This article is written by MS SHAHEEN HIRANI, a 4th year student of Keshav Memorial College of Law.
Separation of powers is one of the elementary concepts for the governance of a democratic country. Separation of power divides the functioning of government in its three major branches namely- Executive, Legislative and Judiciary. This limits the occurrence of any short comings and arbitrary motion on government, since all the branches’ functions according to the task given for making, executing and administering the law. These branches work individually and without the interference of one on the other that means the legislative cannot functions the executive and judiciary powers because it leads to arbitrariness and ends the freedom; The executive cannot function the legislative and judiciary powers because it threatens the freedom and liberty of individuals; The judiciary cannot function the legislative and executive powers because the judge can act or behave like a dictator.
The emergence of Separation of powers goes down to the 4th century BCE in the works of Aristotle. But this got a proper momentum and systematic arrangement in 18th century by a French philosopher in his book named-’‘De l’esprit des lois” which means
The spirit of laws. Further it was developed and organised by John Locke.
PURPOSE OF SEPARATION OF POWERS
This doctrine got it roots from the very earlier century and thus it focuses more on a proper administration of the govt bodies to maintain harmony and tranquillity amongst the people and the state as whole. Several outlined necessities for the need of separation of powers are:
. To prevent abuse of power by a single person or group of individuals.
. It helps in protecting the society against arbitrary, tyrannical powers of state and safeguards freedom of all.
. This doctrine allocates the functions for effective and smooth discharge of the respective duties of the bodies of govt and it prevents in misuse of power.
. It helps in keeping check on all branches of govt by making them accountable for themselves.
. Enhances proper mechanism and improves efficiency of govt.
ELEMENTS OF SEPARATION OF POWER
LEGISLATIVE– it is called as rule making body. The main function of legislative body is to make laws for good governance of state. It also has the authority to amend existing rules and regulations. The parliament of the state holds the power of making rules and power.
EXECUTIVE- this is the governing body of the state. The main objective of executive is to implement and enforce laws made by the legislative. The President and bureaucrats form the executive branch of govt.
JUDICIARY- judiciary plays a crucial role as it interprets the laws made by the legislative and safeguard the rights of individuals. It extends the power in resolving the issue within state or internationally.
CONSTITUTIONAL PROVISIONS
ARTICLE 50- The Indian constitution encourage the separation of judiciary from the executive in the states.
ARTICLE 123- The President is the head of the country, and it can empower to exercise legislative powers in certain conditions.
ARTICLE 121-211- Judicial conduct of any judge of Supreme Court and High Court shall not be discussed in parliament unless there is impeachment happening.
ARTICLE 361- President and Government enjoy immunities from court proceedings. They are not liable to any court for exercising their powers and performance of duties in office.
JUDICIAL REVIEW- ANGIOPLASTY OF SEPARATION OF POWER
Angioplasty is a medical procedure used by the doctor to open closed arteries supplying blood to heart essentially for the existence, survival and living of human beings. Similarly for a smooth governance, Judicial activism of judiciary acts as the angioplasty of Separation of power. All the three branches which are legislative, executive, judiciary must play their role in an appropriate manner to enhance provisions of constitution, but Judiciary outshine the other branches and does the angioplasty of separation of power by inserting Judicial review being necessary to be constituted the heart of constitution.
It was Arthur Schlesinger Jr, who introduced the term Judicial Activism. It is an idea that courts may oversee and nullify the actions of another branch of government. Judicial activism is used a lot in public debate without a clarity and thus has created some confusion too. It was also argued that Judiciary helps in check and balances and must be expanded in performing roles.
CHECK AND BALANCES OF ORGANS
Every organ imposes check upon one another for the proper functioning of the organs of government.
. The Judiciary is the only body who has the power of judicial review over actions of executive and legislative.
. If any law passed by the legislative seems unconstitutional the judiciary has the power to strike it down also it can declare unconstitutional executive acts as void.
. Not only judiciary supremely but the legislative body can also review the functioning of executive.
. Although the judiciary is independent, the judges are appointed by executive.
. The main object of check and balance is to see no organ can become altogether powerful.
JUDICIAL ACTIVISM IN INDIA
Judicial activism played a major role in protecting rights and freedom of Indians, as guaranteed under constitution.
Judiciary developed several concepts and interpreted constitutional provisions in wider sense to protect basic civil and fundamental rights in various cases.
The development of concepts like litigation and public interest litigation (PIL) has gained momentum over traditional jurisdiction. It was observed that in a developing state like India, PIL plays and fulfils the rule of law over any theoretical existence. It was Justice Bhagwati who declared the urgency of innovative methods of justice as the court has the duty to utilise the initiative of public minded people for making it a group of interest with quick disposal over classic time-consuming ones. While conducting this SC had heavily criticised over public approach towards PIL. As it was assumed that court belongs only to the rich and not poor. The revolution took place when Judicial Activism reached to the poorest of the poor with all issue where basic human rights are disturbed.
Some fundamental case laws of Judicial activism.
. MARBURY VS MADISON
It’s an USA case, where for the first time something was declared unconstitutional. This case was the reason behind establishing of judicial review in USA. It had ancient roots still existed where check and balance of American government was investigated.
. DR BONHAM’S CASE
It was in England where the idea that the courts could nullify statutes in this particular case was observed. It was enabled that fines would be levied against anyone who violates rules in college. The college accused a doctor who used to practice without license. It was found that statutory powers violate because no person should be judge in his own case.
. MANEKA GANDHI CASE
This case is one of the landmark cases in India where the courts independently have come into play in protecting the rights of aggrieved person.
However, it is observed that judges in precise the judiciary have a major role to play. And to their potential is the power of Judicial review. Judiciary has not only the power in preventing the abuse and misuse but also in eliminating such injustice. At last, it can be concluded that Judicial review has helped and reached out to every human being suffering any injustice whether in short course or long. Greater efficiency can bring fruitful results.
REFERNCES
- Britannica.com
- Ipleaders.com
- Legalservicesindia.com
- The constitution of India- P.M. BAKSHI
- Administrative law- I.P. MASSEY.
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