LAW YOG
Separation of Power

Who is more Powerful – Executive, Legislature or Judiciary?

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Democracy is the need of the societies that signifies ‘the rule of people’. Democracy is that form of government which empowers its citizens to choose their representatives. Democracy lies on three pillars; Legislative, Executive, and Judiciary. The separation of power ensures the existence of democracy in any democratic nation. The French jurist Montesquieu discovered the doctrine of Separation of Power or ‘Trias Politica’ in the 18th Century. According to him, the three arms of government are Legislature (law Maker), Executive (Law Executor), Judiciary( Law Interpreter). Separation of Power is essential in a democratic regime.

The following are some advantages of Separation of Power like,

  • it minimizes corruption by using the system of checks and balances,
  • it prevents abuse of powers and arbitrariness
  • it also prevents one from becoming superior over the other.

The following are some disadvantages of Separation of Power;

  • inequality of powers between branches of the government,
  • These three institutions have their own boundaries. They work independently but simultaneously create the system of check and balance to each other. So, the relationship between these institutions is complex, and there is always a possibility of conflict between these.

In the world, various countries are following the separation of power in different forms such as,

  • India does not follow strict separation of Power. The relationship between Parliament and Judiciary  becomes complicated because

(i) the Judiciary can declare any law unconstitutional if violating the Constitution.

(ii) Parliament can make laws related to Judiciary.

  • In the USA, there is a strict separation of power as enshrined in the articles 1,2,3 of the US Constitution.
  • In the UK also, there is no clear separation of power because of the unwritten constitution.

Indian Judiciary

The primary role of the Judiciary is to resolve disputes and to provide justice to whom it is due. The Judiciary has the power to interpret the laws and to administer justice accordingly. The Supreme court is the apex Court in India. The Supreme Court acts as ‘Custodian Of Constitution.’ because it is responsible for the interpretation of laws and enforcement of the same.

It can declare any Law passed by The Parliament as void if it violates the Constitution. This feature is known as Judicial Review. Judicial review is a strong tool to keep a check on public bodies and render their accountability if their decisions or policies go outside the powers that have been specified in the Constitution.[i] The judicial review was first established in the case of Marbury vs. Madison in the US. The apex court declared a legislative action as unconstitutional for the first time, and set a precedent, and gave them the power to review other laws and Presidential orders.

In India, in the landmark judgment of Kesavananda Bharati vs. State of Kerala[ii], the concept of Judicial Review was established as a basic structure of the Indian Constitution.

Similarly, in the case of  L. Chandra Kumar Vs. UOI[iii], The apex court held that Judicial review under article 32 and 226 is an integral and essential feature of the basic structure of the Indian Constitution.

Judicial Review: In India, the judiciary can exercise its power of Judicial review as enshrined in article 32 and 226 of the Indian Constitution. As enshrined in article 13, it can review pre and post-constitutional laws, and check the constitutionality of the laws. If any law infringes on the Fundamental Rights of the citizens, the court may declare it void. The concept of judicial review is adopted from the USA. 

Judicial Activism: In this concept, the judiciary actively participates to dispense social justice to people. There is no such article in the constitution that describes this concept. Suo moto, Public Interest Litigations, new doctrines, etc are some form of Judicial Activism.

In Democracy, Judiciary needs to be free for its decisions according to the Constitution. It should not be affected by Legislative and Executive bodies. For this, the Constitution Provides that any conduct of the High Court Or Supreme Court cannot be discussed in Parliament unless it is a process of removal of the judge. So, there are provisions that ensure security to High Court or Supreme Court Judges.

Indian Parliament

India features a hybrid system of the state. The hybrid system is the combination of two classical models; British traditions, drawn upon parliamentary sovereignty and conventions, and American principles upholding the supremacy of a written Constitution, separation of Power, and judicial review. The two models are contradictory since parliamentary sovereignty and constitutional supremacy are incompatible.[iv]

Article 79 of the Indian Constitution, which states about the Constitution of Parliament, says that there shall be two houses in a Parliament commonly known as the Council of states and houses of people.

Parliament enacts laws, exercises oversight over the executive, sanctions government expenditure and represents citizens. It can amend the Constitution. It is interesting to note that Parliament has the ability to legislate on matters associated with the Judiciary like its powers, jurisdiction, organization, and service conditions of judges. It also has the ability to impeach judges on grounds of proved misbehavior or incapacity.

So, Parliament has the power to make new laws or acts. It can also amend the Constitution but it cannot amend the basic features of the Constitution. It can also make laws related to Judiciary, like its power, jurisdiction, etc. It can also remove the judges of the High Court Or Supreme Court on the basis of misconduct or incapability.

Some Powers of the Three Pillars:

Parliament’s power to amend the Constitution:

Parliament has the authority and power to amend the Constitution. However, it is not a simple procedure like making a new law. The Constitution Amendment Bill needs the vote of more than half of the members in Both the Houses of Parliament and the presence of at least two-thirds of the members and voting for the same. Additionally, ratification by over half the states is required for amendments that affect the powers of the states and therefore the Judiciary. For instance, the 101st Amendment in the Constitution enabled Goods and Service Tax in 2016.

In the case of Kesavananda Bharati Vs. State of Kerala the Supreme Court held that the Parliament has limited power to amend the Constitution, it cannot amend the basic structure of the Indian Constitution.

Similarly in the case of Shankari Prasad Vs. Union of India, The Supreme Court held that Parliament has absolute power to amend the Constitution, including fundamental rights, provided under Article 368 of the Constitution.[v]

However, it can be contended that the Constitution does not describe the limit of Parliament to amend the Constitution and the limit may not be imposed through judicial interpretation.

No inquiry over the advice by Ministers to the President and Governors: 

In India, the President is the titular head of the state with nominal powers. Article 53(1) of the Indian Constitution states that, The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. Although the President is vested with executive powers of the Union, he has to work on the advice of the ministers. Article 74(1) of the Indian Constitution provides that the council of ministers with the Prime Minister to help or advise him to exercise his functions, act in accordance with such advice.

However, according to Article 74(2) and Article 163(3) of the Indian Constitution, the advice tendered by Ministers to the President or Governor cannot be inquired into in any court. It is, somehow, interference of the legislature in the judiciary.

Judiciary Power to make Laws:

Although the Parliament has the power to make laws it can be observed in some judgments of the Supreme Court that the Court also laid some guidelines, which directed the laws to be made. The general Law making process in Parliament involves the support of the majority of Members of Parliament from both the houses. Then the bill goes to the President. If the President signs the bill, it will become law.

But In past judgments of the Supreme Court laid down the law.

In India, Article 145 and 227(2)(b) of the Indian Constitution empowers the supreme court and high courts to make rules or laid guidelines to regulate the general practices and procedures of the court. 

For Example, In the case of Vishaka vs. the State of Rajasthan[vi], The Supreme Court framed guidelines on how sexual harassment at the workplace needs to be addressed by employers. 

In another case of Prakash Singh Vs. Union of India[vii], The Supreme Court gave directions to state governments to set up various authorities to decide appointments, transfers, and complaints related to Police.

Control over Executive by Parliament and Judiciary:

Parliament: According to the parliamentary type of government executive is responsible to the parliament for its acts and policies. Hence parliament used to control through various measures like committees, question hour, etc. ministers are collectively responsible to the Parliament.

Judiciary: Judiciary exercises its power of Judicial review on the Executive as well.

Power to appoint judges:

As per the Constitution, The President must appoint the judges of Supreme Court and High Courts on the advice of the Chief Justice of India.

The tussle of power between three pillars: 

India does not follow the separation of power in a strict sense, unlike the USA. The USA follows the separation of power strictly and does not interfere in the other organs of the government. So, there is a tussle of power between these three organs of the government. One of the instances to define this tussle of power is the appointment of judges. 

Appointment of Judges: 

Article 124 of the Constitution empowers the President to appoint every judge of the supreme court after the consultation with CJI, and with other supreme and high court judges of the state. 

The Birth of the Collegium: 

The following cases are the landmark judgments that redefined the manner of appointment of judges and gave birth to the collegium.

  • First Judges Case (1981), In this case, the supreme court held that the word ‘consultation’ as defined under Article 124(2) and in Article 217(1), does not mean concurrence”. The court ruled that, in case of disagreement in the appointment of judges, the ultimate power would not rest with CJI, but the Union Government.
  • Second Judge Case 1993, the apex court overruled the judgment in the first judge case and regained its power. It ruled that in case of disagreement between the President and the chief justice of India, the opinion of the CJI would be primary. It gave birth to the collegium. The court also ruled that;
  1. In the case of appointment of supreme court judges, the opinion of two most-senior judges after the CJI will play a significant role.
  2. In the case of appointment of high court judges to that particular high court of the state, the opinion of two most-senior judges of that particular high court is significant.
  • Third Judges Case (1998): The same view was observed in the judgment of this case, and it also expanded to include the CJI and the four most-senior judges of the court.

Negatives of Collegium: 

There are certain negative aspects of the collegium, such as; it favors nepotism, favoritism and depends upon the relation of the judges, and devoids the merit and seniority. 

  • National Judicial Appointments Commission was most probably the noticeable measure taken against collegium. It was under the 99th Constitutional Amendment Act, passed in 2014. It was a body to appoint judges, it would consist of the CJI, two senior judges, the Law Minister, and “two eminent personalities” appointed by the Prime Minister, Leader of Opposition. However, this amendment was struck down by the apex court as the infringement of judicial independence and separation of power. 

Conclusion:

Ricardo Logos” There is no reason to have problems between country and country between government and government, when there is a separation of power.’[vii]

History has repeated again and again and the power in the hand of one can lead to destruction. So the separation of power is the preliminary objective of any country. In Today’s world, Democracy is the most accepted form of Government because it is the rule of people, not of any sovereign like a king or commander. It lies on three pillars: Legislature, Executive, and Judiciary. These institutions have their own boundaries in which they have to work and it is mentioned in the Constitution itself. These institutions also work on the system of Check and Balance, whose motive is that no one institution should become more powerful than the other, Because it violates the fundamental principle of Democracy i.e. the rule of people, not of any institution.

Both Parliament and Judiciary, work independently of each other yet they share a complex relationship that may create conflict between them. Parliament can make laws related to Judiciary and it has the power to amend the Constitution, however, it is not that easy. In the same way, the Judiciary has the power of Judicial Review which authorizes the Supreme Court of India to review the laws passed by the Parliament. Through the concept of Judicial Review, The Supreme Court of India can declare any law void, if it is violating the Constitution which ultimately safeguards the citizens of India. In some cases, the Supreme Court also laid the guidelines which become law. However, it was not the job of the Supreme court. These situations made the relationship complex. But it also ensures that the other institution does not start ruling the people.

It is very difficult to speak which one of the two should be more powerful because in some way or the other way both of them play their roles and are very much abide by their duties.

Endnotes:

[i] Anand Nandan, Parliamentary Supremacy and Judicial Review: Indian Prospective ,TOI,(Sept.15,2018,3:14 PM), https://timesofindia.indiatimes.com/blogs/les-avis/parliamentary-supermacy-and-judicial-review-indian-perspective/

[ii] Writ Petition (civil)  135 of 1970

[iii] Appeal (civil)  481 of 1980

[iv] Policy-making in India: Judiciary Vs Parliament, http://14.139.13.47:8080/jspui/bitstream/10603/95978/2/11_chapter2.pdf

[v] AIR 1951 SC 458,

[vi] https://indiankanoon.org/doc/1031794/

[vii] Writ Petition (civil) No. 310 of 1996, Sept. 22,2006

[viii] https://www.lawteacher.net/free-law-essays/administrative-law/separation-of-powers-in-the-uk-administrative-law-essay.php

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Ekta Sehra

Student, Jaipur National University

The author is a student pursuing B.A.LL.B.(Hons.) degree at Jaipur National University. She is always eager and enthusiastic to gain knowledge in various subjects and desires to change the wrong perspective of people through her writings. For any clarifications, suggestions and feedback kindly find her at sehraekta2@gmail.com

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