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All India Radio (AIR) : Balance between Legislature, Executive and Judiciary

  • IASbaba
  • January 13, 2018
  • 1
All India Radio
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Balance between Legislature, Executive and Judiciary

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TOPIC: General Studies 2

  • Separation of powers between various organs dispute redressal mechanisms and institutions.

Old but dynamic

The issue of question of fine balance between the 3 organs of the states legislature, executive and the judiciary has been discussed from time to time as it always a live issue. The Constitution has maintained a certain fine balance in the structure to maintain the structural harmony and functional harmony. If there is slight deviation in this balance then the functional harmony of the state will get disrupted.

Present context of the perceiving imbalances

The organ of the states stepping into the domain of another organ happens at different times.

  • Rejection of the NJAC bill or act by the apex court. Question of selection of judges by a collegium of judges has been an issue on which there are different opinions of legislature, executive and judiciary. Judiciary wants primacy or rather absolute right over selection of judges that is the real bone of contention.
  • SC deciding to levy taxes on polluting vehicles in Delhi. Some of the steps taken by the judiciary in Delhi when the pollution was rising alarmingly affecting the health of the people have been effective. They ordered introduction of gas as a fuel which helped bring down the pollution level. But the point will arise whether it was duty or function of the judiciary. Essentially it is executive job for the government to decide but unfortunately the government did not do anything about it so the judiciary stepped into this.
  • A few years ago, there was unwarranted judicial overreach when the entire functioning of the assembly was set by the Supreme Court which laid down its direction as to how the assembly should conduct its proceeding and how the voting should be done in the assembly and so on. This was repeated twice or thrice during the past many years. This is something that the judiciary cannot do under the Constitution as it is entirely for the legislature to conduct this proceedings.

Thus, before analyzing right or wrong of the particular issue, it is important to look at the context of decision made. If a particular organ fails in discharging its legitimate duty and responsibility towards the people, another organs steps in and tries to correct it.

Strict work areas not possible

Separation of power that has been a subject which is been discussed many times by the judiciary and the legal experts. There is separation of powers under the Constitution but not a rigid system of separation of powers. Judiciary can review law made by in the legislature and the executive also has legislative power under article 123 where the President can promulgate ordinance which is a law which has a same effect as act of Parliament so here the executive also has power to legislate, the judiciary can come into the area of legislature there is something called Judge made law where the judges are also empowered to make law in the sense that they can interpret the law when they can feel the gap somewhere. There is some kind of flexibility built into the system here.

The Constitution may not want one organ to step into the rein of another organ and disrupt the whole functional balance as well as structural harmony. But then Indian society is evolving and norms are changing the paradise change and all kinds of situation arise where this kind of encroachment on by one organ of the stage on another territory can happen.

Judiciary can enter only when the fundamental right of the citizen is injured, is violated and they can certainly decide what is right and what is wrong but otherwise they cannot step into. Similarly, the executive of the day has to do a certain things in their line of duty and as their responsibility and if they fail in deciding that responsibility there cannot be vacuum so another organ will slip in.

Importance of judicial review

Essentially the conflict appears to be between the judiciary on one side and the legislature on the other side. So far as the conflict between the legislature and the judiciary is concerned, it is related to who makes laws and who reviews its validity. In England, the judiciary cannot review a law made by Parliament as Parliament is supreme over there, but the Indian constitution provides for judicial review and judicial review has been termed as part of the basic structure. So judicial review occupy an important procession in a whole scheme of things.

Conclusion

The balance among the legislature, judiciary and the executive has been the backbone of India’s constitution. Because of this balance, the nation was able to defeat the internal emergency imposed from 1975-77. During emergency the citizen had no fundamental rights but later the Supreme Court corrected it. So this kind of self-correction is a positive thing about the system. Supreme Court verdict from Indira Nehru Gandhi vs Raj Narayan case, 1975, between Golaknath vs State of Punjab case in 1967 specifies the importance and the need to maintain separation of powers between the 3 organs of the state. There is a need to ensure the balance between the judiciary, legislature and executive so that they work together and strive towards fulfilling the aspirations of the people.

Connecting the dots:

  • Separation of powers is not a possibility in Indian governance.

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