Separation of Power PDF

LAW Advanced constitutional law Separation of powers Component - I - Personal Details Role Name Affiliation Principal Investigator Prof(Dr) Ranbir Singh Vice Chancellor National Law Universi...

LAW Advanced constitutional law Separation of powers Component - I - Personal Details Role Name Affiliation Principal Investigator Prof(Dr) Ranbir Singh Vice Chancellor National Law University Delhi Principal Co-investigator Prof(Dr) G S Bajpai Registrar National Law University Delhi Paper Coordinator Dr. Anupama Goel Associate Professor National Law University Delhi Content Writer/Author Dr. Anjali Bansal Goyal Assistant Professor, Department of Laws, Panjab University, Chandigarh. Content Reviewer Dr. Anupama Goel Associate Professor  National Law University Delhi Component - I (B) Description of Module Subject Name Law Paper Name Advanced Constitutional Law Module/ Name/Title Separation of Powers Module Id 22 Pre-requisites Basic Knowledge of the concept of Separation of Powers Objectives To understand the basic concepts relating to separation of powers between legislature, executive and judiciary Keywords legislature, executive, judiciary, separation of powers Component - II Module 10: Separation of Powers Structure: 1. Introduction 2. Learning Outcome 3. Historical Background 4. Position of Doctrine of Separation of Powers in U.K. and U.S.A 5. Doctrine of Separation of Powers in India 6. Executive in India and Doctrine of Separation of Powers 7. Legislature in India and Doctrine of Separation of Powers 8. Judiciary in India and Doctrine of Separation of Powers 9. Conclusion 1. Introduction The term „Separation of Powers‟ was coined by a French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) published in 1748. The doctrine of Separation of Powers deals with the mutual relations among the three organs of the Government namely legislature, executive and judicial. According to Montesquieu, there can be no liberty if the legislative and executive powers are amalgamated in the same person, or body and judicial power is not separated from the Legislative and Executive power. The integration of Judicial and legislative power would expose the life and liberty of the subject to arbitrary control as judge would then be the legislator. Judges might behave with violence and oppression if Judiciary is merged with the Executive.1 2. Learning Outcome Understanding the functioning of different organs of the State. Comprehensive view regarding applicability of principle of separation of powers along with system of checks and balance. 3. Historical Background The origin of this principle goes back to the period of Plato and Aristotle. It was Aristotle who for the first time classified the functions of the Government. Jurist Division of Power Aristotle Deliberative Magisterial Judicial It is the Sovereign The Magistrates It determines disputes power in the are the officers of Constitution like State, its declaring war and Managers. peace, formation and dissolution of alliances, death sentence and exile etc. John Locke Executive power Legislative Federative power Executive and power Power regulating the Judicial powers Rule making Foreign affairs power Montesquieu Legislative Executive Judicial Law making power Implementation Adjudication of disputes of the Law The concentration of powers in a single person would result in a tyrannical form of government. There should be clear cut division of power between the three organs of the state i.e. Executive, Legislative and the Judiciary in order to check the arbitrariness of the government. 4. Position of Doctrine of Separation of Powers in U.K. and U.S.A Position in England Position in U.S.A Legislative Parliament Congress of the United States powers Executive King President Powers 1 Montesquieu, De L Espirit des lois, 1748 quoted in I. P. Massey, Administrative Law, 33, EBC publishing pvt Ltd(2003). Judicial Courts Supreme Court Powers Jurist According to Wade According to Madison, the and Phillips the doctrine of accumulation of all powers separation of powerslegislative, executive and judicial, in implies:2 the same hands whether of one, a few (i) The same person or many and whether hereditary, self should not form appointed or elective, may justly be more than one pronounced the very definition of tyranny. organ of the Government. (ii) One organ of the Government should not exercise the function of other organs of the Government. (iii) One organ of the Government should not encroach with the function of the other two organs of the Government. Position In England, the The President of the United King being the executive States interferes with the exercise of head is also an integral part powers by the Congress through the of the legislature. His exercise of his veto power. He also ministers are also members exercises the law making power in of one or other Houses of exercise of his treaty-making power. Parliament. This concept He also interferes with the goes against the idea that functioning of the Supreme Court same person should not through the exercise of his power to form part of more than one appoint judges. In the same manner organ of the Government. Congress interferes with the power of The House of Commons the President through vote on budget, control the executive. So approval of appointments by the far as judiciary is Senate and the ratification of treaty. It concerned, in theory House also interferes with the exercise of of Lords is the highest powers by the courts by passing Court of the country but in procedural laws, creating special practice judicial functions courts and by approving the are discharged by appointment of judges. In its turn, specially appointed Law Judiciary interferes with the powers Lords and other Lords who of the Congress and the President 2 J. J. R. Upadhaya, Administrative Law, 35, Central Law Agency(2001).  held judicial post. Thus, we through the exercise of the power of can say that doctrine of the judicial review.4 separation of powers is not applicable to Britain in strict sense.3 The three organs can practically not be segregated into three watertight compartments due to their interdependence on each other to ensure efficacious governance. They have to work in accordance and in consonance to achieve a meaningful sustenance and purposeful progress of citizens. Therefore the system of checks and balances has to be followed so that each organ can work efficiently without any abuse of power vested in them. 5. Doctrine of Separation of Powers in India In India, the governance is vested in three organs of the State i.e. Executive, the Legislature and the Judiciary. The executive powers are with the President, the legislative powers with the Parliament and the judicial powers with the Judiciary. The functions and powers of the President are enumerated in the Constitution itself. The Parliament is competent to make any law subject to the provisions of the Constitution and there is no other limitation on its legislative powers. Similarly, 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. At the same time, the Court cannot arrogate to itself any function, which is left to the domain of the other two branches, namely, the executive and the legislature.5 Thus, no organ can overstep the essential functions of the other organ. But, apart from the Directive Principle laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional provisions does not embody any formalistic and dogmatic division of powers. In order to have clear understanding of this principle each organ has to be dealt with separately. 6. Executive in India and Doctrine of Separation of Powers As India is a federation, there is Executive both at Union and State level. President is operating at Union level and Governor at State level. Scope of Executive Powers in India Sr.no. Executive Power of Union Executive Power of State Article 153 provides that there 1. Vesting of Article 52 provides that there shall shall be a Governor for each Executive be a president of India. Article State. Article 154(1) provides Power 53(1) declares the President to be that the executive power of the the head of the Union Executive. It State shall be vested in the provides that the executive power of Governor and shall be 3 Supra note 1, at 34. 4 Supra note 1, at 35. 5 M. P. Jain & S. N. Jain, Principles of Administrative Law, 36, (2005).  the Union shall be vested in the exercised by him either directly President and shall be exercised by or through officers subordinate him either directly or through to him in accordance with this officers subordinate to him. Constitution. Article 162 deals with the 2. Extent of Article 73(1) provides that the extent of executive power of Executive executive power of the Union State and it states that Subject Power extends to the matters with respect to the provisions of this to which Parliament has power to Constitution, the executive make laws. It extends to the power of a State shall extend to exercise of such rights, authority the matters with respect to and jurisdiction as are exercised by which the Legislature of the the Government of India by virtue State has power to make laws: of any treaty or agreement. The Provided that in any matter power is however, subjected to the with respect to which the provisions of the Constitution. The Legislature of a State and executive power of the Union does Parliament have power to make not extend to a matter enumerated laws, the executive power of in the Concurrent list of the Seventh the State shall be subject to, Schedule unless expressly provided and limited by, the executive in the Constitution or expressly power expressly conferred by entrusted by a law made by this Constitution or by any law Parliament. made by Parliament upon the Union or authorities thereof. Article 77 requires that every Article 166 provides that all 3. Conduct executive action of the Union shall executive action of the of business be expressed to be taken in the Government of a State shall be of name of the President. Orders and expressed to be taken in the Government other Instruments so executed shall name of the Governor. Orders of India and be authenticated in such a manner and other instruments made and State as may be prescribed by rules to be executed in the name of the made by the President.. Governor shall be authenticated The President is further empowered in such manner as may be to make rules for the more specified in rules to be made by convenient transaction of the the Governor, business of the Government of India and for the allocation of the said The Governor shall make rules business among the Ministers. for the more convenient All the executive actions of the transaction of the business of Union government are taken in his the Government of the State, name. He appoints officials of the and for the allocation among Union Government, Prime Minister, Ministers of the said business and Council of ministers at the in so far as it is not business advice of the Prime Minister, Chief with respect to which the Justice and judges of Supreme Governor is by or under this Court and High Court at the advice Constitution required to act in of the Chief Justice of India etc. his discretion.  Article 59(1) provides that the Article 158(1) provides that the 4. President President shall not be a member of Governor shall not be a or Governor either House of Parliament or of a member of either House of not to be House of the Legislature of any Parliament or of a House of the member of State, and if a member of either Legislature of any State either House of Parliament or of a House specified in the First Schedule, Parliament of the Legislature of any State be and if a member of either or State elected President, he shall be House of Parliament or of a Legislature deemed to have vacated his seat in House of the Legislature of any that House on the date on which he such State be appointed enters upon his office as President. Governor, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor. Article 143(1) provides that if it 5. Power of appears to the President that a President to question of law or fact has arisen, or consult is likely to arise, which is of such a Supreme nature and of such public Court importance that it is expedient to ----------------------------- obtain the opinion of the Supreme ------ Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon. Article 309 provides that President Article 309 provides that 6. is competent to make rules Governor is competent to make Competent regulating the recruitment, and the rules regulating the to frame conditions of service of persons recruitment, and the conditions Rules appointed, to such services and of service of persons appointed, regarding posts in connection with the affairs to such services and posts in conditions of the Union, until provision in that connection with the affairs of of service behalf is made by or under an Act the State, until provision in that of the appropriate Legislature. Any behalf is made by or under an rules so made shall have effect Act of the appropriate subject to the provisions of any such Legislature. Any rules so made Act. shall have effect subject to the Every person who is a member of a provisions of any such Act. defence service or of a civil service of the Union or of an all India Every person who is a member service or holds any post connected of a civil service of a State or with defence or any civil post under holds any civil post under a the Union, holds office during the State holds office during the pleasure of the President. (Article pleasure of the Governor of the 310) State. (Article 310)  6.1 Interference of Executive in Legislature Interference of Executive in Legislature Sr. No. Interference of President in Interference of Governor in Parliament Legislature 1. Article 168 provides that State Article 79 provides that the Executive - Legislature shall consist of the Union Parliament shall Part of Governor, and Where there are two consist of the President and Legislatur Houses of the Legislature of a State, two Houses, known as the e also one shall be known as the Legislative council of States and the Council and the other as the Legislative House of the People. Assembly, and where there is only one He nominates 12 persons, House, it shall be known as the eminent in literature art Legislative Assembly. science or social service to The Governor of a State may nominate the Rajya Sabha (Article one member of that community to the 80(1)(a). Assembly if he is of opinion that the He may also nominate 2 Anglo Indian community needs persons belonging to Anglo representation in the Legislative Indian community to the Lok Assembly of the State and is not Sabha, if in his opinion that adequately represented therein (Article community is not adequately 333) represented in the House (Article 331). 2. Power It is the President who is Article 174(1) states that the Governor to vested with the power to shall from time to time summon the summon, summon the Sessions of the House or each House of the Legislature prorogue Houses of Parliament. The of the State to meet at such time and and time and place of holding the place as he thinks fit, but six months dissolve session is to be determined shall not intervene between its last by him.[Article 85(1)] sitting in one session and the date appointed for its first sitting in the next Again it is the president who session. has power to prorogue the Article 174(2) provides that the session of House of People. Governor may from time to time The President may dissolve Prorogue the House or either House; Lok Sabha before the expiry dissolve the Legislative Assembly of its term of five years. [Article 85(2)] 3. Power The president may address Article 175 provides that the Governor to address either House of Parliament or may address the Legislative Assembly the Houses both Houses assembled or, in the case of a State having a together and for that purpose, Legislative Council, either House of the he may require the Legislature of the State, or both Houses attendance of the members. assembled together, and for that He may send message to purpose, he may require the attendance either House of Parliament of members. He may send messages to with respect to a bill then the House or Houses of the Legislature  pending in the House.[Article of the State, with respect to a Bill then (86)] The President addressee pending in the Legislature. The both houses of Parliament Governor shall address the Legislative assembled together after Assembly or, in the case of a State general election and at the having a Legislative Council, both commencement of the first Houses assembled together after sessions of each year.[Article general election and at the (87)] commencement of the first sessions of each year. (Article 176) 4. Every Bill passed by both Every Bill passed by the Legislative Interferen houses of Parliament is sent Assembly of a State or, in the case of a ce in the to the President for his assent State having a Legislative Council, has Legislative and becomes and Act only been passed by both Houses of the procedure when it is assented to by him. Legislature of the State, is presented to He may give his assent or the Governor for his assent. He may withhold it (Article 111). give his assent or withhold it (Article Every year the President 200). Article 202(1) states that the causes to be laid before both Governor shall in respect of every houses of Parliament the financial year cause to be laid before Annual Financial the House or Houses of the Legislature Statement(the Annual of the State a statement of the estimated Budget).Article 112(1). receipts and expenditure of the State for that year i.e annual financial statement. 5. If any question arises as to If any question arises as to Decision disqualification of a member disqualification of a member of a on of either House of House of the Legislature of a State, question asParliament, then the question then the question shall be referred for to theshall be referred for the the decision of the Governor and his Disqualificdecision of the President and decision shall be final. Article 192(1). ations of his decision shall be final. members Article 103(1). 6. Article 75(1) provides that Article 164(1) provides that the chief Appointme the Prime Minister shall be Minister shall be appointed by the nt appointed by the President of Governor and the other Ministers shall Prime and the other Ministers shall be appointed by the Governor on the Minister, be appointed by the President advice of the Chief Minister, and the Chief on the advice of the Prime Ministers shall hold office during the Ministers Minister. The Ministers shall pleasure of the Governor: and other hold office during the Ministers pleasure of the President. [Article 75(2)] 7. Duty to Duty has been imposed on The similar duty has been imposed on furnish the Prime Minister to the Chief Minister by Article 167. informatio communicate to the It shall be the duty of the Chief n to the President: Minister of each State: Executive a. to communicate to the Governor of a. all decisions of the Council the State all decisions of the Council of of Ministers relating to the Ministers relating to the administration administration of the affairs of the affairs of the State and proposals of the Union and proposals for legislation;  for legislation; b. Information relating to the administration b. Information relating to the of the affairs of the Union administration of the affairs of the State and proposals for legislation and proposals for legislation as the as the President may call for; Governor may call for; and c.If the President so requires, to submit any matter for the c. If the Governor so requires, to consideration of the Council submit for the consideration of the of Ministers on which a Council of Ministers any matter on decision has been taken by a which a decision has been taken by a Minister but not considered Minister but which has not been by the Council. (Article 78.) considered by the Council. 8. When both Houses of When the Legislative Assembly of a Ordinance Parliament are not in session State is not in session, or where there is making and the President is satisfied a Legislative Council in a State, except power that circumstances exist when both Houses of the Legislature with the which necessitates taking of are in session, the Governor is satisfied Executive immediate action, he may that circumstances exist which render it promulgate Ordinance. It necessary for him to take immediate shall have the same force and action, he may promulgate such effect as an Act of Ordinances as the circumstances Parliament, but every such require. It shall have the same force and Ordinance shall be laid effect as an Act of the Legislature of before both Houses of the State assented to by the Governor. It Parliament. It shall cease to shall be laid before the Legislative operate at the expiration of Assembly of the State, or where there is six weeks from the a Legislative Council in the State, reassembly of Parliament, or, before both the Houses, and shall cease before the expiration of that to operate at the expiration of six weeks period resolution from the reassembly of the Legislature, disapproving it are passed by or if before the expiration of that period both Houses. It may be a resolution disapproving it is passed by withdrawn at any time by the the Legislative Assembly and agreed to President.(Article 123) by the Legislative Council. It may be withdrawn at any time by the Governor.(Article 213) 9. Powers Article 356 confers power on in relation the president to issue a to Proclamation declaring that emergency the Government in a State -------------------------------------------- cannot be carried on in ---------- accordance with the provisions of the Constitution. Parliament may confer on the President the power of the Legislature of the State to make laws. (Article 357)  6.2 Interference of Executive in Judiciary Interference of Executive in Judiciary Sr.No. Interference of President in Interference of Governor in Judiciary Judiciary 1. Power to Article 72 provides that the President The same power has been Grant shall have the power to grant pardons, conferred on the Governor Pardon reprieves, respites or remissions of by Article 161. The vested in the punishment or to suspend, remit or Governor of a State shall Executive commute the sentence of any person have the power to grant convicted of any offence in all cases pardons, reprieves, respites where the punishment or sentence is or remissions of punishment by a Court Martial; where the or to suspend, remit or punishment or sentence is for an commute the sentence of any offence against any law relating to a person convicted of any matter to which the executive power offence against any law of the Union extends; and where the relating to a matter to which sentence is a sentence of death. the executive power of the State extends. 2. Immunity Article 361 provides that the President Article 361 provides that the to Executive shall not be answerable to any court Governor of a State, shall not under for the exercise and performance of be answerable to any court Article 361 the powers and duties of his office or for the exercise and for any act done or purporting to be performance of the powers done by him in the exercise and and duties of his office or for performance of those powers and any act done or purporting to duties: Provided that the conduct of be done by him in the the President may be brought under exercise and performance of review by any court, tribunal or body those powers and duties: No appointed or designated by either criminal proceedings House of Parliament for the whatsoever shall be instituted investigation of a charge under Article against the Governor of a 61. No criminal proceedings State, in any court during his whatsoever shall be instituted or term of office. No process continued against the President, in any for the arrest or court during his term of office. No imprisonment of the the process for the arrest or imprisonment Governor of a State, shall be of the President shall be issued from issued from any court during any court during his term of office. his term of office. 3. Role of Article 124(2) states that every Judge In the same manner, every Executive in of the Supreme Court shall be Judge of a High Court is appointment appointed by the President by warrant appointed by the President of Judges under his hand and seal after by warrant under his hand consultation with such of the Judges and seal after consultation of the Supreme Court and of the High with the Chief Justice of Courts in the States as the President India, the Governor of the may deem necessary for the purpose. State, and, in the case of Provided that in the case of appointment of a Judge other  appointment of a Judge other than the than the chief Justice, the chief Justice, the chief Justice of India chief Justice of the High shall always be consulted. court. [Article 217(1)] 7. Legislature in India and Doctrine of Separation of Powers Legislature in India Sr. No. Union Parliament State Legislature 1. Article 79 provides that there Article 168 provides for Composition shall be a Parliament for the Constitution of Legislatures in Union which shall consist of States. the President and two Houses (1)For every State there shall be a to be known respectively as Legislature which shall consist of the Council of States and the the Governor, and House of the People. (a) in the States of Bihar, Maharashtra, Karnataka, and Uttar Pradesh, two Houses; (b) in other States, one House. (2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly. Parliament has exclusive 2. Function The Legislature of States has power to legislate on matters (Article 245 exclusive power to legislate on enumerated in List I i.e. and 246) ( matters enumerated in List II i.e. Union List. Article 248 states Legislative State List. Both Parliament as well that Parliament has exclusive Procedure has as State Legislature can legislate on power to make any law with been dealt matters enumerated in List III i.e. respect to any matter not with under Concurrent List. enumerated in the Concurrent Article 107 List or State List. and 108) Each House of Parliament The Legislature of a State may 3. Framing may make rules for regulating make rules for regulating its Rules of its procedure and the conduct procedure and the conduct of its Procedure of its business, subject to the business, subject to the provisions provisions of this of this Constitution. (Article 208) Constitution. (Article 118) 7.1 Interference of Legislature in Executive  Interference of Legislature in Executive 1. Role in Article 54 provides that the President shall be elected by the members election of of an electoral college consisting of the elected members of both President Houses of Parliament; and the elected members of the Legislative Assemblies of the States. 2. An impeachment is a quasi judicial procedure in Parliament. Either Impeachment House may prefer the charge of violation of the Constitution before Proceedings the other house which shall then either investigate the charge itself or against cause the charge to be investigated. But the charge cannot be President preferred by a house unless – carried on by Parliament (a) a resolution containing the proposal is moved after a 14 (Article 61) days notice in writing signed by not less than ¼ of the total number of members of that house; and (b) the resolution is then passed by a majority of not less than 2/3 of the total membership of the house. The president shall have a right to appear and to be represented at such investigation. If as a result of the investigation, a resolution is passed by not less than 1/3 of the total membership of the House before which the charge has been preferred declaring that the charge has been sustained such resolution shall have the effect of removing the President from his office with effect from the date on which such resolution is passed. 3. Council of Article 74(1) provides that there shall be a Council of Ministers with Ministers to the Prime Minister at the head to aid and advise the President who aid and shall, in the exercise of his functions, act in accordance with such advise advice. Provided that the President may require the Council of President Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. The similar provision of Council of Ministers to aid and advise Governor has been made under Article 163. There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. 7.2 Interference of Legislature in Judiciary Interference of Legislature in Judiciary Sr. No Constitutional Decision by Apex Court Provisions 1. Court not Article 122 provides In Ramdas Athawale v Union Of India, the validity of the proceedings in the Lok to inquire into that the Court shall proceedings of not call validity of Sakha commencing from 29th January, Parliament or any proceedings in 2004 was challenged on the ground that the Legislature Parliament in President has not addressed both Houses of (Article 122 question on the Parliament as envisaged under Article 87 of the Constitution. The Supreme Court and 212) ground of any held that the Speaker is the guardian of the alleged irregularity privileges of the House and its spokesman of procedure. and representative upon all occasions. He Similarly, Article is the interpreter of its rules and procedure, 212 provides that the and is invested with the power to control Court should not and regulate the course of debate and to enquire into the maintain order.(AIR 2010 SC 1310) proceedings of the Legislature. In Satish Chandra v Speaker, Lok Sabha, It was held that the judicial review and interference with the powers of the speaker of Lok Sabha or Chairman of Rajya Sabha for taking action against such Members of Parliament for indulging in disruption is not permissible being the sole prerogative of the Speaker.[(2014) 2 SCC178] In P.V. Narasimha Rao v State 2. Privileges are those (CBI/SPE), it was observed that the object Parliamentary rights without which of the protection is to enable members to privileges it would be speak their mind in Parliament and vote in (Article 105 impossible for either the same way, freed of the fear of being and 194) House to maintain its made answerable on that account in a independence of Court of law. It is not enough that members action or the dignity should be protected against civil action and of its position. They criminal proceedings, the cause of action of may be divided into which is their speech or their vote. To two groups i.e. enable members to participate fearlessly in firstly, those which Parliamentary debates, members need the are enjoyed by the wider protection of immunity against all members civil and criminal proceedings that bear a individually and nexus to their speech or vote. It is for that secondly, those belonging to each reason that a member is not "liable to any proceedings in any Court in respect of House of Parliament anything said or any vote given by him.( as a collective body. AIR1998 SC 2120) The privileges of the House collectively are – (i) The right to In Raja Ram Pal v Hon’ble Speaker, Lok publish debates and Sabha, it was observed that a member is proceedings and the part of the House due to which his or her right to restrain conduct always has a direct bearing upon publication by others the perception of the House. Any (ii) The right to legislative body must act through its exclude others (iii) members and the connection between the The right to regulate conduct of the members and the perception the internal affairs of of the House is strong. Therefore, even if the House, and to the Parliament had only the limited decide matters remedial power to punish for contempt, the arising within the power to expel would be well within the walls (iv) The right limits of such remedial contempt power.( to publish  Parliamentary (2007) 3 SCC 184) misbehaviour (v) The right to punish Recently, the Supreme Court has showed members and concern over increase in corruption in outsiders for breach allocation of coal block case. It was held of its privileges. that for successful working of democracy, it is essential that public revenues are not defrauded and public servants do not indulge in bribery and corruption and if they do, such allegations should be inquired into fairly, properly and promptly and those who are guilty are brought to book. (Manohar Lal Sharma v Principal Secretary, (2014) 2 SCC 532) The Supreme Court refused to interfere in 3. Article 262 provides the policy adopted by the State for Adjudication that Parliament may allocation of water from Sardar Sarovar of water- by law provide for Project to the District of Kutch. It was held disputes the adjudication of that court has to exercise judicial restraint any dispute or and not encroach upon executive or complaint with legislative domain. It can interfere only if respect to the use, policy is inconsistent with constitutional distribution or laws or arbitrary or irrational. (Kachchh Jal control of the waters Sankat Nivaran Samiti v State of Gujarat, of, or in, any inter AIR 2013 SC 2657) State river or river valley and Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint. 4. Role of A Judge of the Supreme Court may be removed by an order of the Legislature President on the ground of proved misbehaviour or incapacity. The in removal order of the President can only be passed after he has been addressed of judges to by both Houses by a majority of total membership of that house and also by a majority of not less than two thirds of the members present and voting[Article 124(4), Article 217(1) (b) provides that High Court judge may be removed in the same manner as provided by Article 124(4)]. The procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge will be determined by Parliament by law [Article 124(5)]. Parliament enacted the Judges (Inquiry) Act 1968 in the exercise of the power conferred by Article 124(5).The Act and the Judges (Inquiry) Rules  1969 made thereunder provide for removal of a Judge on the ground of proved misbehaviour or incapacity. 5. Advice tendered by Ministers to President or Governor cannot be inquired into in any court. [Article 74(2) and Article 163(3)] 8. Judiciary in India and Doctrine of Separation of Powers Article 13 makes fundamental rights enforceable in the Courts. It declares that a law which is inconsistent with the fundamental rights is void, whether that law is pre constitutional or post constitutional. This power of judicial review is exercised by the Supreme Court and the High Court under Article 32 and 226 respectively. The courts can declare a law unconstitutional if it is inconsistent with the fundamental rights. The theory of basic structure was laid down by the Supreme Court in Fundamental rights case. 6 There are certain basic features of the Constitution like Sovereignty, free and fair elections, federal structure, rule of law etc. that cannot be altered or destroyed by the parliament. History is the proof of the fact that this amendment power tilted either in favour of Parliament or Judiciary. By 42nd Amendment, Parliament tried to nullify the effect of the Supreme Court ruling in Smt. Indira Nehru Gandhi v Raj Narain7. When Indira Gandhi was found guilty of using corrupt practices during elections by the Allahabad High Court, several amendments were made in the Constitution in order to take away the power of judicial review. Thus, the validity of elections could not be challenged.8 It brought about a drastic change in the provisions of the Constitution. Article 368, which gives amending power to the Parliament, was so amended that any amendment made by the Parliament is immuned from being questioned in Court of law. The power tilted in favor of the legislature.9 Ultimately, in Minerva Mills v Union of India10, the Supreme Court ruled that the „judicial review‟, being a basic feature of constitution, cannot be taken away by the Parliament by amendment of the Constitution. 8.1 Interference of Judiciary in Executive It is submitted that it is difficult to achieve independence of judiciary from the executive as the ever increasing power of the executive is likely to topple the balance on which the Indian Judicial System rests. Now-a-days, there are many instances where judiciary has intervened in matters entirely within the domain of executive. Powers Decision of Interference in the Executive by Judiciary vested with the Court the Executive 1. Clemency Devender The power vested in the President under article 72 and 6 Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461. 7 AIR 1975 SC 2299. 8 Divyanshu Priyadarshi, “Case Study: Smt. Indira Nehru Gandhi vs. Shri Raj Narain and Anr. on 7 November, 1975”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2146120, accessed on April 16, 2014 at 6.00 pm. 9 Nidhi Singh & Anurag Vijay, “Separation of Powers: Constitutional Plan and Practice”, International Journal of Scientific and Research Publications, Volume 3, Issue 11, November 2013, http://www.ijsrp.org/research-paper-1113/ijsrp-p2337.pdf, accessed on April 9, 2014 at 7.00 pm. 10 AIR 1980 SC 1798. Powers Pal Singh Governor under article 161 of the Constitution is (Article 72 Bhullar v manifestation of the prerogative of the State. It is and 161) State of neither a matter of grace nor a matter of privilege, but N.C.T of is an important constitutional responsibility to be Delhi, (AIR discharged by the highest executive keeping in view 2013 SC the considerations of larger public interest and welfare 1975). of people. The said power has to be exercised with the Shatrughan aid of justice and not in defiance of it. Though no Chauhan v words of limitations are indicated in article 72 and 161 Union of but the said power is subject to limited judicial review, India, on the ground of unfair, unjust and unreasonable [(2014) 3 procedure of disposal of mercy petition. SCC 1]. The National Security Ordinance 1980 provided for 2.Ordinance AK Roy v detention of persons acting in a manner prejudicial to making Union of the defence of India, security of India, security of the power of India, (AIR State, and friendly relations with foreign powers. The Executive 1981SC Ordinance was challenged on the ground that it (Article 123 2138). suffered from vagueness and arbitrariness. The and 213) Supreme Court held that the ordinance making power of the President would be subject to the tests of vagueness arbitrariness, reasonableness, public DC interest, and that it was passed during the recess of the Wadhwa v Union Parliament. State of It was brought to the notice of the court that between Bihar, AIR 1967 and 1980 in the State of Bihar 256 ordinances 1987 SC were promulgated and all these were kept alive for 579. periods ranging from one year to 14 years by repromulgation from time to time. Out of these 69 ordinances were repromulgated several times with the prior permission of the president. The Supreme Court struck down this exercise of the Ordinance making power as a subversion of the democratic process and colourable exercise of power. The Court held that such exercise of power amounted to a fraud upon the Constitution and hence unconstitutional. The court observed that the Executive could not usurp the functions assigned to the Legislature under the constitution. 8.2 Interference of Judiciary in Legislature Constitutional Interference in Legislature Provisions Power to regulate its The Supreme Court can make rules make rules for proceedings (Article regulating generally the practice and procedure of the Court 145 and 227(2)(b) including rules as to the persons practising before the Court, rules as to the procedure for hearing appeals, and other matters pertaining to appeals including the time within which appeals to the Court are to be entered. Even the High  Court may make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts. 8.3 Doctrine of Separation of Powers and Judicial Attitude Case Position regarding Separation of Powers in India Rai Sahib Ram The Indian Constitution does not recognise the doctrine Jawaya v State of of separation of powers in the absolute rigidity but the Punjab, (AIR 1955 SC functions of the different organs of the State have been 549). sufficiently differentiated. Hence, one organ does not contemplate assumption of the functions that essentially belong to another. Ram Krishna Dalmia v The division of powers among different organs of the Justice Tendolkar, State i.e. legislative, executive and judiciary is implicit (AIR 1958 SC 538). in our Constitution. Kesavananda Bharti v Separation of powers between the legislature, the State of Kerala, (AIR executive and the judiciary is a part of the basic structure 1973 SC 1461). of the Constitution; this structure cannot be destroyed by any form of amendment Smt. Indira Nehru The American Constitution provides for a rigid Gandhi v Raj Narain, separation of governmental powers into three basic (AIR 1975 SC 2299). divisions the executive, legislative and judicial. The Australian Constitution follows the same pattern of distribution of powers. Unlike these Constitutions, the Indian Constitution does not expressly vest the three kinds of power in three different organs of the State. But the principle of separation of powers is not a magic formula for keeping the three organs of the State within the strict confines of their functions 8.4 Doctrine of Judicial Restraint Doctrine of Judicial restraint means that judges should restraint themselves while exercising their powers as their role is not to frame policy or establish new rights rather their essential function is administration of justice. Even Judiciary has recognized this doctrine of separation of powers i.e. no organ should interfere in the essential functions of the other organ. Instances of Judicial Restraint Decision Judicial Restraint Shri Sitaram Sugar Price fixation and price calculation is the prerogative of Company v Union Of the Legislature. India, AIR 1990 SC 1277. Decision as to including Rajasthani language in 8th Kanhaiya Lal Sethia v Union of India, (1997) 6 schedule has to be taken by Legislature and not SCC 573. Judiciary. Direction to the State Government for development of A. K. Singh v Jharkhand Mukti Morcha Garhwal and Kumaon regions ignoring plea of financial incapacity of State cannot be given by courts. Almitra H. Patel v Directions for keeping the Delhi clean along with Union of India, AIR prescribing methods for the same is beyond the power of  1998 SC 993. courts. 9. Conclusion There is no enunciated demarcation beyond which each of these organ cannot cross. What is most expected out of each of them is that they consciously realize the unseen boundaries and respect each other‟s sovereignty. This realization would help in upholding the rights of the citizens and establishing a „welfare state‟. It is important to value the efforts of the framers of our Constitution who envisaged the nation‟s future as a harmonious relationship between the pillars of the government. It is not only the duty of the tripartite to realize the same but also the obligation of the citizens to realize the ultimate sanctity of the Constitution.11 _____________________ 11 Nidhi Singh & Anurag Vijay, “Separation of Powers: Constitutional Plan and Practice”, International Journal of Scientific and Research Publications, Volume 3, Issue 11, November 2013, http://www.ijsrp.org/research-paper-1113/ijsrp-p2337.pdf, accessed on April 9, 2014 at 7.00 pm.