Separation of Powers in India | Social Issue Essay, Article, Paragraph for Class 12, Graduation and Competitive Examination.

Separation of Powers in India

Scheme of the Essay

Exposition: Judicial Activism has a bad odour in political circles.

Rising Actions: The constitution is ambiguous in many respects.

Climax:

(1) The Supreme Court has an edge over other organs

(2) Parliament can render the Supreme Court ineffective

(3) The Judgements of the Supreme Court are enforced by the executive

(4) It is wrong to blame the judiciary for activism.

Ending: The Constitution has created a system of checks and balances.

The phrase “judicial activism” is in bad odor with certain political circles, which are wrongly accusing the judiciary of crossing the “enchanted circle”. Actually, the judiciary is only discharging the duties enjoined on it by the constitution, and only this is its “judicial activism”.

The Constitution is somewhat ambiguous as regards certain matters. The consequence of a breach of the oath of office by ministers is a significant example of ambiguity. But there is absolutely no ambiguity regarding the respective jurisdictions and powers of the three main organs of the polity. For example, Parliament (Lok Sabha) is supreme in that the executive is responsible to it for all its actions. Parliament is supreme in relation to the judiciary in the sense that it has the power to terminate the tenure of any judge of the higher courts by impeaching him/her for misbehaviour or incapacity, though the resolution of each House, in this connection, must be supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. It is also supreme in that it has the exclusive power to make laws, including those relating to the allowances and perks of the judges meaning the superior judiciary. Also, it is Parliament which can restrict and enlarge the Supreme Court’s jurisdiction or determine its strength, of course, subject to the provisions of the Constitution.

The Supreme Court certainly has an edge over the other organs of the polity. The Constitution gives it the power to sit in judgement over the constitutional validity of laws enacted by parliament and the power to interpret the Constitution which would be what the judiciary says it is. It would be recalled that the imposition of the Governor’s rule in certain States on the subjective satisfaction of the President was recently held invalid by the Supreme Court under this power.

Similarly, the Supreme Court has held that Parliament has no right to amend the basic features of the Constitution under its constitutional power of amendment. The recent judgment of the nine-judge bench of the court emphasises the fact that the judiciary is an independent organ of the Indian polity, as really contemplated by the constitution.

Then, the Constitution gives to the Indian citizen certain Fundamental Rights. No legislation of Parliament and no action of the executive would be valid if it goes to militate against any of these rights. Article 32 of the Constitution makes the Supreme Court the guardian of these rights and clothes it with the power to issue the well-known writs for the enforcement of these rights. One of the Fundamental Rights is enshrined in Article 14 and the Supreme Court, when properly approached, has the power to enforce the rule of law which is what the court is currently doing in the cases involving ministers of the Union Government and other “VIPs”. Incidentally, it is unfair to accuse the Supreme Court and high courts of crossing the “limits of their appointed role”. The actual governance of the country is certainly the sphere of the executive. But the superior judiciary is expected to pull it up, in however gentle terms, if it is playing havoc with the Government.

The fact is that the founding fathers hoped for the best but also provided necessary safeguards against the abuse of power. The Constitution is based strictly on the philosophy of checks and balances, which, incidentally, postulates the readiness of the three organs of the polity of work in cooperation with one another.

Though the Supreme Court has a place of primacy in the constitutional scheme, it can be rendered ineffective by Parliament in the matter of laws and in some other ways. It can be rendered ineffective even by the executive in the event of a confrontation between the two. The Supreme Court has no agency of its own to enforce its judgments, decrees, and orders. According to Article 144 of the constitution, it has to depend on the civil and judicial authorities for the purpose. There is thus the imperative need for cooperative attitude on the part of the main organs of the polity. This will be possible if they are ready to respect the constitutional edicts concerning their respective powers and jurisdictions.

Some demand a discussion on the role of the judiciary in the governance of the land. They feel that it is intruding into the spheres reserved by the constitution for the two other organs of the polity whose “dignity” is under the judicial attack. But so far as the legislatures of the land, including Parliament, are concerned, the loss of dignity is due to themselves. It is the way they have been functioning which has held them up to popular ridicule. The summoning of the Speaker of the Manipur Assembly by the Supreme Court in 1993-94 has been mentioned by some MPs as a specific example of the aggressive attitude of the judiciary. However a study of the constitution will show that this charge against the judiciary is unfair. The Supreme Court is wholly within its jurisdiction in disciplining the tribunals, courts, and other persons in the land, enjoying judicial or semi-judicial powers. As to the Supreme Court’s monitoring the investigation of cases involving powerful politicians, who could blame the court when the law ministry is openly interfering with the functioning of the investigative agency, just to help an accused being arranged before the court? It is also common to talk that the predecessor of the present director of the CBI was trying to help MR. Narasimha Rao, accused of various criminal offenses.

The demand of politicians for a national debate on the respective jurisdictions of the three organs of the polity is gaining ground. However, it is not a national debate on this, but a close study of the Constitution by the legislators that is the need of the hour.