Q . The Constitution has provided for the separation of power between the organs of government. But often these organs are in conflict over the power-sharing. In the context of the recent tussle between the judiciary and executive over supremacy, examine the Constitutional provisions regarding the separation of powers and the checks and balances. 19TH, NOVEMBER,2020 (10 marks, 150 words, GS-2)
Answer-
Approach-
- The first para about the recent tussle between judiciary and executives
- Second para to include the Constitutional provisions for separation of powers
- The next para could the importance of separation of powers and checks and balances
- Concluding with the further steps that can be taken
The tussle between Judiciary and Executives isn’t new in Indian scene. However, this time this tussle has reached another high that the Government of Andhra Pradesh has complained to the Chief Justice of India about the interference of state High Court. Also there are many occasions where the Executives and Judiciary was in direct conflict over the appointments and transfers.
India opted for Parliamentary form of government with separation of power among Executives, Judiciary and Legislature. But the Constitution also provided certain provisions for checks and balances to safeguard the rights of citizens and also the action do not come arbitrarily.
The independence of judiciary is maintained by the Constitution itself with respect to appointments, transfers, no statement over the conduct of judges, etc. The Constitution provided for the appointment as
- The procedure listed in the Constitution for judicial appointments comes under Articles 124(2) and 217.
- Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years.
- “Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted,” says Article 124(2).
- “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of High Court,” says Article 217.
The Constitutional provisions for separation of powers–
- Article 50: State shall take steps to separate the judiciary from the executive. This is for the purpose of ensuring the independence of judiciary.
- Article 122 and 212: validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court. This ensures the separation and immunity of the legislatures from judicial intervention on the allegation of procedural irregularity.
- Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be discussed in the Parliament and the State Legislature, according to Article 121 and 211 of the Constitution.
- Articles 53 and 154 respectively, provide that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.
- Article 361: the President or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office.
But there isn’t the strict separation of power rather functional overlap–
- Legislatures too provided with adjudicating powers with respect to breach of privileges, impeachment of President, removal of judges.
- Executives are provided the power of appointment of Judges.
- Supreme Court can give orders for complete justice under Article 142.
- The Executives perform the duty of judiciary when appointed in the tribunals.
The three organs of the government need to find their sphere of working so that they can work for the nation building. The separation of the power provided under the Constitution needs to be respected along with the checks and balances to maintain the spirit of Constitutionalism alive. This will maintain the unity and integrity of the nation and the Constitution.