GS Paper 2:
- Separation of Powers (between different organs, dispute redressal mechanisms, institutions);
- Judiciary (structure, organisation functioning)
- Do you think that constitution of India does not accept principle of strict separation of powers rather it is based on the principle of ‘checks and balance’? Explain. 15 marks
- The judiciary is the important pillar of the Indian political system it protects the fundamental rights of people, adjudicates the disputes, save the democratic ideals and ensure that the government must run as per spirit of the Indian constitution. 15 marks
What is meant by independent of judiciary?
Judiciary is an important pillar of democracy which adjudicates the disputes and ensures that the government must run according to spirit of the Indian constitution. The Indian constitution protect independence of judiciary through following ways:-
- The judges of higher judiciary are appointed by the president of India in consultation with the members of judiciary itself moreover the collegium gives recommendations regarding appointment of judges.
- The salary and expenditure of the Supreme Court and Judges are charged from consolidated fund of India.
- Judges and their conduct cannot be discussed except during the removal.
- Supreme Court judges are barred from practice after the retirement (High court Judges can practice)
- Supreme Court can appoints it’s own staff .
- Parliament cannot curtail jurisdiction of Supreme Court but can extend it.
- Security of tenure for judges it means the President of India can remove the judges according the grounds mention in Indian constitution.
What is the separation of power?
- The separation of power is part of governing of a state in which the components of state like legislative, executive and judiciary remain independent with each other so that the powers of one branch are not in conflict with those of the other branches. It is also a part of independent of judiciary.
- Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.
Although the Constitution of India does not provide strictly for the separation of powers, these articles provide a general guideline:
- Article 50: This states that the State or the Government concerned will take appropriate steps to ensure that the judicial branch is separated from the functioning and working of the executive branch.
- Article 121 & 211: It, in a way, provides for the separation of the legislature and the judiciary. This article states that the conduct of justice or the way a judge discharges his duties of any Court cannot be discussed in the legislature (state or union).
- Article 122 & 212: This article is aimed at keeping the judiciary (the law interpreting body) and the legislature (the law-making body) separated. It does so by stripping the judiciary of any power to review and question the validity of proceedings that take in a legislature or the Parliament.
- Article 361: This article separates the judiciary and the executive. It states that the President or any governor of any state is not answerable to any court in the country for actions and activities are taken in performance/exercise of the powers and duties of their office.
Functional Overlapping amongst the organs of Government
- While separation of powers is key to the workings of Indian Government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers.
- Every organ is, in a way, overlapped in its practical functioning with the other two organs of the Government. This overlapping enables the organs to act as a check on each other without too much interference.
- Overlapping Powers of Legislature
|With Judiciary With Executive Impeachment and the removal of the judges. Power to amend laws declared ultra vires by the Court and revalidating it. In case of breach of its privilege and it can punish the person concerned. The heads of each governmental ministries are members of the legislature. Through a no-confidence vote, it can dissolve the Government. Power to assess the works of the executive. Impeachment of the President. The council of ministers on whose advice the President and the Governor acts are elected members of the legislature.|
Overlapping Powers of The Executive
|With Judiciary||With Legislative|
|Making appointments to the office of Chief Justice and other judges. Powers to grant pardons, reprieve, respite or remission of punishments or sentence of any person convicted of any offence. The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial functions.||Power to promulgate ordinance which has the same force of the Act made by the Parliament or the State legislature. Authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution. Powers under delegated legislation.|
Overlapping Powers of The Judiciary
|With Executive||With Legislative|
|Under Article 142, the Supreme Court functions as an Executive in order to bring about the complete justice.||Judicial review, i.e. the power to review executive action to determine if it violates the Constitution. Unamendability of Constitution under basic structure.|
Hence, we can see that although the Constitution mentions a certain amount of separation of powers, it does not do so strictly to keep every organ in check and ensure that it is not entirely free in exercising powers vested in it without any restraint or ulterior motive that will not be in the public interest. In addition to functional overlapping, there is a lack of administrative distinction between the three divisions of the Indian system.
Issues in Overlap:
The problems in the overlapping of practical powers of the governmental organs are:
- The biggest issue of overlap might be that a particular organ cannot be held accountable for its decision, for example, Judicial Decision in 2G case, Coal Block case. (Unaccountability)
- The faith of the public in the institutions of the Government plays a very crucial role in such a complex and vest democracy. The organs repeated interventions into others’ decisions leads to the diminishing of the faith of the people in the quality, efficiency and integrity of them. (Erosion of faith)
- It undermines the spirit of democracy as too much accumulation of powers in organs of Government undermines the principle of check and balance. (Accumulation of power)
- Excessive infringement on each other jurisdiction may impede the smooth functioning of Government and hinder public service and overall development (Adverse effect on development)
Benefits of Overlap:
The functional overlapping of the three institutions also provides benefits.
- The accountability and equality in governance are enhanced by enabling power-sharing laws (Rule of Law).
- The overlap prevents arbitrary actions by the other two organs of the Government; an example is the power of judicial review of the Apex Court of India. (Check and Balance)
- Constitutional demarcations of overriding powers decrease the scope of conflict among the government organs. (Check arbitrariness)
- The overlapping functions induce power-sharing and also provides power decentralisation, thus ensuring that the three organs can work hand-in-hand to solve problems faster. (Cooperation)
What is check and balance?
- Checks and balances, principle of government under which separate branches are empowered to prevent actions by other branches and are induced to share power. Checks and balances are applied primarily in constitutional governments.
What are the issues related to judiciary?
- Allegations against sitting and retired judges: for example, recently chief minister of Andhra Pradesh wrote a letter to chief justice of India and complaint against justice N.V. Ramana for allegedly influencing posting of state High Court.
- Lack of transparency : The judges are nominated by collegium which work secretly moreover it does not give much space to executive in appointment of judges. It is against the principle of check and balance.
- Pendency of cases: A Large number of cases that are pending in the Supreme Court as well as the other lower courts has defeated the purpose of the judicial system. Moreover it compromise the justice in India.
Measures to address the issues related to judiciary:
- Addressing issues related to allegations: The chief justice of India follow in house procedure. In which, The chief justice of India looks the matter and enquire the case and if the allegations are serious the it informs to the president of India. Later the parliament starts the impeachment process.
- Appointment of judges: The supreme court should bring transparency in appointment of judges. It should give more space to executive in appointment of judges so that allegations like nepotism and favouritism can be avoided.
- Pendency of cases: Number of judges should be increased specially in lower court to address the pendency of cases in India which will ensure the speedy justice to people.
Way forward: the judiciary is important pillar of the Indian political system it protects the fundamental rights of people, adjudicates the disputes, save the democratic ideals and ensure that the government must run as per spirit of the Indian constitution therefore it should uphold its dignity and ensures the faith of people in it.