JUDICIAL REVIEW AND SEPARATION OF POWERS IN INDIA
CHRISTOPHER THOMAS, BA, LL.B
Judicial Review is the power of the courts to interfere in administrative, legislative, and judicial matters if it seems that there is anything unconstitutional or arbitrary. The ability of courts to rule on the constitutionality of government legislative and executive activities that fall under their customary jurisdiction. Its origins can be traced back to the doctrine of limited government and the theory of two laws, namely, an ordinary law and supreme law, the Constitution. Separation of powers emphatically outlines the boundaries within which the executive, legislative, and judiciary should function and one cannot interfere with the matters of the other.
The separation of powers principle refers to three types of governmental authorities:
i. A single person should not serve in more than one of the state’s three organs.
ii. No state organ should interfere with any other state organ.
iii. No one organ should perform the functions of any other organ.
In India judicial review was exercised by courts even before the commencement of the Constitution. The Government of India Act 1935 provided Federal Courts with powers to review the decision which may act as a hindrance to the federal structure. The federal courts in India worked vigorously with wisdom and dignity and took various constitutional decisions. Article 13 of the Constitution provides for the scope of judicial review. As per this article, any legislation which takes away the rights of the citizens is ultra vires to the constitution.
The theory of separation of powers is traced back to Plato and Aristotle. Later French Philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers. In his work “Esprit des Lois” (The Spirit Of Laws), published in 1785, Montesquieu was the first to express this notion scientifically, properly, and methodically.
Following the end of the emergency in India, the Supreme Court was chastised for issuing a series of rulings that were seen by many as violating Indian citizens’ basic human rights, and it changed the way it saw the constitution. The Supreme Court stated that all legislation, whether significant modifications to the Constitution or the creation of schemes and bye-laws of municipal authorities that influence a citizen’s life, is subject to judicial review.
In our Constitution, there are no specific provisions regarding the doctrine of separation of powers. However, the constitution has some directive principles, such as Parts IV and V, and Article 50, which separates the judiciary from the executive. The state shall take steps to separate the judiciary from the executive in the public interest. There is no formal and dogmatic separation of powers except for the state’s services, and there is no formal and dogmatic division of powers except for this.
In India, Separation of Powers is not exactly as it is portrayed by its propounder. Judiciary plays a vital role as it acts in furtherance of the powers vested in it and interferes with the other two organs. The Supreme Court has the authority under Articles 142 and 145 of our constitution to declare void legislation approved by the legislature and executive acts if they contravene any provision of the constitution or a law passed by the legislature in the case of executive operations. Even Parliament’s power to modify the constitution is subject to the Court’s review. If an amendment alters the fundamental structure of the constitution, the Court has the authority to declare it void. On many occasions, judges have issued policy directives to the Parliament.
OPINIONS AND SUGGESTIONS
The efficiency of the organs of the state increased due to the separation of works hence time consumption decreased. Since the experts will handle the matters of their parts, the degree of purity and correctness increases. There is the division of work and hence the division of skill and labor occurs. Judicial review of the actions by the organs put up a mechanism where they will be held accountable thus limiting the scope for arbitrariness.
Separation of Powers and Judicial review are contradicting subjects and also they are intertwined by their nature. As one tries to give autonomy the other tries to take away the autonomy. Therefore a system where judicial review and separation of power coexist should be created where there will be minimal judicial review and it should be provided only when there is anything unconstitutional that takes away the fundamental rights of the citizens.
Judicial review and separation of powers of various organs of the government is a necessity for the smooth functioning of a democracy. A democratic country cannot grow when these two principles are absent. The inherent power of the judiciary to correct the wrongs of the other organs maintains a system of check and balance which is essential. But boundaries are crossed as the judiciary might take into its hand several acts of the executive or legislative even when they are constitutional and for the public interest. Thus in India, it is false to say that there is a fully functioning theory of separation of power rather it is partial and judicial review is also limited as every act of other organs if put to judicial scrutiny then there will not be any governance rather anarchy.
- Gurram, Ramachandra Rao. “Judicial Review in India – Government, Public Sector – India.” Welcome to Mondaq, Rao, 10 Apr. 2003, http://www.mondaq.com/india/constitutional-administrative-law/20649/judicial-review-in-india.
- Rich Goel, and Janhavi Arakeri. “All You Need to Know about the Separation of Powers in India.” IPleaders, 1 Sept. 2021, blog.ipleaders.in/separation-of-powers/.
- Bhat, Fayaz Ahmed. “Doctrine of Judicial Review in India: A Judicial Perspective .” Latest Laws, 2 Feb. 2020, http://www.latestlaws.com/articles/doctrine-of-judicial-review-in-india-a-judicial-perspective-by-fayaz-ahmed-bhat/.
- The Separation of Powers: Indian Constitution. http://www.cusb.ac.in/images/cusb-files/2020/el/law/w2/The_Separation_of_Powers2_iv_sem.pdf.
- Takwani, C. K., and M. C. Thakker. Lectures on Administrative Law. Eastern Book Co., 2010.