IAS CORRIDOR

INDIAN
CONSTITUTION

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• Definitions of the Constitution
The Latin phrase 'constituere' is the origin of the term 'constitution', which means 'to establish' or 'to set-up'. In the
present sense, the term 'constitution' refers to the supreme law of a country. It is described as the most fundamental
set of principles according to which a politically organised society/nation state/country is governed.

• Functions of the Constitution

o Reflects the ideology and philosophy of a nation state and defines the boundaries of the political community.
o Provide a set of basic rules that allow
for minimal coordination amongst
members of a society.
o Provides an organizational framework
for the government.
o Explains the levels of different organs
of the Government and shares power
between them.
o Provides sufficient provisions for
amendment.

• Significance of the Constitution

o Constitution is as important to a nation as a birth certificate is to a child.
o Provides a basic structure of the polity or system of
governance.
o Foundation of Democracy's most essential institutions, such
as the Legislature, Executive, and Judiciary.
o Governs the relationship between state and people.
o Showcases the ideals and aspirations of the people.
o Acts as a mirror for society and displays the conflicts within
it.
o Provides legitimacy to the actions of the state.
o Establishes constitutionalism.
o Acts as tools of the interpretation.

• Constitutionalism
The concepts of the constitution and constitutionalism are closely related to each other. The doctrine of
constitutionalism states that a government's authority is determined by a set of laws or constitution. Although
constitutionalism is sometimes considered a synonym for limited government, it generally refers to efforts to prevent
arbitrary government. implies that the exercise of political power shall be bound by limitations,
checks, controls and rules.

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o Components of the Constitutionalism
ü Popular sovereignty
ü Rule of law (Supremacy of the law and Equality before the law)
ü Democratic government
ü Separation of powers
ü An independent judiciary
ü Civilian control of military
ü Police governed by law and judicial control
ü Respect for individual rights

o Codifying these principles is not enough, as the actual implementation is dependent on multiple factors,
including:
ü Political culture in the country
ü Administrative Culture
ü Socio-Economic conditions

Rule of Law

‘Rule of Law’ is a system in which laws, not men, govern. A phrase in Latin is the basis of it- ‘Rex is Lex,’ which means
‘King is Law’. The expression rule of law has been taken from a French word- ‘la Principe de legalité,’ which translates
to ‘that the government is law-based’. Rule of law, also known as supremacy of law, means that no one (including
government) is above the law.

• Dicey’s Concept of Rule of Law

Professor A.V. Dicey is known to be the main exponent of the concept of the rule of law. In 1885, he propounded
three principles of the rule of law in his classic book ‘Law and the Constitution’. According to Professor A.V. Dicey,
to achieve the supremacy of law the following three principles must be followed:
o Supremacy of the law
o Equality before the law
o Predominance of legal spirit: the court should be free from impartiality and external influence.

• Rule of Law in India

o Article 13 - The 'laws' defined under Article 13 as rules, regulations, bye-laws, and ordinances can be struck
down if they are contrary to the constitution of India.
o Article 14 - It stipulates that the state cannot discriminate against anyone by denying them equality before the
law and equal protection of the law.

• Exceptions to Equality before Law

o Article 361 – Immunity to President and Governors
o Immunity to Supreme Court and High Court Judges including Article 121 which restricts discussion in
Parliament.
o Immunity to foreign diplomats - Vienna Convention on diplomatic relations of 1961
o Article 105 - Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof.

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SEPARATION
OF
POWERS

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• Introduction
An organizational structure that divides responsibilities, authorities, and powers between groups rather than
centrally holding them is known as the separation of powers. The doctrine is rooted in a political philosophy that
too much power concentrated in the hands of few, without adequate checks and balances, increases the likelihood
of misuse of that power. The purpose of this doctrine is to prevent any misuse of power and avoid autocracy, which
is a system of government ruled by a single person or group with absolute power. Separation of powers is the
fundamental principle behind the American constitution system.

Separation of powers, therefore, refers to the separation of “The accumulation of all powers, legislative,
government responsibilities into different branches to restrict one executive and judiciary, in the same hands,
branch from exercising the core functions of another. whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, may
In India, separation of powers is the division of the legislative, justly be pronounced the very definition of
executive, and judicial functions of government. As Article 50 of tyranny.”
the Indian Constitution says that the State shall take steps to - James Madison, The Federalist
separate the judiciary from the executive in the public services of Papers No. 47
the State.

Also, the 7th Schedule of the Indian Constitution deals with the division of powers between the Union government
and State governments. The division of powers between Union and State is notified through three kinds of the list
mentioned in the seventh schedule: Union List, State List and Concurrent List.

• Origin
The theory of the separation of powers may be traced back to the writings of classical and medieval thinkers. Of the
various theorists who have written about the need to divide government powers among different institutions,
Montesquieu's work has been the most influential. Montesquieu, an 18th century French social and political
philosopher, coined the term 'trias politica' or 'separation of powers' in his book, 'De l'Esprit des Lois' (i.e. the Spirit
of Laws), 1748.

• Doctrine of Separation of Powers

o Institutional separation of powers: There is need to have three major institutions or organs in a state i.e.
Legislature, Executive and Judiciary.
o Functional separation of powers: State functions must be vested and exercised by three separate institutions
or organs i.e. law making, law execution and law adjudication.
o Separation of personnel: No person should be a member of more than one organ.
o Limitation of appointing powers: State organs should not appoint or elect members for each other.

• Significance of Separation of Power

o Protects democracy and democratic rights of the people
o Leads to division of labour, specialization and efficiency of the functions.
o Facilitates healthy debates and constructive frictions among the three organs, which result in better decisions
and outcomes.

• Checks and Balances

Governance of the country will be carried out through consensus among the three organs and hence, the separation
of power’s system naturally leads to the concept of checks and balances. In the system of checks and balances, the
functions of the government are divided between the branches of the government and each act as a check on the
other from abusing the powers.
o Checks on Judiciary: The executive is responsible for the appointment of judges for the Supreme Court
and High Courts in the States. But they may only be removed from office if they are impeached by
Parliament. This action allows the judiciary to function without fear of the executive.
o Checks on Executive: The executive is responsible to Parliament for its day-to-day functioning.
o Checks on Legislature and Executive: The judiciary uses the Judicial Review tool to ensure that
Parliament's laws and Executives' actions are in line with the Constitution.

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Although the term is borrowed from the USA, Indian system does not follow the strict and rigid separation of powers
as in the USA, but a system of checks and balances. In comparison to the USA, the UK has a loose separation of
powers. India follows a middle path between the two.
For Instance: In India, when there is a vacancy in the office of the president and if vice-president is also not
available, then there is a provision for the Chief Justice of India (CJI) to act as the president. Such a provision is not
available in USA but earlier in UK, Highest Court of Land was a part of the Parliament (House of Lords).

• Constitutional Provision
Although there is no explicit provision recognizing the doctrine of separation of powers in its absolute form, the
Constitution of India establishes several functional separations among the organs of the state.
o Article 50: It talks about the independence of the judiciary. It stipulates that the State shall take steps to
separate the judiciary from the executive.
o Article 122 & 212: These articles state that the proceedings of Parliament and the State Legislatures cannot
be called into question in any court. This ensures that legislatures have their independence and immunity
from judicial intervention when it comes to allegations of procedural irregularity.
o Article 121 and 211: Restriction on discussion in Parliament and State Legislatures with respect to the
conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.
o Article 361: It declared that the President or the Governor shall not be answerable to any court for the
exercise and performance of the powers and duties of his office.

There is also functional overlapping between legislature and judiciary, judiciary and executive and executive and
legislatures.
o Legislature and Judiciary: In the event of a breach of privileges, impeachment of the President, the
removal of judges, or other similar actions, the legislature may exercise judicial powers and by making laws
that regulate its conduct and rules regarding case disposal, the Judiciary is also acting as a legislature.
o Judiciary and Executive: Judicial functions are also performed by tribunals and other quasi-judicial
bodies, which are part of the executive. The executive can also have an impact on the functioning of the
judiciary by appointing judges to the office of the Chief Justice and other judges.
o Executive and Legislature: Ordinances promulgated by the President (under Article 123) and Governor
(under Article 213), which are part of the executive, have the same effect as a law made by the Parliament
or the State legislature.

Apart from functional overlap, the Indian system also lacks personnel separation between the three departments.
This is a clear indication that the Indian Constitution does not guarantee absolute separation of powers. Instead, it
establishes a system that is composed of three levels of government and assigns both exclusive and overlapping
powers and functions to each one.

Judicial Review

Judicial review is the judiciary's authority to evaluate the actions taken by the legislative, executive, and
administrative branches of government and to determine whether such actions are consistent with the constitution.
Thus, it serves two crucial purposes: legitimizing government action and safeguarding the constitution from any
undue encroachment by the government. It is also called the interpretative and observer roles of the Indian judiciary
and considered as a part of the basic structure of the constitution.

• Significance of Judicial Review

o Maintain the supremacy of the Constitution.
o Check the possible misuse of power by the legislature and executive.
o Protects the rights of the people and maintain the federal balance.
o Strengthen the judiciary by securing the independence.
o Prevents tyranny of executives and helps the Apex court in exercising its the Constitutional duties.

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• Criticism of Judicial Review
o The system is undemocratic because it gives courts the power to determine the fate of laws that were passed
by the legislature, which represent the sovereign will of the people.
o The system of Judicial Review is not clearly described in the Constitution of India.
o Due to the courts' legalistic and conservative approach in determining the constitutional validity of laws, the
Judicial Review system has been criticized as a reactionary system.
o It has the potential to cause delays and inefficiencies.
o It can be a liability for Parliament as it has the power to rely on the courts to determine the constitutionality
or reasonableness of a law that it has passed.
o The courts' ability to reverse earlier decisions is due to the subjective nature of their decisions.

The legislature is responsible for creating laws, but it is the executive's job to fill in any gaps and make sure they are
implemented correctly. Leaving the judiciary with just the necessary interpretation work. Only a fine balance between
these government bodies can sustain constitutional values.
When the judiciary goes beyond its authority in the name of judicial activism, it is accurate to assert that the judiciary
initiates the invalidation of the concept of separation of powers outlined in the Constitution.

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