Section 148 of the Indian Contract Act, 1872 defines the term Bailment, that upon a contract when one person delivers goods to another for some purpose and when the motive is achieved. That bail was either returned or else disposed of according to the directions discussed earlier in the contract of the person delivering them. Thus the Law of Bailment involves the transfer of possession from one person to another. The title of ownership did not get affected in this case.” bailor” is the one who delivers the goods. And “bailee” is another person to whom goods are delivered.
Essential Elements of the Law of Bailment
Delivery of possession.
Delivery of Goods upon contract.
Delivery of Goods for purpose.
How Bailed goods delivered to the bailee
Section 149 of the Indian Contract Act states that when the bailee made delivery by doing anything which has the effect of putting the possession of the goods of any person authorized to hold them on his behalf. Then, bailment happens between the parties.
Delivery of possession is of two types.
Actual delivery- when goods possession is delivered from the bailor to bailee, then actual delivery happens.
Constructive delivery- physical transfer of goods does not happen here. Goods are remaining with bailor only, but something decided which has the effect of putting them in possession of bailee.
Duty of Bailor
Duty of bailor to disclose faults in goods bailed- Section 150 of contract act, binds the bailor to reveal all the defects of goods bailed which he knows. And if he is not doing so, he will be responsible for damage arising from such faults directly to the bailee.
Duty of Bailee
Duty of reasonable care
Section 151 of the act binds the bailee to take as much care of the goods bailed to him as a prudent man takes care of his goods.
Section 152 states that if the bailee has taken due care, he is not responsible for loss, deterioration, or destruction of goods bailed.
Duty not to make unauthorized use
Section 154 of the provides that the bailee is liable to compensation if he makes any use of the goods bailed that is not according to the conditions of the bailment.
Duty not to mix goods
Section 155 of the act states that if the bailee mixes the bailor’s goods with his goods but with the bailor’s consent, the bailor and bailee shall share an interest in proportion to the mixture produced.
Section 156 states that if the bailee mixes the bailor’s goods with his goods which is separable. Without the bailee’s consent, then the bailee is bound to give the expense of separation and any damage arising from the mixture.
Section 157 holds the bailee liable to pay compensation for the loss of the goods by mixing the bailor’s goods to his goods which cannot be separated and mixed without the bailor’s consent.
Duty to return goods bailed
Section 160 of the act provides bailee duty to return or deliver goods bailed according to the direction of bailor as soon as the time expired for bailment, or the purpose has been accomplished for goods bailed.
Section 161 states that on account of faults of Bailee the goods are not delivered at the proper time, then it is Bailee’s responsibility for any loss or destruction of the goods from that time.
Rights of Bailee
Right of lien – it gives the right to the bailee to retain goods or property until some charges due upon it or services rendered for its improvement to be paid by the bailor.
Two types of lien in bailment-
Particular lien
General lien
Right to sue the wrongdoer
Section 180 of the Act confers the right of the bailee to sue wrongdoers.
Landmark Judgments
Hutton v Car Maintenance Co. – In this case, the plaintiff company maintained the defendant’s car. The defendant does not pay some dues. Then the plaintiff’s company took the car into its possession and claimed a lien for expenses. The court rejected the claim.
Ram Ghulam v Government of Uttar Pradesh – In this case, police recovered some stolen ornaments from the plaintiff. But in the police station, they were again stolen. Plaintiff sued the government for the loss. The court dismissed the case.
Ultzen v Nicolas – In this case, a waiter took the overcoat of the plaintiff and hung it on behind the chairs. After having dinner, the plaintiff found that his overcoat was missing. He sued the owner for the loss of the coat. The owner was held liable.
Shaw &Co.v Simmons & Sons- In this case, the plaintiff consigned books to the defendant, a bookbinder. But the defendant failed to deliver them within a reasonable time. The defendant was held liable for the loss of the books.
Installment Supply (P) Ltd v Union of India – In this case, the court held that the Hire-purchase contract is not merely a bailment. But it has two aspects, bailment and an element of the sale.
Ashby v Tolhurst – In this case, the court held that the main essence of bailment is the transfer of possession of goods.
Jan and Son v A. Cameron – In this case, the plaintiff stayed at the hotel, his article stolen by someone. The court held the Hotelier liable.
Morvi Mercantile Bank Ltd v Union of India – In this case, the court held that Railway receipt delivery would amount to delivery of goods.
Conclusion
The position of bailment in India is clear from section 153 of the Contract Act. The law of bailment specifies the rights, duties, and liabilities of the bailee to avoid disputes between the bailor and the bailee. It forms a very vital part of the Indian Contract Act. Bailment is something people enter daily, even without realizing it. Its development with time has been crucial. Therefore, the laws should be dynamic but should also be rigid at the same time.
The article is written by Megha Patel, a 2nd –year law student at The Mody University of Science and Technology, Laxmangarh, Rajasthan.
The article is edited by Shubham Yadav, pursuing B.com LL.B. from Banasthali Vidyapith.
The Trafficking in Persons (Prevention, Care, and Rehabilitation) Bill, 2021 will be given to the cabinet for approval before being presented in Parliament. It has broadened the scope of human trafficking offences as well as the types of victims, imposing harsh penalties such as life imprisonment and even death sentence in extreme situations. The recommendations for the bill must be presented to the Ministry by July 14.
Once enacted, the law will apply to all citizens, both inside and outside India, as well as a foreign national or a stateless person who has his or her residence in India at the time of the commission of an offence under this Act. Concerning the offenders, defence officers and government employees, doctors and paramedical staff, and anyone in a place of authority will be covered by the Bill. Property acquired through such revenue and used for trafficking can now be forfeited under terms akin to those found in the Money Laundering Act.
It proposes that any person who commits the crime of “human trafficking” be sentenced to at least seven years in prison extending up to ten years and be liable for a fine of a minimum of one lakh rupees. The bill also includes harsher sanctions and punishments for crimes designated as “aggravated forms of trafficking.” It is proposed that everyone who commits an aggravated type of human trafficking be sentenced to a minimum of ten years in jail which may extend to imprisonment for life.
It is proposed that the National Investigation Agency serves as the national investigating and coordinating agency for human trafficking prevention and combat. Once the law is passed, the Centre will notify and convene a National Anti-Human Trafficking Committee to ensure that provisions of the law are effectively implemented. This committee will include members from multiple ministries, with the home secretary serving as chairperson and the secretary of the ministry of women and child development serving as co-chair. Anti-human trafficking committees will be formed at the state and district levels.
A draft was introduced in 2018 and passed by the Lok Sabha amid strong resistance from legislators and experts. It was never introduced in the Rajya Sabha after that. Experts claim that this new Bill addresses nearly all of the concerns highlighted in 2018.
A petition was filed in the Bombay High Court challenging the constitutional validity of the Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 claiming that the new IT Rules violate the law, citing Article 14 (equality before the law), Articles 19 (1) (a) (to freedom of speech and expression), and 19 (1) (g) (to practice any profession or to carry on any occupation, trade or business).
The rules are being challenged because they seek to impose unreasonable, excessive, and vague burdens on digital news publishers. The Rules seek to these publishers of news and current affairs content under the ambit of the Press Council of India Act, 1978, and the Cable Television Networks (Regulation) Act, 1995, without amending the respective legislations.
It is argued in the petition that the new IT Rules 2021 are beyond the Central Government’s legislative power because the Information Technology Act of 2000, does not contain anything that seeks to regulate or enables the regulation of digital content and ethics of online publishers, apart from a single provision that allows for the banning of content available online on specific grounds
The plea says these rules should be deemed unconstitutional under the Information Technology Act of 2000. In the meanwhile, it requested a stay on them.
Kirechandra Wangkhemcha and Kanhaiyalal Shukla, two journalists from Manipur and Chhattisgarh, filed writ petitions at the Supreme Court requesting the court for a writ, order, or direction ordering Section 124A of the Indian Penal Code, 1860, to be ruled unconstitutional and void. Counsel representing the two petitioners submitted to the Supreme Court that its decision in Kedar Nath Singh v. State of Bihar, 1962, may need to be reconsidered wherein the constitutional validity of the section was upheld.
Section 124A of the Indian Penal Code states that anyone who seeks to incite hatred or contempt for the government established by law in India through words, whether spoken or written, signs or visible representation, or any other means, shall be punished with imprisonment for life.
According to the petition, the restriction imposed by section 124A is irrational, hence, does not constitute a valid restriction under Article 19(2) of the Constitution. It infringes the fundamental right guaranteed by Article 19(1)(a) of the Constitution of India, which guarantees that all citizens shall have the right to freedom of speech and expression. Section 124A is extraneous to safeguard state security and public order.
Meanwhile, the Foundation of Media Professionals, journalist Shashi Kumar, and legal professor Sanjay S Jain have filed three applications in support of the petition challenging the constitutional validity of Section 124A of the IPC. According to Shashi Kumar in his application, the “vague nature” of section 124A allows it to be used as a “political weapon” to restrict free speech.
Attorney General KK Venugopal of India, who was issued notice on the petition by the court on April 30, and Solicitor General Tushar Mehta, who was representing the Union of India, both were granted two weeks to file their responses. The court will hear the matter on the 27th of July.
In this case, W. N. Watson & Co. borrowed some amount of money from Raja Pratap Chandra Singh, but the company failed to return the money back to Raja. So, the company signed a mortgage deed and an agreement with Raja, according to which the company gave the power of control over business to Raja Pratap Chandra Singh and the right to take benefit from the company’s profit until the due amount is paid. Thereafter, the W. N. Watson Co. entered into a contract with Mollwo, March Company (Plaintiff). The W. N. Watson Co. failed to fulfill the contract with the Mollwo, March & Co. As a result, the Mollwo, March & Co. filed a suit against Raja and W. N. Watson Co. as they thought that Raja is a partner in W. N. Watson Co. as he was taking his share in the profits.
Issues Before The Court
The main issue was whether Raja Pratap Chandra Singh can be considered as a partner or not, as he is sharing the profits of the business?
Ratio Of The Case
In this case, the court said that Mollwo, March Company cannot sue Raja as the real intention of the contract between Raja and W. N. Watson Company was not to become partners but to pay the due amount that the company was unable to pay.
Decision Of The Court
In this case, the court held that Raja cannot be considered as a ‘Partner’ (referring to the guidelines given in Cox v. Hickman case), as the contract which was made between Raja and W. N. Watson Company was not a partnership but the company wanted to pay the debt and hence they gave power and rights to Raja on their business. Therefore, the relation between W. N. Watson Company and Raja is of a debtor and creditor and so that is why, the Mollwo, March Company cannot sue Raja.
The case analysis has been done by Priyanka Choudhary, currently pursuing BA LLB from Mody University of Science and Technology, Lakshmangarh, Rajasthan.
The case analysis has been edited by Shubham Yadav, pursuing B.com LL.B. (4th Year) from Banasthali Vidyapith.
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.
“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.
