LL.B.

Semester – II

FOUNDATION 113 F PRINCIPLES OF POLITICAL SCIENCE & THEORY

Syllabus :

1. Concept of Citizenship, and Federalism :

1.1 Citizenship : Definition under the Constitution of India

1.2 State-Citizen : Inter-relationship, Rights-Duties towards each other

1.3 Federalism : Unitary and Federal System : Distinction, True Federalism and Quasi-Federalism –

meaning, distinction, Merits & Demerits of Quasi Federalism

1.4 Federal and State Power

1.5 Federalism : Basic Structure of the Constitution, Golaknath‟s case and Kesavananda Bharti‟s case

and other relevant cases for reference

1.6 Doctrine of Judicial Review : Meaning, need and importance in democratic system

2. Meaning of “State” under Article 12 and its Significance and other

Constitutional Principles :

2.1 Definition of “State|” under Article 12 of the Constitution of India

2.2 Changing notion of “State” under Article 12 of the Constitution of India through Judicial

Pronouncements

2.3 Change of trend in the Definition of State in the era of Liberalization

2.4 Change in the Judicial Trend in interpreting the definition of State after the year 2002

2.5 Sovereignty : Definition, concept, characteristics, Austin‟s theory on sovereignty

2.6 Supremacy of the Constitution : Meaning and importance along with the Supreme Court decisions

3. Democratic Systems and Constitutional Doctrines :

3.1 Democracy : Parliamentary Democratic System vis-à-vis Presidential

Democratic System, Merits & Demerits

3.2 Doctrine of Separation of Powers : Legislature, Judiciary & Executive

3.3 Doctrine of Eclipse : Application and Importance

3.4 Doctrine of Waiver of Fundamental Rights : Circumstances

3.5 Principle of Rule of Law, application in India and other countries, importance,

3.6 Procedure established by law (under Article 21) : Meaning, interpretation by the Judiciary and its

importance

SUGGESTED READING :

L. S. Rathore & S.A.H. Haqqi : Principles of Political Theory and Organisation, Eastern Book Co.

Gilchrist, R. N. : Principles of Political Science Laski, Harold J. : The State in Theory & Practice

Fairlie J. A. : Separation of Powers ,Lindasay A. D. : Essentials of Democracy Constitutional Law of

India : D. D. Basu Constitutional Law of India : V. N. Shukla Constitutional Law of India : M. P. Jain

Constitution of India : J. N. Pandey ,Constitution of India : P. M. Baxi

-Fundamental Rights of Indian Citizens –

„Fundamental Rights‟ are recognised to ensure physical, mental and moral development of every
citizen. Fundamental Rights provide standards of conduct, citizenship, justice and fair
play .Fundamental Rights generate a feeling of security amongst the minorities in the country.They
establish framework of „democratic legitimacy‟ for the rule of the majority. In our
Constitution, Fundamental Rights are enumerated in Part III from Article 14 to 32.

Fundamental Rights which are enjoyed by both i.e. citizens as well as foreigners:

 the Right to Equality before Law

 Right to Freedom of Religion
These rights are justiciable which means that if these rights are violated by the government or anyone
else, the individual has the right to approach the Supreme Court or High Courts for the protection of
his/her Fundamental Rights. Though justiciable these rights are not absolute. The Constitution
empowers the government to impose certain restrictions on the enjoyment of our rights in the interest
of public good.

Initially, Seven Fundamental Rights were enshrined in the Constitution of India. Thereafter, the
Right to Property has been eliminated from the list of Fundamental Rights by the 44th
Amendment Act of the Constitution in the year 1976. Since then, it has been made a legal right. There
are now six Fundamental Rights:

1. Right to Equality
2. Right to Freedom – Recently by the 86th Amendment Act, the Right to Education has been
included in the list of Fundamental Rights as part of the Right to Freedom by adding Article 21(A).
3. Right against Exploitation
4. Right to Freedom of Religion
5. Cultural and Educational Rights
6. Right to Constitutional Remedies.

1. Right To Equality (Articles 14-18) :

Right to Equality means that all citizens enjoy equal privileges and opportunities. It protects the
citizens against any discrimination by the State on the basis of religion, caste, race, sex, or place of
birth. Right to Equality includes five types of equalities:
1. Equality Before Law : Under Article 14 of the Constitution, “The State shall not deny to any
person equality before law or equal protection of laws within the territory of India”. „Equality before
law‟ simply means that no person is above law and all are equal before law, every individual has equal
access to the courts.
2. No Discrimnation on Grounds of Religion, Race, Caste, Sex, Place of Birth or any of
them: Under Article 15, No citizen is to be denied access to shops, restaurants and places of public
entertainment. Neither shall any one be denied the use of wells, tanks, bathing ghats, roads etc.
maintained wholly or partly out of State funds. But, the State is empowered to make special provisions
for women, children and for the uplift of Scheduled Castes, Scheduled Tribes and other backward
classes (OBC‟s

3. Equality Of Opportunity In Matters Of Public Employment: Article 16, guarantees

equality of opportunity in matters relating to employment or appointment to public services to all
citizens. There shall be no discrimination on the basis of religion, race, caste, sex, place of birth or
residence in matters relating to employment in public services. Merit will be the basis of employment.
4. Abolition of Untouchability: Under article 17 the Constitution abolishes untouchability and
its practice in any form is forbidden.
5. Abolition of Titles: Under Article 18, All national or foreign titles which create artificial
distinctions in social status amongst the people have been abolished. Titles like „Rai Sahib‟, „Rai
Bahadur‟ are against the doctrine of equality before law.

To recognise execellent service by individual citizens to the country or mankind, the President of India
can confer civil and military awards on those individuals such as : Bharat Ratna ; Padma Vibhushan,
;Padam Sri, ;Param Veer Chakra, ;Veer Chakra etc., but these cannot be used on „titles‟.

2. Right To Freedom(Articles 19-22) :

A) Freedom is the basic characteristic of a true democracy. Hence, Our Constitution in Article 19
guarantees the following six Fundamental Freedoms against state action and not private individuals:

1. Freedom of Speech And Expression :

2. Freedom to assemble peacefully without arms.
3. Freedom to form associations or unions.
4. Freedom to move freely throughout the territory of India.
5. Freedom to reside and settle in any part of the territory of India.
6. Freedom to practise any profession or to carry on any occupation, trade or business.

These freedom ensures free speech, discussion and exchange of opinions, including freedom of the
press. However these freedom are not absolute. The state can impose reasonable restrictions on the
exercise of these freedoms, they can be suspended during National Emergency.

B) Protection in Respect of Conviction for Offences : The article 20 ,assures protection against
arbitrary arrest and excessive punishment to any person who is alleged to have committed an offence.
No person shall be punished except for the violation of law which is in force when the crime was
committed. An accused cannot be compelled to be a witness against himself/herself. No person shall
be punished for the same offence more than once.

C) Protection of Life and Personal Liberty: Article 21 assures , no person shall be deprived of
his/her life or personal liberty except according to the procedure established by law. It guarantees that
life or personal liberty shall not be taken away without the sanction of law. It ensures that no person
can be punished or imprisoned merely at the whims of some authority. He/she may be punished only
for the violation of the law.

D)Right to Education: This is recently added by the 86th Amendment , and a new article 21-A has
been added. “The State shall provide free and compulsory education to all children of the age of six to
fourteen in such a manner as the State may by law determine”. It also states that it is the responsibility
of the parent or guardian to provide opportunities for education to their child or ward between the age
of six to fourteen years.

E) Prevention against Arbitrary Arrest and Detention: Article 22 gives certain rights to the
arrested person. No person can be arrested or detained in custody without being informed of the
grounds for detention. He /she has the right to consult and be defended by a lawyer of his/her choice.
The accused has to be produced before the nearest magistrate within a period of twenty-four hours of
arrest. But, these safeguards however are not available to foreigners as well as to those
citizens detained under Preventive Detention Act.

3. Right against Exploitation (Articles 23-24) :

 Right against exploitation prohibits all forms of forced labour as well as human trafficking.
Any violation of this provision is an offence punishable under law.Traffic in human beings means sale
and purchase of human beings as goods and commodities for immoral purposes such as slavery and
prostitution.
 Prohibition on employment of children below the age of fourteen years in any factory , mine or
hazardous occupations.

4. Right to Freedom of Religion (Article 25-28):

The Constitution guarantees to every person freedom of conscience and the right to practice and
propagate any religion. It also permits every religious group, the right to manage its own affairs in
matters of religion. Constitution lays down that no religious education can be imparted in any
educational institution which is wholly maintained out of the state funds. Right to Freedom of Religion
is not absolute and can be restricted on the grounds of public order, morality and health. But,the state
shall not impose restrictions arbitrarily .

5. Cultural and Educational Rights (Articles 29-30) :

Our constitution, under article 29 and 30, provides guarantees to preserve maintain and promote
culture and language of its citizens. The Constitution allows minorities to establish and
maintains educational institutions of their own. It also provides that the state shall not
discriminate against any educational institution while granting financial aid on the grounds that it is
being run by a minority community. These rights ensure that minorities will get assistance by the state
in the preservation of their language and culture.

6. Right To Constitutional Remedies (Articles 32) :

Article 32 of our Constitution provides for legal remedies for the protection of all these rights against
their violation by the State or other institutions or individuals. It entitles the citizens of India to move
the Supreme Court or High Courts for the enforcement of these rights. Any law that may be in conflict
with the Fundamentals Rights stands null and void. The Constitution empowers the Supreme Court
and High Courts to issue orders or writs like HABEAS CORPUS , MANDAMUS, PROHIBITION,
QUO WARRANTO, CERTIORARI. These writs play an importantt role in protecting the rights of the
individuals against encroachment by the legislature, the executive or any other authority.
Citizenship in India –

The constitution of India gives „Single Citizenship” for all its citizens India. This implies that there is
no disparate domicile for a state.

Provisions for citizenship are mentioned in Article 5 to 11 in Part II of the Constitution. Individuals
who are not Indian Citizens are onsideref Aliens. Aliens do not enjoy rights mentioned in Article
15,16,19,29,30 of the Constitution.

A) Citizenship by birth :-

 Any person born in India on or after the 26th day of January,1950, but before the
commencement of 1986 Act on 1st day of July, 1987, is a citizen of India by birth. ;
 Any person born on or after the 1st day of July, 1987, but before the commencement of the
Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his
birth is a citizen of India.
 Any person born on or after the commencement of the Citizenship (Amendment) Act, 2003,
where either- (i) both of his parents are citizens of India; or (ii) one of whose parents is a citizen of
India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth.
 Exceptions: A person shall not be a citizen of India by virtue of this section, if at the time of his
birth- (a) either his father or mother possesses such immunity from suits and legal process as is
accorded to an envoy of a foreign sovereign power accredited to the President of India and he or she,
is not a citizen of India; (b) his father or mother is an enemy alien and the birth occurs in a place then
under occupation by the enemy.

B) Citizenship by descent :-

 A person born outside India on or after the 26th day of January, 1950, but before the 10th day
of December, 1992, if his father is a citizen of India at the time of his birth shall be a citizen of India
by descent.
 A person born outside India on or after the 10th day of December,1992, if either of his parents
is a citizen of India at the time of his birth will be a citizen of India by descent.

 Since 2004, a person shall not be a citizen of India by virtue of this section, unless his birth is
registered at an Indian consulate within one year of the date of birth.
C) Citizenship by registration :-

The Central Government may, on an application, register as a citizen of India under section 5 of
Citizenship Act 1955 (any person not being an illegal migrant) if he belongs to any of the following
categories:

1. a person of Indian origin who are ordinarily resident in India for seven years before making an
application for registration;
2. a person of Indian origin who is ordinarily resident in any country or place outside undivided
India;
3. a person who is married to a citizen of India and is ordinarily resident in India for seven years
before making an application for registration.

4. minor children of persons who are citizens of India;

5. a person of full age and capacity who, or either of his parents, was earlier citizen of
independent India, and has been residing in India for one year immediately before making an
application for registration;
6. a person of full age and capacity who has been registered as an overseas citizen of India for
five years, and who has been residing in India for one year before making an application for
registration.

D) Citizenship by naturalization :-

Citizenship of India can be acquired by an Alien by naturalization in following manner:

 When any person of full age and capacity not being an illegal migrant makes an application for
the grant of a certificate of naturalization to him, the Central Government may, if satisfied that the
applicant is qualified for naturalization under the provisions of the Third Schedule- (must have lived a
total of 12 years in India in a period of 14 years, and must have lived for 12 months uninterrupted in
India prior to application for citizenship), grant to him a certificate of naturalization. The conditions
specified in the Third Schedule may be waived if in the opinion of the Central Government, the
applicant is a person who has rendered distinguished service to the cause of science, philosophy, art,
literature, world peace or human progress generally.
 The person to whom a certificate of naturalization is granted under sub-section (1) shall, on
taking the oath of allegiance in the form specified in the Second Schedule, be a citizen of India by
naturalization as from the date on which that certificate is granted.

Termination/Renunciation of citizenship :-

1. Renunciation: Renunciation is covered under Section 8 of the Citizenship Act 1955. If an

adult makes a declaration of renunciation of Indian Citizenship , he would lose Indian Citizenship.
Along with him, any minor child of that person also loses Indian Citizenship from the date of
renunciation. The child has the right to resume Indian Citizenship when he turns eighteen.
2. Termination :It is covered under Section 9 of Citizenship Act 1955. Any Indian Citizen who
by naturalization or registration acquires the citizenship of another country shall cease to be a Citizen
of India.

Indians living Abroad:

Indian Constitution forbids dual citizenship/ nationality which implies that a person cannot have any
other countries‟ passport simultaneously with the Indian one. Indians living abroad have been
classified into three categories : NRI, PIO, OCI. There are minor differences in these three. We shall
understand each one separately to deveop a clear concept:

 NRI (Non-Resident Indian) – Holder of Indian passport and temporarily immigrated to

another country for six months or more.

 PIO (Persons of Indian Origin) – Holder of Non-Indian passport, and can prove their Indian

origin up to three generations. Spouses of Indian citizens or persons of Indian citizens.

 OCI (Overseas Citizens of India) – Persons of Indian origin who are holder of another
country‟s passport which allows its citizens to hold dual citizenship of some kind. It is not full
citizenship of India and hence, does not amount to dual citizenship .

Relationship between Rights and Duties

As there is a close relationship between the body and soul, so there is a relationship between the rights
and duties.

Professor Laski finds the following points of relationship between the rights and duties:

(1) The right of one is related to the duty of the other:

If one has the right, the other has the duty related to that right. If one enjoys the right, it becomes the
duty of the other not to prove an obstacle in the enjoyment of his right. For example, if I enjoy the
right to life it is the duty of others not to cause any harm to my life.

(2) The duty of the one is the right of the other and vice versa:
If I possess rights, I owe duties also. As we treat others so others will treat us. If the other has the right
to life and security, it is our duty that I should not cause any harm to his life and security. To give
proper respect and regard to the rights of others is our duty.

(3) The state guarantees the enjoyment of certain rights to every individual:

But at the same time, it becomes the duty of the individual that he should make the use of those rights
for promoting the common welfare. For example, if I have the right to vote, it becomes my duty that I
should cast my vote in favour of a deserving candidate. While casting my vote, I should not allow my
prejudice to work. I should not be influenced by the distinction of caste and creed, rich and poor, black
and white, etc.

(4) If the state protects me in the enjoyment of my rights:

It becomes my cardinal duty to serve the state in full spirit. If rights spring to us from the becomes our
duty to perform certain duties towards the state. If the state protects us, it becomes our cardinal duty
that we should pay taxes regularly and s remain faithful and loyal to the state. Treachery is a crime.

Thus, it is quite clear that rights and duties are so closely related to each other, that they cannot be
separated from each other. If every individual pays „ attention only to his rights and does not perform
his duties to others, rights o individual will cease to exist.

There is a close relationship between the rights and duties. They are the same conditions viewed from
different angles. They are the two sides of the same coin. If we have the right to speech, writing,
wandering, running institutions and any religion we like, it is our duty, at the same time that we should
not spread evils in society by our writing work or by our lectures.

If we have the right to vote, we should make the proper use of this right and cast our vote in favour of
the honest and deserving candidate. If we have the right to make the use of roads for our vehicles, it
becomes, at the same time, our duty that we should keep to the left so as to avoid accidents.
Indian Federal System –

Governments have been classified into Unitary and Federal based on distribution of power between
national and regional governments. In a federal set up there is a two tier of Government with well
assigned powers and functions. In this system the central government and the governments of the
region act within a well defined sphere, co-ordinate and at the same time act independently.

The federal polity, in other words, provides a constitutional device for bringing unity in diversity and
for the achievement of common national goals. Hence, India was made a Federal system of
government.
Features of Indian Federalism

Features of Indian constitution that makes it federal are listed in the following points:

 Written Constitution: The most important feature of a federation is that it should have a
written constitution, so that both the Union Government as well as the State can refer to that whenever
conflict arises. The Constitution of India is a written and most elaborate Constitution of the world.

 Supremacy of Constitution: The constitution is the supreme because both the union and the
states are given powers by the Constitution as to be independent in their spheres of governance. Both
make laws conforming to the provisions of constitution otherwise they can be declared invalid by the
supreme court through its power of judicial review.

 Rigid Constitution: The procedure of amending the Constitution in a federal system is

normally rigid. Indian Constitution provides that provisions regarding the federal attributes can be
amended by a special majority,i.e. such an amendment has to be passed by majority of total members
of each house of the Parliament as well as, by two-thirds majority of the members present and voting
there. Also, in addition to this process, such amendments must be approved by at least 50% of the
states. After this procedure the amendment is signed by the President.

 Division of Powers : In our Constitution, there is a clear division of powers so that none
violates its limits and tries to encroach upon the functions of the other and functions within own sphere
of responsibilties. There are three lists enumerated in the Seventh Schedule of constitution, – the
Union list, the State list and the Concurrent List. The Union List consists of 100 subjects of national
importance such as Defence, Railways, Post and Telegraph, etc. The State List consists of 61 subjects
of local interest such as Public Health, Police etc. The Concurrent List has 52 subjects important to
both the Union and the State. such as Electricity, Trade Union, Economic and Social Planning, etc.

 Supremacy and Independence of the Judiciary: A very important feature of a federation is

an independent judiciary to interpret the Constitution and to maintain its sanctity . The Supreme Court
of India has the original jurisdiction to settle disputes between the Union and the States. It can declare
a law as unconstitutional, if it contravenes any provision of the Constitution.
Nature of Indian federation

In spite of the fact that the Indian Constitution establishes a federal structure, it is indeed very different
then a true federation. The framers of the Constitution have modified the true nature of Indian
federation by incorporating certain unitary features in it. These are :

 The Constitution of India has federal features but it does not claim to be a federation. It calls
India a “Union of States”. Article I of the Constitution describes India as a „Union of States‟,
which implies two things: firstly , it is not the result of an agreement among the States and
secondly, the States have no freedom to secede or separate from the Union. Besides, The
federation is a union because it is indestructible and helps to maintain the unity of the country.

 The Centre appoints the Governors of the States who enjoys extensive powers in special
circumstances. Governor is the agent of the Centre in the States. In the past he Governor has
acted more as Centre‟s representative than as the head of the State. This enables the Union
government to exercise control over the State administration.

 Unequal representation in upper house: The equality of units in a federation is best

guaranteed by their equal representation in the Upper House of the federal legislature
(Parliament). However, this does not happens in case of Indian States. They have unequal
representation in the Rajya Sabha.

 Appointment of important organisation heads: All important appointments such as the

Chief Election Commissioner ,the Comptroller and Auditor General are made by the Union
Government.

 Single citizenship: There is no provision for separate Constitutions for the states. The States
cannot propose amendments to, the Constitution. Amendments can only be made by the Union
Parliament.

 All India Services: In order to ensure uniformity of the administrative system and to maintain
minimum common administrative standards without impairing the federal system, All India
Services such as IAS and IPS have been created which are kept under the control of the Union.
 Emergency Provisions: During Financial Emergency, the Center exercises full control over
the State‟s finances. In case of disturbances in any State or part thereof, the Union Government
is empowered to depute Central Force in the State or to the disturbed part of the State.In all
three types of emergencies, Centre is empowered to excercise full control over the state
machinery.

 Parliament control over state: It can make laws to increase or decrease the area of any State
and may alter its name and boundaries. It may alter subjects n the state list also.

 Unified Judiciary: Contray to the federal principle which has a dual system of Courts, India
has unified Judiciary with the Supreme Court at the apex.

Hence it can be concluded that the Constitution of India establishes a strong Centre by showering all-
important subjects to the Centre as per the Union List. The State Governments have limited powers
while largely being dependent on the Centre. Especially, the States are dependent on the Centre
financially. The States have to work in close co-operation with the Centre.

This has led to the contention that the Indian constitution is federal in form but unitary in spirit.

Constitutional experts call it „semi-federal‟ or „quasi federal‟ system. This is unique to India.

What is quasi-federalism?
Quasi-federalism means an intermediate form of state between a unitary state and a federation. It
combines the features of a federal government and the features of a unitary government. India is
regarded as a semi-federal state or a quasi-federal state as described by Prof. K.C. Wheare. The
Supreme Court of India also describes it as a federal structure with a strong bias towards the Centre.

Quasi federal nature of Indian Constitution: Article 1 of the Constitution of India states that „India
that is Bharat shall be a union of states‟. Indian model of federalism is called the quasi-federal system
as it contains major features of both a federation and union.
Federal Features of the Indian Constitution Unitary Features of the Indian Constitution
1. Supremacy of the Constitution: Constitution 1. Single Constitution: In India, there is only
is the supreme law of land in India. A federal state one Constitution. It is applicable to both the
derives its existence from the Constitution. Union as a whole and the Stares. In a true
federation, there are separate constitutions for the
union and the States.
2. Bicameral Legislature: The main feature of 2. Rajya Sabha does not represent the States
federalism is a bicameral legislature. The equality: In a true federation, the upper house of
Constitution of India also provides for a bicameral the legislature has equal representation from the
legislature i.e. Parliament with two houses of the constituting units or the States. But in Rajya
Lok Sabha and the Rajya Sabha. Sabha, the States do not have equal
representation. The populous States have more
representatives in the Rajya Sabha than the less
populous States.
3. Dual Government Polity: The Constitution of 3. Division of power is not equal: In a
India has divided powers between the Central federation, power is divided equally between the
government and the state governments through the two governments. But in India, the Central
7th schedule. It contains three legislative lists government has been given more powers and
which enumerate subjects of administration, viz. made stronger than the State governments.
Union, State and Concurrent Legislative Lists.
Both the governments have their separate powers
and responsibilities.
4. Written Constitution: The Indian Constitution 4. Existence of States depends on the Centre:
is a written document containing 395 Articles and In India, the existence of a State or a federal unit
12 schedules, and therefore, fulfils this basic depends upon the authority of the Centre. The
requirement of a federal government. The Indian boundary of a State can be changed by created
Constitution is the most elaborate Constitution of out of the existing States.
the world.
5. Rigid Constitution: The Indian Constitution is 5. Constitution is not strictly rigid: The
largely a rigid Constitution. All the provisions of Constitution of India can be amended by the
the Constitution concerning Union-State relations Indian Parliament easily. On many subjects, the
can be amended only by the joint actions of the Parliament does not need the approval of the
State Legislatures and the Union Parliament. State legislatures to amend the Constitution. In a
true federation, both the Union and the State
legislatures take part in the amendment of the
Constitution with respect to all matters.
6. Independent Judiciary: In India, the 6. Unified judiciary: India has a unified or
Constitution has provided for a Supreme Court. integrated judicial system. The High Courts
The Supreme Court of India can declare a law as which work in the States are under the Supreme
unconstitutional, if it contravenes any provisions Court of India.
of the Constitution.
7. Revenue Sharing: In the case of a federal 7. Proclamation of emergency: The
country there is a system of revenue sharing Constitution of India has given emergency
between the Center and the State. In India, there is powers to the President. When an emergency is
the principle of dual GST system adopted by the declared, the Union or Central governments
legislation for the constitutional requirement of become all powerful and the State governments
fiscal federalism. come under the total control of it. The State
governments lose their autonomy.

Thus, on a careful analysis of the federal and unitary features of the constitution, it is evident that with
every federal feature, there is an ultimate centralising force which is existing. Therefore, it would not
be wrong to conclude that the Constitution of India is federal in structure and unitary in spirit i.e. it is
quasi- federal in nature.

Center-State Relations –
The Constitution of India provides for a federal system. The Union and the State Governments derive
their authority from the Constitution.
The relations between the center and the States have been mentioned in Parts XI and XII of the
Constitution under the heads, legislative, administrative and financial relations.
Legislative Relations

In legislative relations, there is a three tier divisions of power in the Constitution. We follow a system
in where there are two subject lists describing legislative powers, known as the Union List and the
State List respectively. There is an additional list called the Concurrent List. The Union List which
consists of 100 subjects of national interest and it s the largest of the three lists. It has some important
subjects included in this list are: Defence, Railways, Post and Telegraph, Income Tax, Custom Duties,
etc.The Parliament has exclusive power to make laws on subjects listed in the Union List for the whole
country.

The State List consists of 61 subjects like Trade and Commerce within the State, Police, Fisheries,
Forests,local governments, theatres, Industries, etc. The State Legislatures have power to make laws
on the subjects included in the State List.

The Concurrent List consists of 52 subjects like Stamp Duties, Drugs and Poison, Electricity,
Newspapers, criminal law, labour welfare, drugs,etc. Both the Parliament and the State Legislatures
can make laws on subjects included in this list. But in case of a conflict between the Union and the
State law regarding a subject, the Union law prevails over the State law. Parliament has the power to
legislate over all subjects not included in any of the three lists. And, under certain circumstances, the
Parliament can legislate on the subjects mentioned in the State List also.

Administrative Relations

The executive power of the State is to be exercised in compliance with laws made by the Parliament.
Also, the Union Executive is empowered to give directions to a State, when necessary like-
construction and maintenance of means of communications, declared to be of national and military
importance, and also on the measures for the protection of Railways.

The parliament can adjudicate on inter-state river disputes. Furthermore, a provision has been made
for an Inter- State Council to advise the President on inter-state disputes.

The State governments can delegate few of its administrative functions in the State subjects, to the
Union Government for a period of time.
The Constitution of India has provisions to ensure uniformity of the administrative system. It includes
the creation of All India Services such as IAS and IPS and allocate them to key administrative
positions in the states. The presence of All India Service Officers paves way for the Central
Government to exercise its authority and control over the states through them, as the Union has
authority over the members of All-India Services. The members of these services are recruited by the
center but appointed in the States. No disciplinary action can be taken against them by the State
Governments without the permission of the center.The Constitution has provision for creation of
new All India Service by the Parliament on recommendation of the Rajya Sabha.The Union
Government has powers to direct and interfere with the state autonomy in the field of administration.

Additionally, center can exercise control over the state finances and grants-in-aid (general and special)
to meet their expenditure. During financial emergency, provisions regarding division of taxes between
the center and the State can be suspended, restrictions on the expenses of the State can be put in place.
States have to carry out the Centrally-sponsored schemes. The Planning Commission has an over-
centralized planning system where the states can not take initiative in the centrally formulated schemes
that have been imposed upon them.
Judicial Review in India: Meaning, Features
and Other Details
Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any
such law or order of the legislature and executive void, if it finds them in conflict the Constitution of
India.

The Constitution of India is the supreme law of the land. The Supreme Court of India has the supreme
responsibility of interpreting and protecting it. It also acts as the guardian-protector of the
Fundamental Rights of the people. For this purpose, the Supreme Court exercises the power of
determining the constitutional validity of all laws.

It has the power to reject any law or any of its part which is found to be unconstitutional. This power
of the Supreme Court is called the Judicial Review power. State High Courts also exercise this power
but their judgements can be rejected or modified or upheld by the Supreme Court.

(I) Judicial Review: Meaning and Definition:

Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any
such law or order of the legislature and executive void, if it finds them in conflict the Constitution of
India.

Judicial Review is the power of the Judiciary by which:

(i) The court reviews the laws and rules of the legislature and executive in cases that come before
them; in litigation cases.

(ii) The court determines the constitutional validity of the laws and rules of the government; and

(iii) The court rejects that law or any of its part which is found to be unconstitutional or against the
Constitution.

(II) Features of Judicial Review in India:

1. Judicial Review Power is used by both the Supreme Court and High Courts:
Both the Supreme Court and High Courts exercise the power of Judicial Review. But the final power
to determine the constitutional validity of any law is in the hands of the Supreme Court of India.

2. Judicial Review of both Central and State Laws:

Judicial Review can be conducted in respect of all Central and State laws, the orders and ordinances of
the executives and constitutional amendments.

3. A Limitations:

Judicial Review cannot be conducted in respect of the laws incorporated in the 9th Schedule of the
Constitution.

4. It covers laws and not political issues:

Judicial Review applies only to the questions of law. It cannot be exercised in respect of political
issues.

5. Judicial Review is not automatic:

The Supreme Court does not use the power of judicial review of its own. It can use it only when
any law or rule is specifically challenged before it or when during the course of hearing a case
the validity of any law is challenged before it.

6. Decisions‟ in Judicial Review Cases:

The Supreme Court can decide:

(i) The law is constitutionally valid. In this case the law continues to operate as before, or

(ii) The law is constitutionally invalid. In this case the law ceases to operate with effect from the
date of the judgment.

(iii) Only some parts or a part of the law is invalid.

In this case only invalid parts or part becomes non-operative and other parts continue to remain
in operation. However, if the invalidated parts/part is so vital to the law that other parts cannot
operate without it, then the whole of the law gets rejected.
7. Judicial Review Decision gets implemented from the date of Judgement:

When a law gets rejected as unconstitutional it ceases to operate from the date of the judgment.
All activities performed on the basis of the law before the date of the judgment declaring it
invalid, continue to remain valid.

8. Principle of Procedure established by Law:

Judicial Review in India is governed by the principle: „Procedure Established by Law‟. Under it
the court conducts one test, i.e., whether the law has been made in accordance with the powers
granted by the Constitution to the law-making body and follows the prescribed procedure or
not. It gets rejected when it is held to be violative of procedure established by law.

9. Clarification of Provisions which a rejected law violates:

While declaring a law unconstitutional, the Supreme Court has to cite the provisions of the
constitution which it violates. The court has to clearly establish the invalidity of the concerned
law or any of its part.

(III) Critical Evaluation of Judicial Review:

Points of criticism:

1. Undemocratic:

The critics describe Judicial Review as an undemocratic system. It empowers the court to decide
the fate of the laws passed by the legislature, which represent the sovereign, will of the people.

2. Lack of Clarity:

The Constitution of India does not clearly describe the system of Judicial Review. It rests upon
the basis of several articles of the Constitution.

3. Source of from Administrative Problems:

When a law is struck down by the Supreme Court as unconstitutional, the decision becomes effective
from the date on which the judgement is delivered. Now a law can face Judicial Review only when a
question of its constitutionality arises in any case being heard by the Supreme Court.
Such a case can come before the Supreme Court after 5 or 10 or more years after the enforcement of
that law. As such when the Court rejects it as unconstitutional, it creates administrative problems. A
Judicial Review decision can create more problems than it solves.

4. Reactionary:

Several critics regard the Judicial Review system as a reactionary system. They hold that while
determining the constitutional validity of a law, the Supreme Court often adopts a legalistic and
conservative approach. It can reject progressive laws enacted by the legislature.

5. Delaying System:

Judicial Review is a source of delay and inefficiency. The people in general and the law-enforcing
agencies in particular sometimes decide to go slow or keep their fingers crossed in respect of the
implementation of a law. They prefer to wait and let the Supreme Court first decide its constitutional
validity in a case that may come before it at any time.

6. Tends to make the Parliament less responsible:

The critics further argue that the Judicial Review can make the Parliament irresponsible as it can
decide to depend upon the Supreme Court for determining the constitutionality/ reasonableness of a
law passed by it.

7. Fear of Judicial Tyranny:

A bench (3 or 5 or 9 judges) of the Supreme Court hears a judicial review case. It gives a decision by a
simple majority. Very often, the fate of a law is determined by the majority of a single judge. In this
way a single judge‟s reasoning can determine the fate of a law which had been passed by a majority of
the elected representatives of the sovereign people.

8. Reversal of its own decisions by the Supreme Court:

It is on record that on several occasions the Supreme Court reversed its earlier decisions. The
judgment in the Golaknath case reversed the earlier judgments and the judgment in the Keshwananda
Bharati case reversed the judgment in the Golaknath case. The same enactment was held valid, then
invalid and then again valid. Such reversals reflect the element of subjectivity in the judgments.
On all these grounds the critics strongly criticise the system of Judicial Review as it operates in India.

(IV) Justification of Judicial Review:

A very large number of the supporters of Judicial Review do not accept the arguments of the critics.
They argue that Judicial Review is an essential and very useful system for Indian liberal democratic
and federal system. It has been playing an important and desired role in the protection and
development of the Constitution.

(1) Judicial Review is essential for maintaining the supremacy of the Constitution.

(2) It is essential for checking the possible misuse of power by the legislature and executive.

(3) Judicial Review is a device for protecting the rights of the people.

(4) No one can deny the importance of judiciary as an umpire, or as an arbiter between the centre and
states for maintaining the federal balance.

(5) The grant of Judicial Review power to the judiciary is also essential for strengthening the position
of judiciary. It is also essential for securing the independence of judiciary.

(6) The power of Judicial Review has helped the Supreme Court of India in exercising its
constitutional duties.

(7) The possibility of abuse of is power of by the Judiciary is very less because several checks
have been in existence:

(a) Lack of a clear statement of this power in any article of the Constitution.

(b) Judicial Review is not possible on some laws. The Parliament can place laws aimed at securing
socio-economic reforms in the 9th Schedule of the Constitution. This makes these immune from
Judicial Review.

(c) The scope of Judicial Review stand limited to only legal and constitutional cases.

(d) The Supreme Court is itself bound by the Constitution of India and the Parliament can amend the
Constitution.
(e) The grant of specific fundamental rights to the also limits the scope of Judicial Review.

(f) The Parliament can pass laws and amendments for overriding the hurdles created by Judicial
Review.

These limitations can prevent a possible misuse of Judicial Review power by the Courts.

A formidable fact which justifies the presence and continuance of the Judicial Review has been the
judiciousness with which it is being used by the Supreme Court and High Courts for carrying out their
constitutional obligations. These have used it with restraint and without creating hindrances in the way
of essential socio-economic reforms.

Meaning of State under Article 12

Article 12 of the Indian Constitution states that,

“Definition in this part, unless the context otherwise requires, the State includes the Government and
Parliament of India and the Government and the Legislature of each of the States and all local or
other authorities within the territory of India or under the control of the Government of India.”

In other words, for the purposes of Part III of the constitution, the state comprises of the following:

1. Government and Parliament of India i.e the Executive and Legislature of the Union
2. Government and Legislature of each State i.e the Executive and Legislature of the various
States of India
3. All local or other authorities within the territory of India
4. All local and other authorities who are under the control of the Government of India

Key terms discussed under the article

1. Government (Union and state)

2. Parliament and state legislature
3. Local authorities
4. Other authorities
5. Territory of India
6. Control of the government of India

The above-mentioned terms are better explained in the following section along with relevant cases.

Government (Union and state), Parliament and

State Legislature
 Parliament: The parliament comprises of the President of India, the lower house of the
parliament that is the Lok Sabha as well as the upper house of the Parliament, that is the Rajya
Sabha.
 Executive: It is that organ which implements the laws passed by the legislature and the
policies of the government. The rise of the welfare state has tremendously increased the
functions of the state, and in reality, of the executive. In common usage, people tend to identify
the executive with the government. In contemporary times, there has taken place

A big increase in the power and role of the executive in every state. The executive includes the
President, Governor, Cabinet Ministers, Police, bureaucrats, etc.

 Legislature: The legislature is that organ of the government which enacts the laws of the
government. It is the agency which has the responsibility to formulate the will of the state and
vest it with legal authority and force. In simple words, the legislature is that organ of the
government which formulates laws. Legislature enjoys a very special and important in every
democratic state. It is the assembly of the elected representatives of the people and represents
national public opinion and power of the people.

 Government: The law-making or legislative branch and administrative or executive branch

and law enforcement or judicial branch and organizations of society. Lok Sabha (the lower
house) and Rajya Sabha (the upper house) form the legislative branch. Indian President is the
head of the state and exercises his or her power directly or through officers subordinate to him.
The Supreme Court, High Courts, and many civil, criminal and family courts at the district
level form the Judiciary.

 State Legislature: The legislative body at the state level is the State Legislature. It comprises
of the state legislative assembly and the state legislative council.
Local Authorities
Before understanding what a local authority is, it is important to define Authorities. According to
Webster‟s Dictionary; “Authority” means a person or body exercising power to command. When
read under Article 12, the word authority means the power to make laws (or orders, regulations, bye-
laws, notification etc.) which have the force of law. It also includes the power to enforce those laws

Local Authority: As per Section 3(31) of the General Clauses Act, 1897,

“Local Authority shall mean a municipal committee, district board, body of commissioner or other
authority legally entitled to or entrusted by the Government within the control or management of a
municipal or local fund.”

The term Local authority includes the following:

1. Local government: According to Entry 5 of the List II of VII Schedule „local government‟
includes a municipal corporation, improvement trust, district boards, mining settlement
authorities and other local authorities for the purpose of local self-government or village
administration.
2. Village Panchayat: In the case of Ajit Singh v. State of Punjab, it was held that within the
meaning of the term local authority, village panchayat is also included.

Test to determine Local Authorities

In Mohammad Yasin v. Town Area Committee, the Supreme Court held that to be characterized as a
„local authority‟ the authority concerned must;

1. Have a separate legal existence as a corporate body

2. Not be a mere government agency but must be legally an independent entity
3. Function in a defined area
4. Be wholly or partly, directly or indirectly, elected by the inhabitants of the area
5. Enjoy a certain degree of autonomy (complete or partial)
6. Be entrusted by statute with such governmental functions and duties as are usually entrusted to
locally (like health, education, water, town planning, markets, transportation, etc.)
7. Have the power to raise funds for the furtherance of its activities and fulfilment of its
objectives by levying taxes, rates, charges or fees

Other Authorities
The term „other authorities‟ in Article 12 has nowhere been defined. Neither in the Constitution nor in
the general clauses Act, 1897 nor in any other statute of India. Therefore, its interpretation has caused
a good deal of difficulty, and judicial opinion has undergone changes over time.

The functions of a government can be performed either the governmental departments and officials or
through autonomous bodies which exist outside the departmental structure. Such autonomous bodies
may include companies, corporations etc.

So, for the purpose of determining what „other authorities‟ fall under the scope of State, the judiciary
has given several judgements as per the facts and circumstances of different cases.

In the University of Madras v. Shanta Bai, the Madras High Court evolved the principle of „ejusdem
generis’ i.e. of the like nature. It means that only those authorities are covered under the expression
„other authorities‟ which perform governmental or sovereign functions. Further, it cannot include
persons, natural or juristic, for example, Unaided universities.

In the case of Ujjammabai v. the State of U.P., the court rejected the above restrictive scope and held
that the „ejusdem generis’ rule could not be resorted to the in interpreting „other authorities‟. The
bodies named under Article 12 have no common genus running through them and they cannot be
placed in one single category on any rational basis.

Lastly, in Rajasthan Electricity Board v. Mohan Lal, the Supreme Court held that „other authorities‟
would include all authorities created by the constitution or statute on whom powers are conferred by
law. Such statutory authority need not be engaged in performing government or sovereign functions.
The court emphasized that it is immaterial that the power conferred on the body is of a commercial
nature or not.
Territory of India
Article 1(3) of the Constitution of India states that;

“The territory of India shall comprise- (a) the territories of the States;(b) the Union territories
specified in the First Schedule; and (c) such other territories as may be acquired.”

In the case of Masthan Sahib v. Chief Commissioner, the court held that the territory of India for the
purposes of Article 12 means the territory of India as defined in Article 1(3).

Control of the government of India

Under Article 12, the control of the Government does not necessarily mean that the body must be
under the absolute direction of the government. It merely means that the government must have some
form of control over the functioning of the body. Just because a body is a statutory body, does not
mean that it is „State‟. Both statutory, as well as non-statutory bodies, can be considered as a „State‟ if
they get financial resources from the government and the government exercises a deep pervasive
control over it.

For example- State includes Delhi Transport Corporation, ONGC and Electricity Boards, but does not
include NCERT as neither is it substantially financed by the government nor is the government‟s
control pervasive.

The test laid down in the case of Ajay Hasia is not rigid and therefore if a body falls within them, then
it must be considered to be a State within the meaning of Article 12. It was discussed in the case that–
“whether in the light of the cumulative facts as established, the body is financially, functionally and
administratively dominated by or under the control of Government. Such control must be particular to
the body in question and must be pervasive.
Whether State includes Judiciary?
Article 12 of the Constitution does not specifically define „judiciary‟. This gives the judicial
authorities the power to pronounce decisions which may be contravening to the Fundamental Rights of
an individual. If it was taken into the head of „State‟, then as per the article, it would be by the
obligation that the fundamental rights of the citizens should not be violated. Accordingly, the
judgements pronounced by the courts cannot be challenged on the ground that they violate
fundamental rights of a person. On the other hand, it has been observed that orders passed by the
courts in their administrative capacity (including by the Supreme Court) have regularly been
challenged as being violative of fundamental rights.

The answer to this question lies in the distinction between the judicial and non-judicial functions of the
courts. When the courts perform their non-judicial functions, they fall within the definition of the
„State‟. When the courts perform their judicial functions, they would not fall within the scope of the
„State‟.

So, it can be noted that the judicial decision of a court cannot be challenged as being violative of
fundamental rights. But, an administrative decision or a rule made by the judiciary can be challenged
as being violative of fundamental rights, if that be supported by facts. This is because of the distinction
between the judicial and non-judicial functions of the courts.

In the case of Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, a 9-judge bench
of the Supreme Court held that a judicial decision pronounced by a judge of competent jurisdiction in
or in relation to a matter brought before him for adjudication cannot affect the fundamental rights of
the citizens since what the judicial decision purports to do is to decide the controversy between the
parties brought before the court and nothing more. Therefore, such a judicial decision cannot be
challenged under Article 13.

Conclusion
The Constitution of India not only gives fundamental right to the citizens but also imposes the duty on
the state to ensure that the fundamental rights are protected. The court through its interpretations has
widened the scope of the term State to include a variety of statutory and non-statutory bodies under its
umbrella.

The need to determine what falls within the meaning of state is, to assign the party on whom the duty
to implement such right is placed upon. Not only that, the definition of state under Article 12 has
several words which may not have definite meanings, words such as local authorities, control of
government, other authorities, etc. and as seen in the above sections, the courts have, through the
course of their judgements, described the extent of the article by laying down a test and discussing the
meaning of the terms.

Doctrine Of Sovereignty
By Jibin Mary George, Amity Law School, Delhi

EDITOR‟S NOTE:- The concept of sovereignty has been evolving since time immemorial. Since the
World Wars, countries have stepped up their sensibilities towards their territorial limits. The recent
South China Sea dispute highlighted how territoriality has extended itself to water bodies as well as
air space. This article discusses the political theories explaining sovereignty. It also delves into
aspects such as de jure and de facto control, with special emphasis on critically evaluating Austin’s
theory.

INTRODUCTION
A State and the doctrine of sovereignty are inseparable parts of the same machine. Therefore, it is
impossible to discuss one, without understanding what the other entails. In the simplest terms, the
doctrine of sovereignty refers to the quality of enjoying a superseding authority over a geographical
area or a populace. However, before going further into understanding what sovereignty is, it is
important to first understand what a State is.

The origin of the State itself is shrouded in mystery. It is difficult to suggest whether the State has a
singular origin or it has evolved as a continuous process. However, what can be suggested is the fact
that the State evolved from a simple to a more complex form as a result of the rising extension of
man‟s activities and interactions.
The expression “State” itself is derived from the Latin term “status”, which means „standing.‟ It is
however to give a precise, exact definition of the State partly because its definitions, as given by
political thinkers and jurists have been constantly changing owing to the dynamic evolution of the
concept of a State.

Woodrow Wilson, one of the presidents of the United States, defined State as a people organized for
law within a definite territory. However, on the other hand, Grotius defines State as the complete
union of freemen who join themselves together for the purpose of enjoying law and for the sake of
public welfare.[i] Oppenheim stated that a State is in existence when a people are settled in a country
under its own sovereign government.

The evolution of State itself has been hotly debated and questioned. In a nutshell, the following are the
theories of evolution of State,

 Divine theory: According to this theory, the State is the creation of God and is therefore,
through the arm of the king, a representative of God on earth. It is a superseding authority over
all beings on earth.
 Natural theory: This theory suggests that man is a social being and the instinct of sociability
has given rise to the origin of the State. Aristotle, a staunch proponent suggested that the
interests of the individual and the State were identical and men could not live outside the State.
The purpose therefore, was to promote general welfare of the people.
 Social Contract Theory: Pre-supposes that the State is a creation of agreement by the people.
The people pay obedience to the State because they have, by a mutual agreement agreed to do
so.

To put it into perspective, it can be reiterated that the State is essentially a politically organized society
coordinating the activities of its members and protecting their interests by the maintenance of people
and administration of justice. The following can be said to be the essential elements of the State,

 Population, which implies a considerable group of human beings living together in a

community.
 Territory, which is a defined portion of the earth‟s surface upon which a population
permanently resides. As pointed out by Harold Laski, “the territories of a State are the regions
over which it can exercise its sovereignty.”
 Government, which is any organization which holds the authority and power, to be exercised
over its people by way of laws and other legislations. The government essentially, is the agent
of the State.
 Sovereignty, which shall be glossed over and discussed in this particular project.

THE DOCTRINE OF SOVEREIGNTY

Meaning of Sovereignty

The word “sovereignty” is derived from the Latin word “superannus” meaning supreme. It means the
supreme power of the state over all individuals and associations within its own territorial limits. This is
internal sovereignty of the state whereby the state is the final authority to make laws, issue commands
and take political decisions which are binding upon all individuals and associations within its
jurisdiction. It has the power to command obedience to its laws and commands and to punish the
offenders who violate the same.

At the same time, sovereignty also involves the idea of freedom from foreign control, i.e., the
independence of the state from the control or interference of any other state in the conduct of its
international relations. This is what is called external sovereignty whereby a state has the power to
independently determine its own foreign policy and has the right to declare war and make peace. At
the same time, external sovereignty implies that each state, big or small, by virtue of its sovereign
status is equal to every other state. It can command no other state and it cannot itself be commanded
by any other state.

Accordingly, sovereignty of the state has two aspects, namely, internal and external sovereignty.

Sovereignty is an essential element of the state and with every change in the conception of the state,
the concept of sovereignty has also varied from age to age. The Greek philosopher Aristotle spoke of
the “supreme power” of the state. The Roman jurists were also familiar with the notion. During the
Middle Ages, the idea of sovereignty was associated either with the authority of the king or with the
Pope.
Characteristics of Sovereignty

There are many characteristics or attributes of sovereignty. These are discussed below:

 Absoluteness: Sovereignty is regarded as absolute. This means that neither within the state nor
outside it , is there any power which is superior to the sovereign. The will of the sovereign
reigns supreme in the state. His obedience to customs of the state or international law is based
on his own free will.
 Permanence: The sovereignty of a state is permanent. Sovereignty lasts as long as an
independent state lasts. The death of a king or president or the overthrow of the government
does not mean the destruction of sovereignty as the ruler exercises sovereign power on behalf
of the state and therefore, sovereignty lasts as long as the state lasts.
 Universality: Sovereignty is a universal, all-pervasive or all-comprehensive quality in the sense
that it extends to all individuals, groups, areas and things within the state. No person or body of
persons can claim exemption from it as matter of right. The immunity granted to diplomats
from other countries is only a matter of international courtesy and not of compulsion.
 Inalienability: Sovereignty is inalienable. It means that the state cannot part with its
sovereignty. The state as a sovereign institution ceases to exist, if it transfers its sovereignty to
any other state.
 Indivisibility: As sovereignty is an absolute power, it cannot be divided between different sets
of individuals or groups. In every state, sovereignty must be vested in a single legally
competent body, to issue the final commands. Division of sovereignty is bound to give rise to
conflicting and ambiguous commands.
 Imprescriptibility: This implies that sovereignty can neither be destroyed nor lost if it has not
been exercised for a long period. A people may not have exercised sovereignty for some time
due to control by a foreign power. But non-exercise of sovereign power does not put an end to
sovereignty itself. It can only shift to a new bearer.[ii]
 Originality: The most important characteristic of sovereignty is its original character.
Sovereignty cannot be manufactured. Dependence on another for supreme power cannot make
a state a sovereign one.

Different kinds of sovereignty exist in the world. These are discussed below:
Titular and Real Sovereignty

A titular sovereign is one who is sovereign only in name and not in reality. Although outwardly, the
power is vested in one person, the real power is enjoyed by another. Such a situation prevails in
parliamentary democracies. The King or Queen in England is the Titular head and he/she does not
enjoy any real power. Actual powers are enjoyed by „King/Queen-in-Parliament‟ which constitutes the
real sovereign. In case of India, the President of India is the titular sovereign and the real power lies in
the hands of the Council of Ministers headed by the Prime Minister which constitutes the real
sovereign.

De facto and de jure Sovereign

Sometimes, the existing regime in a state is overthrown through unconstitutional means, as in the case
of a military takeover. In such a situation, until the new sovereign is legally established and
recognized, there may exist two sovereigns-one in the legal sense, who has lost his real powers; the
other in the practical sense who has not yet been legally established. The de-facto sovereign may not
have any legal claim to obedience, but he is a practical sovereign whose authority is based on physical
force or moral persuasion and the people are compelled to obey him. Under such circumstances, the
legal or formal sovereign retains de-jure sovereignty while the actual sovereign is said to be the de-
facto sovereign. In the present-day world there have been several instances where military generals
have overthrown constitutionally elected governments, thereby usurping all powers of the state. Such a
takeover makes the military general the de-facto or actual sovereign possessing real powers, while the
dethroned regime, which still is the legal or formal sovereign, retains de-jure sovereignty. In course of
time, the de-facto sovereign, by securing the consent of the people through elections or otherwise, may
become a de-jure sovereign. The best example of de-facto sovereignty, in modern times, is furnished
by the case of Spain under General Franco who captured the authority of the State by defeating the
Republican Government of Spain. Though he began to rule by force, gradually he was trying to be a
de-jure sovereign by winning the consent of the people. Historically too, there have been several
examples of the emergence of de facto sovereignty. Some of these are: the authority exercised by
Cromwell in England, by Napoleon in France and the Bolshevist group in Russia after 1917.[iii]
Legal and Political Sovereignty

The legal sovereign is the supreme law making body. In every independent state, there are some laws
which must be obeyed by the people and there must be a power to issue and enforce these laws. The
power which has the legal authority to issue and enforce these laws and final commands is the legal
sovereign. It may vest in one person or a body of persons. It alone declares, in legal terms, the will of
the state. Law is a command of the sovereign and he who violates it is liable to be punished. The
King/Queen-in-Parliament is the legal sovereign in the UK.

Political sovereignty is vested in the electorate, public opinion and all other influences of the state
which mould or shape public opinion. The political sovereign is represented by the electorate or the
body of voters in the state. The electorate, that is, the political sovereign, elects the legal sovereign in
the form of the members of the parliament. Accordingly, the political sovereign controls the legal
sovereign. It lies behind the legal sovereign. According to A.C.Dicey, “Behind the sovereign whom
the lawyer recognizes there is another sovereign to whom the legal sovereign must bow.”

Popular Sovereignty

The concept of popular sovereignty regards people as the source of all authority in the state. All organs
of the government, whether it is the executive, the legislature or the judiciary, derive their power and
authority from the will of the people taken as a whole. Accordingly, the idea of popular sovereignty
implies that the supreme power in the state rests with the people. The Preamble to the Constitution of
India contains the idea of popular sovereignty. It begins with the phrase, “WE, THE PEOPLE OF
INDIA …” and ends with the phrase, “…HEREBY ADOPT, ENACT, AND GIVE TO OURSELVES
THIS CONSTITUTION.”

In modern times, the development of sovereignty as a theory coincided roughly with the growth of the
state in terms of power, functions and prestige. In the nineteenth century, the theory of sovereignty as
a legal concept (i.e. sovereignty expressed in terms of law) was perfected by John Austin, an English
jurist. He is regarded as the greatest exponent of the “Monistic theory of sovereignty.” It is called the
Monistic Theory of Sovereignty because it envisages a single sovereign in the state. The sovereign
may be a person or a body of persons. Furthermore, as sovereignty is considered to be a legal concept,
the theory is called the Legal-Monistic theory of Sovereignty. John Austin, in his famous book,
Province of Jurisprudence Determined (1832), stated his views on sovereignty in the following words:
“If a determinate human superior not in the habit of obedience to a like superior receives habitual
obedience from the bulk of a given society, that determinate superior is sovereign in that society and
that society (including the superior) is a society political and independent.”

On an analysis of the above definition, we could find the following implications:

Firstly, sovereignty must reside in a “determinate person” or in a “determinate body” which acts as the
ultimate source of power in the state.

Secondly, the power of the determinate superior is unlimited and absolute. He can exact obedience
from others but he never renders obedience to any other authority.

Thirdly, the obedience rendered by a people to an authority occasionally will not turn the authority
into sovereign power.

Fourthly, obedience rendered to sovereign authority must be voluntary and as such undisturbed and
uninterrupted. Austin also points out that it is not necessary that all the inhabitants should render
obedience to the superior. It is enough if the “bulk”, i.e., the majority of a society renders habitual
obedience to the determinate superior.

Fifthly, the sovereign is the supreme law maker. Laws are the commands of the sovereign which are
binding upon all within the territorial jurisdiction of the state. Breach or violation of these commands
leads to punishment from the sovereign.

Sixthly, sovereignty is one indivisible whole and as such incapable of division between two or more
parties. There can be only one sovereign authority in a state.

CRITICAL EVALUATION OF AUSTIN‟S

THEORY
The theory of Austin has been strongly criticized by many writers like Sidgwick, Sir Henry Maine and
others. The main point of criticism against Austin‟s theory is that the theory is inconsistent with the
modern idea of popular sovereignty. In his fascination for the legal aspect of sovereignty, Austin
completely loses sight of popular sovereignty according to which the ultimate source of all authority is
the people.[iv]

It is also pointed out that sovereignty may not always be determinate. It is very difficult to locate the
sovereign in a federal state. For example, in the federal state of USA, sovereignty resides neither with
the President nor with the legislature, namely, the Congress. It resides with the people as expressed in
the constitution. The same is the case in India.

Furthermore, Austin has been criticized for defining law as the command of the sovereign. But in
many countries, customary laws are supreme and they are not issued in the form of commands. But
such laws influence the conduct of even despots to a great extent. Sir Henry Maine cites the example
of Ranjit Singh of Punjab who fits the Austinian conception of human superior. But even a despotic
ruler like Ranjit Singh dared not change the customary laws which regulated the conduct of his people.

According to the advocates of the Pluralist theory of sovereignty, the state is an association like
various other associations.

However, in spite of the criticisms levelled against the monistic view of sovereignty as propounded by
John Austin, it must be mentioned that Austin is an exponent of absolute and unlimited sovereignty
purely from the legal or formal point of view. Fundamentally, he does not prescribe for an
irresponsible sovereign, but maintains that the sovereign cannot be formally made responsible to any
authority similar to himself: His authority is legally superior to all individuals and groups within his
jurisdiction. Austin has done a distinct service by clearly distinguishing the legal from the political
sovereign.

Pluralism or the Pluralist theory of sovereignty emerged as a reaction against the Monistic theory of
sovereignty which we have discussed in the previous section. The Pluralist theory emerged in response
to the undue emphasis on the power of the state as advocated by the monists. Some of the leading
exponents of the Pluralist theory include Emile Durkheim, Otto von Gierke, F.W.Maitland,
G.D.H.Cole, Sidney and Beatrice Webb, Miss M.P.Follet and Prof. Harold Laski. The Pluralist theory
of sovereignty rejects the monistic theory of sovereignty and denies that sovereignty is the absolute
and indivisible supreme power of the state.
What is a Parliamentary Democracy?
In short, a parliamentary democracy is a system of government in which citizens elect representatives
to a legislative parliament to make the necessary laws and decisions for the country. This parliament
directly represents the people.

In a presidential democracy, the leader is called a President, and he or she is elected by citizens to lead
a branch of government separate from the legislative branch. If you remember back to government
class, you will remember that the United States has three branches of the government: the executive,
the judicial, and the legislative. The President leads the executive branch of government.

Role of Parliamentary Democracy

In a parliamentary democracy, you have a Prime Minister, who is first elected as a member of
parliament, then elected Prime Minister by the other members of the parliamentary legislature.
However, the Prime Minister remains a part of the legislature. The legislative branch makes the laws,
and thus the Prime Minister has a hand in law-making decisions. The Prime Minister works directly
with other people in the legislature to write and pass these laws.

In our presidential democracy, we still have a legislature, but we also have a president. He is separate
from the legislature, so although he works with them, it is not as direct as if he were a Prime Minister.
The laws that the legislature wants to pass must first go through the president; he can sign them into
being or he can veto them. The President can go to the legislative branch and suggest laws, but they
ultimately write them for his approval.

Furthermore, in parliamentary systems, the legislature has the right to dismiss a Prime Minister at any
time if they feel that he or she is not doing the job as well as expected. This is called a “motion of no
confidence,” and is not as much of a drawn out process. In the US, impeachment is an extensive,
formal process in which an official is accused of doing something illegal.
Some countries with a parliamentary system are constitutional monarchies, which still have a king and
queen. A few examples of these are the United Kingdom, Sweden, and Japan.

It is important to remember that both of these systems of government are democracies. Ultimately, the
citizens who vote have the voice.

Merits of The Parliamentary System –

Harmony between legislature and executive - The executive is a part of the legislature and
both are interdependent at work resulting in less disputes.
Responsible Government -
1. The ministers are responsible to the Parliament for all their acts of omission and
commission.
2. The Parliament exercises control over the ministers through various devices like question
hour, adjournment motion, discussions, no confidence motion, etc.
Helps in preventing despotism -
1. The executive authority is vested in council of ministers and not in a single person thus
checking dictatorial tendencies of the executive.
2. Executive is responsible to the Parliament and can be removed by a no-confidence motion.
Ready Alternative Government -
1. Ruling party on losing its majority, the Head of the State can invite the opposition party to
form the government without fresh elections.
2. Dr Jennings says, „the leader of the opposition is the alternative prime minister‟.
Wide Representation - It is possible to provide representation to all sections and regions in
the government.
Demerits of The Parliamentary System -
Unstable Government -
1. There is no guarantee that a government can survive its tenure.
2. The ministers depend on the mercy of the majority legislators.
3. A no-confidence motion or political defection or multi-party coalition can make the
government unstable.
No Continuity of Policies -
1. Uncertainty of the tenure is not conductive for the formulation and implementation of long-
term policies.
2. Change in the ruling party is usually followed by changes in the policies of the government.
Dictatorship of the Cabinet -
1. When the ruling party enjoys absolute majority in the Parliament, the cabinet becomes
autocratic and exercises nearly unlimited powers.
Against Separation of Powers -
1. In the parliamentary system, the legislature and the executive are together and inseparable.
2. Thus it goes against the theory of separation of powers. In fact, there is a fusion of powers.
Government by Amateurs -
1. The system is not conductive to administrative efficiency as the ministers are not experts in
their fields.
2. The PM in the selection of ministers is restricted to the members of Parliament alone and
cannot tap into external talent.
3. Also, the ministers devote most of their time to parliamentary work,cabinet meetings and
party activities.
Merits of The Parliamentary System -
Harmony between legislature and executive - The executive is a part of the legislature and
both are interdependent at work resulting in less disputes.
Responsible Government -
1. The ministers are responsible to the Parliament for all their acts of omission and
commission.
2. The Parliament exercises control over the ministers through various devices like question
hour, adjournment motion, discussions, no confidence motion, etc.
Helps in preventing despotism -
1. The executive authority is vested in council of ministers and not in a single person thus
checking dictatorial tendencies of the executive.
2. Executive is responsible to the Parliament and can be removed by a no-confidence motion.
Ready Alternative Government -
1. Ruling party on losing its majority, the Head of the State can invite the opposition party to
form the government without fresh elections.
2. Dr Jennings says, „the leader of the opposition is the alternative prime minister‟.
Wide Representation - It is possible to provide representation to all sections and regions in
the government.
Demerits of The Parliamentary System -
Unstable Government -
1. There is no guarantee that a government can survive its tenure.
2. The ministers depend on the mercy of the majority legislators.
3. A no-confidence motion or political defection or multi-party coalition can make the
government unstable.
No Continuity of Policies -
1. Uncertainty of the tenure is not conductive for the formulation and implementation of long-
term policies.
2. Change in the ruling party is usually followed by changes in the policies of the government.
Dictatorship of the Cabinet -
1. When the ruling party enjoys absolute majority in the Parliament, the cabinet becomes
autocratic and exercises nearly unlimited powers.
Against Separation of Powers -
1. In the parliamentary system, the legislature and the executive are together and inseparable.
2. Thus it goes against the theory of separation of powers. In fact, there is a fusion of powers.
Government by Amateurs -
1. The system is not conductive to administrative efficiency as the ministers are not experts in
their fields.
2. The PM in the selection of ministers is restricted to the members of Parliament alone and
cannot tap into external talent.
3. Also, the ministers devote most of their time to parliamentary work,cabinet meetings and
party activities.
Merits of The Parliamentary System -
Harmony between legislature and executive - The executive is a part of the legislature and
both are interdependent at work resulting in less disputes.
Responsible Government -
1. The ministers are responsible to the Parliament for all their acts of omission and
commission.
2. The Parliament exercises control over the ministers through various devices like question
hour, adjournment motion, discussions, no confidence motion, etc.
Helps in preventing despotism -
1. The executive authority is vested in council of ministers and not in a single person thus
checking dictatorial tendencies of the executive.
2. Executive is responsible to the Parliament and can be removed by a no-confidence motion.
Ready Alternative Government -
1. Ruling party on losing its majority, the Head of the State can invite the opposition party to
form the government without fresh elections.
2. Dr Jennings says, „the leader of the opposition is the alternative prime minister‟.
Wide Representation - It is possible to provide representation to all sections and regions in
the government.
Demerits of The Parliamentary System -
Unstable Government -
1. There is no guarantee that a government can survive its tenure.
2. The ministers depend on the mercy of the majority legislators.
3. A no-confidence motion or political defection or multi-party coalition can make the
government unstable.
No Continuity of Policies -
1. Uncertainty of the tenure is not conductive for the formulation and implementation of long-
term policies.
2. Change in the ruling party is usually followed by changes in the policies of the government.
Dictatorship of the Cabinet -
1. When the ruling party enjoys absolute majority in the Parliament, the cabinet becomes
autocratic and exercises nearly unlimited powers.
Against Separation of Powers -
1. In the parliamentary system, the legislature and the executive are together and inseparable.
2. Thus it goes against the theory of separation of powers. In fact, there is a fusion of powers.
Government by Amateurs -
1. The system is not conductive to administrative efficiency as the ministers are not experts in
their fields.
2. The PM in the selection of ministers is restricted to the members of Parliament alone and
cannot tap into external talent.
3. Also, the ministers devote most of their time to parliamentary work,cabinet meetings and
party activities.
By Yashu Bansal, Chanakya National Law University, Patna

Editor’s Note: This note explains the doctrine of separation of powers given by French scholar
Montesquieu in the eighteenth century. It deals with the doctrine under the Constitutions of the United
States and United Kingdom, and also analyses how the doctrine has been expounded by the judiciary
in India.

Introduction
“Power corrupts and absolute Power tends to corrupt absolutely”.

It is widely accepted that for a political system to be stable, the holders of power need to be balanced
off against each other. The principle of separation of powers deals with the mutual relations among the
three organs of the government, namely legislature, executive and judiciary. This doctrine tries to
bring exclusiveness in the functioning of the three organs and hence a strict demarcation of power is
the aim sought to be achieved by this principle. This doctrine signifies the fact that one person or body
of persons should not exercise all the three powers of the government.

The theory of Doctrine of Separation of Power was first propounded by Montesquieu, a French scholar
in and 1747 published in his book „Espirit des Louis‟ (The spirit of the laws). Montesquieu found that
if the power is concentrated in a single person‟s hand or a group of people then it results in a
tyrannical form of government. To avoid this situation with a view to checking the arbitrariness of the
government he suggested that there should be clear-cut division of power between the three organs of
the state i.e. Executive, Legislative and the Judiciary.

Further Montesquieu explained the doctrine in his own words:

“When the legislative and executive powers are united in the same person, or in the same body or
magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not separated
from the legislative and executive powers. Where it joined with the legislative power, the life and
liberty of the subject would be exposed to arbitrary control, for the Judge would then be the legislator.
Where it joined with the executive power, the Judge might behave with violence and oppression. There
would be an end of everything, were the same man or same body, whether of the nobles or of the
people, to exercise those three powers, that of enacting laws, that of executing the public resolutions,
and of trying the causes of individuals.”

The theory of separation of powers signifies three formulations of structural classification of

governmental powers:

 The same person should not form part of more than one of the three organs of the government. For
example, ministers should not sit in Parliament.
 One organ of the government should not interfere with any other organ of the government.
 One organ of the government should not exercise the functions assigned to any other organ.

Separation of Powers under Different

Constitutions
Despite the safeguards it gives against tyranny, the modern day societies find it very difficult to apply
it rigidly. In principle they go for separation of powers and dilution of powers simultaneously.

U.S.A.

The doctrine of separation finds its home in U.S. It forms the basis of the American constitutional
structure.

Article I, section 1 vests all legislative power in the Congress,

Article II, Section 1 vests all executive power in the President of the United States, and

Article III, Section 1 vests all judicial power in the Supreme Court.

The framers of the American Constitution believed that the principle of separation of powers would
help to prevent the rise of tyrannical government by making it impossible for a single group of persons
to exercise too much power. Accordingly, they intended that the balance of power should be attained
by checks and balances between separate organs of the government. This alternative system existing
with the separation doctrine prevents any organ to become supreme.
Despite of the express mention of this doctrine in the Constitution, the U.S. incorporates certain
exceptions to the principle of separation with a view to introduce a system of checks and balances. For
example, a bill passed by the Congress may be vetoed by the President in the exercise of his legislative
power. Also treaty-making power is with the President but it is not effective till approved by the
Senate. It was the exercise of executive power of the senate due to which U.S. couldn‟t become a
member to League of Nations. The Supreme Court has the power to declare the acts passed by
Congress as unconstitutional.

England

England follows a parliamentary form of government where the Crown is the nominal head and the
real legislative functions are performed by the Parliament. The King though an executive head, is also
an integral part of the legislature and all his ministers are also members of one or other of the Houses
of the Parliament. Furthermore, the Lord Chancellor is at the same time a member of the House of
Lords, a member of the government, and the senior most member of the judiciary.

The judiciary is independent but judges of the superior courts can be removed on an address from both
house of Parliament. The House of Lords combines judicial and legislative functions. Legislative and
adjudicatory powers are being increasingly delegated to the executive. The resting of two powers in a
single body, therefore denies the fact that there is any kind of separation of powers in England.

India

On a casual glance at the provisions of the Constitution of India, one may be inclined to say that that
the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution, executive
powers are with the President, legislative powers with Parliament and judicial powers with judiciary.

The President‟s function and powers are enumerated in the Constitution itself. Parliament is competent
to make any law subject to the provisions of the Constitution and there is no other limitation on it
legislative power. The Judiciary is independent in its field and there can be no interference with its
judicial functions either by the Executive or by the Legislature. The Supreme Court and High Courts
are given the power of judicial review and they can declare any law passed by the Parliament or the
Legislature unconstitutional. Taking into account these factors, some jurists are of the opinion that the
doctrine of Separation of Powers has been accepted in the Indian Constitution.
If we study the constitutional provisions carefully, it is clear that the doctrine of Separation of Powers
has not been accepted in India in its strict sense. In India, not only there is functional overlapping but
there is personnel overlapping also.

The Supreme Court has power to declare void the laws passed by the legislature and the actions taken
by the executive if they violate any provision of the Constitution or the law passed by the legislature in
case of executive actions. The executive can affect the functioning of the judiciary by making
appointments to the office of Chief Justice and other judges. One can go on listing such examples yet
the list would not be exhaustive.

Separation of Powers and Judicial Pronouncements in India

The first major judgment by the judiciary in relation to Doctrine of separation of power was in Ram
Jawaya v state of Punjab[i]. The court in the above case was of the opinion that the doctrine of
separation of power was not fully accepted in India. Further, the view of Mukherjea J. adds weight to
the argument that the above-said doctrine is not fully accepted in India. He states that:

“The Indian Constitution has not indeed recognized the doctrine of separation of powering its absolute
rigidity but the functions of the different parts or branches of the government have been sufficiently
differentiated and consequently it can very well be said that our constitution does not contemplate
assumption, by one organ or part of the state, of functions that essentially belong to another”.

Then in Indira Nehru Gandhi v. Raj Narain[ii], where the dispute regarding Prime Minister‟s
election was pending before the Supreme Court, it was held that adjudication of a specific dispute is a
judicial function which parliament, even under constitutional amending power, cannot exercise. So,
the main ground on which the amendment was held ultra vires was that when the constituent body
declared that the election of Prime Minister wouldn‟t be void, it discharged a judicial function that
according to the principle of separation it shouldn‟t have done. The place of this doctrine in the Indian
context was made a bit clearer after this judgment.

The Supreme Court in Keshvananda Bharti v Union of India[iii] was of the view that amending
power was subject to the basic features of the Constitution. And hence, any amendment tampering
these essential features will be struck down as unconstitutional. Beg, J. added that separation of
powers is a part of the basic structure of the constitution. None of the three separate organs of the
republic can take over the functions assigned to the other. Hence this further confirmed the opinion of
the court in relation to the doctrine of separation of power.
Conclusion
The doctrine of separation of powers in the strict sense is undesirable and unpractical and therefore till
now it has not been fully accepted in any of the country, but this does not mean that the doctrine has
no relevance in the world of today. The logic behind this doctrine is still valid. The logic behind the
doctrine is of polarity rather than strict classification, meaning thereby that the centre of authority must
be dispersed to avoid absolutism. Hence the doctrine can be better appreciated as a doctrine of „check
and balance‟.

Separation of Powers in the Indian Constitution

- Relationship between Executive, Legislature
and Judiciary
The three branches of the government are the executive, the legislature and the judiciary. Although the
three have distinct functions to perform, their scope sometimes meet. In this article, you can read all
about the relationship between the three arms of the government for the UPSC exam polity section.

Separation of Powers

In India, a separation of functions rather than of powers is followed. Unlike in the US, in India, the
concept of a separation of powers is not adhered to strictly. However, a system of checks and
balances have been put in place in such a manner that the judiciary has the power to strike down any
unconstitutional laws passed by the legislature.

Today, most of the constitutional systems do not have a strict separation of powers between the
various organs in the classical sense because it is impractical. In the following sections, we will see the
prevailing system in India, what the relationship between each organ is, and the constitutional
provisions thereof.

Before proceeding with the relationships, let us examine in brief what the functions of each organ of
the government are.
What is the Legislature?

The chief function of the legislature is to enact laws.

 It is the basis for the functioning of the other two organs, the executive and the judiciary.
 It is also sometimes accorded the first place among the three organs because until and unless laws are
enacted, there can be no implementation and application of laws.

What is the Executive?

The executive is the organ that implements the laws enacted by the legislature and enforces the will of
the state.

 It is the administrative head of the government.

 Ministers including the Prime/Chief Ministers and President/Governors form part of the executive.

What is the Judiciary?

The judiciary is that branch of the government that interprets law, settles disputes and administers
justice to all citizens.

 The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.
 It comprises of the Supreme Court, the High Courts, District and other subordinate courts.
 For more on Indian Judiciary, click on the linked article.

What is „Separation of Powers‟?

In the strictest sense, the doctrine of separation of powers is very rigid.

Background of the concept

 This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he described the
three agencies of the government as General Assembly, Public Officials and Judiciary.
 In the Ancient Roman Republic too, a similar concept was followed.
 In modern times, it was 18th century French philosopher Montesquieu who made the doctrine a
highly systematic and scientific one, in his book De L‘ Espirit des Lois (The Spirit of Laws).
 His work is based on an understanding of the English system which was showing a propensity towards
greater distinction between the three organs of government.

Meaning of Separation of Powers

Although different authors give different definitions, in general, we can frame three features of this
doctrine.

1. Each organ should have different persons in capacity, i.e., a person with a function in one organ
should not be a part of another organ.
2. One organ should not interfere in the functioning of the other organs.
3. One organ should not exercise a function of another organ (they should stick to their mandate only).

Significance of the doctrine

Why do we need a separation of powers between the various organs of the State? Whenever there is a
concentration of power in one centre/authority, there is bound to be greater chances of
maladministration, corruption, nepotism and abuse of power. This principle ensures that autocracy
does not creep in to a democratic system. It protects citizens from arbitrary rule. Hence, the
importance of the Separation of Powers doctrine can be summed up as follows:

1. Keeps away autocracy

2. Safeguards individual liberty
3. Helps create an efficient administration
4. Judiciary’s independence is maintained
5. Prevents the legislature from enacting arbitrary or unconstitutional laws

Constitutional Status of Separation of Power in India

The doctrine of separation of powers is a part of the basic structure of the Constitution, although not
specifically mentioned. The legislature cannot pass a law violating this principle. The functions of the
three organs are specifically mentioned in the Constitution.

Let us take a look at some of the articles of the Constitution which suggest separation of powers.

Article 50: This article puts an obligation over the State to separate the judiciary from the executive.
But, since this falls under the Directive Principles of State Policy, it is not enforceable.
Article 123: The President, being the executive head of the country, is empowered to exercise
legislative powers in certain conditions.

Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a judge of the
Supreme Court or High Court. They can do so only in case of impeachment.

Article 361: The President and Governors enjoy immunity from court proceedings.

There is a system of checks and balances wherein the various organs impose checks on one another
by certain provisions.

 The judiciary has the power of judicial review over the actions of the executive and the legislature.
 The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional or
arbitrary as per Article 13 (if it violates Fundamental Rights).
 It can also declare unconstitutional executive actions as void.
 The legislature also reviews the functioning of the executive.
 Although the judiciary is independent, the judges are appointed by the executive.
 The legislature can also alter the basis of the judgment while adhering to the constitutional limitation.

Checks and balances ensure that no one organ becomes all-too powerful. The Constitution guarantees
that the discretionary power bestowed on any one organ is within the democratic principle.

Judicial Pronouncements Upholding Separation of Powers Doctrine

Kesavananda Bharati Case (1973): In this case, the SC held that the amending power of the
Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic
features will be declared unconstitutional.

Indira Gandhi Vs Raj Narain Case (1975): In this case, the SC held that the adjudication of a
dispute is a judicial function and parliament cannot exercise this function.

Swaran Singh Case (1998): In this case, the SC held the UP Governor‟s pardon of a convict
unconstitutional.
Constituent Assembly and Separation of Powers

There are chiefly two reasons why the Constituent Assembly did not insert the separation of powers
doctrine explicitly in the Constitution.

1. The founding fathers thought that it was too late to be inserting this principle as the Constitution was
already drafted.
2. Also, India adopted the British parliamentary form of government. So, they thought it was better to
avoid adopting a complete separation of powers doctrine like the American model.

Relationship between Legislature and Judiciary

Even though the functions of the executive and the judiciary are well-defined in the Constitution, the
system of checks and balances ensures that each one can impose checks on the other.

 The judiciary can strike down laws that it considers unconstitutional or arbitrary.
 The legislature, on its part, has protested against judicial activism, and tried to frame laws to
circumvent certain judgements.
 Judicial activism is said to be against the principle of separation of powers.
 There have been instances where the courts have issued laws and policies through judgements. For
example, the Vishakha Guidelines where the SC issued guidelines on sexual harassment.
 In 2010, the SC directed the government to undertake distribution of food grains.
 If the judiciary oversteps its mandate and crosses over into the territory of the legislature or the
executive, it is called judicial overreach.

Judicial Supremacy and Parliamentary Sovereignty

To strike a balance between the judiciary and the legislature, the Indian constitution uses the following
principles:

 The doctrine of Parliamentary Sovereignty has been adapted from the British Constitution.
 The doctrine of Judicial Supremacy has been adapted from the American Constitution.
 The power of judicial review of the Supreme Court of India is narrower in scope than the Supreme
Court of the USA.
 The Constitution of India guarantees ‘established procedure by law’ in Article 21 instead of the ‘due
process of law’ provided in the American Constitution.
 The Indian Constitution has opted for an amalgamation of Britain’s principle of parliamentary
sovereignty and the judicial supremacy of the USA.
 The Supreme Court, on the one hand, can declare the parliamentary enactments as unconstitutional
using the power of judicial review.
 The Parliament, on the other hand, can amend a large chunk of the Constitution using its constituent
power.

Relationship between Legislature and Executive

The Constitution states that the executive branch of the State (Council of Ministers) shall be
collectively responsible to the Legislature (Lok Sabha). This implies that the Parliament should
supervise the work of the government and hold it accountable for its actions.

 In a parliamentary form of government, the executive is not separated from the legislature in that the
members of the council of ministers are members of the legislature.
 The executive loses power when it loses the confidence of the legislature. The executive/council of
ministers is dismissed if it loses the legislature’s confidence before its tenure is over. So, the
legislature controls the executive through a vote of no-confidence.
 The head of government and head of state are different. The head of the government is the Prime
Minister while the head of state is the President.
 The parliament makes laws in general broad terms and delegates the powers to the executive to
formulate detailed policy and implement them.
 In a presidential form of government, the executive is not accountable to the legislature. One person
is the heads of both the State as well as the government. A minister need not be from the legislature.

Relationship between Executive and Judiciary

There are several provisions in the Constitution which makes the judiciary independent. This is
because, it is believed that for a democracy to remain efficient and effective, the judiciary must be
independent. The judiciary is said to be the guardian of the constitution. If the executive also assumes
judicial powers, that sort of a government tends to become oppressive.

However, there are some judicial functions which are performed by the executive as well. They are:
1. The appointments of the judges are made by the executive.
2. The President and the Governors also enjoy the power to pardon, reprieve, etc. These are direct
judicial functions.
3. Under the system of administrative adjudication, the executive agencies have the power to hear and
decide cases involving particular fields of administrative activity.

Read more about the Supreme Court of India.

The judiciary also performs some executive functions. It can review the actions of the executive and
declare them void if found unconstitutional.

What is Doctrine of Eclipse?

The Doctrine of Eclipse says that any law inconsistent with Fundamental
Rights is not invalid. It is not dead totally but overshadowed by
the fundamental right. The inconsistency (conflict) can be removed by
constitutional amendment to the relevant fundamental right so that eclipse
vanishes and the entire law becomes valid.

Explanation

 When a Court strikes a part of law, it becomes unenforceable. Hence, an

‘eclipse’ is said to be cast on it. The law just becomes invalid but continues to
exist. The eclipse is removed when another (probably a higher level court)
makes the law valid again or an amendment is brought to it by way
of legislation.
 The Supreme Court of India, in P Ratinam case, has held Section 309 of
the Indian Penal Code, 1860 unconstitutional. Hence, the section was under
eclipse. However, a constitutional bench in Gian Kaur case reversed this decision
and held the section as constitutional whereby the eclipse was removed and it
because operable again.

Waiwer of fundamental rights under Indian

constitution
Can a citizen waive his fundamental right given to him by the constitution? This was a major question
which was dealt in many cases till now. Generally the question came up for the first time in the case of
Behram v state of Maharashtra [1] in which justice Venkatrama Aiyar told that the rights are to be
divided in to two broad categories, firstly Rights conferring benefits on the individuals and secondly
rights conferring benefits on the general public. He was of the opinion that a law would not be a
nullity but merely unenforceable if it was repugnant with a fundamental right in the formal category,
and that effected individual could waive such an unconstitutionality, in which case the law would
apply to him.for example the right guaranteed under article 19(1)(f) was for the benefit of the property
owners and when a law was found to infringe article(1)(f). it was open to any person whose right had
been infringed to waive his fundamental rights. In case of such a waiver, the law in question could be
enforced against the individual concerned.

The above stated was however a minority opinion and the majority opinion in this case was that the
fundamental rights were not kept in the constitution merely for individual benefits. These rights were
put up as a matter of public policy and therefore doctrine of waiver cannot be applied in the case of
fundamental rights. A citizen cannot invite discrimination by telling the state „you can discriminate‟ or
get convicted by waiving the protection given to him under article 20 and 21.

A more detail discussion of doctrine of waive in the case of fundamental rights was done in the case of
Bashesharnath v. I.T commissioner [2] , a case in which a reference against the petitioner was made to
the income tax investigation commission under section 5(1) of the Taxation of income(investigation
commission) act. After the commission had decided upon the amount to be treated as concealed
income, the petitioner agreed for a settlement and agreed to pay rupees three lacks as tax and penalty
in monthly installments. In 1955 the Supreme Court declared section 5(1) of the act ultravires article
14 of the constitution. The petitioner now filed an appeal before the Supreme Court and the
investigation commission challenging the settlement. The respondents pleaded that he while agreeing
for the settlement had waived his fundamental rights. The Supreme Court on a majority basis held that
the settlement was invalid and gave several views in support to this argument and the views laid down
by the learned judges were

Article 14 cannot be waived for it is an admonition to the sate as a matter of public policy with a view
to implement its object of ensuring equality. No person can therefore, by an act or conduct relieve the
state of the solemn obligation imposed on it by the constitution.

A view, somewhat broader than the first was that none of the fundamental rights can be waived by a
person. The fundamental rights are mandatory on the state and no citizen can by his act or conduct
relieve the state of the solemn obligation imposed on it.

The constitution makes no distinction between the fundamental rights enacted for the benefit of an
individual and those who enacted in public interest or on grounds of public policy.

A large majority of the people in India are economically poor, educationally backward and politically
not yet conscious of their rights. Individually or even collectively, they cannot be pitted against the
state and therefore it is the duty of the judiciary to protect their rights against themselves.

But this case also consisted of a minority opinion as in the previous case i.e. Behram‟s case , that an
individual could waive a fundamental right which is for his own benefits but he cannot waive a
fundamental right which is for a public benefit. This was almost the repetition of the opinion in
Behram‟s case.

So the majority opinion regarding the matter in the Bashesharnath case was taken as a precedent in the
upcoming cases.

The Bombay high court, in the decision of Yousuf Ali Abdulla Fazalbhai v. M S kashekar [3] , held
that the state cannot arrogate to itself a right to commit breach of the fundamental rights of any person
by reasoning to principles of waiver or estoppels or other similar principles.

Another important supreme court decision in this matter is Olga Tellis v Bombay municipal
corporation [4] , a case in which in a writ proceeding in the high court, the pavement dwellers gave an
undertaking that they would not claim any fundamental right to put up huts on pavements or public
roads and they would not obstruct the demolition of the huts after a certain date. Later when the huts
were sought to be demolished after the specified date, the pavement dwellers put up the plea that they
were protected by article 21. The government contended that they could not raise any such plea in
view of their previous undertaking. The Supreme Court overruled the objection of the government
saying that fundamental rights could not be waived. There can be no estoppels against the constitution
which is the paramount law of the land. The constitution has conferred fundamental rights not only to
benefit individuals but to secure the larger interests of the community. The court observed that “no
individual can barter away the freedom conferred on him by the constitution”.

An advance opinion was given by the apex court in a recent decision namely Nar Singh Pal v. Union
of India [5] . The court held that “fundamental rights cannot be bartered away. They cannot be
compromised nor there do any estoppel against the exercise of fundamental right available under the
constitution”. In this case a telecom labourer(casual) had worked continuously for 10 years and had
thus acquired the temporary status. He was prosecuted for a criminal offence but was ultimately
acquitted. In the mean time he was terminated from service. He questioned the order of termination
but accepted retrenchment benefit. The supreme court told that his service could not be terminated
without a departmental enquiry and without giving him a hearing. Acceptance of retrenchment
benefits by him did not mean that he had surrendered all his constitutional rights. Accordingly the
order of termination was quashed by the supreme court and he was reinstated in service.

Waiver and Estoppel

Waiver and estoppel are part of the genral law on grounds of public policy. it is to be noted that the
expression waiver or estoppel can be used in place of waiver and estoppel because it is not so easy to
distinguish waiver by conduct and estoppel by conduct and both these terms are often used
interchangeably. As to estoppel it has been said that though it may cause injustice if misapplied, if
rightly applied it is founded upon reason and justice and is a principle of good moral as well as of law
and it often enables right and justice to triumph where nothing else known to jurisprudence can do.

INTRODUCTION TO RULE OF LAW

The concept of Rule of Law is that the state is governed, not by the ruler or the nominated
representatives of the people but by the law. A county that enshrines the rule of law would be one
wherein the Grundnorm[i] of the country, or the basic and core law from which all other law derives
its authority is the supreme authority of the state. The monarch or the representatives of the republic
are governed by the laws derived out of the Grundnorm and their powers are limited by the law. The
King is not the law but the law is king[ii]
The origins of the Rule of Law theory can be traced back to the Ancient Romans during the formation
of the first republic; it has since been championed by several medieval thinkers in Europe such as
Hobbs, Locke, and Rousseau through the social contract theory. Indian philosophers such as Chanakya
have also espoused the rule of law theory in their own way, by maintaining that the King should be
governed by the word of law.

The formal origin of the word is attributed to Sir. Edward Coke, and is derived from French phase „la
principe de legalite‟ which means the principle of legality. The firm basis for the Rule of Law theory
was expounded by A. V. Dicey and his theory on the rule of law remains the most popular. Dicey‟s
theory has three pillars based on the concept that “a government should be based on principles of law
and not of men”, these are:

Supremacy of Law:

This has always been the basic understanding of the rule of law that propounds that the law rules over
all people including the persons administering the law. The lawmakers need to give reasons that can be
justified under the law while exercising their powers to make and administer the law.

Equality before the Law:

While the principle of supremacy of law sets in place cheques and balances over the government on
making and administering the law, the principle of equality before the law seeks to ensure that the law
is administered and enforced in a just manner. It is not enough to have a fair law but the law must be
applied in a just manner as well. The law cannot discriminate between people in matters of sex,
religion, race etc. This concept of the rule of law has been codified in the Indian Constitution under
Article 14 and the Universal Declaration of Human Rights under the Preamble and Article 7.

Pre-dominance of legal spirit:

In including this as a requirement for the rule of law, Dicey‟s belief was that it was insufficient to
simply include the above two principles in the constitution of the country or in its other laws for the
state to be one in which the principles of rule of law are being followed. There must be an enforcing
authority and Dicey believed that this authority could be found in the courts. The courts are the
enforcers of the rule of law and they must be both impartial and free from all external influences. Thus
the freedom of the judicial becomes an important pillar to the rule of law.

In modern parlance Rule of Law has come to be understood as a system which has safeguards against
official arbitrariness, prevents anarchy and allows people to plan the legal consequences of their
actions.

THEORETICAL APPLICATION OF RULE OF LAW IN

INDIA

Indian adopted the Common law system of justice delivery which owes its origins to British
jurisprudence, the basis of which is the Rule of Law. Dicey famously maintained that the Englishman
does not need Administrative law or any form of written law to keep checks on the government but
that the Rule of Law and natural law would be enough to ensure the absence of executive arbitrariness.
While India also accepts and follows the concept of natural law, there are formal and written laws to
ensure compliance.

The Constitution of India intended for India to be a country governed by the rule of law. It provides
that the constitution shall be the supreme power in the land and the legislative and the executive derive
their authority from the constitution. Any law that is made by the legislature has to be in conformity
with the Constitute failing which it will be declared invalid, this is provided for under Article 13 (1).
Article 21 provides a further check against arbitrary executive action by stating that no person shall be
deprived of his life or liberty except in accordance with the procedure established by law.

Article 14 ensures that all citizens are equal and that no person shall be discriminated on the basis of
sex, religion, race or place of birth, finally, it ensures that there is a separation of power between the
three wings of the government and the executive and the legislature have no influence on the judiciary.
By these methods, the constitution fulfills all the requirements of Dicey‟s theory to be recognized as a
country following the Rule of Law.

The Supreme Court of Indian has further strengthened this mechanism through its various judgments,
the foremost of them being, A D M Jabalpur v. Shivkanth Shukla[iii] In this case, the question before
the court was „whether there was any rule of law in India apart from Article 21‟. This was in the
context of suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an
emergency. The answer to the majority of the bench was in negative for the question of law. However,
Justice H.R. Khanna dissented from the majority opinion and observed that:

“Even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of
his life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction
between a lawless society and one governed by laws would cease to have any meaning…Rule of Law
is now the accepted norm of all civilized societies”[iv]

In Chief Settlement Commr; Punjab v. Om Prakash, it was observed by the Supreme Court that, “In
our constitutional system, the central and most characteristic feature is the concept of rule of law
which means, in the present context, the authority of law courts to test all administrative action by the
standard of legality. The administrative or executive action that does not meet the standard will be set
aside if the aggrieved person brings the matter into notice.” In the case of Satvant Singh Sawhney v.
D Ramarathanana[v] the Supreme Court has held that every executive action, if it operates to the
prejudice of any person, must be supported by some legislative authority.

In Secretary, State of Karnataka and Ors. v. Umadevi (3)and Ors[vi]a Constitution Bench of this
Court has laid down the law in the following terms: “Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our Constitution and since the rule of law is the
core of our Constitution, a court would certainly be disabled from passing an order upholding a
violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of
Article 14 read with Article 16 of the Constitution.”

Most famously in the case of Kesavananda Bharati v. State of Kerala[vii] the Supreme Court held
that the Rule of Law is an essential part of the basic structure of the constitution and as such cannot be
amended by any Act of Parliament, thereby showing how the law is superior to all other authority of
men.

PRACTICAL APPLICATION OF RULE OF LAW IN INDIA

Critiques have often maintained that the Rule of Law in India is merely a theory with no practical
application. While it cannot be denied that the country is one where corruption runs rampant and
according to 2012 World Justice Project data, India fares well on openness of government and
democratic controls, in the category limited government powers, which evaluates the checks on
government, India ranks 37th of the 97 countries surveyed around the world, is first among five in its
region and comes in second out of 23 lower-middle-income countries. Yet the rule of law that exists
on paper does not always exist in practice. When it comes to procedural effectiveness, India fares
poorly. In the categories of the absence of corruption and order and security, India ranks 83rd and 96th
globally.[viii]

In addition to the problem faced in India due to corruption in the lawmaking and justice delivery
systems, there also exists the problem of old laws still being in place. India does not adopt a „sunset‟
clause in its laws and post-independence the Indian Independence Act provided that all laws existing
under the colonial rulers would continue to exist under the new system unless explicitly revoked by
the parliament.

While this did provide the nation with a firm basic system of laws, thereby preventing a situation of
anarchy in the immediate aftermath of independence, some of these laws were drafted to suit the
environment of those time and they become hard to interpret in the current environment. This leads to
ambiguity and endless litigation in an attempt to interpret the provisions.

While these problems persist it is important to note that the constitutional mechanism has provided
enough safeguards to endure that the Rule of Law in some form will always persist. One of the most
important factors contributing to the maintenance of the Rule of Law is the activity of the courts in the
interpretation of the law. It is rightly reiterated by the Supreme Court in the case Union of India v.
Raghubir Singh that it is not a matter of doubt that a considerable degree that governs the lives of the
people and regulates the State functions flows from the decision of the superior courts.

Most famously in the case of Maneka Gandhi v. Union of India[ix] the court ensured that exercise of
power in an arbitrary manner by the government would not infringe the rights of the people and in
Kesavananda Bharati[x] the court ensured that laws could not be made that essentially go against the
Rule of Law by saying that the basic structure could not be breached.

Apart from the judicial decision, the constitutional mechanism in itself provides for the protection of
the rule of law through the creation of monitoring agencies. While there have been numerous scams
that have come to light in the last few years, the fact that must also be noted is that these scams have
come to light and the justice delivery mechanism has been set in motion against the perpetrators.

The role of the Central Vigilance Commission and the Comptroller and Auditor General in the
exposure of these discrepancies is commendable and this shows how the law has provided for its own
protection by putting in place multiple levels of safeguards which ensure that it will be effective at
some level. The Election Commission of India, a constitutional body has also been undertaking the
task of ensuring free and fair elections with some degree of efficiency.

CONCLUSION

The founding fathers of India accomplished what the rest of the world though impossible- establish a
country that would follow the letter of the law and implement the Rule of Law. In all matters such as
the protection of the rights of the people, equal treatment before the law, protection against excessive
arbitrariness, the Constitution of India has provided enough mechanisms to ensure that the Rule of
Law is followed.

Through its decisions, the Courts have strived to reinforce these mechanisms and ensure smooth
justice delivery to all citizens. Problems such as outdated legislation and overcrowded courts are but
small hindrances and bodies such as the Law Commission of India work towards ironing out these
problems with the aim of achieving a system where there are no barriers to the smooth operation of the
Rule of Law.

Judiciary: Functions, Importance and an

Essential Quality of Judiciary
The Judiciary is the third organ of the government. It has the responsibility to apply the laws to specific cases
and settle all disputes. The real ‘meaning of law’ is what the judges decide during the course of giving their
judgements in various cases. From the citizen’s point of view, Judiciary is the most important organ of the
government because it acts as their protector against the possible excesses of legislative and executive organs.
Role of Judiciary as the guardian-protector of the constitution and the fundamental rights of the people makes
it more respectable than other two organs.

Functions of Judiciary and Its Importance:

1. To Give Justice to the people:

The first and foremost function of the judiciary is to give justice to the people, whenever they may
approach it. It awards punishment to those who after trial are found guilty of violating the laws of the
state or the rights of the people.

The aggrieved citizens can go to the courts for seeking redress and compensation. They can do so
either when they fear any harm to their rights or after they have suffered any loss. The judiciary fixes
the quantity and quality of punishment to be given to the criminals. It decides all cases involving grant
of compensations to the citizens.

2. Interpretation and Application of Laws:

One of the major functions of the judiciary is to interpret and apply laws to specific cases. In the
course of deciding the disputes that come before it, the judges interpret and apply laws. Every law
needs a proper interpretation for getting applied to every specific case. This function is performed by
the judges. The law means what the judges interpret it to mean.

3. Role in Law-making:

The judiciary also plays a role in law-making. The decisions given by the courts really determine the
meaning, nature and scope of the laws passed by the legislature. The interpretation of laws by the
judiciary amounts to law-making as it is these interpretations which really define the laws.

Moreover, „the judgements delivered by the higher courts, which are the Courts of Records, are
binding upon lower courts. The latter can decide the cases before them on the basis of the decisions
made by the higher courts. Judicial decisions constitute a source of law.

4. Equity Legislation:

Where a law is silent or ambiguous, or appears to be inconsistent with some other law of the land, the
judges depend upon their sense of justice, fairness, impartiality, honesty and wisdom for deciding the
cases. Such decisions always involve law-making. It is usually termed as equity legislation.

5. Protection of Rights:

The judiciary has the supreme responsibility to safeguard the rights of the people. A citizen has the
right to seek the protection of the judiciary in case his rights are violated or threatened to be violated
by the government or by private organisations or fellow citizens. In all such cases, it becomes the
responsibility of the judiciary to protect his rights of the people.

6. Guardian of the Constitution:

The judiciary acts as the guardian of the Constitution. The Constitution is the supreme law of the land
and it is the responsibility of the judiciary to interpret and protect it. For this purpose the judiciary can
conduct judicial review over any law for determining as to whether or not it is in accordance with the
letter and spirit of the constitution. In case any law is found ultra vires (unconstitutional), it is rejected
by the judiciary and it becomes invalid for future. This power of the court is called the power of
judicial review.

7. Power to get its Decisions and Judgements enforced:

The judiciary has the power not only to deliver judgements and decide disputes, but also to get these
enforced. It can direct the executive to carry out its decisions. It can summon any person and directly
know the truth from him.

In case any person is held:

(i) Guilty of not following any decision of the court, or

(ii) Of acting against the direction of the court, or

(iii) Misleading the court, or

(iv) Of not appearing before the court in a case being heard by it, the Court has the power to punish the
person for the contempt of court.

8. Special Role in a Federation:

In a federal system, the judiciary has to perform an additionally important role as the guardian of the
constitution and the arbiter of disputes between the centre and states. It acts as an independent and
impartial umpire between the central government and state governments as well as among the states.
All legal centre-state disputes are settled by the judiciary.

9. Running of the Judicial Administration:

The judiciary is not a department of the government. It is independent of both the legislature and the
executive. It is a separate and independent organ with its own organisation and officials. It has the
power to decide the nature of judicial organisation in the state. It frames and enforces its own rules.

These govern the recruitment and working of the magistrates and other persons working in the courts.
It makes and enforces rules for the orderly and efficient conduct of judicial administration.

10. Advisory Functions:

Very often the courts are given the responsibility to give advisory opinions to the rulers on any legal
matter. For example, the President of India the power to refer to the Supreme Court any question of
law or fact which is of public importance.

11. To Conduct Judicial Inquiries:

Judges are very often called upon to head Enquiry Commissions constituted to enquire into some
serious incidents resulting from the alleged errors or omissions on the part of government or some
public servants. Commissions of enquiry headed by a single judge are also sometimes constituted for
investigating important and complicated issues and problems.

12. Miscellaneous Functions:

Besides the above major functions, the judiciary also performs several other functions. Some such
functions are the appointment of certain local officials of the court, choosing of clerical and other
employees. Cases relating to grant of licenses, patents, and copy rights, the appointment of guardians
and trustees, the admission of wills, to appoint trustees to look after the property of the minors, to
settle the issues of successions of property and rights, issue of administrating the estates of deceased
persons, the appointment of receivers, naturalization of aliens, marriage and divorce cases, election
petitions and the like.

Through all these functions, the Judiciary plays an important role in each state. It also plays a role in
the evolution of Constitution through the exercise of its right to interpret and safeguard it against all
legislative and executive excesses.
Importance of Independent Judiciary:

In the life of the citizens of a state, Judiciary is a source of confidence and fearlessness. The common
man depends upon judiciary for getting justice. Without a security of rights and freedom guaranteed
by the judiciary, they cannot really hope to carry out their jobs and enjoy their living. They are more
dependent upon judiciary than the legislature and the executive. Without judicial protection, their lives
can become miserable. From citizens point of view Judiciary is the most important organ of the
government.

Garner highlights this view when he observes, “A society without legislature is conceivable, and
indeed, legislative organs did not make their appearance in the state until modern times, but a civilised
state without a judicial organ and machinery is hardly conceivable.”

Judiciary enjoys a big importance in the eyes of the people because it acts as:

(1) The dispenser of Justice.

(2) Protector of the rights of the people.

(3) Guardian protector of the Constitution of the State.

(4) Arbiter of center-state disputes.

(5) Safeguard against Legislative and executive excesses.

(6) Check against arbitrary exercise of powers by the power-holders.

(7) Guardian of Rule of Law and Justice.

An independent judiciary is always considered to be the most essential part of every democratic
government worth its name. A government without judiciary is almost inconceivable. A government
without independent judiciary is always held to be an authoritarian government.

Independence of Judiciary: An Essential Quality:

The chief quality which helps the judiciary to faithfully administer justice and to perform its functions
efficiently is judicial independence. It is only when the judiciary works independently without any
interference of the other two organs of the government that it can carry out its high responsibilities.
“The independence of judiciary,” writes Dr. P. Sharan, “is a corner stone of every democratic
government and upon it is built the structure of civil liberty.” Judiciary can perform its functions only
when it is free to administer justice according to law. Without being well-organised and independent it
can never serve its purpose. Therefore, Judiciary must be organised in such a way as can enable the
judges to give their judgements without any fear or favour.

Organisation of Judiciary must be based on the following features:

(1) Appointment of only highly qualified and experienced judges.

(2) The Judiciary must have prevented the executive and legislature from committing excesses.

(3) The ability of the judiciary to maintain and independently run the judicial administration.

(4) The Judiciary must be made the guardian protector of the Constitution,

(5) The Judiciary must ensure full, fair and less- expensive opportunities to the people for defending
their rights and getting justice.

(6) The method of appointment of judges must be fair, systematic, effective and transparent.

(7) Method of removal of judges should be difficult and no single should have the power to remove
the judges.

(8) Judges must be paid high salaries, necessary allowances, good service conditions, and appropriate
retirement benefits.

By incorporating all these features in the judicial system, a well organised and independent judiciary
can be secured.

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