If the legislature expresses its no-confidence in the executive, the latter must resign. The machinery and procedure of legislative impeachment of executive officers and judges, executive veto over legislation and appointment of judges and judicial review of legislation and executive action are essential features of any sound constitutional system. Checks and balances on the principle of separation of powers: The aim of checks and balances is to safeguard that different branches of government control each other internally checks and serve as counter weights to the power possessed by the other branches balances. The question which is important here is that what should be the relation among these three organs of the state, i. There are three distinct activities in every government through which the will of the people are expressed.
All these have made jurists say that the doctrine of separation of powers has been adopted in the constitution of India and makes the major structure thereof. The Lord Chancellor is head of judiciary, Chairman of the House of Commons Legislature , a member of the executive and often a member of the cabinet. State of Punjab, the Court though Mukherjee J. In Indian context I am dealing with various constitutional provisions and also judicial response in the cases related to this doctrine. Polybius and the Founding Fathers: the separation of powers 9. The daily assessment is done by the members of the parliament through questions, resolutions, no confidence motions, adjournment motions and debates on address. The legislature makes the executive and can unmake it also.
Mathew has taken in this theory. Punjab 1955 case, the Supreme Court held up the observation that the executive is derived from the legislature and is dependent on it for its legitimacy. This scheme of the constitution cannot be changed even by restoring to Article-368 of the constitution. The judicial function of Parliament is too substantial in certain respects. Montesquieu is the one who structured the doctrine in an orderly and scientific way. Relationship between the Executive and the Judiciary: It is admitted in all hands that the executive must not interfere with the judiciary for the sake of safeguarding the civil liberty of the individuals.
If men were angels, no government would be necessary. There must be sensible approximation, there must be elasticity of adjustment in response the practical necessities of government which cannot foresee today the development of tomorrow in their nearly infinite variety. Judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or the legislature. It is the Cabinet which is the real head of the executive, instead of the Crown. The Constitution provides for conferment of executive power on the President. The most noticeable and popular Jagdambika Pal case of 1998 involving the Uttar Pradesh Assembly and the Jharkhand Assembly case of 2005. Nowhere and never have judges been able to go against the established system.
If it were joined to the executive power, the judge could have the force of an oppressor. This clearly indicates that the Indian Constitution in its function does not provide for a strict separation of powers in India. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. As there was no election of the executive, the king reigned supremely independent in selecting the members of the Council of State, no formal political parties formed util the 1880s. An example of the problems this causes is the near complete political paralysis that results when the president, who has neither the power to veto nor the ability to dissolve the legislature and call new elections, cannot negotiate with the legislature when his party is in the minority.
The constitution makers have also meticulously defined the functions of various organs of the state. The protection of fundamental rights through the common law is main feature of common law constitutionalism. This means that functioning of one organ is checked by the other to an extent so that no organ may misuse the power. Therefore, if any of the three organs attempts to expand its jurisdiction, it would follow an inevitable conflict and affect the harmonious effectiveness of the tripartite system of government. Under the Indian Constitution, executive powers are with the President, legislative powers with Parliament and judicial powers with Judiciary Supreme Court, High Courts and Subordinate Courts.
Value of the Theory of Separation of Powers: The theory of separation of powers exercised significant influence in the eighteenth century Europe. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. In this vein, the Supreme Court held in the 1998 case Clinton v. The status of modern state is a lot more different than what is used to be. Lord Action happened to say that power has a tendency to corrupt and absolute power can corrupt absolutely. He can return a bill to the Parliament for reconsideration but this is not so in case of money bill. Constitutionalism, the philosophical concept of the constitution also insists on limitations being placed upon governmental power to secure basic freedoms of the individual.
Doctrine of Separation of Powers in India: Development: In India, the doctrine cannot claim any historical background. Jain Kagzi Page 15-20 , 4. A parliament that must either form a minority executive or a coalition executive function as a perfectly good system of checks and balances even if it was never a stated goal for the introduction of multiparty system. » « A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This has, however been further supplemented and reiterated by the Indian Supreme Court in Ram Jawaya Kapur v.