Broadly speaking: SOME CONSTITUTIONAL PROVISIONS REFLECTING SEPARATION OF POWER IN INDIA

Profile of the Author- Sri Vaishnavi M.N. is a third-year student of DSNLU, Visakhapatnam. She has a keen interest in criminal law, constitutional law, human rights, and legal developments.

Introduction

The power of governance in India is separated among three organs viz., legislature, executive and judiciary. The legislature makes the law, the executive enforces it, while the judiciary interprets it. John Dalberg Acton, the first Baron, expressed his opinion on power in a letter to Bishop Mandell Creighton in 1887 as “Power corrupts and absolute power tends to corrupt absolutely”. Similarly, Willam Pitt, the British Prime Minister from 1766 to 1778, stated that “Unlimited power is apt to corrupt the minds of those who possess it”.

The doctrine of separation of power prevents overlapping of the functions of the three organs of the government and abuse of power. In the case of Ram Jawaya Kapur v. State of Punjab, [1] the Supreme Court held that though the separation of powers is not recognized by the Indian Constitution.

Restriction on the Discussion of Judicial Conduct in Parliament

Article 121 of the Indian Constitution stipulates that the parliament shall not deliberate on the conduct of a judge either of the Supreme Court or a High Court with respect to its duties. It can do so only when a motion is introduced in the parliament for removal of the judge. It was upheld by the Supreme Court in Re: Powers, Privileges and Immunities of State Legislature. [2] Article 211 emphasises that there shall be no discussion regarding the same in any state legislature. This provision separates the legislature from the judiciary.

Restriction on Courts to Inquire into Parliament Proceedings

Article 122(1) of the Indian Constitution states that no court shall question the legitimacy of any parliament proceeding on the ground of procedural irregularity. It was upheld in Smt. Indira Nehru Gandhi v. Raj Narayan [3] and M.S.M. Sharmaa v. Sri Krishna Singh [4].

Article 122(2) states that no lawful member of the parliament who derives powers from the Constitution shall be subject to the jurisdiction of any court while exercising such powers. In Hemachandra Sen Gupta v. The Speaker, [5] it was held that a writ can be issued by any court against the Speaker who is presiding over a meeting or meetings of the House. In Chhotey Lal v. the State of U.P. , [6] the court held that no writ can be issued by any court to stop or prohibit the passing of a bill. Similarly, Article 212 stipulates that no court can question the legality of the state legislature or the powers of its members.

Immunity from Civil and Criminal Liability

According to Articles 53 and 145 of the Indian Constitution, the President and the Governor have the executive power of the Union and the State that provides immunity against civil and criminal liability. Article 361(2) emphasises that no criminal proceedings can be initiated against the President or the Governor during their tenure, while Article 361(4) protects them from civil proceedings. Article 361(3) provides them protection from arrest or imprisonment. Article 361(1) of the Indian Constitution states that the President or the Governor is not accountable to any court with regards to the exercise of the powers and performance of duties. An exemption to this provision is the cases where the conduct of the President is brought under the review of any court, tribunal, or a body appointed by either House of the Parliament for investigation of the charges under Article 61 of the Constitution.

Independence of Judiciary

Independent judiciary is a basic feature of the Constitution. The preamble provides the objective of social, political, and economic justice. The objective of the judiciary is to protect the constitutional and fundamental rights of the citizens. Hence, there is a need for an impartial and independent judiciary. Article 50 of the Constitution provides that the state shall take measures to ensure the separation of the judiciary from the executive in public service matters. The Constitution ensures the independence of the judiciary by keeping their appointment and tenure under Articles 124 and 217, salaries and allowance under Articles 112(3)(d)(i) and 202(3)(d), and removal and transfer under Articles 124, 127 and 222 free from executive interference.

Judicial Review

The power of judicial review is vested with the Supreme Court under Article 32 and the High Courts under Article 226 and 227 of the Constitution. It is the power to review any administrative, executive, or legislative action to ensure that such acts are lawful and under the ambit of the Constitution. Or else, the judiciary can strike down such acts/provisions as unconstitutional.

Ultra Vires and Protection of Fundamental Rights

Ultra vires means beyond power. The Supreme Court or a High Court with competent jurisdiction can strike down a law/provision if it is ultra vires. If the executive or legislature acts beyond its designated powers or in an arbitrary manner, then the court has the power to strike down the same. In the case of Om Kumar & Ors. v. Union of India, [7] the court held that to challenge the arbitrariness of an administrative order, the logical reasoning of the administrator must be taken into account. The Supreme Court can strike down a provision/act if it is not within the ambit of the Constitution or it violates the fundamental rights guaranteed under the Constitution. In Kesavananda Bharati v. State of Kerala, [8] it was held that the legislature cannot amend the basic structure of the Constitution. Therefore, if any amendment violates the basic structure of the Constitution, it can be stuck down as unconstitutional.

Conclusion

Separation of powers is not explicitly provided under the Constitution, while it was adopted through various judgments of the Supreme Court and the Directive Principles of State Policy. The Constitution is the supreme law of the country and it confers the power on the judiciary to protect the framework of the Constitution in case the legislature or the executive violate the basic structure or fundamental rights. The Supreme Court does not follow the separation of powers in the cases where there are ultra vires legislative or executive action/orders, where there is a violation of constitutional or fundamental rights. However, the system of checks and balances among the three organs have been imperative in maintaining peaceful governance.

Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.

FAQs

Q1. Does the Indian Constitution absolutely recognise the separation of power?

A1. No, in the case of Ram Jawaya Kapur v. the State of Punjab, the Supreme Court held that the separation of power is not absolutely recognized by the Indian Constitution.

Q2. Which articles emphasize the separation of the legislature from the judiciary?

A2. Article 121 and 211 of the Constitution states that the parliament and the state legislature shall not deliberate on the conduct of a judge either of the Supreme Court or a High Court with respect to its duties. It can do so only when a motion is introduced in the parliament for removal of the judge. Article 122 and 212 states that no court can question the legality of parliamentary proceedings or state legislature proceedings on the grounds of procedural irregularity.

References

1. AIR 1955 SC 549.

2. AIR 1965 SC 745.

3. AIR 1975 SC 2299.

4. AIR 1996 SC 1186.

5. AIR 1956 Cal. 378.

6. AIR 1951 All. 258.

7. AIR 2000 SC 3689.

8. (1973) 4 SCC 255.