Judicial Review and the Doctrine of Separation of Power

Abstract  

India’s Constitution is rein sacking. It is the world lengthiest Constitution. It contains 395  Articles with 8 parts and 22 schedules. The principles of the Indian Constitution was borrowed  from many different countries. The Doctrine of Separation of Power and The Doctrine of Judicial  Review are one of them. Before the enactment of the Constitution, there were the rule of the  king; which says that King is above all. It is supreme. The society or the state would run  according to the king. It was basically the system of Monarchy. 

As the King was known to be supreme, he misuse his powers towards the people living in the  society. Because there was no separation of powers or there was no distribution among the  branches of the government. 

After the enactment of the Indian Constitution there was several provisions or the principles  which was kept in mind while drafting it by the Drafting committees.  

So Article 13(2) of the Indian Constitution talks about the concept of Judicial Review. And Part lV of the Indian Constitution which deals with the Directive Principles of State Policy which is  also called (DPSP) , Article 50 states about the Doctrine of Separation of Power between the  judiciary and the other two branches of the government. 

Key Words : Judicial Review, Separation of power, Monarchy, Executive, judiciary, legislature 

Introduction  

There are three organs of the Indian Government Those are as discussed; 

• Legislature: Those who makes the law. 
• Executive: Those who executes the law. 
• Judiciary: Those who interprets the law.

Hence all the three organs of the government works accordingly to their functions and powers .  Each of the organs dealt with different functions. This means that none of the organs of the  government has the same powers. But here comes the picture of the Doctrine of Separation of  Power. 

The Doctrine of Separation of Power states that each of the organs have different functions  performed by them . The power of legislation, executive and judiciary differs. Although the  separation of powers are not rigid in the context of India as like in USA there is the rigid  separation of power. 

However ,in the Indian Government this doctrine is flexible in nature. There is the concept of  checks and balances which means that each of the organs of the government keeps an eye on one  another. 

This states that legislation keeps check on the executive, and executive to the judiciary and vice  versa. 

This was reliable because nobody can misuse the powers granted to them . If there would not be  the separation of power among the branches of the government, there will be increased in the  concentration of powers in the hands of one only. 

The concept of checks and balances is accountable and provides transparency in the nature. It is  very effective and efficient.  

Judicial review states that there is power in the hands of the court to review its own decisions and  also keep checks on the decision passed in the parliament and if any of the decision are against  the Constitution fundamentals it would be declared unconstitutional that is null or void in the  constitution. 

Article 13(2) talks about the principle of judicial Review. Various landmark cases dealt with the  doctrine of judicial Review and the Doctrine of Separation of Power. 

Doctrine of Judicial Review  

The Doctrine of judicial review consists of the Article 13, 32 and 226. The detailed overview of  those three articles are discussed below:

Article 13 of the Indian constitution deals with the laws inconsistent with fundamental rights.  Article 13(2) talks about the concept of Judicial Review. 

Article 32 of the Indian Constitution talks about the powers of the Supreme court for the writ  jurisdiction. It says that whenever there is the violation of any fundamental rights of the citizens  they can approach to the supreme court under the jurisdiction of Article 32 of the Indian  Constitution. There are five kinds of writ jurisdiction: They are as follow: 

• Habeas Corpus (Unlawful detention) 
• Mandamus ( We command) 
• Certiorari ( To be certified) 
• Prohibition ( To stop/ to prohibit) 
• Quo Warranto ( By what authority ) 

Hence , Article 226 of the Indian Constitution gives the power to the High Courts . Although the  powers of the high courts have broader jurisdiction as the scope of High Courts are wider than  the Supreme Court. This is so because in the case of supreme court, if there is the violation of  fundamental rights the citizens can approach to it but in the case of High court it dealt with  several cases including the violation of the fundamental rights. Therefore the scope of the High  Courts are wider in terms with the Supreme Court. The concept of the Judicial Review was taken  from the US system. 

There was the case of Marbury V Madison through which the principle of Judicial Review was  established. 

Article 368 of the Indian Constitution states that the Parliament has the power to amend the  constitution. However, there are certain restrictions imposed on this power. The famous case of  the Indian Constitution i.e. Keshavanand Bhararti vs State of Kerala (1973) which established  the Doctrine of Basic Structure. 

Doctrine of Basic Structure

This doctrine was established in the case of Keshavanand Bhararti vs State of Kerala 1973 and  there was the bench of 13 judges in the case . The ratio of this case was 7:6 . It was the  remarkable case in the history of the Indian Constitution. 

The Doctrine states that the Parliament can amend the constitution but they cannot change the  basic structure of the Indian constitution. However in this principle there is no where defined the  term basic structure includes which of the things . But it says that , the parliament can amend the  laws but those laws which are against the fundamental rights or the features of the constitution  can’t be amended. Hence it would be declared unconstitutional with the null and void. 

As the changing needs of the society there could be the change in the constitution while keeping  in mind that the constitution must not lost it essential identity or its centric or core values and the  objectives.  

This principle act as a safeguard to the Indian Constitution. 

Significance of the Judicial Review 

• Checks and Balances: 

It’s very significant that the concept of Checks and balances states that the each of the organs  keeps the check on one another. 

• Rule of Law : 

As it states that no body is above the law. Law is always supreme. And in this context the Indian  Constitution is supreme in the nature.  

• Government functions properly : 

The concept of Judicial Review also states that if there is the power with the judiciary to review,  the government could function it properly. It works effectively and efficiently. 

• Protection of the rights of the citizens: 

If there is any violation of the fundamental rights of the citizens they have the right to approach  to the supreme court under article 32 and if there is the inconsistency of the law with the  fundamental rights it could be declared Unconstitutional that is null and void in the eyes of law.

• Accountability and Transparency: 

The doctrine of the Judicial Review also ensures the Accountability and Transparency to the  government. 

• 1st Constitutional Amendment Act (1951) 
• Keshavanand Bhararti vs State of Kerala (1973) 
• Waman Rao vs Union of India (1980) 
• I.R. Coelho vs State of Tamil Nadu (2007) 

Doctrine of Separation of Power  

As the doctrine of Judicial Review the Doctrine of Separation of Power was borrowed from the  British and American System. This doctrine was given by the famous scholar Montesquieu. His  view regarding the doctrine of Separation of power changed the several mind-sets.  

Also , the Aristotle and the famous scholar John Locke was in the support of this doctrine. As the  Indian Constitution is rigid and flexible in the nature. The doctrine of Separation of Power is not  rigid as in US in contrast with the India. 

However Article 50 of the directive principles of State Policy states that there must be separate  judiciary from the executive . 

Separation of powers means all the three organs of the government are separated from each  other. And they perform different functions of their own.  

The main objective of this doctrine is to ensure that there is no concentration of the economic  power in the hands of any one of the organs of the government. It will leads to the tyranny and  corruptions if the power is vested in the hands of the one. 

In most of the countries the system of Monarchy still prevails . To avoid this , the Indian  Constitution has the principle of the separation of powers so that there could not be misuse of the  powers and to promote the Accountability and fairness in the government organs.  

Significance of the Separation of Powers  

• Prevents Concentration of Power:

As there is division of the powers between the three organs of the government, so there is no  power vested in the hands of the one. It is divided differently among the organs of the  government. 

• Effective and Efficient in nature: 

As there is the separation of power the government works effectively and efficiently according to  their functions. 

• Accountability and Transparency: 

It ensures Accountability and Transparency. As all the three organs of the government works  according to their functions.  

• Provides Stability:  

The system of checks and balances states that each of the organs of the government keeps an eye  on one another so it provides stability to the government as one branch of the government is not  having all the powers vested in it. 

• Protects Individual Rights: 

It is the duty of the government or the state to protect the fundamental rights of the citizens. As  the Constitution is supreme in the eyes of the law. So the separation of powers of the organs are  bound by the law. It has to ensure the rights of the citizens of the country. 

Key Provisions 

• Article 50 of DPSP  

Which States that the judiciary is independent from the executive and that of the legislature.

• Article 121 and 211 

Discussion about the judges conduct of High court and supreme court. 

• Article 122 and 212 

This Article of the Indian constitution states about the relationship between the legislature and  judiciary.

• Article 53 and 154 

This article of the Indian Constitution states about the executive power of the Union and the  State respectively. 

Landmark Cases 

• A.K. Gopalan vs State of Madras 1950 

Article 21 and the concept of procedure established by law and the due process of law. • Menaka Gandhi vs Union of India 1978 

Overruling the case of Ak Gopalan it states that article 14 ,19, and 21 of the Indian Constitution  must be read together. Means it states that the scope of Article 21 is wide it’s not narrow in the  nature. That’s why the Article 14,19 and 21 of the Indian Constitution is known as the Golden  Triangle of the Indian Constitution. 

• Golaknath vs State Of Punjab 1967 

Fundamental Rights are provided to the citizens of the Country. And it is the duty of the state to  safeguard and protect the fundamental rights of the citizens. In this case it was ruled that the  Parliament cannot take away the fundamental rights through constitutional amendments. 

Article 13(2) of the Indian Constitution talks about that if there is the inconsistency of the  fundamental rights with the constitutional amendments it should be declared Unconstitutional  with null and void. 

• Indira Gandhi vs Raj Narain 1975 

The supreme court in this case stated that clause (4) and (5) of Article 329A ,was  Unconstitutional as these articles violated the basic structure of the Indian Constitution. 

In essence, the doctrine of Separation of Power and The Doctrine of judicial Review are the  important concepts in the Indian Constitution. 

Conclusion 

To run the state or the society there must be proper branch of the government so that it could  work effectively. The Indian society is divided into three branches of the government namely ; legislature,  executive and judiciary. Legislature makes the law, executive executes the law and the judiciary  interprets the law. Although the separation of power in the Indian Constitution in not rigid as like  in the US. There is the concept of checks and balances which ensures the transparency and accountability in  the Indian Government. The Doctrine of judicial Review was stated in the Article 13 (2) of the Indian Constitution. And the Article 50 of the Directive Principles of State Policy states about the doctrine of  Separation of Power. 

To avoid the tyranny in the government there is the rule of separation of powers which States  that power must not be vested in the hands of the one organ it must be divided in three different  organs of the government. It also ensures the stability in the Government. Judicial Review states that the Judiciary has the power to review its own decisions. Also if any  law which is violative of the fundamental rights or against the fundamental rights the judiciary  has the power to declared it Unconstitutional. Hence it is the duty of the state to safeguard and protect the fundamental rights of the citizens in  the country. 

Both the concepts were borrowed from the US system. It is the duty of the state to properly ensure that all the organs of the governments are working  efficiently or not. There must be transparency and fairness in all the three organs. 

References 

1. https://www.ijlsi.com/ 
2. https://recordoflaw.in/judicial-review-and-the-doctrine-of-separation-of-powers/
3. AIR 1978 SC 597
4. 1950 SC 27; 1950 SCR 88; (1950) 51 Cri LJ 1383.
5. AIR 1973 SUPREME COURT 1461, 1973 4 SCC 225