In India, if we see that the concept is going beyond the constitution and Legislative is a whole body on which Executive and Judiciary are dependent and say that the legislative is an organ who has the power to exercise some of the power of executive and judiciary from appointments to disqualifications, all the function of other two organs are performed by the legislature. If there are absolute supremacy and independence between all the organs it can change India’s face and effectively ensure better governance as a comparison to today’s time. However, there is not an absolute Separation of Power in India. If we compare to country like the USA from where the concept is originated, there is an absolute separation of power and the USA has always been top 10 on the Report of Effective Governance released by the UN.
In this article, we discuss how the Separation of Power is not in a manner as it could be in India.
The theory of separation of powers pleads for the distribution of powers in three different bodies that are not governing each other and independent namely, Legislature, Executive and the Judiciary.
The theory was formally propounded by Montesquieu idealizing that,
- A written constitution which lays down the powers of the three organs
- Appointing different persons in each organ
- Distribution of powers among the three organs of the state
In the words of J.A. Corry, “One man or group of men should exercise substantially all legislative power and at the same time have no extensive share in or control over executive or judicial power.” Simply means that no one body or person shall be entrusted with the other body and work within his possession rather than going beyond the boundaries and exercising his powers.
The doctrine of separation of powers is explicitly not mentioned in the Indian Constitution but explains under article 50 that, separation of judiciary from executive and legislature is one direct provision, which ensures the independence, and no interference.[i] The history of judicial power and its exercise in India suggests that the separation of powers doctrine is a highly misleading metaphor. Judiciary has become a guardian of the constitution and the body that decides the boundaries of every organ. The parliamentary form of government in India is thus a compromise of powers of different organs of the government.
In the case of, ‘Rai Sahib Ram Jawaya Kapur & Ors. v. State of Punjab’[ii], “The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.”
In ‘Jayantilal v. FN Rana’[iii], the Supreme Court has acknowledged the fact that, “It cannot be assumed that the Legislative functions are performed by the Legislature. The Executive functions by the Executive and the Judicial functions by the Judiciary. The Constitution has not made any absolute and rigid division of functions between the three agencies of the State. Although it is indeed possible to characterize with a precision that any particular agency of the State is executive, legislative or judicial — it cannot be predicted that a particular function exercised by any individual agency is essential of the character which the agency bears.”
A rigid separation of powers are under the American Constitution or the Australian Constitution does not apply to India. However, the constituent power is independent of the doctrine of separation of powers. Beg J. added that ‘separation of power is a part of the basic structure of the constitution. None of the three separate organs of the republic can take over the functions assigned to the others.’[iv] During the early 1970s, the judiciary struck down various plans of Indira Gandhi’s development agenda. This period also saw that Parliament even by amendment could not override the fundamental rights. Moreover, the judiciary should have overruling authority over the parliament. If the parliament passes any law for the economic and social upliftment for the people and the establishment of the socialist pattern of the society, the judiciary should not strike down such laws and stand in the way of progress. The Constitution has assigned no limits to the authority of Parliament over all matters and persons within its jurisdiction. A law may be unjust and contrary to the principles of sound government. However, Parliament is not controlled in its discretion and when it errs; its errors can be corrected only by itself. [v]
Articles 122 and 211 of the Indian Constitution reads that the legislature shall not talk about the conduct of any judge of High Court/Supreme Court or any matters related to the judiciary in state legislatures or the parliament. The Supreme Court has the power to declare void the laws passed by the legislatures and the actions taken by the executive if they violate any provision of the constitution or the law passed by the legislature in case of executive actions. Even the power to amend the constitution by the parliament is subject to the scrutiny of the courts. The court can declare any amendment if it changes the basic structure of the constitution.[vi]
Detailing to the provisions, The Constitution 42nd Amendment Act, 1976 inserted Arts. 131A, 144A, 323A-B where the balance between Parliamentary sovereignty and judicial review was disturbed. [vii]
Even the third organ of the state, Judiciary is firm in the idea of separation of powers. It not only directs that each organ shall be separate from each other and work within its boundaries but also reinforces its view through various cases.
In one of the case, ‘L.C. Golak Nath & Ors. v. State of Punjab & Anr.’[viii] held that, the constitution creates legislature, executive and the judiciary. It democrats their jurisdiction minutely and expects them to exercise their respective power without overstepping their limits. They should function within the spheres allotted to them.
The First Prime Minister of Independent India, Mr Pandit Jawaharlal Nehru quotes that, “No Supreme Court, no judiciary, can stand in judgment over the sovereign will of Parliament, representing the will of the entire community. It can pull up that sovereign will if it goes wrong, but, in the ultimate analysis, where the future of the community is concerned, no Judiciary can come in the way. . . Ultimately, the fact remains that the Legislature must be supreme and must not be interfered with by the Courts of Law in such measures as social reform.”[ix]
The Conference of Presiding Officers of Legislative Bodies in India in emposium held in New Delhi on 12 October 1996 identified the following main areas of conflict between the Legislature and the Judiciary:[x]
(a) Existence, extent and scope of Parliamentary privileges and powers of Legislatures to punish for contempt,
(b) Interference in the proceedings of Parliament/Legislatures,
(c) Decisions are given by the Presiding Officers of Legislatures under the Anti-defection law;
(d) Decisions are given by the Presiding Officers of Legislatures in the administration of their Secretariats.
Further, in recent times, the Judiciary and the Parliament are overlapping each other personally. The intervention between these two organs is growing steadily. In 2008, the apex court directed the centre in the scrutiny of the Parliamentary standing report committee on 27% reservation for OBCs in the educational institutions. Post decision, wide protests happened saying the Judiciary cannot make ways in interrupting into the legislative matter, which is the sole responsibility of the legislature. Even in 2000, when legendary Tamil film star Rajkumar was kept under the custody of notorious bandit Veerappan in the forests of Tamil Nadu and Karnataka, the Supreme Court also asked the S.M. Krishna Government in Karnataka to step down if it could not maintain law and order in the state. In an interview to ETV News Network in 2016, Former Chief Justice of India, TS Thakur stated that the judiciary does not intervene in the matters of the legislature unless any common citizen steps to the doors of the court of law. “The courts only fulfil their constitutional duty and need would not arise if the government do their job.” Further, he also said that if there were any neglect on the part of government agencies, the courts would play its role.
Indian Judiciary is majorly seen at its best to provide regulation in the laws legislated by the legislature. There have been instances of many cases that have come up in the court of law where the Court has guided some lines to the other organs of the state. Cases like, ‘Vishaka v. State of Rajasthan’[xi], where the court submitted some guidelines of protection of working women against sexual harassment at places of work. Further, In ‘MC Mehta v. Union of India’[xii], the court directed the centre by laying down some tolerable standards in automobile emissions. Even in ‘T. N. Godarvanman v. Union of India’[xiii], where the apex court laid down various principles for the protection and conservation of the forests. The judiciary has laid down certain guidelines and principles in some of these cases as to because the legislation was silent on these matters and this shows that the judiciary though intervening between the other two organs of the state, has done for the development of the nation and keeping the faith in the people of India by not abridging their rights.
Legislature, Executive and the Judiciary are the three organs, which manages the powers, laws and policies for the country. Though the constitution is in the rigid form, it can be seen that the judiciary and the other two organs are completely separated. Though being borrowed from various countries, the Indian constitution places a separate doctrine for separation of powers. There are several times where friction has been raised. When any of the organs exercise its powers beyond its boundaries, it is the work of the Supreme Court to interpret by precedents and current cases. It has been well noted that the Supreme Court is the guardian of the constitution and has the power to decide the limitations and powers of the other organs. Under Article 141, it has been clearly stated that the decisions of the apex court are binding on both the parties. Therefore, in case of any conflict arisen that any particular organ of the government has exceeded its powers; the Supreme Court has the power of final interpretation. As the Supreme authority rests in the hands of the Supreme Court, the power to impeach the judges lies in the hands of Executive. The President can impeach any judge on the ground of misbehaviour or incapacity with the majority of the legislature by not less than two-third members of houses present. Besides, the executive head is appointed by the system of the Electoral College consisting of both MPs and MLAs. This shows that there is a system of check s and balances and no organ is completely independent or separated. In the event of any shortcoming, it is the essential duty of the other organ to advise and recommend the needful to substitute inaction. There should be no occasion for one organ of the State to usurp powers of the other organ to lead to a constitutional crisis. Thus, it becomes obligatory for all institutions to abide by the constitution, which is supreme.
“The views of the authors are personal“
[i] Preeti Sharma, Judiciary in India, No longer Independent: A Critical Analysis, vol. 1 issue 6, IJLLJS (2014) http://ijlljs.in/judiciary-in-india-no-longer-independent-a-critical-analysis/.
[ii] Rai Sahib Ram Jawaya Kapur & Ors. v. State of Punjab, AIR 1955 SC 549.
[iii] Jayantilal v. FN Rana, AIR 1964 SC 648.
[iv] Indira Nehru Gandhi v. Shri Raj Narain & Anr, AIR 1975 SC 2299.
[v] Recent Judicial Trends on Separation of Powers, Ch. 5, p. 226, http://shodhganga.inflibnet.ac.in/bitstream/10603/71955/13/13_chapter%205.pdf.
[vi] IP Massey, Administrative Law, (9th edn, 2017) Eastern Book Company
[vii] Supra note 5, p. 227.
[viii] L.C. Golak Nath & Ors. v. State of Punjab & Anr, AIR 1967 SC 1643.
[ix] Supra note 5, p. 226.
[x] ibid, p. 296.
[xi] Vishaka v. State of Rajasthan, AIR 1997 SC 3011.
[xii] MC Mehta v. Union of India, (1999) 6 SCC 12.
[xiii] T. N. Godarvanman v. Union of India, (1999) 9 SCC 151.