Separation of powers and Indian experience: Analysis of Checks And Balances System

LJCS: Legal Journal for Contemporary Sciences

Introduction

In democracy, the doctrine of separation of powers plays a vital role. The great philosopher Montesquieu gave an idea of separation of powers, saying that placing powers in one organ’s hand would prove dangerous to the nation-state. His doctrine divides power into three organs, such as legislature executive Judiciary. Due to this doctrine, the organs of the Government can work independently. However, while working independently, they do not have absolute powers because of the principle of ‘checks and balances.’ For the smooth running of Government, this principle is helpful to prevent tyranny by the Government. No one organ can take over power assigned to other abruptly.[1] Check mean system that allows each branch of Government to prevent any branch from exerting too much power over others. Many countries accepted doctrine with the principle of checks and balances. There is no mention of separation of powers in India’s Constitution, but power separation is there in Government with legislature executive and Judiciary with ‘checks and balances principle’. Principle’s main objective is not to fight in between for supremacy but to the functioning of three organs to run Government properly with Independence to every organ. Constitution does not recognize separation power in absolute rigidity but differentiated sufficiently.[2]  
  

Legislature 

In India, the legislature has the power to make Law. The legislature has absolute Parliamentary privilege where no one can question the proceeding in Parliament. The legislature has powers where it can impeach the president of India, judges. Still, they are not as strong as the legislature did not use them in many incidents. It is not permissible for Legislature to encroach upon judiciary.[3] On the other hand, the legislature has no powers to question authority, the person who is being dangerous to society’s public security order. These powers are given to the U.S.A. Congress, where they recently questioned the Chiefs of companies such as Apple, Google, Microsoft, Facebook on Data and Privacy issues.[4] The legislature has no powers like this. However, the Council of Ministers is responsible for the legislature.[5] The legislature has no powers to interfere or ask the question to Judiciary.

Separation of powers and Indian experience: Analysis of Checks And Balances System

Is the checks and balances principle strictly apply to Judiciary? 

In the Constitution of India, there is mention of the separation of Judiciary from the executive.[6] While interpreting Law, the Judiciary is always tried to check watch on the legislature and executive powers. If any law made by the legislature is not in the ambit of India’s constitution, then the court can use judicial review power to void it.[7] By using this principle, the Supreme Court made some laws void, including NJAC Judgement and others. In one judgment, the Supreme Court said the separation powers included in basic structure with no absolute rigidity.[8] Also, Judiciary checks on the executive’s wrong decision and orders them if any wrongdoing has happened. In 2018 after Karnataka assembly Elections, no party got a majority, but congress J.D.[S] came together for forming Government. Although they had numbers, Governor at that time used arbitrary powers to call B.J.P., who had no majority to form Government. After forming the B.J.P. government, merely two days the Supreme Court ordered confidence that B.J.P. lost. Here Governor was trying to misuse position, but the Supreme Court indirectly made it a better situation for democracy.

Who is going to judge the judges? 

As we studied the ‘checks’ in by Judiciary on other organs of Government. However, here the question arises that Judiciary is judging people and interpreting laws but who will check on the Judiciary. Judge’s conduct is not open to discussion in Parliament. Court has unlimited power while applying judicial review to take a watch on the legislature. However, Judiciary becomes authoritarian day by day as we have seen in the Prashant Bhushan Contempt Of Court, where Supreme Court punishes Prashant Bhushan for merely expressing his view on Twitter about Judiciary.[9] Supreme Court has a history of delaying justice with it does not have time to give a decision in C.A.A., Abrogation of article 370 but very eager to give verdict on Contempt of court, saying people’s faith in Judiciary would decrease if a person is not punished under Contempt of court. This judgment shows Courts’ intention for By striking down NJAC Judgment in 2015 Supreme Court kept arbitrary power of appointing judges of the high court and Supreme Court1.[10] Arun Jaitley once said Judiciary as a tyranny of unelected. Judiciary is not questionable to any authority unlike executive who is questionable to the legislature, and for the legislature, the elections are happening every five years. There is a provision where Parliament can impeach the judge for proved misbehaviour or incapacity, but if we look in history, there is no incident where a judge impeached successfully. Although there is a provision of impeachment, the legislature cannot question any court’s judicial decision. Judiciary uses arbitrary power in deciding particular matter which we have seen in the current Rajasthan M.L.A.’s Crisis, where the high court did not follow the past S.C. doctrine.[11] Due to this type of structure, sometimes judges are using Arbitrary powers, which are mainly used by Retired C.J.I. Gogoi with forming bench where he was accused. The court is using Contempt of court as a sword to suppress the voice against it. 

Legal Journal for Contemporary Society: LJCS

Checks And Balances of Executive 

The Judiciary can take a watch on the executive by judicial review. However, sometimes the executive uses some laws with authoritarian power. For example, under I.P.C., the sedition law says that a person can arrest if he attempts to excite disaffection against the Government established by Law.[12] The British Government used this draconian Law to suppress people’s voices. However, after Independence, the executive kept that Law and every Government is using this Law as a sword-like Judiciary is using Contempt of court to suppressed dissent. Supreme Court gives validity to Sedition Law, saying this Law balances fundamental rights and the need for public order.[13] Sedition cases are filed on large numbers after C.A.A. against the people who are opposing that Law. People were booked under sedition law in incidents where they were protesting against kudankulam project in T.N., Adivasi’s protesting against Jharkhand government and against school principal where school organized play criticized C.A.A. Karnataka. Applying Law to merely suppressing dissent was the aim of this Law. This British Era draconian law should be abolished for the sake of free democracy. 

Media’s Checks and Balances

Independent Media is the fourth pillar of democracy. Media is not coming under three organs of separation of powers but is always try to keep a check on the other three independent organs of Government. Media includes social media, print media, and online platforms. In today’s time in India, Media is not working correctly. As we know, there is much inequality, corruption, and wrongdoing is happening in India, Media is not seen to give justice to these things. Media is Busy in things which are not good enough for society. By doing investigative journalism, they can ask Judiciary questions on Contempt of court, executive about corruption in machinery, the lousy implementation of development policy, and could Expose Government. Media even play a larger role whenever three organs try to run government hand in hand by misusing power. Due to these things, Media could play a significant role in keeping check-in the misuse of power by any organ or supremacy of one Organ over others and could also put up things before society for Free Democracy. Circulation of biased Information by media proves very dangerous to the sanctity of society.

Suggestions 

1. Judiciary should be made questionable to some authority. The legislature and Executive interference should increase for balancing power equation. 

2. The legislature shall give more powers as same of congress in the U.S.A. The legislature can ask the question to authority or person who is doing things that are dangerous to society’s security, law, and public order. Also, parliamentary discussion shall be made questionable to some authority. 

3. The number of times the executive’s decision needs legislative affirmation. this powers should be distributed on an equal basis for the sake of Separation of Powers doctrine 

4. Judges appointments method shall be replaced with new Method or authority. 

5. The question of draconian laws like sedition law and Contempt of court should replace with fair Law. 

6. Making stronger Laws against hate speech, fake news, biased circulation of Information by media [Media is becoming the puppet of Government by this] will help take a check on social media. 

7. There shall be clear guidelines for Governor on the invitation of the political party for forming Government. 

Conclusion 

After studying the ‘checks and balances’ in the separation of powers doctrine, we can conclude that the strict implementation of the separation of powers’ is impossible in today’s free society. Separation of power doctrine is needed but not with absolute rigidity and inequality but with the principle of checks and balances which has been developed over the years. We can make the system of checks and balances stronger and equal if make some Radical Changes. Giving equal powers to all government organs with a robust system of checking other powers will help democracy India. Finally, any system in the world would not prove bad if the people operating that system are good.


References:

1 Indira Nehru Gandhi v. Raj Narain, A.I.R. 1975 S.C. 2299

2 Ram Jawaya Kapur v. the State of Punjab, A.I.R. 1955 S.C. 549 re Delhi Laws Act, A.I.R. 1951 S.C. 332

3 Shashank Krishna, Separation of Powers in the Indian Constitution, Student Bar Review, 2006, Vol. 18, No. 2 (2006), p.22

4 Four https://www.washingtonpost.com/technology/2020/07/29/apple-google-facebook-amazon-congress- hearing [ last visited on 20 august 2020]

5 Constitution Of India, Art. 164

6 Constitution Of India, Art. 50

7 Constitution Of India, Art. 145

8 Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225

9 Nine https://indianexpress.com/article/opinion/editorials/prashant-bhushan-supreme-court-contempt-case- verdict-6555145 [ last visited on 20 august 2020]

10 Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 S.C.C. 1

11 https://www.livelaw.in/columns/rajasthan-crisis-can-governors-discretion-override-govt-demand-to- summon-assembly-session-160504 [ last visted on 20 August 2020]

12 Indian Penal Code, 1860. Section 124A

13 Kedar Nath Singh vs the State Of Bihar, 1962 AIR 955

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