Академический Документы
Профессиональный Документы
Культура Документы
DESERTATION
ON
LEGAL ANALYSIS ON THE DOCTRINE OF SEPRATION OF
POWERS IN THE LIGHT OF CONSTITUTION AND
ADMINISTRATIVE LAW WITH THE HELP OF JUDICIAL
DECISION'.
Submitted with respect in partial fulfillment of the requirement for Master
of Laws (LL.M.)
Submitted by
Ms. Rashmi Rajaram Choudhary
Researcher
LL.M. IV Semester
(Constitutional and Administrative Law)
3. And last but not the least one organ should not be allowed to
perform the functions essentially allocated to the other organ of the
system.
Here the concept of the doctrine is quite clear from the above
two opinions of expert jurist who have given deferent way of
interpretation to the concept of separation of powers.
* This is the part of the government that enacts the laws, rules
and regulations by making discussion and voting on the same.
* It has the power to write and to enact taxes.
* It is the ultimate authority dealing with the monetary resources
of money.
* It sets the budget and other policies regulating the mutual
relations of the different levels of government and
departments thereof, etc.
3. The Judiciary : The judiciary being the crucial aspect of the system is
having following powers and obligations:-
It has the sole power to interpret the laws, rules and regulations
and to apply it to particular disputes.
It has the power to determine the disposition of prisoners.
Usually, the judiciary is fully independent and impartial so as to
enable it to serve for the true justice and to maintain supremacy of
law and order exclusively rather than that of any group or
institution.
This is the only branch with the power to compel testimony and
the production of documents etc. The powers and functions of each
are separate and carried out by separate people. No single agency is
able to exercise complete authority, each being interdependent on
the other. Powers are divided in such a manner that it should
prevent absolutism (as in monarchies or dictatorships where all
branches are concentrated in a single authority) or corruption
arising from the opportunities that unchecked power offers. The
doctrine can be extended to enable the three branches to act as
checks and balances on each other. Each branch's independence
helps to keep the others far from exceeding their power, thus
ensures the rule of law and protection of individual rights. In this
way the classifications of the powers amongst the organs and their
basic functions and powers are clear from the above discussion.
Bipartite systems :
In the sixteenth century, John Calvin favoured a system of
government that divided political power between democracy and
aristocracy (mixed government). Calvin appreciated the advantages of
democracy where in people are free to elect its own government and
magistrate. In order to further reduce the danger of misuse of political
power, he suggested setting up several political institutions which should
complement and control each other in a system of checks and balances.
In this way, Calvin and his followers resisted political absolutism and
furthered the growth of democracy. Calvin's aim was to protect the rights
and the well-being of ordinary people. In 1620, a group of English
separatist Congregationalists and Anglicans, who later became known as
Pilgrim Fathers, founded Plymouth Colony in North America. Enjoying
self-rule, they established a bipartite democratic system of government.
The freemen elected the general court, which functioned as legislative
and judiciary and which is turn elected a governor, who together with his
seven assistants served as executive power.
The Theory :
Montesquieu, the noted political philosopher of France is
regarded as the chief architect of the principles of separation of powers.
He in his book The Spirit of Laws published in 1748 gave the classic
exposition of the idea of separation of powers. During his days the
Bouborne monarchy in France had established despotism and the people
enjoyed no freedom. The monarch was the chief law giver, executor and
the adjudicator. Montesquieu, a great advocate of human dignity,
developed the theory of separation of powers as a weapon to uphold the
liberty of the people. He believed that the application of this theory
would prevent the overgrowth of a particular organ which spells danger
for political liberty. According to him every man entrusted with some
power is bound to misuse it. According to him -
Advantages :
The experts have supported the concept of separation of
powers by putting following points in their support -
In this way, all the concepts are interconnected with each other
and are implying each other. At present, the notion behind every law
made is the rule of law, which was put forward by an English Jurist A.V.
Dicey in 1885 and refers to the idea that the legal system seeks to treat
everyone equally and administer justice impartially without prejudice.
Dicey has stated that the rule of law compromises of three elements by
which the rule of law can be defined. It has an independent judiciary, it
allows individuals to be subject to a fair trial and thirdly individuals have
the right to reasonable access of the courts.
3. Role of Judiciary as to -
* Determines which laws government intended to apply to any
given case,
* Exercises judicial review, reviewing the constitutionality of
laws,
* Determines how government meant the law to apply to
disputes,
* Determines how a law acts to determine the disposition of
prisoners,
* Determines how a law acts to compel testimony and the
production of evidence.
* Determines how laws should be interpreted to assure uniform
policies in a top-down fashion via the appeals process, but gives
discretion in individual cases to low-level judges. The amount of
discretion depends upon the standard of review, determined by the
type of case in question.
* Federal judges serve for life.
SEPARATIOIN OF POWERS
AND
INDIAN CONSTITUTION
A STUDY
Introduction :
It is true that a society in which the observance of the law is
not assured, nor the separation of powers defined, has no constitution at
all. One of the basic constitutional principles of modern liberal
democracies is the separation of powers. Since the writings of Locke and
Montesquieu, separation of the legislative, executive and judicial powers
is deemed essential to avoid usurpation and tyranny by the holder of these
powers. Even though all democracies have separation of power, the
balance of powers varies between the executive, the legislature, the
judiciary and the citizens.
Although our Constitution has imposed some limitations... It has left our
Parliament and the State Legislature supreme in their respective
legislative fields. In the main, subject to limitations...... Our Constitutions
has preferred the supremacy of the Legislature to that of the Judiciary....
and the Court has no authority to question the wisdom or policy of the
law duly made by the appropriate Legislature.... and this is a basis fact
which the Court must not overlook'.
Article 111 says that when a bill has been passed by both the
Houses, it is sent to the President for his assent, the President may either,
a) give his assent to the Bill, or b) he may withhold his assent, or c) he
may return the bill (not the Money Bill) to the House for reconsideration
with or without amendments. When a Bill is so returned the Houses shall
reconsider in the light of then President massage. But if it is again passed
by the Houses with or without amendments and presented to the President
for assent, the President shall not withhold his assent. It shows the
supremacy of parliament in law making process.
Here one can sum the point as that, the Constitution of India
embraces the idea of separation of powers in an implied manner. Despite,
there being no express provision recognizing the doctrine of separation of
powers in its absolute form, the Constitution does make the provisions for
a reasonable separation of functions and powers between the three organs
of Government. Because by looking into the various provisions of the
Constitution, it is evident that the Constitution intends that -
1. The powers of legislation shall be exercised exclusively by the
legislature.
2. The judicial powers can be said to vest with the judiciary. The
judiciary is independent in its field and there can be no interference with
its judicial functions either by the Executive or by the Legislature.
3. The executive powers of the Union and the State are vested in the
President and the governor respectively.
The constitution of India lays down a functional separation of
the organs of the state in the following manner:
1. Article 50 lays down that State shall take steps to separate the
judiciary from the executive. This is for the purpose of ensuring the
independence of judiciary.
2. Article 122 and 212 provides validity of proceedings in Parliament
and the Legislatures cannot be called into question in any Court. This
ensures the separation and immunity of the legislatures from judicial
intervention on the allegation of procedural irregularity.
3. According to Article 121 and 211 of the Constitution, Judicial
conduct of a judge of the Supreme Court and the High Courts' cannot be
discussed in the parliament and the State Legislature.
4. Articles 53 and 154 respectively, provide that the executive power
of the Union and the State shall be vested with the President and the
Governor and they enjoy immunity from civil and criminal liability.
5. The Legislature besides exercising law making powers exercises
judicial powers in cases of
i) Breach of its privilege,
ii) Impeachment of the President,
iii) The removal of the judges and
iv) While discharging the function of disqualifying its members and it
can impose punishment for exceeding freedom of speech in the
Parliament.
6. The executive may further affect the functioning of the
judiciary by making appointments to the office of Chief Justice and other
judges.
Legislature exercising judicial powers in the case of amending a
law declared ultra virus by the Court and revalidating it.
* The heads of each governmental ministry is a member of the
legislature, thus making the executive an integral part of the
legislature.
* The council of ministers on whose advice the President and the
Governor acts, are elected members of the legislature.
* Legislative power that is being vested with the legislature in
certain circumstances can be exercised by the executive. If the
President or the Governor, when the legislature or is not in session
and is satisfied that circumstances exist that necessitate immediate
action may promulgate ordinance which has the same force of the Act
made by the Parliament or the State legislature.
* Through Article 118 and Article 208 the Constitution permits the
Legislature at the Centre and in the States respectively, the authority to
make rules for regulating their respective procedure and conduct of
business subject to the provisions of this Constitution.
* The executive also exercises law making power under delegated
legislation. The tribunals and other quasi-judicial bodies which are a part
of the executive also discharge judicial functions. Administrative
tribunals which are a part of the executive also discharge judicial
functions.
* Higher administrative tribunals should always have a member of the
judiciary.
* The Higher Judiciary is conferred with the power of supervising the
functioning of subordinate courts. It also acts as a legislature while
making laws regulating its conduct and rules regarding disposal of cases.
All this show that Indian Constitution does not opt for the strict
separation of powers because it is undesirable and impracticable but
implications of this concept can be seen in India in its diluted form.
Besides the functional overlapping, the Indian system also lacks the
separation of personnel amongst the three departments. Applying the
doctrines of constitutional limitation and trust in the Indian scenario, a
system is created where none of the organs can usurp the functions or
powers which are assigned to another organ by express or necessary
provision, neither can they divest themselves of essential functions which
belong to them as under the Constitution.
It is the well settled mandate of our constitution that the legislature are
the authorized origin from where the law, rule and regulation must flow
and same must be authority executed by the executives executively. Even
the doctrine of separation power requires same. However, this mandate
has also been substantially changed or defeated due to the most active
role of judiciary of our nation. There are many instance of legislation
coming from the bench rather from the houses of Parliament, even the
judiciary performs the functions assigned to executive, few important
examples of the are discussed here-
1. Upload FIRs in Police Websites [Youth Bar Association of India
vs.Union of India] The Supreme Court directed that the copies of the
FIRs, unless the offence is sensitive in nature, like sexual offences,
offences pretending to insurgency, terrorism and of that category,
offences under POCSO Act and such other offences, should be uploaded
on the police website, and if there is no such website, on the official
website of the State Government, within twenty-four hours of the
registration of the First Information Report so that the accused or any
person connected with the same can download the FIR and file
appropriate application before the Court as per law for redressed of his
grievances. The Bench clarified that in case there are connectivity
problems due to geographical location or there is some other
unavoidable difficulty, the time can be extended up to forty-eight hours.
The said 48 hours can be extended maximum up to 72 hours and it is only
relatable to connectivity problems due to geographical location or there
is some other unavoidable difficulty, the time can be extended up to forty-
eight hours. The said 48 hours can be extended maximum up to 72 hours
and it is only relatable to connectivity problems due to geographical
location.
2. DV Act; Relief Possible Against Minors, Women [ Hiral P Harsora
and ors Vs. Kusum Narottamdas Harsora]Supreme Court struck down
the words adult male before the word person in Section 2(q) of
Domestic Violence Act holding that these words discriminate between
persons similarly situated, and is contrary to the object sought to be
achieved by the Domestic Violence Act.
3. Persons in Govt/Judicial service need not resign to participate in
District Judge Selection Process [ Vijay Kumar Mishra and Anr Vs
High court of Judicature at Patna To and Ors] The Apex Court held
that Article 233(2) of the Constitution of India only prohibits the
appointment of a person as District Judge, who is already in the service
of the Union or the State, but not the selection of such a person. The
Court set aside the Patna High Court judgment which had required the
aspirant to resign his membership of the subordinate judicial service if he
aspires to become a District Judge.
4.No liquor shops near National Highways [State of Tamil Nadu vs. K.
Balu] Supreme Court ordered closure of all liquor shops along National
and state highways stressing on the need to improve road safety and curb
menace of drunken driving. A bench head by Chief Justice T S Thakur
also ruled that there should not be any liquor shops within 500 meters of
such highways and they should also be not visible from such roads.
5.National anthem must in Theatres [Shyam Narayan Chouski vs. Union
of India] The Supreme Court made it mandatory for all cinema theatres
to play the national anthem before a movie begins during which the
national flag is to be shown on the screen. A bench of Justice Dipak
Misra and Justice Amitava Roy also said that everyone present in cinema
hall should rise up and pay in respect to the anthem when it is played.
Most of times this the judiciary which is mostly alleged to have attempted
to change the constitutional mandates through its activist role, however
we should not forgate that whenever the society needs extra ordinary
remedy or against the two other organs of nation, it directly resort to
judiciary just strives to give the complete justice to society by favorably
interpreting the supreme law of law that may give different shape to the
mandate.
C H A P T E R VI
Separation Of Power and Indian Judiciary
A
Interpretation of The Doctrine Of Separation Of Powers
B
Judicial Review, Rule of Law And Basic Structure Theory
Of Power
(A)INTERPRETATION OF THE DOCTRINE OF SEPERATION
OF POWERS
According to a strict interpretation of the separation of powers, none of
the three branches may exercise the power of the other, nor should any
person be a member of any two of the branches. Instead, the independent
action of the separate institutions should create a system of checks and
balances between them.
In Ram Away vs. State of Punjab a constitution Bench of
Supreme Court observed, The Indian Constitution has not indeed
recognized the doctrine of separation of powers in its absolute rigidity
but the function of the different parts of 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 function that essentially belong to another.
Ram Krishna Dalmia v. Justice Tendolkar In the absence of specific
provision for separation of powers in our Constitution, such as there is
under the American Constitution, some such division of powers
legislative, executive and judicial is nevertheless implicit in our
Constitution.
Udai Ram Sharma v. Union of India The American doctrine of well
defined sepration of legislative and judicial power has no application to
India.