This case is related to Judge’s power to put questions or order production to discover or obtain proper proof of relevant fact under section 165 of the Indian Evidence Act.
FACTS
In this case, the appellant-accused along with the other co-accused were charged with kidnapping and murder of a person in the year 2000. The Trial Court convicted both the accused persons for offences under Section 302, Section 364, Section 392, Section 394, Section 201 and Section 34 of IPC and awarded a life sentence under Section 302 IPC, and the remaining accused was convictedlesser sentence, vide order dated July 11, 2003. Further, the appellant filed the case to The Punjab and Haryana High Court which dismissed the file and upheld the conviction and sentence of the Trial Court vide order dated May 31, 2017. Hence, the appellant-accused filed the appeal before the Supreme Court.
In this case, the apex court found that the case of the prosecution is entirely based on circumstantial evidence and the ‘evidence’ of last seen and the “discoveries” made from the information given by the appellant.
The Court further observed that the case of the prosecution rests on two circumstantial pieces of evidence
1. The disclosure is given in police custody and the discovery is on its basis.
2. The evidence of last seen in the form of PW-10 (the neighbour of the complainant).
The court rightly points out that in the case of circumstantial evidence motive plays a significant role. The prosecution case is that the two accused killed the deceased only to steal his tractor. The prosecution case is that the deceased was kidnapped and murdered by the two accused, for his tractor which they had robbed from the deceased, after putting him to death. The Court pointed out that the facts that led to certain discoveries were already known to the police in the earlier discovery made by the co-accused. The Court further noted that the discoveries which were made on the pointing out of co-accused cannot be read against the present appellant.
According to section 27 of the Indian Evidence Act “If the disclosure has been made by the accused to the police while he was in their custody and such a disclosure leads to the discovery of a fact then that discovery is liable to be read as evidence against the accused. A fact discovered in a piece of information supplied by the accused in his disclosure statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered from the accused which was not within the knowledge of the police before recording the disclosure statement of the accused.
On the evidence of ‘last seen’ the Court noted:
“In this case, even if we take the time between the last seen and the approximate time of death as per the postmortem, which would go beyond 48 hours preceding the time of post-mortem the time of death can be stretched to the morning of May 9, 2000, which still begs an explanation from the prosecution as to the time gap, as the deceased was last seen with the two accused on 08.05.2000 at 7:00 P.M.” The Court further noted that the evidence of last seen itself is on a weak footing, considering the long gap of time between last seen by PW-10 and the time of death of the deceased, Section 106 of the Evidence Act, 1872 would not be applicable to facts and the circumstances of the present case. When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
The court said “In order to establish a charge of guilt on the accused, the chain of evidence must be completed and the chain must point out to one and only one conclusion, which is that it is only the accused who have committed the crime and none else.
RATIO DECIDENDI
The Court held that the evidence placed by the prosecution, in this case, does not pass muster the standard required in a case of circumstantial evidence.
JUDGEMENT
The judgement given by the division bench of Justice Sudhanshu Dhulia and Justice Sanjay Kumar noted:
In the present case, the prosecution has not been able to prove its case beyond a reasonable doubt. The evidence of last seen only leads up to a point and no further. It fails to link it further to make a complete chain. All we have here is the evidence of last seen, which as we have seen loses much of its weight under the circumstances of the case, due to the long duration of time between last seen and the possible time of death. The Court set aside the conviction of a murder accused on the ground that the evidence last seen on which the conviction was based, failed to make a complete chain of circumstantial evidence.
The law of torts is a significant part of the Indian legal system, providing remedies to individuals who have suffered harm due to the wrongful acts of others. Over the years, the law of torts in India has witnessed significant growth and development, thanks to the active role played by the judiciary. The courts have interpreted and applied tort law principles in various cases, shaping and expanding the scope of the law. In this context, this discussion will examine the growth of the law of torts in India and the role of the judiciary in shaping it. We will also explore how the Indian courts have relied on the principles of tort law in other common law jurisdictions to fill gaps in the Indian law of torts.
Relevance
The law of torts in India has seen significant growth and development over the years, with the judiciary playing a crucial role in shaping and expanding the scope of the law. Tort law refers to civil wrongs or injuries that are committed by one party against another, resulting in harm or loss, and for which the aggrieved party can seek compensation.
The growth of the law of torts in India can be traced back to the colonial period when the British introduced the concept of negligence and other tortious liability concepts to the Indian legal system. Over time, Indian courts have expanded the scope of the law to include various types of torts, such as nuisance, defamation, and trespass.
One of the key factors that have contributed to the growth of the law of torts in India is the changing socio-economic and political landscape of the country. As India has developed into a more complex and diverse society, the legal system has had to adapt to meet the changing needs and demands of its citizens. The growth of tort law has been driven by a need to protect individual rights and interests, as well as to promote social justice and equity.
Another factor that has played a significant role in shaping the law of torts in India is the role of the judiciary. The Indian judiciary has been proactive in interpreting and expanding the scope of tort law, often relying on international legal principles and jurisprudence to guide its decisions. Through its judgments, the judiciary has not only clarified the legal principles and concepts of tort law but has also established new precedents that have had far-reaching implications for the development of the law.
One example of the judiciary’s role in shaping the law of torts in India is the landmark case of M.C. Mehta v. Union of India[1]. In this case, the Supreme Court of India recognized the concept of absolute liability, which holds industries strictly liable for any harm caused by their activities, regardless of whether they were negligent or not. This decision has had a significant impact on the development of environmental law in India, as it has provided a powerful tool for holding polluting industries accountable for their actions.
Another example of the judiciary’s role in shaping the law of torts in India is the recent case ofShayara Bano v. Union of India[2]. In this case, the Supreme Court of India declared the practice of triple talaq (instant divorce) among Muslims to be unconstitutional and violative of the fundamental rights of women. This decision has not only had a significant impact on the rights of Muslim women but has also expanded the scope of tort law to include violations of fundamental rights as a tortious acts.
In conclusion, the growth of the law of torts in India has been driven by a need to protect individual rights and interests, promote social justice and equity, and adapt to the changing needs and demands of society. The judiciary has played a critical role in shaping and expanding the scope of the law, through its proactive interpretation and application of legal principles and concepts. As India continues to evolve, it is likely that the law of torts will continue to grow and develop, driven by the changing needs and demands of its citizens and the role of the judiciary in shaping the law.
Criticism of Growth of Torts
The law of torts in India has seen significant growth and development over the years, and the judiciary has played a crucial role in shaping the law. Tort law is concerned with providing remedies for civil wrongs or injuries caused by one party to another. The development of the law of torts in India can be traced back to the colonial period when the British introduced the concept of tort law in India.
One of the significant contributions of the judiciary in shaping the law of torts in India has been the recognition and expansion of the scope of tort liability. In the landmark case ofM.C. Mehta v. Union of India[3], the Supreme Court recognized the principle of absolute liability, which holds that any enterprise engaged in a hazardous or inherently dangerous activity must pay compensation to those who suffer harm from such activity, irrespective of whether or not the enterprise has been negligent. This decision expanded the scope of tort liability and ensured that victims of industrial accidents and environmental disasters received compensation for their losses. Another important contribution of the judiciary has been the recognition of new causes of action in tort law.
For instance, in the case of Vishakha v. State of Rajasthan[4], the Supreme Court recognized sexual harassment at the workplace as a violation of a woman’s fundamental rights and awarded compensation to the victim. Similarly, in the case of R.K. Anand v. Delhi High Court[5], the court recognized the tort of criminal contempt, which had not been previously recognized in India.
The judiciary has also played a crucial role in developing the principles of vicarious liability in India. Vicarious liability holds that an employer is liable for the torts committed by its employees in the course of their employment. The doctrine of vicarious liability has been expanded to cover not only traditional employer-employee relationships but also situations where a person has a sufficient degree of control over the activities of another person.
However, there are also some criticisms of the growth of the law of torts in India and the role of the judiciary in shaping the law. One of the main criticisms is that the development of tort law in India has been slow and inconsistent, and there is a lack of clarity on many tort law principles. For instance, there is no clear definition of what constitutes a tortious act, and the standards for determining negligence are not well-defined. This lack of clarity has led to uncertainty and confusion in the application of tort law in India.
Another criticism is that the judiciary’s role in shaping the law of torts has been too expansive, and this has led to judicial activism. Some argue that the courts have taken on a policymaking role in developing tort law, which should be left to the legislature. Judicial activism has also led to an increase in litigation and the clogging of the court’s dockets. In conclusion, while the growth of the law of torts in India and the judiciary’s role in shaping the law have been significant, there are also criticisms of the slow and inconsistent development of the law and the judiciary’s expansive role in policymaking. There is a need for greater clarity and coherence in tort law principles to ensure greater certainty and predictability in their application.
Conclusion
In conclusion, the law of torts has seen significant growth and development in India over the years. The judiciary has played a crucial role in shaping the law through its interpretations and rulings on various tort cases. The courts have often applied principles from other common law jurisdictions to fill gaps in the Indian law of torts. Additionally, the judiciary has expanded the scope of tort liability by recognizing new causes of action and extending the boundaries of existing torts. Overall, the growth of the law of torts in India and the role of the judiciary in shaping it have been instrumental in providing a remedy to individuals who have suffered harm due to the wrongful acts of others.
Endnotes:
M.C.Mehta v. Union of India, 1987 SCR (1) 819; AIR 1987 965
Shayara Bano v. Union of India, AIR 2017 9 SCC 1 (SC)
Ibid 1
Vishaka and Ors. v State of Rajasthan, AIR 1997 SC 3011
R.K. Anand v. Registrar, Delhi High Court, 2009 8 SCC 106
This article is written by Aehra Tayyaba Hussain, a 1st-year B.A. LLB student at Symbiosis Law School Hyderabad.
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The Andhra Pradesh State Judicial Service members have filed a petition under Article 32 of the Constitution seeking appropriate writs or orders to be issued to respondent no. 1. The primary relief sought is the calling of judgments of the petitioners for elevation to the High Court as judicial officers as defined in Art. 217(2)(a) of the Constitution of India. The petitioners have also sought any other writ, direction, or order that the Hon’ble Court may deem fit and proper under the facts and circumstances of the case.
FACTS:
The petitioners, who served as District & Sessions Judge Fast Track, have filed a writ petition claiming that their service should be considered as a judicial service for the purpose of their elevation to the High Court. The Registry had prepared a list of eligible officers for elevation to the High Court, in which the names of the petitioners were not included as they did not have 10 years of regular judicial service. The petitioners claimed that their service as Fast Track Court Judges should be considered as a judicial service, but the Supreme Court, relying on its earlier judgment, held that the petitioners were not entitled to seniority from the date of their initial appointment as Fast Track Court Judges. the plea raised by the petitioners to consider their service as judicial service for the purpose of Article 217(2)(a) of the Constitution is not legally sustainable.
RESPONDENT’S CONTENTIONS:
According to the counter-affidavit filed by the respondents, the petitioners were appointed on an ad-hoc basis to preside over Fast Track Courts under the Andhra Pradesh State Higher Judicial Service Special Rules for AdhocAppointments, 2001. Later, they were appointed on a regular basis in the cadre of District & Sessions Judge under the Andhra Pradesh State Judicial Service Rules, 2007, after going through the selection process. The petitioners’ names appeared in the seniority list of officers working in the District & Sessions Judge cadre, which was notified by the respondents on 5th January 2022. However, despite their seniority, they were not elevated to the High Court, while officers who were junior to them in seniority were elevated. The respondents have defended their decision to overlook the petitioners’ claims for elevation to the High Court.
PETITIONER’S CONTENTIONS:
The primary grievance of the petitioners is that their service as a District & Sessions Judge Fast Track, which they rendered on appointment from 6th October 2003, has not been considered as judicial service for the purposes of their elevation to the High Court bench as defined under Article 217(2)(a) of the Constitution. The petitioners have alleged that despite being eligible for consideration, their names were not considered by the collegium as they had not completed 10 years of regular judicial service, which is the requirement of Article 217(2)(a) of the Constitution. The petitioners have also pointed out that there were nine vacancies in the High Court for elevation from judicial service and a list of 27 eligible officers was placed before the collegium, but their names were not considered. Instead, officers who had completed 10 years of judicial service were considered for elevation.
JUDGEMENT:
The present case concerns a writ petition filed by certain District & Sessions Judges who were not considered for elevation to the Bench of the High Court as defined under Article 217(2)(a) of the Constitution. The petitioners contended that their service rendered as a District & Sessions Judge Fast Track should have been considered as a judicial service for the purposes of their elevation to the Bench of the High Court.
The Supreme Court, in its judgment, referred to the case of Kum C. Yamini Vs. The State of Andhra Pradesh & Anr. (Civil Appeal No. 6296 of 2019 decided on 14th August, 2019), where it had examined the nature of appointment of the District & Sessions Judges Fast Track and had held that the petitioners were not entitled to claim the benefit of seniority from the date of their initial appointment as District & Sessions Judge Fast Track and other consequential reliefs prayed for.
The Court held that the services rendered by the petitioners as Fast Track Court Judges have not been recognized for the purpose of seniority except for pensionary and other retirement benefits. Therefore, the plea raised by the petitioners to consider their service rendered as Fast Track Court Judges as a judicial service for the purpose of Article 217(2)(a) of the Constitution was not legally sustainable.Accordingly, the writ petition was dismissed as without substance. Pending application(s), if any, stood disposed of.
The Supreme Court in Union of India vs Indian Navy Civilian Design Officers Association and Anr., decided the rights and rules of the judiciary in interfering with the functioning of the executive and decided the parameter for the same.
Facts:
The appellant challenged the decision of the tribunal court regarding the pay scale of Junior Design Officers (JDOs). The respondent had filed before the tribunal court regarding the pay scale of JDOs to be equal to that of Civilian Technical Officers (CTOs) i.e. Rs 7500-12000. The pay scale was fixed by the Fifth Pay Commission. But the plea to equate the pay from Rs 7450-11500 to that of CTOs was rejected by the Finance Minister. The respondent filed another case before the tribunal and the tribunal was directed to grant the pay scale equal to that of CTOs. The appellant was aggrieved by this filled before the High Court and the decision of the tribunal was dismissed by it. The question which arises is the tribunal and High Court are justified in deciding the pay scale and post of the JDOs and CTOs.
Appellant’s Contention:
The plaintiff claimed that the JDOs and CTOs are governed by different sets of Rules and the release period is also longer in the case of CTOs. The UOI also said that the duties and responsibilities of the CTOs are more complex than the JDOs. The post of CTOs exists in different fields and the Pay Scale was fixed based on a recommendation given by Fifth Pay Commission and the Tribunal and High Courts had committed errors by upgrading it. The pay scale was fixed according to the working and requirements of the JDOs.
Respondent’s Contention:
The respondent claimed that the Commission ignored that from the very start, the pay scale of JDOs and CTOs is the same. The responsibilities and duties of both are somewhat similar. Till the Fourth Commission, the pay scale was the same for both. All the essential qualifications and rules followed were more or less equal. Equal Pay for Equal Work should be given.
Judgement:
The court said the Tribunal and High Court has committed gross error in interfering with the post and pay scale and upgrading the same. The decision of the post lies with the executive and it requires an exclusive framework and careful observation. The judiciary cannot interfere ordinarily unless there is something unfair and injustice done in matters regarding finance. The court said the rules, responsibilities and duties performed by the CTOs were different from JDOs. The court quashed the decision of the Tribunal and High Court and the appeal stands true and the appellant was held correct.
The honourable Supreme Court of India in HAJI ABDUL GANI KHAN & ANR. V UNION OF INDIA & ORS. on Monday 13th of January, 2023 observed that “A Constitutional Court cannot casually interfere with legislation made by a competent Legislature” while dismissing the writ petition filed under Article 32 of the Constitution of India.
FACTS
The legality of the action of forming a Delimitation Commission for the rearrangement of constituencies in the Union territories of Jammu & Kashmir and Ladakh was challenged. On 5th of August, 2019 a Presidential Order was issued under the powers provided in clause (1) of Article 370 of the Indian Constitution with the objective of application of the Constitution along with its amendments in the state of Jammu & Kashmir. Application of all provisions of Article 370 was discontinued by a subsequent Presidential declaration.
PETITIONER’S CONTENTION
The petitioners’ primary objection was to the increased number of Assembly seats and the subsequent challenge was that the constitution of the Delimitation Commission was in complete violation of the order passed by the Election Commission of India in 2008 (Delimitation of Parliamentary and Assembly Constituencies Order,2008). The petitioners mainly relied on Article 170 of the Indian Constitution which restrained any rearrangement of assembly seats before the first census after the year 2026. Certain other violations by Articles 330,332, 82 and 83 have also contended which may be read in the original judgment but the essential focus was on the violation of the jurisdiction of the Election Commission of India due to the noncompliance with the order of 2008. Further, sections 59 to 63 were also challenged on the ground of contradiction.
RESPONDENT’S CONTENTION
The Union of India represented by the learned Solicitor General highlighted the delay since the delimitation order had already been passed and the said order of the Delimitation Commission was operative from 20th March 2022 and that such an order by a Delimitation commission stands beyond the purview of court’s review jurisdiction according to Section 10 (2). The validity of sections 60 and 62 was highlighted because the Election Commission had already notified the Government of India of the non-necessity of its interference with the rearrangement of constituencies since the same had already been directed to the Delimitation Commission by a letter proving the sections’ non-contradictory nature.
COURT’S CONSIDERATION
The honourable Supreme Court observed a lack of specificity of allegations and since the grounds on which the said Act’s constitutionality may be verified is not mentioned, it fell short of gaining an in-depth reply from the respondent as well as it did not provide the honourable court with enough room for a constitutionality check. The honourable court denied the validity check of the J&K Reorganisation Act and the Presidential Order of 2019 since they were not at all challenged by the petitioners. The Supreme Court observed the legislative action of constituting the Delimitation Commission in compliance with Articles 3, 4 and 239A and pointed out that the argument on Article 170 does not stand since it dealt with the Legislature of a State and not a Union territory. Applying similar legal analogies the sections 60 and 62 of the J&K Reorganisation Act, the apex court completely refuted the question of legality raised about the exercise of delimitation conducted by the Delimitation Commission. On the question of the legality of the Order of 6th March 2020 the apex court weighed on the fact that statutory interpretation must be by the legislative intent and that a practical approach must be adopted to “make it workable”.
JUDGMENT
Considering all other legal points and dogmas the apex court stated that the petition lacked merits and that it was a ‘vague attempt’ to portray the exercise of delimitation as an illegal affair. Pointing out the non-bearing of this judgment’s observations on other matters which are subject to judicial scrutiny, the court intentionally refrained from weighing on the validity of the exercise of Parliamentary powers and dismissed this petition.
“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.
