In our country, the judiciary, the legislature and the executive are the three essential organs of government. But the judiciary has been kept separate from the two. Why is it necessary to keep the judiciary separate from the other two? To keep the judiciary independent and fair .To avoid the control of the legislature .To avoid executive control .
To make very powerful
Answers
Answer:
Mentioning the three organs of government briefly explain the meaning of separation of powers.
Highlight some of the Articles in the constitution of India that ascertain the separation of powers between the executive, legislative and judiciary.
Discuss how the functional overlap between each organ of the government undermines the separation of powers.
Substantiate your arguments with examples.
Conclude by summarising your answer and suggesting some measures to overcome these limitations.
Introduction
Separation of powers is the division of the legislative, executive, and judicial functions of government. It minimises the possibility of arbitrary excesses by the government, since the sanction of all three branches is required for the making, executing, and administering of laws.
Making appointments to the office of Chief Justice and other judges.
Powers to grant pardons, reprieve, respite or remission of punishments or sentence of any person convicted of any offence.
The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial functions.
Power to promulgate ordinance which has the same force of the Act made by the Parliament or the State legislature.
Authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution.
Powers under delegated legislation.
Overlapping Powers Of The Judiciary
With Executive With Legislative
Under Article 142, the Supreme Court functions as an Executive in order to bring about the complete justice.
Judicial review i.e. the power to review executive action to determine if it violates the Constitution.
Unamendability of constitution under basic structure.
Issues with Functional Overlapping
Unaccountability: One of the demerits of overlapping powers, is that a particular organ cannot be held accountable for its decisions. Eg. Judicial verdicts in 2G and Coal Block allocation case.
Erosion of faith: Repeated interventions of one organ into another's functioning can diminish the faith of the people in the integrity, quality, and efficiency of the other organs.
Accumulation of power: It undermines the spirit of democracy as too much accumulation of powers in organs of government undermines the principle of check and balance.
Adverse effect on development: Excessive infringement on each other jurisdiction may impede smooth functioning of government and hinder public service and overall development.
Utility of Functional Overlapping
Check and balance: Organs of government are empowered to prevent arbitrary actions by other two organs. Eg. Power of judicial review by the Supreme Court.
Rule of law: Power sharing laws among the executive, legislative and judiciary enhances accountability and equality in governance.
Checks arbitrariness: Constitutional demarcation of overriding powers decreases the scope of conflict among the government organs.
Cooperation: Overlapping function induces power sharing and power decentralisation.
Conclusion
For a democratic polity and diverse society like India, a Constitutional system with strict separation of powers is undesirable and impracticable. However judicious and calculated constitutional functional overlapping makes way for democratic collaboration of the three organs of the government. Such mutual cooperation bridges the executive, legislative and judicial gap facilitating smooth functioning of government.
Judicial independence is important for our citizens because it guarantees that judges are free to decide honestly and impartially, in accordance with the law and evidence, without concern or fear of interference, control, or improper influence from anyone