Plea bargaining refers to negotiating an agreement between the prosecution and the accused, according to which the accused would plead guilty for a lesser punishment, or dismissal of other charges, in case there are multiple charges. This is supported by few people because it reduces the burden of the judiciary, by getting a confession from the accused. There are also a few criticisms regarding plea bargaining. The concept of plea bargaining is very common in the United States. There were always provisions in the Criminal Procedural Code for an accused to plead guilty, but not for plea bargaining. The concept of plea bargaining was made as a law, when the Criminal Procedural Code was amended by the Criminal Law (Amendment) Act, 2005, to include these.
Types Of Plea Bargaining:
There are three types of plea bargaining, which are discussed as follow:
Sentence bargaining: – in this type of bargaining, the defendant tries to get a lesser sentence for pleading guilty. It reduces the need to go into trial and gets over quickly when compared to a full trial.
Charge bargaining: – in this type of bargaining, the defendant agrees to plead guilty for a lesser charge, for dismissing a greater charge. It is the most common plea bargaining in criminal cases and it is also known as a plea.
Fact bargaining: – in this type of bargaining, the defendant agrees to certain facts, to prevent other facts from being introduced as a piece of evidence. This is usually not considered in a court, because it is considered to be against the rules of the criminal justice system.
Plea Bargaining In The US:
The concept of plea bargaining is used very commonly in the US, with nearly 90% of the criminal cases preferring plea bargaining instead of jury trials. But in the early times, plea bargaining was considered to be unethical and even sometimes illegal, because sometimes the plea bargaining might not be voluntary, or even a wrongly accused person could accept plea bargaining for a reduced sentence. In 1967, a report by the President’s Commission on Law Enforcement and Administration of Justice explained how widespread plea bargaining is and recommended it to be recognized.
The evolution of plea bargaining in the US can be seen in the following cases, to understand how they became an established and protected procedure. In 1969, in the case of Boykin v. Alabama, the US Supreme Court quashed the conviction of a man, who pleaded guilty to five counts of robbery and received five death sentences. This was because the trial judge did not ensure that the man pleaded guilty voluntarily. At present, the judges ensure that the plea bargaining was done voluntarily by questioning the accused in court. Following this, the US Supreme Court said that it is justifiable to award the accused who pleaded guilty with reduced penalties in the case Brady v. TheUnited Statesand also said that the accused could also plead guilty even when they feel like they are factually innocent in the case North Carolina v. Alford. In addition, the Supreme Court in the case of Santobello v. New York, ruled that if the prosecutors break any of the conditions of the plea bargaining, then the accused is entitled to be provided with a proper legal remedy. The court also went ahead to say that plea bargaining is not just an essential part of a proceeding but is also highly desirable. Furthermore, the Supreme Court in the case of Bordenkircher v. Hayes held that the prosecutors may threaten the accused to bring additional charges against him, if he refuses to plea bargain, but those charges should be valid.
Plea Bargaining In India:
Like mentioned earlier, the concept of plea bargaining was introduced in the Criminal Procedural Code by The Criminal Law (Amendment) Act, 2005, which introduced chapter, XXIA, in the code, and came into force on July 5, 2006. As per this amendment, plea bargaining will be allowed for cases in which the maximum punishment is imprisonment for seven years; offenses that do not affect the socio-economic condition of the country and also do not include offenses committed against women and children below 14 years of age. Even before this amendment. The Supreme Court looked into the concept of plea bargaining in a few cases like, The State of U.P. v. Chandrikaand Kripal Singh v. State of Haryana, in which the court said that neither the Trial Court nor the High Court has the power to overwrite the minimum penalties prescribed by law on the basis of plea bargaining. The Sakharam Bandekar case, in 2007, became the first case in India, where the accused requested plea bargaining for confessing to his crimes. The CBI opposed this by saying that the claims against the defendant were very serious corruption charges. The court took the views of the CBI and rejected the defendant’s plea and convicted him.
The Delhi High Court in the case of Pardeep Gupta v. Statedirected the Trial court to look into the provisions of Chapter XXIA of Criminal Procedure Code, reconsider the plea bargaining application of the accused, and said that it should be considered seriously. The Supreme Court has asked the States to consider plea bargaining to reduce a large number of pending cases before the court. Before the 2005 criminal amendment, the courts did not consider the concept of plea bargaining very positively, even after the amendment, only a very few times the court has looked into plea bargaining as a serious issue. The courts should really consider this as a measure to finish the trial quickly and reduce the pendency of cases before the court.
Criticisms Of Plea Bargaining:
The concept of plea bargaining has a few advantages like the case could be disposed of quickly, and that it is a hassle-free method, but it also has a few criticisms, which would be discussed now. For starters, plea bargaining should be made voluntarily, an accused cannot make a plea bargaining because of coercion, or because of any misrepresentation. If the court doubts that it was made involuntarily, then the court has additional work to check if it was made voluntarily or not. Furthermore, many feel that plea bargaining lets the offenders not get the punishment that they deserve. Finally, few people believe that the innocent accused sometimes agree to plea bargain as they feel like they are stuck and don’t know what to do.
Conclusion:
The concept of plea bargaining is not completely new in India, the courts have from time to time looked into this in certain cases, but most of it did not have a positive impact on it. But, along with time, the need for plea bargaining in India, was felt. But even when a change was brought, by the Legislature in 2005, it was not properly used by the people and the judiciary, too, did not work a lot for its proper implementation. Everything has a positive negative side; it is not right to judge plea bargaining based on its disadvantages alone and the concept of plea bargaining in India is only evolving and it will be improved only with proper and continuous usage. The US is one of the countries which use plea bargaining regularly. The Indian legal system is not yet ready to adopt plea bargaining like the US. But after a few years, India can try to implement it like that. The main reason for the implementation of plea bargaining in India is that India has more than half of the inmates who are under trial and a large number of pending cases before courts.
The article is written by Santhiya V., pursuing BBA LLB (Hons.) at Alliance University.
The article is edited by Shubham Yadav, pursuing B.com LL.B.(4th Year) from Banasthali Vidyapith.
The Delhi Commission for Protection of Child Rights (DCPCR) has been constituted under the Commission for Protection of Child Rights (CPCR) Act, 2005. It is the statutory watchdog of the Government of Delhi on matters of child rights. Some of the child rights the Commission works are:
1-Protection of children from exploitation, abuse, labour, trafficking, and violence.
2-Protection of children from sexual offences;
3-Protection of children from child marriage;
4-Right to Education;
5-Right to Health with emphasis on pregnancy care, infant care, nutritional standards, immunisation, protection against malnutrition, etc;
6-Protection of rights of children with special needs;
7-Protection of children from substance abuse;
8-Enforcement of legal protections for children in case they commit offences and the necessary safeguards associated therein;
9-Right to play;
There are different divisions within the Commission for monitoring the implementation of these rights, reviewing safeguards, inquiring into violations and advise the government on policy formulation and amendments. Each of these divisions is mapped to corresponding departments of the government and is headed by a Member, a State Government Secretary level position. There are 6 Members who all report to the Chairperson.
Deadline
Junior Consultant: July 18th, 2021 by 11:59 PM
Senior Consultant July 28th, 2021 by 11:59 PM
Project Management Unit: July 28th, 2021 by 11:59 PM
Located in the lap of nature, the Career Point University was established by Government of Himachal Pradesh Act No 12 of 2012 under Sec 2(f) of UGC Act 1956. The University is recognized by UGC and is a member of AIU. The courses run by the university are approved by UGC, HPPERC, HP Government, BCI and PCI. There are Five Schools and thirteen departments imparting education from undergraduate level up to doctoral level.
Career Point University follows the world’s best IIT-Education system to support every student to realize their potential with the experiential approach in academics. Thousands of young students have already made Career Point University as their first choice for their higher education to give thrust to their career. University offers personal approach to address every student’s need. The University works with a mission to provide quality education and help students excel in all walks of life.
ABOUT SCHOOL OF LEGAL STUDIES AND GOVERNANCE
The School of Legal Studies and Governance was set up in 2014 with BALLB program. Later the School took a leap by starting LLM and PhD programs. Presently the School has one department and one division. The School of Legal Studies and Governance in committed to provide career-oriented quality legal education to students. In a short span of five years, the School of Legal Studies and Governance has become a preferred destination for the students who
wish to make a mark in law field. The regular classroom teaching is supplemented by case studies and simulation exercises. The School derives its strength from qualified and experienced faculty which is complimented by a well equipped departmental library. Located in the rural area, imparting free legal aid forms an important component of teaching.
ABOUT THE INTERNSHIP SCHEME
Intellectual property lawyers combine their legal skills with other skills in technology, business, and the arts. Often a company’s lifeblood is its ownership of intellectual property. IP law involves protecting intellectual creations including inventions, discoveries, original create works such as music, plays, maps, computer programs and books, as well as brand names and other symbols that indicate the source of goods and services. IP includes patent law, copyright law, trademark law, and trade secret law, along with some other areas of law, including licensing and unfair competition. With the rapidly developing technology, and the increasing number of patents granted every year, protection and enforcement of patents and rights of patent holders is of utmost importance. The legal community a big role in safeguarding the rights of patent holders. Legally, patents provide inventors with the right to exclude others from making, using, selling, offering for sale, or importing an invention. Keeping this in mind, this internship has been designed to help the learners, especially lawyers and law students wishing to build their careers in Patents Law. This internship will also benefit professionals who wish to get acquainted with the law or refresh their knowledge on the subject.
WHO CAN APPLY?
Open to All
LAST DATE TO APPLY
18th July 2021
DURATION
The duration of the internship would be for 4 to 5 weeks. (19th July to 18th August 2021) MODE OF INTERNSHIP
The Internship will be ONLINE.
All the reporting and dissemination of information will take place through the Mail. Every task allocated to the interns will have specific guidelines to be followed.
CERTIFICATE OF INTERNSHIP
The certificate will be awarded to the interns upon satisfactory completion of all the mandatory requirements of their internships and on submission of their Assignment Report/Quiz and its evaluation by the Chair members.
REGISTRATION FEE
Interested candidates are required to apply through Google link
We reserve the right to terminate the internship at any time if a selected candidate is found to not diligently fulfil his/her obligations during the internship period.
If the internship is so terminated, the candidate will not be provided with the certificate.
For any further information/clarification, kindly send an email to sanjeev.law@cpuh.edu.in or contact Rajni BALLB 5th Year 8278814381, Kanika BALLB 4th Year 8894154736
The Junior Professional Associate (JPA) program is a unique opportunity to gain entry-level professional experience and first-hand exposure to the challenges – and rewards – of international development.
Are you a recent graduate? Do you have passion for and commitment to helping others? Are you looking for a solid, two-year entry-level work experience in a multicultural environment? If so, you may be interested in the the World Bank’s JPA program.
In your JPA assignment, you’ll use your strong quantitative and qualitative analytical skills, your knowledge of technology and your research abilities – working with more senior colleagues and project teams in their work both in operations and in corporate functions. You’ll have an opportunity to hone your skills and acquire new ones while gaining first-hand exposure to the challenges of reducing poverty and boosting shared prosperity. Your experience as a JPA may be used as a steppingstone to a career in government, consulting, the private sector, academia or other development agencies.
Eligibility Criteria
The following are minimum requirements to be eligible for the JPA program:
Be 28 years of age or younger on your first day of service
Hold the equivalent of a Bachelor’s degree
Be fluent in English
One or more of the Bank’s working languages is a plus: Arabic, Chinese, French, Portuguese, Russian, and Spanish.
Since this employment program is highly competitive, applicants under active consideration for employment may be asked to submit academic records as well as references. The World Bank will contact only those applicants whom hiring managers wish to interview.
Positions may be located in any of the World Bank’s offices across the world.
A JPA assignment is not an entry point for a career at the World Bank and employment beyond the two-year contract will be prohibited for a period of two years after the end of the contract. However, some former JPAs may rejoin the organization later in their careers after gaining experience elsewhere and becoming experts in their professional fields.
Recruitment and hiring for this employment category is ongoing throughout the year.
How to apply?
Interested candidates may apply online. (Please take care to provide required information where indicated). Please note that applications will be kept active in our database for a period of six months. Should you still be interested in JPA program after six months, you will need to re-apply. Only those identified for an assignment will be contacted to discuss their interest and availability. Candidates are selected by the hiring manager on a highly competitive basis.
What are we looking for?
Your academic achievements are superior and place you in the top portion of your graduating class. Your analytical and research skills extend to areas of specialization such as: economics, finance, human development (public health, education, nutrition, population), social sciences (anthropology, sociology), agriculture, environment (climate, blue economy), infrastructure, private sector development, as well as other related fields, including corporate and administrative functions (IT, legal, accounting, communications, etc).
Under the Madhya Pradesh District Legal Aid Officer Recruitment Rules, 2007, the pay scale for the following vacant posts of District Legal Aid Officer (Entry Level) Second Class Gazetted is 56100-177500 (according to the seventh pay scale) in the prescribed form only from eligible and eligible Indian citizens candidates. Online applications are invited.
Madhya Pradesh State Legal Services Authority invites application for the position of District Legal Aid Officer etc. Eligible candidates can submit their application directly to Madhya Pradesh State Legal Services Authority before 24th June 2021.
Eligibility
Qualification: Should possess a degree in Law
For detailed information, please refer to the official advertisement.
Infoblox is the leader in cloud-first networking and cybersecurity services. Its solutions empower organizations to take full advantage of the cloud to deliver network experiences that are inherently simple, scalable and reliable for everyone, while maximizing existing infrastructure investments.
Available on-premises and through SaaS, the Infoblox BloxOne® and NIOS platforms enable ops teams to automate, standardize and accelerate the delivery of cloud-native and data center network and security services all from one place. Infoblox customers are among the largest enterprises in the world and include 70% of the Fortune 500.
Already a successful Infoblox customer? Want to easily earn free and valuable benefits including Infoblox Training and Professional Services? Email voc@infoblox.com to join the Infoblox Voice of the Customer Program today.
About the job
Description
It’s an exciting time to be at Infoblox. Named a Top 25 Cyber Security Company by The Software Report and one of Inc. magazine’s Best Workplaces for 2020, Infoblox is the leader in cloud-first networking and security services. Our solutions empower organizations to take full advantage of the cloud to deliver network experiences that are inherently simple, scalable, and reliable for everyone. Infoblox customers are among the largest enterprises in the world and include 70% of the Fortune 500, and our success depends on bright, energetic, talented people who share a passion for building the next generation of networking technologies and having fun along the way.
We are looking for a Senior Procurement Legal Analyst to join our Procurement team in Bangalore, reporting to the senior manager of Strategic Sourcing. In this role, you will review and advise on various legal matters related to vendor contracts, support the procurement team with legal clauses to help enable contract negotiations, and work closely with our EMEA and U.S. legal teams. As a part of an agile, experienced group of in-house procurement professionals, you will proactively assess legal risks with vendor contracts and advise on an appropriate fix. This is an exceptional opportunity to join a strong, growing, successful, and innovative organization. Infoblox allows you to thrive in a unique work environment where the emphasis is on career growth, excellence, innovation, and collaboration.
You’re the ideal candidate if you are a great collaborator and strategic thinker who is driven to collaborate across teams operates independently and is deadline- and results-driven. You have a can-do attitude, polished communication skills, and are a self-starter, and if you can also handle competing priorities, that’s a plus.
What You’ll Do
Review, redline, manage and negotiate vendor contracts across all procurement categories
Respond promptly to vendor contract requests from IT, Engineering, Sales, Marketing, Finance, Products, Business Development, Human Resources, and other internal clients, summarizing and communicating legal concepts that business people can implement
Collaborate with Infosec team and evaluate the requirement of Infosec compliance and DPA with vendors
Be exposed to a variety of areas within global procurement activities, with a primary focus on commercial and administrative law and process to identify and mitigate vendor contract risks
Review all legal documents (NDA, MSA, consulting agreements, SOW, Order Forms, etc.) using your understanding of user/business requirements
Document legal files and contracts in our contract repository tool
Work with corporate legal team to draft, review, and negotiate various agreements
Ensure procurement policy compliance
Support strategic sourcing initiatives
What You’ll Bring
5+ years of relevant work experience reviewing and negotiating vendor contracts globally
Background in drafting and negotiating service agreements, software license agreements, and DPA
Expertise in GDPR, India data protection law, and other international data protection and privacy regulations
Organizational skills and the ability to manage several simultaneous projects under deadline pressure
LLB degree or equivalent degree
Excellent communication and problem-solving skills are required, and a passion for providing outstanding customer service is desirable
In-depth knowledge of primarily North American and Indian local, state, and federal laws is required
Proficiency in MS Office skills—MS Excel, PowerPoint
Knowledge of the global supply base and market dynamics a plus
What Success Looks Like
After six months, you will…
Develop a strong understanding of Infoblox’s business model and procurement operating categories
Build a cross-functional relationship with all stakeholders
Focus negotiations on the most critical aspects of Infoblox’s objectives and ownership of reviewing and negotiating vendor contracts
After about a year, you will…
Be supporting, interacting with, and helping shape and implement the business objectives of your cross-functional partners
Become an expert on Infoblox’s contracting model and vendor engagement
Establish yourself as a trusted partner and advisor to your cross-functional peers
Supporting strategic sourcing initiatives
We’ve Got You Covered
Our holistic benefits package includes coverage of your health, wealth, and wellness—as well as a great work environment, employee programs, and company culture. We offer a competitive salary and benefits package, including industry best insurance benefits and generous paid time off to help you balance your life. We have a strong culture and live our values every day—we believe in transparency, curiosity, respect, and above all, having fun while delighting our customers.
Speaking of a great work environment, here are just a few of the perks you may enjoy, depending on your location…
Delicious and healthy snacks and beverages
Electric vehicle charging stations
A courtyard and amenities like an onsite gym, table tennis, pool table, play area, etc.
Newly remodeled offices with state-of-the-art amenities
Why Infoblox?
We’ve created a culture that embraces diversity, equity, and inclusion and rewards innovation, curiosity, and creativity. We achieve remarkable results by working together in a supportive environment that focuses on continuous learning and embraces change. So, whether you’re a software engineer, marketing manager, customer care pro, or product specialist, you belong here, where you will have the opportunity to grow and develop your career. Check out what it’s like to be a Bloxer. We think you’ll be excited to join our team.
“If the legislative and executive authorities are one institution, there will be no freedom. There won’t be any freedom anyway if the judiciary body is separated from the legislature and executive”
– Charles de Montesquieu
History has repeatedly shown that unlimited power in the hands of one person or group of persons, in most instances, means suppressing others or weakening their power. The separation of powers in a democracy should prevent the abuse of powers and protect individual’s liberty.
Thus, in order to stabilize a political system, the holders of power ought to be balanced off against every other. The principle of the separation of powers deals with the relationship between the three important organs of the government, namely the Legislative, Executive, and Judiciary. The doctrine aims for a strict demarcation of power between the three organs. It signifies the very fact that one person or body of persons mustn’t exercise all the three powers of government.
For the smooth functioning of a democratic system, it is essential to avoid any conflict among the three vital organs of the government. Liberty of an individual would be guaranteed only when there exists a system of separation of powers among the three organs of the government, viz. Legislative, Executive, and Judiciary. A further system of checks and balances is highly needed to ensure the liberty of the individual. But in a rigid sense, it is impossible and, in a check and balance form it is quite possible which makes filtration of the arbitrariness of the powers of others as because if any organ gets the three powers in hand definitely it becomes absolute and despotic which does cause the hardship of the individuals in a country and the idea of democratic value and constitutionalism would be jeopardized.
However, the doctrine has undergone significant changes over time with the changing needs of society. This can be deduced through a comparative analysis of the interrelationship among the organs of the government in countries like India, the U.S.A., and the U.K. The doctrine has evolved from being construed in its rigid sense to being perceptive of the interdependence of these organs. In this sense, the doctrine of separation of powers has assumed a different character which can be construed as a system of checks and balances. However, the inherent significance of the doctrine remains intact. Even though the classical conception of the doctrine cannot be applied to the modern world, the essence of the doctrine pertaining to the dispersal of central authority to prevent autocracy holds relevance even today.
Origin:
The doctrine of separation of powers has its origins in ancient and medieval theories of mixed government, which stated that the governance process should involve various elements of society such as monarchical, aristocratic, and democratic interests. This doctrine was first laid down by a French political philosopher Montesquieu in De l’esprit des Lois (1748, Spirit of the Laws). Although an English philosopher John Locke previously advocated that the legislative power should be distributed between the king and the parliament, his writings were very influential, especially in the United States, where it had a major impact on the formulation of the US Constitution.
The Doctrine of Separation of Powers:
The theory of the separation of powers implies three expressions of the structural separation of powers, which are based on the following basic principles:
The same organ should not form part of more than one of the three organs of the government.
These organs must not interfere with the work of any other organ of the government.
One organ of the government should not perform the functions assigned to any other organ.
In short, the separation of powers simply means that each of the three government departments should be governed by different people, and none of them should control other departments. This separation is important for personal freedom and a safeguard against tyranny.
The doctrine calls on the executive and administrative branches not to interfere with law and justice to protect individual freedom in society; each branch has its own power, and usually, one branch cannot exercise the power of any other branch. The legislature exercises the law-making power, the executive executes the laws and regulations, and the judiciary exercises the power of judicial review.
Doctrine of Checks and Balance:
The separation of the three powers is the constitutional law doctrine of the separation of the three branches of the government (executive, legislative and judicial). It involves a complex system of checks and balances under which each branch is given certain powers so as to check and balance the other branches. This means that the executive department has certain control power over the legislative and judicial departments; legislative power over the executive and judicial departments; and judicial power over the executive and legislative departments. This method of blocking the power of another branch will become an antidote to tyranny.
Constitutional status of the Doctrine In Different Countries:
Separation of Power in India
On a casual glance at the provisions of the Constitution of India, one may be inclined to say that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution, Executive powers are with the President, Legislative powers with the Parliament, and Judicial powers with the Judiciary i.e., Supreme Court, High Courts, and Subordinate Courts.
The Parliament has the power to subject any law to the provisions of the Constitution, and its legislative power is not restricted. The powers and functions of the President are contained in the Constitution itself (Articles 62-72). The judiciary is independent in its field, and its judicial functions are not hindered by the legislature or the executive. Thus, many jurists believe that the doctrine of separation of power is accepted in India.
However, if we take a closer look at the provisions of the Indian Constitution, we will find that India does not recognize the doctrine of the separation of powers in an absolute and strict sense. There is personnel overlapping along with the functional overlapping. If any law enacted by the legislature violates the basic structure of the Constitution, the Supreme Court can invalidate it. The executive branch also influences the operation of the judiciary by appointing chief justices and judges. Such overlapping may be observed in many other provisions of the Constitution.
Decisions of courts with respect to Separation of Powers in India:
The first predominant judgment in relation to the Doctrine of separation of power was given in Ram Jawaya v. state of Punjab by the Supreme Court of India. In the aforementioned case, the court held that the principle of separation of powers in India is not effective in its strict form, but in a broader sense, which can be derived from the Indian Constitution. It also held that the only validity of the doctrine in the Indian Constitution is the separation of functions of the organs of the government. There are frequent overlaps in the functions and membership in the three organs.
A more clarified view taken in Ram Jawaya’s case can be found in Katar Singh v. the State of Punjab, in which Ramaswamy J. stated,
“It is the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the Legislature to make the law, the Executive to implement the law and the Judiciary to interpret the law within the limits set down by the Constitution.”
The Parliament additionally undertakes a few judicial features that are in violation of the Doctrine of Separation of Power, if it is looked at in the rigid sense. It should be noted that these judicial functions performed by the legislature have been enshrined in the Indian Constitution. According to Article 61, the legislature also acts as a judicial organ in the impeachment process of the president.
The issue that whether the legislature can undertake judicial functions was addressed in the case of Indira Nehru Gandhi v. Raj Narain wherein two conditions were laid down for the legislature to fulfill when it is performing judicial functions.
The power should be expressly provided to the parliament, and
The due process of law during discharging the function ought to be upheld.
Coming to the Executive department, though the separation of the executive from the judiciary has been provided, an intensive reading through the provisions of the Indian Constitution makes it clear that the President can exercise the functions of both Legislature and Judiciary in some specific circumstances. Referring to the legislative power, the Constitution of India has expressly provided this power to the President in Article 123 and that to the Governor under Article 213. This power to promulgate laws can be exercised by the executive when the parliament is not in session or when an emergency is proclaimed.
The executive can also exercise legislative powers through delegated legislation. The rule regarding delegated legislation and its applicability was decided in the Re Delhi Laws Act case where it was held that due to the very reason that the Constitution had expressly provided for the legislative procedure and entrusted it with the parliament, the makers had given a trust to the legislative department that the law-making function would be carried by them alone. However, this extends only to essential legislative functions and these cannot be delegated. Other ancillary law-making functions can be delegated by the legislatures. With regard to performing judicial functions by the Executive, it is well established that tribunals and quasi-judicial bodies that are executives perform functions of interpreting the laws.
There exists a certain degree of overlap with regard to the legislative and executive powers which is, in certain circumstances, assumed by the judiciary. Article 141 and 142 provide power to the Supreme Court of India to make laws or pass a decree to ensure complete justice for the people which is fundamentally the function of the legislature and executive departments.
If we talk about the amending power of the Parliament under Article 368, it has been subject to the concept of the Basic Structure held in the case of Kesavnanda Bharati v, State of Kerala. In this case, Supreme Court was of the view that amending the power of the parliament was subject to the Basic Structure of the Constitution. It was held that the Parliament couldn’t amend the provision in such a way that violates the Basic Structure. And if it is made in violation of Basic Structure then such amendment will be declared as unconstitutional and void by the judiciary.
Thus, India has adopted the doctrine of separation of powers not in an absolute rigid sense but with the system of checks and balances. Apart from checks and balances, there are some personnel as well as functional overlapping in order to protect the rights and liberty of an individual.
Separation of Power in the U.S.A.
In theory, the United States insists on the absolute rigid separation of powers, but in practice, this principle is combined with the principle of checks and balances to ensure effective and efficient governance. The U.S. Constitution clearly defines three government departments and the functions performed by each department.
Article I – Section 1 of the American Constitution states that –
“All the legislative powers are vested in Congress.”
Article II – Section 1 of the American Constitution states that –
“All the executive powers are vested in the President.”
Article III – Section 1 of the American Constitution states that –
“All the judicial powers are vested in the federal courts and the Supreme Court.”
On the basis of the Doctrine of Separation of Powers, the Supreme Court was not given the power to decide political questions so that there was no interference in the exercise of the power of the executive branch of government. Also, overriding power of judicial review was not given to the Supreme Court. The President interferes with the exercise of powers through his veto power and exercises the law-making power through his treaty-making power. He also interferes in the functioning of the Supreme Court by appointing judges.
In a landmark case of Marbury v. Madison, for the first time, Supreme Court declared something “unconstitutional”, and established the concept of judicial review in the U.S.A. This landmark decision helped define the system of checks and balances and laid the foundation for the United States to exercise judicial review in accordance with Article III of the Constitution.
Separation of Power in the U.K.
In Britain, there is a parliamentary form of government, wherein the king is the nominal head, and the actual legislative functions are performed by the parliament. Although the king is the chief executive, he is also an integral part of the legislature, and all his ministers are also members of specific houses of the parliaments.
Parliament – Legislature
Prime Minister, Cabinet, Government Departments and Civil Service – Executive
Courts – Judiciary
The Lord Chancellor is head of the judiciary, Chairman of the Legislature (House of Commons), a member of the executive, and frequently a member of the cabinet. Therefore, the House of Commons eventually controls the Legislature. The Judiciary is unbiased; however, the judges of the higher courts may be eliminated on recommendation from each of the Houses of Parliament. Therefore, the resting of powers in a single institution thus denies the certainty that there may be any type of Separation of Powers in Britain.
Britain has the concept of separation of powers, but it is not in a formal sense like in the United States. The three branches are not officially separated, but there is still a large overlapping as in India. In numerous cases, senior judges have held that the U.K. Constitution is based on the doctrine of separation of powers. As in Duport Steels Ltd. v. Sirs (1980), Lord Diplock it was aptly stated that:
“At a time when more and more cases involve the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasized that the British Constitution, though largely unwritten, is firmly based on the Separation of Powers; Parliament makes the laws, the judiciary interprets them”.
Therefore, U.K. has a weak separation of power which implies that the doctrine of Separation of Power is implemented in a broad sense as a result of which the functions of all three organs overlap with one another and conjointly work together.
Criticism:
Every doctrine has its consequences and shortcomings. In theory, the doctrine of separation of powers may be ideal, but it cannot be completely applied in the actual functions of any organization. There are certain shortcomings and limitations.
The doctrine of the separation of powers is anti-historical because it has never been applied in the UK. Montesquieu formulated and defended this theory and believed that it was valid in England. The British Constitution has never been based on the principle of separation of powers.
Montesquieu, who put forward this theory, tried to protect individual’s freedom, which was impossible due to the strict demarcation of powers.
The government is a single unit. Its three organs can never be fully divided. The legislative, executive and judicial functions are symbiotic and inter-related functions and thus, cannot be fully separated. A smooth and stable government can only exist when there is cooperation among the three organs. Therefore, separating these organs into sealed compartments may lead to failure and inefficiency in the government.
In the current times, a government works for the welfare and prosperity of the people. It has to solve the complicated issues of society. In such circumstances, the precept of separation of powers appears to be impossible. The imposition of this doctrine in its rigid form will now no longer cause the effectuation of the goals of the modern government. Thus, separation of powers is theoretically uncertain and realistically almost impossible.
If the doctrine of separation of powers is rigidly adopted then there will be no flexibility in functioning of the organs of the government. If the legislature can only legislate, then it cannot penalize anyone, committing a breach of its privilege; nor can it delegate any legislative function even though it does not know the details of the subject-matter of the legislation and the executive authority has expertise over it; nor could the courts frame rules of procedure to be adopted by them for the disposal of cases. Separation of Powers thus can only be relative and not absolute. Modern State is a welfare State and it has to solve complex socio-economic problems and in this state of affairs also, it is not possible to stick to this doctrine rigidly.
Conclusion:
“Power corrupts and absolute power tends to corrupt absolutely”.
Lord Acton
Granting power to a single body can lead to absolutism, but even after the separation of functions, if the organs exercise public power, granting absolute and sole authority within its sphere of influence may lead to abuse. Therefore, the theory of the separation of powers is a theoretical concept, and it is almost impossible to follow it completely.
Exercising the doctrine of separation power cannot be applied in the strict sense in any contemporary countries like The United States, India, U.K., etc. But still, this doctrine has relevance today. Our government is an organized system and it is very difficult to divide into watertight compartments.
The theory of separation of power in its strict sense does not apply to any modern country, such as the United States, India, and the United Kingdom. But this theory still applies today. Our government is an organized system and it is difficult to divide the powers of the organs into sealed compartments.
For the smooth functioning of any government, cooperation and coordination among all three organs of the government is essential. Professor Garner said that “this doctrine is impracticable as working principle of Government. It is difficult to divide the functions of each organ on an accurate basis”.
In my opinion, this doctrine is very important because it protects the rights and freedoms of individuals from arbitrariness and does not allow organs to usurp the essential functions of other organs; to some extent, it is applicable in almost all countries.
Therefore, after considering all the aspects it can be concluded that the doctrine of separation of power is not accepted in any country in its absolute rigid form. If we compare the Indian and American Constitution, it can be said that on the first glance that both the Constitutions have adopted the Doctrine of Separation of Power but after an intensive reading through their provisions, it can be said that the doctrine has not been rigidly accepted in both the countries.
The doctrine of separation of powers must be expounded relatively. In the era of liberalization, privatization, and globalization, separation of power has to be viewed from a broader perspective. It should not be limited to the principle of strict classification but also exercise collective power in the spirit of cooperation, coordination, and protection of individual rights and freedom.
Though this doctrine is impractical in its rigid form nevertheless its effectiveness lies in the prominence of those checks and balances which are necessary so as to prevent maladroit government and abuse of powers by the different organs of the government. In brief, we can say that the Doctrine of Separation Powers; is followed in the US with a spirit, never followed in the UK purely, and India has followed it with large exceptions.
References:
blog.ipleaders.in
papers.ssrn.com
www.legalservicesindia.com
www.britannica.com
http://www.lawctopus.com/
www.indiankanoon.com
Ram Jawaya v. state of Punjab, AIR 1955 SC 549
Kartar Singh v state of Punjab, (1994) 3 SCC 569
Duport Steels Ltd. v. Sirs, 1980 1 ALL ER 529
Indira Nehru Gandhi v. Raj Narain, 1975 AIR 1590
Re Delhi Laws Act Case, AIR 1951 SC 747
Kesavnanda Bharati v, State of Kerela, AIR 1973 SC 1461
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
This article is written by SAHEBA SHAMS, a 1st-year student pursuing BA-LL. B from Osmania University, Hyderabad.
This article is edited by Shreya Litoria, a 4th-year student pursuing B.Com LLB from Banasthali Vidyapith University, Jaipur.
The Supreme Court, also sometimes referred to as the apex court, is the highest Judicial body of India. The motto of the Supreme court of India is ‘where there is Dharma there will be victory’. It is the guardian of the Indian constitution and the rights conferred to the citizens by the Indian constitution. It protects and guards the constitution and keeps a check on compliance of laws with the constitution framed by the Indian parliament to be within the ambit of guidelines provided under the constitution. In Kesavananda Bharati v. the State of Kerala the supreme court laid down the basic structure of the Indian constitution which cannot be compromised or amended in any condition and any law doing so will be unconstitutional.
Technicalities of last deciding justice authority: –
The Supreme Court is the court of last resort. It is the final pedestal of justice however the convict in criminal cases who is granted capital punishment by the supreme court can file a mercy petition to the president of India for pardon or reduce the intensity of punishment to life imprisonment subject to provisions provided under Article 72 of the Indian constitution. The president must make decisions based on the recommendations of the central government. There are many instances where after the supreme court’s decision a mercy plea is filed to the president of India on behalf of a convict, Like in the case of Md. Ajmal Amir Kasab v. the State of Maharashtra (2012) and in Mukesh and Anr State for NCT of Delhi and Ors (2017).
Technically the admission rate of granting mercy is low and usually, the petitions are dismissed by the president so it can be said that the supreme court is the final deciding authority.
Apart from this, many other features make the supreme court the last authority on deciding and doing justice. The Supreme Court is the last court of hearing and no other place the case can be heard thereon. Under the president, only a mercy petition is filed but no hearing of the case takes place; the president acts on the aid and advice of the cabinet. Few mercy petitions are allowed, it is further filtered and very few are granted. As far as the legality of an act goes, the supreme court is the last deciding body on legality, and a mercy petition is a mere consideration of mercy for an act committed.
The Supreme court’s decisions are binding on all the lower courts within its jurisdiction i.e., the territory of India which hints towards its supreme judicial authority exercised by the supreme court. And for these very reasons the supreme court employs seasoned, most experienced judges and the system of the constitutional bench. One can always file for review or curative petition if there is any violation or ignorance on the part of the Supreme court.
Why is the Supreme Court the final pedestal of Justice?
The Supreme Court exercises all applicable laws and remedies present under the law in the country to bring justice to the aggrieved party. And in absence of law or precedent on matters, it applies principles of natural justice to bring justice.
It is committed to bringing justice with utmost fairness between the parties. Judicial decisions are to be measured by their consequences then careful attention needs to be given to the process of accessing and estimating those consequences. There are relatively fewer chances of biases in the decisions given by the judges of the supreme court as they do not decide cases on their own bias and justify it, instead, they decide about the law whether an act is right or wrong.
The Supreme court is chosen as a last resort because a case must be settled at some point in time and should not be disturbed once settled, this is also the basis of precedents (previously decided cases) and stare decisis (stand by the given decision). In Reynolds v. the United States wherein the United States, Supreme court established the principle that while legislative fiat may not control private opinions and believes it may, nonetheless, control actions “in violation of social duties or subversive of good order” further control facilitated by the supreme court.
The Supreme Court being the final pedestal of justice decides justice in the first place and then works on the execution of justice. Which would serve justice among the parties not opposed to public policy. The court doesn’t serve justice based just on the facts put up by parties in front of it but also looks into possible impact decisions might create or what possible impact it will have in the society to maintain the status quo.
Ability to serve justice: –
Justice is subjective, what may be just for one may be destructive for others. An equilibrium cannot be reached to attain justice and beyond that courts also have to decide the impact it will have on the society considering this justice is served and wrong is established.
Civil justice is different from social justice. Aristotle’s commutative justice involves the enforcement of property claims recognized by law. Social justice involves transfers of property interests, through regulation or taxation, utilizing law operating posterior to the formation of property. The one can be converted into other by bending logic and constitutional authority done by Supreme courts.
The theory of redressive justice governs the enforcement of rights by a wronged party against the party which committed the wrong. This is formed based on corrective justice theory by John Gardner which states the type of justice concerning norms of allocating back.
The concept of justice by the Supreme Court can be summarized as granting fair trials leading to justice under the law.
In 2008, the Home Department of Jharkhand govt. published an advertisement regarding Sub-Inspector’s post. After the written exam and interview were completed, the final list of selected candidates was published. But afterward, it was found that some irregularities had taken place in the selection process. So the Govt. formed a High- Level State Committee to check if the irregularities had taken place or not. The Deputy Inspector General of Police of Jharkhand submitted a report claiming that the list was wrongly prepared and the candidates who scored more were not appointed but the candidates who scored less than were appointed. Then a revised list was published in which they terminated the candidates with low marks and appointed the candidates with high marks. The candidates who were terminated challenged this list in the High Court saying that it is not their mistake rather it is the government’s mistake that they made the wrong list and so why should they bear the consequences. The Hon’ble High Court dismissed their writ petition, so the candidates (whose services were terminated) approached to Supreme Court.
Issues Before the Court
The main issue was related to the claim of the intervenors in the Writ Petitions for an appointment.
Ratio of the Case
In this case, the Hon’ble Supreme Court said that appointing candidates with lesser merit would be in violation of Articles 14 and 16 of the Indian Constitution of those candidates who scored more marks.
Decision of the Court
The Hon’ble Supreme Court gave an important judgment which said that there should be no doubt that the selections for public employments will only be made on the basis of merit. So, appointing candidates with lesser merit would be in violation of Articles 14 and 16 of the Indian Constitution of those candidates who scored more marks.
This case analysis is written by Priyanka Choudhary, currently pursuing BALLB from Mody University of Science and Technology, Lakshmangarh, Rajasthan.
This case analysis is edited by Shreya Litoria, currently pursuing B.Com LLB from Banasthali Vidyapith University, Jaipur.
Emergency marks the dark chapters of History in India.
India is the world’s largest democracy with one well-defined Constitution that provides ironclad protection of our fundamental rights, but this same protection was challenged in an unprecedented manner. On this very day, 46yrs ago in 1975, Indians woke up to hear that the elected government led by Indira Gandhi proclaimed an eternal emergency. The announcement marked an immediate suspension of Fundamental rights, civil liberties were curbed, elections suspended, and voices of the dissents silenced for a period that lasted for 21months. Opposition leaders and others were jailed, habeas corpus was suspended, and censorship was imposed on the newspapers. June 26, 2021, marked the 46th year of that announcement.
Emergency was a seminal event in the history of Independent India. President Fakhruddin Ali Ahmed declared an emergency under Article 352 of the Constitution on the recommendation of Indira Gandhi in response to widespread “internal disturbance,” and it was imposed from June 25, 1975, to March 21, 1977. On June 25, 1975, the Government declared that there was a threat of internal disturbances, and thus, it invoked Article 352 of the Constitution. Under this article, the Government could declare a state of Emergency on the grounds of external threat or a threat of internal disturbances.
The Consequences of the imposition of the Emergency
Provisions of Emergency grants the Executive certain special powers that the Government decided to put into effect and suspended the freedom of the press. Moreover, strikes were banned, and many opposition leaders were put in jail.
Press censorship was also imposed, and the newspapers were asked to get prior approval before publishing any material.
Most significantly, the fundamental rights were snatched away from the citizens, including the right to move the Court for restoring their basic rights. The provision of Preventive detention was also used extensively, and people were arrested and detained based on the ground that they may commit an offense.
The Supreme Court’s constitution bench overruled the High Courts in April 1976 and approved the Government’s plea. It meant that the Government might take away a citizen’s right to life and liberty during an emergency.
Many new amendments to the Constitution were also enacted by Parliament. Following the Allahabad High Court’s decision in the Indira Gandhi case, an amendment was introduced stating that the Prime Minister, President, and vice President could not be challenged in Court. During the Emergency, the forty-second amendment was also passed.
Types of Emergency
National Emergency– When the security of India or a part of it is threatened by war, external attack, or armed insurrection, the President can proclaim a national emergency under Article 352. When a national emergency is declared on the grounds of ‘war’ or ‘external aggression,’ it is known as ‘External Emergency.’
State Emergency – Article 356 of the Constitution grants the President the authority to act only if he believes that a situation has developed in which the Government of a State cannot be carried on, in conformity with the Constitution’s provisions.
Financial Emergency– Article 360 authorizes the President to declare a Financial Emergency if he believes a situation has emerged that jeopardizes India’s financial stability or credit in any area of the country.
44th Amendment
Specific changes were made in Article 352 under the 44th Amendment, which substantially altered the emergency provisions, and some changes were also restored, which were established by the 42nd Amendment.
As per Article 352, the term “internal disturbance” was superseded by “armed rebellion.”
An emergency can be proclaimed only after receiving the confirmation of the crisis by the Prime Minister and the Cabinet.
The Houses must proclaim the Emergency within one month.
Every six months, the Houses must re-approve to continue Emergency.
An emergency can be bypassing resolutions to that effect by a simple majority of the houses present and voting. A resolution can be moved by a tenth of a house’s members.
Article 358 states that Article 19 is only suspended upon war or
external aggression and not upon armed rebellion. Furthermore, any law that breaches Article 19 must recite that it is connected to Article 358. If a law violates Article 19, it can still be contested.
Article 359 states that the suspension of the right to move courts for
violations of Part III won’t include Articles 20 and 21.
The term of Lok Sabha from 6 to 5 years was reversed back.
Case Laws
Minerva Mills and Ors vs. UOI and Ors
In Minerva Mills and Others v. Union of India and Others, the Supreme Court held that just because the Court would require to examine a political problem, it will not step back from carrying out its constitutional role. The Supreme Court, with great precision, detailed its authority to review the President’s Proclamation of Emergency.
State of Rajasthan vs. UOI (1977)
On March 24, 1977, the Janata party secured the verdict of the electorate and formed the new Government at the Centre. This was an unprecedented event since, for the first time in the history of the country, the ruling party at the Centre was not in power in any of the federating States – Bihar, Haryana, Himachal Pradesh, Madhya Pradesh, Orissa, Punjab, Rajasthan, Uttar Pradesh, and West Bengal. On the date that the Janata Party took office, Congress (R) was in power in various States. The Congress also lost its majority in the Lok Sabha as a result, which the Government at the Centre was formed by the Janata Party in coalition with the Congress for Democracy. On April 17, 1977, the Union Home Minister sent letters to the Chief Ministers of nine states asking them to advise their Governors to dissolve their respective legislatures and seek new mandates. Suits were filed by six of these nine states stating that the letter and the radio broadcast of the Law Minister constituted a clear-cut threat of dissolution of the Assemblies and disclosed grounds that are prima facie outside the purview of Article 356 of the Constitution.
According to Article 356 of the Constitution of India, the President can cease from the Union the legislative and executive powers of any state “if he is satisfied that a situation has emerged in which the state’s administration cannot be carried out within the Constitution’s provisions.”
The Supreme Court held that one could not challenge the satisfaction of the President except because it has exercised malafide or irrelevant grounds.
Therefore the suits were upheld and dismissed by the Court.
Conclusion
The period of Emergency was the darkest phase in India’s tenure. On January 24, 1978, at a public meeting in Yavatmal, Indira Gandhi even apologized for the excesses committed during the Emergency and declared she was taking “the entire responsibility for the same.”
The Emergency ended, resulting in a defeat of the Congress in the Lok Sabha elections of 1977. The most precious lesson learned from Emergency is that the 1977 Lok Sabha elections were announced as soon as the Emergency got over. The 1977 elections became a referendum on the Emergency’s influence, at least in North India, where it was most felt. The opposition campaigned on the slogan “Save Democracy.” The people’s judgment was decisively against the Emergency. The experience of the entire period of Emergency from 1975 – 77 ended up strengthening the foundations of democracy in India.
This article is written by Shruti Bose student of Christ (Deemed to be University), Lavasa.
This article is edited by Shreya Litoria, a student of Banasthali Vidpyapith University, Jaipur.
