In India, the debate around this issue dates back to the framing of the constitution itself. An interesting point with this regard is that in the Indian context the doctrine of separation of powers was never given the constitutional status meaning that it is nowhere explicitly stated in the constitution. However, the constitution was framed while keeping the doctrine of separation of powers in the mind.
Since ours is a parliamentary system of governance, though an effort has been made by the framers of the constitution to keep the organs of the government separated from each other, a lot of overlapping and combination of powers has been given to each organ.
The legislative and executive wings are closely connected with each other due to this, the executive is responsible to the legislature for its actions and derives its powers from the legistlature. The head of the executive is the president, but a closer look shows that he is only a nominal head and the real power rests with the Prime Minister and his Cabinet of ministers as in Article 74(1) . In certain situations, the President has the capacity to exercise judicial and legislative functions. For example, while issuing ordinances. The judiciary too performs administrative and legislative functions.
The parliament too may perform judicial functions, for example, if a president is to be impeached both houses of Parliament are to take an active participatory role. Thus all three organs act as a check and balance to each other and work in coordination and cooperation to make our parliamentary system of governance work. Thus, in India, the doctrine of separation of powers is not upheld in the strictest sense but rather, it is very flexible.
Judicial Activism and Judicial Review
It is important to note that the separation of powers is still an important guiding principle of the constitution. Most noteworthy is our judicial system which is completely independant from the executive and the legislature. As in regard to the judges, they are extremely well protected by the Constituition, their conduct is not open to discussion in the Parliament and their appointment can only be made by the President in consultation with the Chief Justice of India and the judges of the Supreme court.
The interpretational and observer role of the Judiciary over the Legislature is called Judicial Review. The judiciary is the final authority for the interpretation of constitution in India. The Judiciary can prevent it by declaring the act or action ultra-virus if the Legislature transgresses the powers given to it by the constitution. This power is called Judicial Review. This was held in the landmark case of Indira Gandhi v. Raj Narain.
While Judicial Activism is the concept how actively and quickly the judiciary performs the act of Judicial Review. the readiness that the courts have achieved in exercising its power to uphold the values of the constitution have generally come to the extent that JR has gradually acquired the form of Judicial Activism in India. Judicial Activism is the extent and the vigour and the readiness with which courts exercise their power of Judicial Review. So, there is a marked difference between both of them. Courts have actively performed an interventionist role and that we have witnessed the phenomenon of Judicial Activism. The courts have overthrown or at least liberalized the concept of locust stand to allow any public-spirited person or organisation to bring to the notice of the court any matter of injustice and violation of constitutional rights of any downtrodden and unprivileged classes of society.
The court has expanded the scope and amplitude of Article 21 to cover many basic rights under it so that giving them the status of fundamental rights, they can be enforced against the state also, even by PIL. Another factor which contributed to the Judicial Activism was the expansive judicial interpretation placed on the expression life in Article.
Bone of Contention
Through various Judgments, the SC has ruled that if any clause takes away the powers vested upon the Judiciary of using the Judicial Review power, it can be done on all levels except for the Supreme Court. Even there can be several laws that can take away the power of High Courts but any law cannot be justified which would encroach the Supreme Courts power to Judicial Review, and if any law does so then the Doctrine of Colorable Legislation would be enforced in such situation. And the law so made would become void as to the extent or wholly, by the virtue of Article 13 of Indian Constitution .
It is observed that when the Legislature tries to validate a law declared by a court to be illegal or invalid, the cause for it must be removed before such validation. Such validation can be said to take place effectively only if the inconsistent or derogatory part is removed . It is unjust to abridge or attempt to hinder the powers vested upon the Judiciary as part of the basic structure. Thereby any discrepancy caused due to the Legislature cannot be justified by inserting any clause that is illegal.
The debate on this issue evolved through many landmark cases. The Doctrine was cemented as part of the Basic structure of the constitution in the Kesavnanda Bharti Case . The main question was whether the parliament had unrestricted amending powers due to Article 368 of the constitution and how much could actually be amended. To this, the judgement given by the supreme court held that the amending power of the parliament was subject to the basic structure of the Constitution, and any amendments which tampered with the basic structure would be unconstitutional. In this judgement, the separation of powers doctrine was included in the basic structure of the constitution and thus any amendments which gave control of one organ over another would be unconstitutional, leaving the Executive, the Legislature and the Judiciary completely independent . It must be kept in mind though that in India the separation of powers doctrine is not followed extremely rigidly.
A recent case, Delhi Development Authority v M/s UEE Electricals Engg. Pvt. Ltd where the Supreme Court ruling has sought to clarify the meaning and objective of judicial review as a protection and not an instrument for undue interference in executive functions. The Supreme Court made the observation that “One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review . The first ground is “ illegality ", the second “ irrationality " and the third “ procedural impropriety ".
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