An Analysis: Violation of the Doctrine of Separation of powers and

Accountability of the Judiciary

By: Kajal PriyaBBA LLB (H)4th Year

Galgotias University

Introduction “Separation of Power” is made by two words separation and power, which

means separating the powers among the organs of the Government. Three organs of Government is Legislative, executive and Judiciary. Three main categories of government functions i.e. legislative, executive

and Judiciary. In “Separation of power” all the functions and powers of government

should be separate to each organ and each organ has to be in free democracy.

No organ should interfere in the decisions of other organ or no organ can exercise powers of other organ.

To be Continued:

Doctrine of separation of power is accepted in India. Theory of Separation of power signifies three formulations of Structural

classification of Governmental powers:a) Same person should not form part of more than one of the three organs

of the government. E.g.: minister should not sit in parliament.b) One organ of government should not interfere with any other organ of

the government.c) One organ of government should not exercise the functions assigned to

any other organ.

To be continued:

Under Indian Constitution:a) legislative power is vested in the Parliament. b) Executive powers are vested in the president. c) Judicial power is vested in the Judiciary (Supreme Court, High Court

and its subordinate courts) . Doctrine of Separation of power is the basic structure of the Indian

Constitution.

History Origin of this doctrine of Separation of Power is traceable to Aristotle. written by John Locke in his second treaties of Civil Government

about Separation of Power. Montesquieu, formulated this Doctrine of Separation of power in a

systematic and scientific manner in his book “Esprit des Lois” published in 1748.

Comparison between UK & USA

Doctrine of separation of power has been accepted and strictly adopted by US constitution while not accepted strictly in UK.

Integration of power has been adopted in UK. Legislative powers are vested in the Congress. Executive power

vested in the President. Judiciary power vested to the Supreme Court and its subordinate courts of the US.

In England all three powers are vested in three separate organs of the government and each one has its peculiar features but, there is “sharing out” of the powers of the government.

Introduction of organs of Government: Legislature: legislative power is vested to the parliament in India.

India has Bicameral Legislature therefore, Parliament consist of two houses

a) Rajya Sabha: Rajya Sabha is also known as Upper House or Council of States in which the members are appointed by the president after elected by state legislatures. Rajya Sabha is a permanent house it never dissolve members of Rajya Sabha are elected for the tenure of six year.

b) Lok Sabha: Lok Sabha is also known as House of People. However, Lok Sabha is the Temporary House and it dissolves when the party in power losses support of its majority states.

Executive Judiciary

To be continued:

Executive: Executive power is vested to the president in India. President enjoys all constitutional powers and exercise them directly or through officers subordinate to him. President has to act in accordance with the Prime Minister who is the head of Council of Ministers .

Judiciary: Judicial power is vested in the Judiciary (Supreme Court, High Court and its Subordinate Courts) in India. Judiciary is the body which apply the laws and rules made by legislature and executed by the executive body. Judiciary is the branch which grants justice to public. Judiciary includes many Courts i.e. Supreme Court, High Courts, District Courts, Tribunals etc. Supreme Court is the Superior body it has original, appellate and advisory Jurisdiction. Therefore, Judgement of Supreme Court is binding over all other Courts.

LEGISLATIVE RESPONSE

Already discussed above that Doctrine of Separation of Power is adopted in India. But not strictly.

India adopted Separation of power as this concept is adopted in U.K. During the time of Internal Aggression, National Emergency, State

Emergency and Financial Emergency executive (President) exercises powers of Legislature as well as Judiciary.

During emergency, powers of state government are performed by the president.

Complete president rule started at the time of internal aggression. During this period president takes each and every decision of either judiciary or Legislative.

To be continued:

This violation of separation of power is not void as there is a concept known as Delegated Legislation.

In Delegated legislation, powers of one organ is delegated to the other organ of the government.

There is some limitation of Delegation of power/Delegated Legislation that the basic functions of one organ cannot be delegated to the other organ.

“Delegated Legislation is an expression which covers a multitude of confusion. It is an excuse for the legislators, a shield for the administrators and a provocation to the constitutional Jurists” said by Mukherjea.

JUDICIAL INTERPRETATION 

Judicial Accountability Bill:- word Accountability, is responsible for their own decision or taken by them. Accountability is not a new concept.

According to this Concept all judges have to declare their own assets and Liabilities.

This bill also laid down some specific judicial standards for relative judges.

This act also specify that in cases of any friend, relatives or any other known person cannot give decision who has some relation in the case or with the people.

Judicial Accountability bill helps in bringing Transparency and accountability in the Judicial System.

To be continued:

Delegated Legislation in India is divided in two parts (i) Pre- Constitution Period (R. V. Burah) (ii) Post- Constitution Period (Delhi Laws Act 1912,re). For better understanding of delegated legislation case laws are

discussed below of both pre-constitution and post-constitution period.

R. V. Burah . (1878) 3 AC 889: (1877-1878) 5 IA 178(PC).

Facts:- i. area of Garo Hills were removed from the jurisdiction of Civil and

Criminal Courts, by Section 9 the Lieutenant Governor was empowered to extend mutatis mutandis all or any of the provisions of the act applicable to Khasi, Jaintia and Naga Hills in the Garro Hills and to fix the date of such application.

ii. By a notification dated 14 October 1871, the Lieutenant Governor extended all the provisions of the act to the District of Khasi and Jaintia Hills.

iii. The appellants were convicted of murder and sentenced to death, challenged the notification.

To be continued:

Judgement:- • The High court of Calcutta by a majority, upheld the constitution of

the appellants and held that section 9 of the Act was ultra vires the powers of the Indian legislature.

• According to court, the Indian legislature was a delegate of the imperial parliament and therefore, further delegation was not permissible.

• On appeal, Privy Council reversed the decision of the Calcutta High court. Held that the Indian legislature was not an agent or delegate of the Imperial parliament and it had plenary powers of legislation as those of the Imperial parliament itself.

To be continued:

• The governor general in council could not by legislation create a new legislative power in India not created or authorized by the council’s Act. It was only case of conditional legislation, as the governor was not authorized to pass new laws but, merely to extend the provisions of the act enacted by the competent legislature upon fulfillment of certain conditions.

Delhi Laws Act, 1912, Re(AIR 1951 SC 332, 346-347: 1951 SCR 747)

Facts:-• First leading case decided by the Supreme Court of India on Delegated Legislation

after constitution came into force. • In this case three acts were followed. Delhi Laws Act 1912, Section 7 of Ajmer-

merwara Act 1947 and Section 2 of States Law Act 1950. The Central Government was authorized by Section 2 of the Part C States laws Act, 1950 to extend to any part C state with such modifications and restrictions as it thinks fit.

• Under these respective sections power has been delegated to the central and provincial Govt. for two purposes:-

i. To extend and apply any enactment with such restrictions and modification, enforce in part A states to Part C states or Delhi or Ajmer as the case may be.

ii. It also gave delegated power to govt. to repeal or bring about an amendment in any law and enforce in part C.

To be continued:- Issues:-a) Whether this Section 7 and Section 2(2) is Valid or not?b) Whether delegation of power under these sections are Valid or not? Judgement:-• Decision given by Seven Judges Bench in which minority of Judges

said “These delegated Legislation in India should adopt the U.K. level (Liberal approach regarding Delegated Legislation)”. Majority of Judges said “India should adopt U.S. model, there is some limitation over it”.

• It has been held by Supreme Court that Delegation under Section 7 and 2(2) is part 1 and it is valid. But, delegation is not valid for part 2 because amending power is essential function.

To be continued:- Principals Laid Down:- • Delegation of Legislation by the Legislative authority could be Permissible

only in regards to ancillary legislation as per Indian Constitution the power of Law making can be exercised by the Parliament and state legislature further, ordinance making power of the president, ordinance making power of Governor and power of the president to make Law in case of State Emergency.

• Constitution of India also mention the limitation on these powers (delegation) under Article 123, 213 and 357.

• Limitation- they can exercise their power when there is need means delegation is present but also there is limitation.

• Power of Delegation must be clearly mentioned in the statute and with the clear limitation on that power.

To be continued:-• Legislative body must retain in its own hand with essential legislative

functions and surrender of essential legislative functions would amount to abdication of legislative function and court can interfere in it.

• On the basis of above principals it has become very clear that constitution has legitimize delegation of legislative powers by the legislature to the executive or the administrative organ. Constitution also impose outer limit or general limit like policy and standard on delegation.

CONSTITUTIONAL MECHANISM

Constitutional provisions/Articles which grant powers/Rights to the Government or organs of the Government:-

Article 53 – Under this Article the Executive Power of Union or Functions of the Government are vested in the President

i. President can exercise its executive power directly or indirectly through its subordinate officers.

Article 74 – Under this Article it is mentioned that there shall be a council of ministers to aid and advise the president in decision making during his working.

Article 123 – Under this Article it is mentioned that the President has power to make ordinance during the period when the Parliament is not in its Session.

• This ordinance has same value as that of the parliament made laws. • When the parliament come back in session this ordinance has to be circulated among

council of ministers and house of people if both of these parties pass this ordinance then it will become permanent law.

To be continued:- Article 213 – under this Article constitution also discuss the Right to

making ordinance by Governor during the recess of the Legislature. Article 245 – Under this Article Constitution discuss about the extent

of laws made by the Parliament and by the Legislature of the States. Article 246 – under this Article Constitution discuss about the subject

matter of the laws made by parliament and by the legislature of the states.

Article 357 – Exercise of Legislative power under proclamation issued under article 356.

Check and Balance TheoryI. Judicial Control over Legislature and Executive:- Judicial control over Legislature• Article 13- This section talks about the Judicial Review, under this

judiciary review the laws made by the legislature and this process is known as Judicial review. refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict the Constitution of India. The Constitution of India is the supreme law of the land.

• Article 145 – Under this Article Supreme court has right to make law for regulating its own procedure

To be continued:-

Judicial Control over Executive• Article 32 – Under this section one can file writ directly to the

Supreme Court in case some Fundamental right is infringed.• Article 226 – Under this section one can file writ in the High Court

directly if any fundamental right is violated

II. Legislative Control over Executive and Judiciary:- Legislative Control over Executive• Article 61 – Under this article the procedure for impeachment of

president is mentioned. If president violates any constitutional provision then the parliament has power to impeach the president.

To be continued:-

• Article 75 – Clause 5 of this Article talks, that the council of ministers are collectively responsible for the House of People.

• Article 352 – Under this article parliament passes a resolution for passing the National Emergency.

• Article 123 – Parliament passes an ordinance, under this Article president has right to make ordinance when the parliament is not in session.

Legislative Control over Judiciary• Article 124 – Under this Article it discussed about Establishment of

Supreme Court and Removal of Judges. Legislature has right to making laws for regulating on how the court will proceed.

To be continued:-

III. Executive control over Legislative and Judiciary:-• Article 111 – when bill is passed by the both houses of Parliament it

have the President’s (Executive Body) consent. President has three powers i.e. to give his consent, to withhold his consent, to return the bill.

• Article 103 – Disqualification and removal of member of Parliament. President can remove on the grounds of violation of power. President removes them by taking opinion of the election Commission.

Cases Discussed:-

A.Indira Gandhi V. Raj Narain, (1975 Supp SCC I: AIR 1975 SC 2299, 2435)

B.Keshwanand Bharti V. State of Kerala . (1973) 4 SCC 225.C.I.C.Golaknath V. State of Punjab . (AIR 1967 SC 1643).

Indira Gandhi V. Raj Narain, Facts:-• In this case, an appeal was filed by the appellant against the decision

of the Allahabad High Court invalidating Smt. Indira Gandhi’s election on the ground of corrupt practices.

• In the meantime, the Parliament passed the 39th Constitutional Amendment, which introduced and added a new Article 329A to the Constitution of India.

• Stated by Article 329A that the election of the Prime Minster and the Speaker cannot be challenged in any court in the country. It can be rather challenged before a committee formed by the Parliament itself.

To be continued:-

• Although the Supreme Court validated the election of Indira Gandhi but declared the 39th Amendment to be unconstitutional as it violated the basic structure of the constitution. The 39th Amendment was made to validate with retrospective effect the election of the then Prime -Minister which was set aside by the Allahabad High Court.

Issue:-• The main question involved in the case was of the validity of clause

(4) of the Constitution 39th Amendment Act, 1975. The contention was that this clause in question not only wiped out the High Court judgement but also the election and the law relating thereto.

To be continued:-

Judgement:- • Supreme Court invalidated clause (4) of Article 329-A inserted in the

constitution by the constitution (39th Amendment) Act, 1975 to immunize the election dispute to the office of the prime-minister from any kind of Judicial Review.

• Indira Gandhi won election by misusing her powers. Therefore, the election is held void under Article 329-A, clause 4 of the constitution of India.

• In this case it is held that SOP (Separation of Power) is the Basic feature of the Constitution.

Keshwanand Bharti V. State of Kerala Facts:-• In this case writ petition was filed by the petitioner under Article 32 of

the Constitution for enforcement of his Fundamental Right under Article 25, 26, 14, 19(1)(f) and 31 of the Constitution.

• He prayed that provisions of Kerala Land Reforms Act, 1963 as amended by Kerala Land Reforms (Amendment) Act, 1969 declared unconstitutional. Ultra Vires and Void on ground that some of its provisions are violative of its Fundamental Rights.

• During pendency of the Writ parliament passed three new Amendment those amendments are 24, 25 and 29th Amendment.

• Petitioner also challenged the validity of these three new Amendments.

To be continued:-

Issues:- • Whether land laws challenged by way of writ petition are in consonance with Article

31-C of the Constitution? Judgement:- • The Basic structure Theory passed in this case. It was held that parliament has

limited power to amendment of Constitution but the basic structure of the constitution cannot be amended.

• Parliament has power to amend or omit laws and rules even it has power to amend Constitution also. But, this power is limited.

• There is no such power to Parliament for amendment of the Constitution unless, there is no default or anything which is not for the welfare or benefit of public.

• Therefore, the basic structure of the Constitution cannot be amended.

I.C.Golaknath V. State of Punjab Under this case Sarkari Prasad and Sajjan Singh case was overruled. It was held that the power of Amendment is limited but in order to

amend Fundamental Right. Amendment law can be Judically Reviewed. The Apex court said that amending power and legislative power of

parliament were essentially the same.

Conclusion and Recommendation:- Separation of power is a Doctrine which is made with great thought. Concept behind this Doctrine is really appreciable. Because powers in

hands of a single person can make him corrupt or arrogant. All powers in one hand means violation of rights of public and no

decision will be for the benefit of public in such case. Therefore, the powers are distributed among the three separate organs of the Government.

Separate powers are given to each organ still these organs exercising powers of other organs. Such exercise of power of one organ by another organ is not the violation of Separation of power. Such process is known as Delegated Legislation.

To be continued:-

This concept gives flexibility to Constitution from the Doctrine of Separation of Power.

Delegated legislation plays an important role in the constitution because sometimes it is necessary to take decision with help of other organ or in any situation like when parliament is not in session if that some emergency comes in front of government who will handle the situation. So, for that circumstances delegated legislation is very important.

It can be said that the government should be for the benefit of the public and for public welfare. But, welfare or justice is not a thing which can only be feel so it can also be visible “Justice must not only done but also appears to be done”.

Thankyou