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Separation of Powers-Doctrine A Review by Indian Judicial vs Legislative

When we observed the politics phenomena after 1947 India Independence, we might understand well, why India has been called as Constitutional democracy than Parliamentary Democracy. The Constitution has been the identified as the foundation of the Republic and Democracy, which protects the rights of the citizens by the separation of powers doctrine.

This article mainly revolves around the conflicts while legislators make arbitrary amendments by invoking several amendment in laws, acts, procedures to retain their powers, where the judiciary has overwritten/repealed those amendments and, ensure the decentralization by its virtue Separation of Powers, and ensure the storage of powers vested in the jacket of multiple, rather than one person / one group / one department.

India as a Democratic country ruled by the Parliamentary democracy headed by its prime ministers and his governments where the Constitution of India become the right equilibrium and balance the checks and balances between legislature, judicial and executive however, the balance of powers conferred by constitution tested by the legislatures but however Judiciary has managed to retrieve the conferred rights of Constitution and repealed the acts, amendments, procedures that violates the rights of the citizens.

This article revolves around the Constitution of India and the challenges faced by the people of the India without any bias statement to catch hold the audience in democratic countries, jurist and also encourage the law graduates towards a comparative constitutional study around the world for better future.

Adoption of Rule of Law
The colonial countries has been went under the rule of England by various Crowns including George I, George II, George III after the death of Queen Anne; where the British Monarch has headed with the various Kings from 1714 to 1776; might be seen as one of the main cause and factor that the British lost their battle against United Colonies, known today as United States of America.

Similarly, The colonial countries has been went under the rule of various Kings including Edward VII, George V, Edward VIII and George VI from 1900 to 1950, after the death of Queen Victoria of England; where the British Monarch has headed with various kings, also faced major wars due course of time; World War I (1914-1918) & World War II (1939-1945) and has certainly lost their colony British India, when Sri Mahatma Gandhi took non violence & Sudhesi principles as his weapon, might be seen one of factor that the British lost British India, known today as United of India, India.

It is very strange that these colonial countries has obtained Independence from Great Britain, which has no written constitution but where India & United States has follow the written constitution and take roots of Magna Carta and rule of law; neither rigid or flexible since these constitutions can be amended by the legislatures, where they required certain major majority on the parliament.

This principle of separation of powers establishment in United States and Union of India have has it�s similarities, since; both these nations has obtained their Independence from British Monarch either way, neither USA won Independence by war, nor India won Independence by nonviolence. Though there are many similarities found in common, they were significant difference between the countries, where one defined as constitutional Federal republic and another defined as Democratic Republic.

Though India has much adopted with the capitalism principles but the fundamental principles has laid under socialism which make India unique from the rest of the world; where eventually both socialism & capitalism survived under one umbrella as India, redefined India as one of the largest Democracy that lead the Economy of Asia and being a role model for various developing countries in this modern era.

Influence & Foundation to Indian Constitution
The constitution of India has great influences from the British parliamentary democracy and United States written constitution which make Indian Constitution stand very tall and walk like Giant Elephant, earned great respect of world and also obtained its economic stability, prosperity, rule of law despite of its uncontrolled pollution and unemployment ratio. Before revealing the differences between Union States of America and India, it�s important to reveal the similarity, which both of the constitution were written constitution.

India�s constitution recorded the longest written constitution in the world which consists of 145000 words and the United States America which only consists of 4400 words. Though United States of America is Pioneer in written constitution, India is remain the good example for a detailed written constitution that not guarantee the fundamental rights but also the decentralization of powers by various check and balances.

The constitution of India has been codified by the legendary lawyers of country Sri Dr. Ambedkar, Dr. Rajendra Prasad and Sri Dr. Sardhar Vallabhai Patel, among all these lawyers, Bharath Ratna Dr. Ambedkar was the architect of Indian Constitution, also known as Father of Indian Constitution to all. Indian constitution has been influenced by various other countries likely United Kingdom, United States, Canada, Australia, France & Soviet Union. Indian Constitution consist of 395 Articles is the longest constitution on earth today, which establishes the checks and balances within the government organs Legislative, Executive and Judicial; a very thorough Doctrine of Separation of Powers.

None of the other constitution in world, has given such elaborate administration measures that clearly distinguish its characteristics of government organs such legislative, executive and judicial and their conferred powers & limitation in the democracy, and ensures the rights of citizen without any constrains. India has known for the Parliamentary Democracy, Republicanism, Sovereignty, Federalism, and where the Fundamental Rights conferred by it�s constitution beyond the scope of legislative and where legislators have been restrained to do any changes or any modification in basic structures of constitution, such basic structures built are the pillars to hold the nation as democratic by the principles of separation of powers; free from the clutches of any individual group or person.

Preamble and Articles
The Preamble of the Constitution by the words We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India in to a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure all it citizens. JUSTICE, LIBERTY, EQUALITY, FRATERNITY demonstrate the rooted principles of Indian Constitution. The word SECULAR, SOCIALIST has been added in the Preamble in year 1976 during the Emergency, by Parliament. The government of India has uploaded the Constitution of India in the following website.

The Constitution of India has 395 articles, 22 parts, 8 schedules and Part 1 emphasis the relationship between state and union, Part 2 emphasis citizen, Part 3 emphasis Fundamental rights of the citizen, Part 4 has emphasis the Directive principles of state policy, Part 5 has emphasis the Fundamental Duties, Part 5 has emphasis The Union, Part 6 emphasis The state of the Union, Part 7 emphasis State in the Union schedule, Part 8 has emphasis the Union Territories, Part 9 has emphasis the Panchayaths, Municipalities and cooperative societies, Part 10 has emphasis Scheduled & Tribal areas, Part 11 has emphasis the relationship between Union and states, Part 12 has emphasis the property, contracts and suits, Part 13 has emphasis Trade inside the union, Part 14 has emphasis the services under the union and states, Part 15 has emphasis Election, Part 16 has emphasis certain special provision for certain classes, Part 17 has emphasis Languages, Part 18 has emphasis Emergency provisions, Part 19 has emphasis the miscellaneous, Part 20 has emphasis the constitutional amendments, Part 21 has emphasis Transitional and special provisions and finally the Part 22 has emphasis the short title, date of commencement, authoritative texts.

The legislative, executive and judicial organs of the government arrives their power from the constitution and bound by the articles of the constitution. Each state and union territory has their own government, and where Article 365 permits the president of India to dismiss the state government if situation arises, in which state government cannot be conducted in accordance of the constitution.

The constitution has also posses the unitary features single constitution, integrated judiciary, a strong central government, a subordinated state governments with a unique combination of quasi-federal system.

The constitution of India has Federalism characteristic but unitary in spirit has features of a federation, by a three tier government structure as central, state and local, with a bicameralism system and Judiciary has been kept far Independent organ, with its role for justice, equity, and being the protector the constitution. The constitution of India is much elaborate than any other countries in the world, such ensures stability of the world�s largest democratic country under the unique Constitutional supremacy.

The Constitution of United States has life span over 2 Centuries and whereas there were almost 11,770 proposals for constitutional  amendment, only 27 Amended changes to constitution is recorded till date of this article released. The Constitution of India which has life span about to reach 1 centenary has been recorded with 104 constitutional amendments, till date of this article released. The long amendments history was the 27th amendment of United States constitution that took 202 years for decide of Increase and Decrease salary of Congress men.

Procedure to amend the Constitution
The power of parliament to amend the constitution by addition, variation and repeal as per the procedure has stated in the article 368, (3) Nothing in article 13 shall apply to any amendment; also & 368 (4) no amendment of the constitution (including the provisions of Part III) and also, the Fundamental right of the citizens has been secured vigorously, robustly and resolutely. Any amendment to constitution must be passed by both Rajah Sabha and Lok Sabha by two-third majority of its total membership when at least two-third are present and vote.

Any amendment consist of federal in nature must also ratified by a majority of state legislatures. There will not be any provision for a joint session of Lok sabha and Rajah Sabha for constitutional amendment for constitutional amendments. The Government establishes the term based law commissions to recommend the needful legal reforms, facilitating the rule of law and meet out the demand of the country and its citizens.

Judicial Review, a Glance�
Article 13 of Indian Constitution, states as below:
13. Laws inconsistent with or in derogation of the fundamental rights
  1. All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
  2. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
  3. In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
  4. Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality

During the emergency, the thirty eighth amendment, the Supreme Court was not allowed to preside over any laws which infringe the fundamental rights under article 32, the conferred right to constitutional remedies and the Forty Second amendment by Article 31C, in addition with Article 368 (4) & (5), stating that any law passed by Parliament could not be challenged in court.

The democracy has been fallen under the clutches of  legislators for a short while, However, Supreme Court in Minerva Vs Union of India (1980) has decided that those amendment were unconstitutional and Invalid and emphasis the Judicial review is a basic characteristic of constitution and overturning the article 368 (4), 368 (5) and 31C. Fundamental right of the citizens has been once again retrieved and protected by the constitution.

The conferred rights of citizens:
  1. Rights to equality,
  2. Right to Freedom, Right against the Exploitation,
  3. Right to Freedom of Religion,
  4. Right to Education and Culture,
  5. Right to constitutional remedies seen as Fundamental rights and conferred the rights by it�s constitution, where no legislatures could pass any laws, by laws, rules that infringement to the fundamental rights; no executives could impose their powers to overrun conferred fundamental rights by any orders; no judicial can violate the fundamental right of citizen by any orders, however reasonable restrictions can be imposed in the interest of society in certain circumstances.

Power of High Courts & Supreme Court

The Hon�ble High Courts in the states, has right to decide the disputes between the disputes between the state and citizen, also appellate for subordinate courts in the state and being the guardian of Indian constitution, very next role to the Hon�ble supreme court. The citizens of state can file their writ petition under Article 226 for enforcement of their rights from any, including the state, executive and judiciary and Article 227 of the constitution shall given the supremacy to High Court over all courts and tribunals throughout the state, exercise its jurisdiction; where High Courts may decide the case as Independent Judiciary, however those decision can be challenged in the Supreme Court.

The Hon�ble Supreme Court can decide the dispute between the different states; also decide the disputes between union/state and citizen, also the appellate for high courts, and being the guardian of the Indian Constitution. The constitution of India has established as Independent Judiciary, with a hierarchy of all High Courts of the State, and other subordinate courts under article 124 of Indian Constitution.

Article 32 directly fall under the Part III of constitution allows individuals can approach supreme court if he or she believes that his or her fundamental rights has been violated or can be enforced their conferred right from any, including the state or union, executive and judiciary; where Supreme Court may decide the case as Independent judiciary without any government intervention.

Basic Structure Doctrine by Supreme Court of India
In 1970, Kesavananda Bharthi V. State of Kerala, The Hon�ble Supreme court of India has given a land mark judgment and outlined the basic structure doctrine to Indian Constitution. The right of property as fundamental right during the time then, the court decides the case in favor of Kesavanda Bharathi but however, the aforesaid ruling was overturned by the ratification of the 24th Amendment in 1971.

However, The Basic Structure doctrine has developed the basic power of Indian judiciary to review and overwrite (override) amendments to the Constitution of India by the parliament. The parliament can only amend the constitution to certain limit of its basic structure. The Supreme Court or High Courts may declare the any amendment null and void if that is violated, after a judicial review, where the judicial overpower the parliamentary government decision by any acts, rules.

Parliament Restrain the Supreme Court Intervention 
In 1975, Indira Nehru Gandhi V Raj Narain, The aforesaid case questioned the power of judiciary, when the parliamentary government has expected the Judiciary to bow and, where parliamentary government under Former Prime Minister Smt. Indira Gandhi has tried to overpower all the other organs has questioned the basic structure doctrine, separation of powers between legislative, executive and judiciary. The High Court of Allahabad found that the Smt. India Gandhi guilty of misusing the state machinery u/s 123 (7) of Representative of People Act, 1951 and decided that she cannot serve as Prime Minister and the decision has been challenged by her in Supreme Court.

Supreme Court has granted a conditional stay on the decision of Allahabad High Court, but on 10th August 1975 the President of Emergency stricken India passed 39th Constitutional Amendment Act, by inserting Article 329-A to full restrain the Supreme Court�s Jurisdiction for engaging the issues. The supreme court of India has applied the doctrine of basic structure in Kesavanda Bharthi case and struck down clasue (4) of Article 329-A, which as inserted in the 39th Amendment which ultimately removed the grounds on which she was charged guilty, however she was then acquitted by the Five bench of the supreme court.

Supreme Court in Protection of Fundamental Right
In 1978, Menaka Gandhi V. Union of India, The Supreme Court has conferred the right to personal liberty under Article 21 and also ruled the existence of law was not enough to restrain the personal liberty. The Supreme Court held that section 10 (3) (c) of Indian Passport Act is void because it violates the article 14 of Indian Constitution, doesn�t provide for an opportunity for the aggrieved party to be heard. The Supreme Court once again conferred the constitutional rights of citizen and overruled the Government�s arbitrary procedures for the instance.

The Constitution empowers all time:
India has already gone through the sour experience and earned valuable lessons due course of Emergency from 1975 to 1977 and when the Former Prime Minister Smt. Indira Gandhi trying to retain her powers by invoking parliamentary passing a acts where no Court Intervention in required, and state announced emergency and millions of people has arrested, abused and has thrown to Jail, without even any valid reason. The country has over stressed and human rights have been extremely abused during the emergency.

Even today, There are thousands and thousands of cases recorded across the country every month, where the Police Department unleashed the state powers against the innocent people and make arbitrary arrest, fake encounter and fake FIR for the best reason known to all, where as the aggrieved has only remedy through courts.

There are thousands and thousands of case recorded in every High Courts, where Tribunals established by Government acted against the principle of justice and equity, where as the aggrieved has only remedy through courts.The District Collectors under District Magistrates powers has often recorded with abuse the process of law in various High Courts; where the Hon�ble High Courts & Supreme Courts has quashed those order, set aside the orders.

More ever, The provision under Indian constitution under article 32 and article 226, any Citizen can plead before Supreme Court & High Courts, where the Apex Court may decide the cause in the interest of principle of natural justice and rule of equity. The functions of Judiciary has been set free in the constitution, where it acts independently due to the separation of powers doctrine exists in this country and enforce law and bring justice to the door steps of the aggrieved, the best example of separation of powers doctrine around the world. India may possibly overrun by individual group, if no provisions in the constitution to declare and distinguish such duties, powers, function of the government organs under the careful doctrine of Separation of Powers, in which the constitution has better hold on the democracy, equity and justice.

Though parliamentary government is truly a democratic, such government has found with history that they have passed various laws, acts, procedures, rules that infringe the rights of citizen. Indian Parliament has also found with a history of overrule the Judiciary system for retaining their government and questioned the rule of law and separation of powers. However, the rights of the citizen conferred by the Constitution have been protected by Judiciary again and again; repealed various laws, acts, and amendments that violate the rights of the citizen.

The constitution of India remains the supremacy and ensure the separation of powers and rule of law; protect the citizens forever and no wonder it the Jurist and Judicial experts wisely states it Constitutional Democracy, though it is a parliamentary democracy. It is also stated the constituent assembly of India from the beginning; thereby, it is the duty of each citizen of India to celebrate the India�s Constitution Day or National Law Day on 26 November, same grand way citizens celebrate Independence day and Republic day.

If public forget to celebrate it, at least the Hon�ble court, its lawyers, law students, law schools should celebrate the National Law Day since the Constitution of India has been crafted by legendary lawyers of this country, and Constitution has protected the Democracy and citizen�s rights through Judicial system by the Hon�ble Judges and beyond any limits.

Written By: Ravikumar Vellingiri. B.A.LL.B (Hons) - Social Worker and Legal Researcher

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