Doctrine Of Checks And Balances - A Comparative Analysis Between India And The USA
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DOCTRINE OF CHECKS AND BALANCES: A
COMPARATIVE
ANALYSIS
BETWEEN INDIA AND THE USA
Arghya Pattanayak, B.Sc. LL.B. (H), KIIT School of Law
ABSTRACT
This article aims to provide readers with a clear understanding of the importance of the doctrine of judicial checks and balances. It offers a comprehensive explanation of the theory of checks and balances, with the main objective of describing the separation of power among the three branches of government: The Legislature, The Executive, and The Judiciary. I assure you that the article will have a significant impact on the topic of Constitutional Law and will resonate with the readers. Keywords: Separation of powers, checks and balances, an independent judiciary, directive principles of state policy
INTRODUCTION
The doctrine of checks and balances is a critical principle in constitutional law. It is designed to prevent any one branch of government from becoming too powerful. Instead, each branch can limit and balance the powers of the others. This system promotes accountability, prevents abuse of power, and helps to maintain a healthy balance of authority. The doctrine of judicial checks and balances refers to the role of the judiciary in maintaining a balance of power within the government. It ensures that the courts have the authority to review and interpret laws passed by the legislative branch and actions taken by the executive branch. This allows the judiciary to check the constitutionality of these laws and actions, ensuring that they align with the principles and rights protected by the Constitution.
ARISTOTLE’S THEORY The concept of the division of powers was first proposed by Aristotle. He categorized governmental duties into three groups: official, judicial, and deliberative. Viscount Henry St. John Bolingbroke further developed Aristotle's idea of the separation of powers. He argued that it is essential to maintain a balance between the populace, the king, and parliament to ensure security and freedom within the state. Although Aristotle didn't specifically develop a theory of checks and balances as we understand it today, he did emphasize the significance of a wellbalanced government system in his work. He believed that a good government should consist of a blend of monarchy, aristocracy, and democracy, with each element serving as a check on the others to prevent tyranny and promote the common good.
PLATO’S THEORY He established a check-and-balance system that would not favor one party over another and would account for the legitimate interests of all societal groupings. He could have easily risen to rule the city as the dictator in his position, but he chose not to do so. After finishing his reform, he left Athens to see if it would endure, and he came back to his nation barely ten years later. Although the democratic leader Ephialtes abolished the restraints on popular sovereignty in 461 and the power-grabbing tyrant Pisistratus seized control of Athens in 561, Solon's reform gave the ancient Greeks a blueprint for political leadership and an order based on impartiality and fairness.
The reality of social diversity and competing interests, which pose the threat of civil unrest, is the beginning point for Plato's research into the finest political system, just like it was for Solon.
The political community is made up of several factions or social classes, such as the aristocracy, the wealthy, and the underprivileged, who each represent various interests, ideals, and claims to power. Plato claims that factionalism and civil conflict are the greatest threats to the city, even more so than fighting against external adversaries, in both the Republic and the Laws. He also claims that peace can be achieved by the victory of one portion. Based on the balance and harmonious union of various social classes, Plato presents two alternative answers to the same issue of societal peace. If settling civil disputes is the primary duty of the political leadership of philosopher-rulers in the Republic, laws perform this mediation duty in the Laws.
According to Plato, the ideal political system fosters social harmony in an atmosphere of collaboration and camaraderie among various social groups, with each group benefiting from and contributing to the common good. A philosophical aristocracy or monarchy is the finest form of government, which he advances in the Republic; nonetheless, the traditional polity he advocates in his final debate, the Laws: composite or mixed constitution. Plato, like Aristotle, did not explicitly develop a theory of checks and balances. However, he did discuss the ideal form of government in his work “The Republic. ” Plato believed in a hierarchical system where philosopher-kings ruled with wisdom and reason, while the rest of society followed their guidance. This system aimed to prevent the abuse of power through a strict division of labor and a focus on the pursuit of knowledge and virtue.
MONTESQUIEU’S THEORY The French jurist Montesquieu, in his book " L. Esprit des Lois" (The Spirit of Laws) published in 1748, first introduced the principle of separation of powers. This principle states that no single person or group should have complete control over all three branches of government: the legislative, executive, and judicial. According to Montesquieu, if the legislative and executive powers are combined, or if the judicial power is not separate from the others, it would lead to a loss of liberty. He proposed a system of checks and balances where each branch of government would have its powers and responsibilities, serving as a check on the others to prevent any one branch from becoming too powerful. This system aims to protect individual liberties and maintain a balance of power within the government.
WHY IS THE DOCTRINE OF CHECKS AND BALANCES IMPORTANT?
The doctrine of checks and balances is vital for maintaining a clear separation of power among the three branches of the government. It helps prevent tyranny by establishing well-defined limits to avoid interference with each other. This doctrine is essential as it ensures that no single branch of government becomes too powerful, thus preventing abuse of power and promoting accountability. By having separate branches that can check and balance each other, individual liberties are safeguarded, and the principles of democracy are upheld. This theory aims to prevent the concentration of unrestrained power and establish a system of checks and balances, where the authority of one branch is limited by the authority of another, thus preventing abuses of power and a return to autocracy. IN INDIA The Indian Constitution does not include the doctrine of separation of powers in the strict sense.
However, it differentiates the functions of the different organs of the Government enough to prevent one organ from usurping the function of another. During the Constituent Assembly Debates, Professor K. T. Shah, a member of the Constituent Assembly, emphasized the need to insert a new Article 40-A through an amendment, which focused on the doctrine of separation of powers. This proposed Article states: “There shall be complete separation of powers between the principal organs of the State, namely the legislative, the executive, and the judicial. ” “Kazi Syed Karimuddin, a member of the Constituent Assembly, supported Prof. K. T. Shah's proposed amendment. However, Shri K. Hanumanthiya, another member of the Constituent Assembly, opposed the amendment, arguing that the Drafting Committee had already approved a parliamentary system of government, while Prof. K. T.
Shah's amendment suggested a presidential executive. He believed that having a harmonious governmental structure is preferable to having conflicting branches of government, as conflicts would be detrimental to the country's peace and progress. Prof. Shibban Lal Saksena also agreed with Shri K. Hanumanthiya’s view. Dr. B. R. Ambedkar, an important architect of the Indian Constitution, disagreed with Prof. K. T. Shah's argument and advocated for a system where the executive is not completely separated from the legislature. The motion to insert a new Article 40-A dealing with the separation of powers was rejected. In the Indian Constitution, the executive powers are vested in the President and the Governors, but there is no express provision regarding the vesting of legislative and judicial powers.
The President, acting as the executive head, is empowered to exercise legislative powers and even judicial functions. Similarly, the legislative bodies may also exercise judicial and sometimes even executive functions. Ultimately, the powers of the three branches of government in India are interconnected, with instances of each branch exercising some functions typically attributed to the others. ARTICLE 50 OF THE CONSTITUTION OF INDIA Article 50 of the Indian Constitution addresses the separation of the judiciary from the executive. It falls under Part IV, which deals with Directive Principles of State Policy. These principles are not legally binding but guide the government. They are considered less urgent than Fundamental Rights and can be compromised when necessary. Directive Principles include positive obligations on the state, using terms like "shall" and "strive".
In contrast, Part III of the Indian Constitution deals with Fundamental Rights, which are not negotiable, even during emergencies. These rights are provided to the citizens of India and cannot be violated. Fundamental Rights consist of negative obligations, using the term "no".
Article 50 was not included in Part III because India follows a "broad" separation of powers and is not as strict as the USA in this regard. CASE LAWS On a careful study of the constitutional provisions, it can be said that the doctrine of Separation of Powers has not been accepted in India in the strictest sense (stricto sensu). Though under Articles 53 (1) and 154 (1), the executive power of the Union and the States is vested in the President and the Governors respectively, there is no corresponding provision vesting the legislative and judicial power in any particular organ. 18 This chapter shall deal with the development of the doctrine through a series of judicial decisions and case-laws.
It was in Re, Delhi Laws Act, that it was for the first time observed by the Supreme Court that except where the constitution has vested power in a body, the principle that one organ should not perform functions that essentially belong to others is followed in India. It was held in Ram Jawaya Kapur v. State of Punjab “The Indian Constitution has not indeed recognized the doctrine of separation of powers in 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. ” The facts, issues & judgment of this case have been discussed below.
FACTS: In the State of Punjab, all recognized schools had to follow the course (of studies) as approved by the Education Department of the Government. For a long period before 1950, the method adopted by the Government for the selection and approval of textbooks for recognized schools was commonly known as the alternative method. Books on relevant subjects, by the principles laid down by the Education Department, were prepared by the publishers with their own money and arrangements and they were submitted for approval to the Government. The Education Department after proper scrutiny selected a certain number of books on each subject as alternative textbooks, leaving it to the discretion of the Head Masters of the different schools, to select any one of the alternative books on a particular subject out of the approved list.
Authors, who were not publishers, could also submit books for approval and if any of their books were approved, they had to make arrangements for publishing the same. This procedure was in practice since 1905 but was altered in May 1950. By certain resolutions passed by the Government, the whole of the territory of Punjab (as it remained in the Indian Union after partition) was divided into three Zones. The textbooks on certain subjects like agriculture, history, social studies, etc. , for all the zones were prepared and published by the Government without inviting them from the publishers. Concerning the remaining subjects, offers were still invited from "publishers and authors" but the alternative system was given up and only one textbook on each subject for each class in a particular zone was selected.
Another change introduced at this time was that the Government charged, as a royalty, 5% on the sale price of all the approved textbooks. However, by a notification in August 1952, the Government omitted the word "publishers" altogether and invited only the "authors and others" to submit books for approval by the Government. These "authors and others, " whose books were selected, had to enter into agreements in the form prescribed by the Government and the principal terms of the agreement were that the copyright in these books would vest absolutely in the Government and the "authors and others" would only get a royalty at the rate of 5% on the sale of the textbooks at the price or prices specified in the list. Thus, the publishing, printing, and selling of the books were taken by the Government exclusively in their own hands.
A petition against the 1952 petition was filed by six persons under Article 32 of the Indian Constitution. ISSUES & CONTENTIONS
1. Whether the acts of the Government in carrying out their policy of establishing a monopoly
in the business of printing and publishing textbooks for school students is wholly without jurisdiction and illegal.
2. Even if the State could create a monopoly in its favor in respect of a particular trade or
business, whether the same could be done by any executive act or it could be done only using proper legislation which should conform to the requirements of Article 19 (6) of the Constitution.
3. Whether it was open to the Government to deprive the petitioners of their interest in any
business or undertaking. (It was contended by the petitioners that such interest amounts to property and the act of the Government led to deprivation of the same without the authority of law and payment of compensation as is required under Article 31 of the Constitution. CASES REFERRED
1. Motilal vs. The Government of the State of Uttar Pradesh It was held in this case that
an act would be within the executive power of the State if it is not an act which has been assigned by the Constitution of India to other authorities or bodies and is not contrary to the provisions of any law and does not encroach upon the legal rights of any member of the public.
However, Agarwala, J., dissented from the majority view and held that the State Government had no power to run a bus service in the absence of an Act of the legislature authorizing the State to do so. The opinion of Agarwala, J., though supported the contention of the petitioners but was held to be to be too narrow and unsupportable in the present case (Ram Jawaya).
2. The Commonwealth and the Central Wool Committee vs. The Colonial Combing,
Spinning and Weaving Co. Ltd. It was the opinion of the judges in the Ram Jawaya case that none of the principles laid down in the above-mentioned case could have any application to the circumstances of the present case. Firstly, there is no provision in our Constitution corresponding to Section 61 of the Australian Act. Secondly, the Government had not imposed anything like taxation or license fee in the present case and lastly, the appropriation of public revenue involved in the so-called business in textbooks carried on by the Government was sanctioned by the legislature by proper Appropriation Acts unlike the facts of the case referred.
3. Attorney-General for Victoria vs. The Commonwealth The petitioners had relied upon
the dissenting opinion delivered by Starke, J. The learned Judge laid stress on section 61 of the Constitution Act according to which the executive power of the Commonwealth extended to the maintenance of the Constitution and of the laws of the Commonwealth and held that there was nothing in the Constitution or any law of the Commonwealth which enabled the Commonwealth to establish and maintain clothing factories for other than Commonwealth purposes. The opinion, whether right or wrong, turns upon the particular facts of the case and the provision of section 61 of the Australian Act and it was opined that the same cannot and does not throw any light on the question that requires decision in the present case. REASONING It is permissible for the executive to exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature.
It can also, when empowered, exercise judicial functions in a limited way. But the executive can never go against the provisions of the Constitution or of any law which is clear from the provisions of Article
154 of the Constitution. This does not mean that to enable the executive to function there must
be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws. The Indian Constitution, though federal in its structure, is based on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its incorporation into law though the condition precedent to the exercise of this responsibility is it retaining the confidence of the Legislature. The question that arises here is whether it is necessary to have specific legislation legalizing such trade activities before they can be embarked upon. The court thought that such legislation was not always necessary. If the trade or business involves expenditure of funds, the only requirement is the authorization of the Parliament regarding such expenditure either directly or under the provisions of a statute.
Expenditures other than those charged on the consolidated fund are submitted in the form of demands for grants to the legislature and after deliberation upon the gran if it is sanctioned then an Appropriation Bill is introduced to provide for the appropriation out of the consolidated fund of the State of all money required to meet the grants thus made by the Assembly as laid down by Article 204 of the Indian Constitution. As soon as the Appropriation Act is passed, the expenditure made under the heads covered by it would be deemed to be properly authorized by law under Article 266 (3) of the Constitution.
In the present case the fact that the entire expenses necessary for carrying on the business of printing and publishing the textbooks for recognized schools in Punjab were estimated and shown in the annual financial statement and the demands for grants, which were made under different heads, were sanctioned by the State Legislature and due Appropriation Acts were passed, is not disputed and hence, the court was unable to agree with the petitioners regarding their first contention i. e. the carrying on of the business of printing and publishing textbooks was beyond the competence of the executive Government without specific legislation sanctioning such course.
Generally speaking, a trader might be lucky in securing a particular market for his goods but if he loses the same because the customers for some reason or the other do not choose to buy goods from him, it is not open to him to say that it was his fundamental right to have his old customers forever. It can be said that the publishers in the present case had nothing but a chance or prospect of having their books approved by the Government and at the same time, the Government had the undisputed right to adopt any method of selection it liked and if ultimately it was decided that after approving the textbooks, the copyright would be purchased from the respective “authors and others” provided that they were willing to transfer the same to the Government on certain terms, the court said that it failed to see what right of the publishers to carry on their trade or business was affected by it.
As has already been enunciated above the petitioners had no fundamental right in the present case which can be said to have been infringed by the action of the Government and hence, the petition was bound to fail on that ground. This being the position, the court felt the other two points raised by the petitioners did not require consideration at all. The petitioners did not have any fundamental right under Article 19 (1) (g) of the Constitution and therefore, the question of whether the Government could establish a monopoly without any legislation under Article
19 (6) of the Constitution was held to be altogether immaterial. Further, the Court felt that a
mere chance or prospect of having particular customers cannot be said to be a right to property or any interest in an undertaking within the meaning of Article 31 (2) of the Constitution, and on that account, it was held that no question of payment of compensation could arise. JUDGEMENT The petition was dismissed with costs. And hence, it can be said that in India, a separation of functions and not of powers is followed. It is not possible to abide by the principle in its rigidity. An example of this can be seen in the exercising of functions by the cabinet ministers, who exercise both legislative and executive functions. Article 74(1) wins them an upper hand over the executive by making their aid and advice mandatory for the formal head. The executive, thus, is derived from the legislature and is dependent on it, for its legitimacy.
This makes the observation made by the Supreme Court in Ram Jawaya Kapur vs. the State of Punjab extremely important. The doctrine of Separation of Powers has served as an excellent platform for a tussle between the three organs of the State. While there has been a broad agreement on the principles laid down by the doctrine, in practice, from time to time, disputes have continued to rise as to whether one organ of the State had exceeded the boundaries assigned to it under the Constitution This can be seen from a plethora of judgments laid down in numerous cases. After independence, several state laws were enacted to reform land ownership and tenancy structures. This was in keeping with the promise of the Government to implement the socialistic goals of the Constitution.
The courts struck down the land reform laws saying that they violated the fundamental right to property guaranteed by the Constitution. In I. C. Golaknath vs. the State of Punjab, the concept of implied limitations on Parliament's power to amend the Constitution was invoked. The Court held that the fundamental rights were so sacrosanct and transcendental in importance that they could not be restricted even if such a move were to receive unanimous approval of both houses of Parliament. Within a few weeks of the Golaknath verdict, the Congress party suffered heavy losses in the parliamentary elections and lost power in several states.
But then the Parliament introduced laws to further its goal towards socialism and nationalizing of banks and derecognizing of erstwhile princes in a bid to take away their Privy purses, which were promised in perpetuity as a sop to accede to the union at the time of India's independence. The Supreme Court struck down both moves. And hence, it was crystal clear that the Parliament and the Supreme Court were at loggerheads. The battle was about the supremacy of Parliament as against the power of the courts to interpret and uphold the Constitution. Piqued by the unfavourable judgments, the Parliament restored for itself the absolute power to amend any part of the Constitution including Part III, dealing with fundamental rights. The President was made duty-bound to give his assent to any amendment bill passed by both houses of Parliament. Several curbs on the right property were passed.
The right to equality before the law and equal protection of the laws (Article 14) and the fundamental freedoms guaranteed under Article 19 were made subordinate to Article 39 (b) & (c) in the Directive Principles of State Policy. And the land laws in were placed the Ninth Schedule of the Constitution to effectively remove them from the scope of judicial review. The question of what amounts to an excess i. e. overlapping of jurisdictions of both organs of the state was the basis for action in the landmark judgment in the case Keshvananda Bharti vs. State of Kerala the main point for consideration before the Court, in this case, was regarding the extent of the amending power conferred by Article 368 of the Constitution. It was contended that the Parliament was “supreme” and sovereign and represented the will of the people.
If these representatives of the people passed or changed a law that would curb the power of the Judiciary then the latter had no right to claim that such an action was unconstitutional. But the Supreme Court thought otherwise and delivered the judgment in favour of the appellants and laid down that there were certain features of the Constitution that formed its basic structure, one of them being the doctrine of Separation of Powers, and this basic structure cannot be amended. As per this ruling, there was no longer any need for ambiguity as the doctrine was expressly recognized as a part of the Indian Constitution, unalterable even by an Act of Parliament. Thus, the doctrine of separation of powers was incorporated, in its essence, into the Indian laws.
In a subsequent case law, the Supreme Court had the opportunity to apply the Keshvananda ruling regarding the non-amenability of the basic features of the constitution, and a strict adherence to the doctrine of separation of powers can be seen from the same. In Indira Gandhi Nehru vs. Raj Narain, the dispute was regarding the validity of the election of thenthen Prime Minister Smt. Indira Gandhi. The Allahabad High Court found the claim into alleged violations i. e. violation of the election code and misuse of power during her election campaign, by the appellant to be valid and hence canceled her candidature.
A cross-appeal was filed and meanwhile, the Parliament passed the Thirty-ninth Amendment to the Constitution which sought to remove the authority of the Supreme Court to adjudicate petitions regarding elections of the President, Vice President, Prime Minister, and Speaker of the Lok Sabha. Instead, a body constituted by the Parliament would be vested with the power to resolve such election disputes. Amendments were also made to the Representation of Peoples Acts of 1951 and 1974 and placed in the Ninth Schedule along with the Election Laws Amendment Act, of
1975. This was done to validate with retrospective effect the election of the then Prime Minister.
The Thirty-ninth Amendment was upheld but a part of it was struck down on the ground that it curbed the power of the judiciary to adjudicate in the current election dispute and also on the ground that it violated the free & fair elections which was an essential of a democracy. Mrs. Gandhi's election was declared valid based on the amended election laws. The judges grudgingly accepted Parliament's power to pass laws that have a retrospective effect. In B. R. Enterprises vs. State of U. P. , the Supreme Court thought that the first attempt should be made by the courts to uphold the charged provisions and not to invalidate it merely because one of the possible interpretations leads to such a result, however attractive it may be. Thus, where there are two possible interpretations, one invalidating the law and the other upholding, the latter should be adopted.
For this, the courts have been endeavoring, sometimes to give restrictive or expansive meaning keeping in view the nature of the legislation. Cumulatively, it is to sub-serve the object of the legislation. The old golden rule is of respecting the wisdom of the legislature, that they are aware of the law and would never have intended for an invalid legislation. This also keeps the courts within their track and checks. Yet despite this, if the impugned legislation cannot be saved, the courts shall not hesitate to strike it down. Here the courts have to play a cautious role in weeding out the wild from the crop, of course, without infringing the Constitution. The principle of reading down, however, will not be available where the plain and literal meaning from a bare reading of any impugned of any impugned provision clearly shows that it confers arbitrary or unbridled power.
In Union of India v. K. M. Shankarappa, the Supreme Court held that the provision for revision by the Central Government of decisions of the Appellant Tribunal under Section 6 (1) of the Cinematograph Act, 1952 is unconstitutional. The Supreme Court observed: “The Government has chosen to establish a quasi-judicial body which has been given the powers, inter alia, to decide the effect of the film on the public. Once a quasi-judicial body like the Appellate Tribunal gives its decision, that decision would be final and binding so far as the executive and the government are concerned. To permit the executive to review or revise that decision would amount to interference with the exercise of judicial functions by a quasi-judicial board. ” In the landmark judgment of P. U. C. L v.
Union of India Justice Shah observed: “The legislature in this country has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the courts. The legislature may remove the defect, which is the cause for invalidating the law by the court by appropriate legislation if it has power over the subject matter and is competent to do so under the Constitution. The primary duty of the judiciary is to uphold the Constitution and the laws without fear or favour, without being biased by political ideology or economic theory. Interpretation should align with the constitutional provisions, which envisage a republic democracy. ” In J. P. Banal vs. State of Rajasthan, it was observed by the Supreme Court that it was true that the court in interpreting the Constitution enjoyed the freedom that was not available in interpreting a statute.
It endangered continued public interest in the impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provided their preferred amendments to statutes whose experience of their operation has shown to have had consequences that members of the court before whom the matters come to consider to be injurious to the public interest. Where the words are clear, there is no obscurity, there is no ambiguity and the intention of the legislature is conveyed, there is no scope for the court to innovate or to take upon itself the task of amending or altering the statutory provisions. In that situation, the court should not proclaim that it is playing the role of a lawmaker merely for an exhibition of judicial valor. It has to be remembered that there is a line, though thin, which separates adjudication from legislation.
That line should not be crossed or erased. In Delhi Development Authority vs. M/S UEE Electricals Engineering Pvt. Ltd, the Supreme Court dealt with the judicial review of administrative action in detail. The court observed: “One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is “illegality”, the second “irrationality”, and the third “procedural impropriety”. Courts are slow to interfere in matters relating to administrative functions unless the decision is tainted by any vulnerability such as lack of fairness in the procedure, illegality, and irrationality. Whether action falls into any of the categories has to be established. The mere assertion in this regard would not be sufficient.
The law is settled that in considering challenges to administrative decisions courts will not interfere as if they are sitting in appeal over the decision. He who seeks to invalidate or nullify any act or order must establish the charge of bad faith, abuse, or misuse by the authority of its powers. It cannot be overlooked that the burden of establishing mala fide is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility”. Recent Developments The issue of the relative jurisdictional boundaries of the organs of the State has acquired a new dimension in the recent period in the context of coalition politics.
During state elections in early 2005, in Jharkhand, the swearing-in ceremony was conducted by the Government with a member of the Union Cabinet as the head. This person was also allowed to prove his majority in the house. The opposition parties, which claimed that they had a majority, filed a writ petition in the Supreme Court which in turn, immediately gave orders to the Speaker of the Assembly to extend the session by a day and conduct a floor test between the contending political alliances. In light of the court’s verdict, the earlier government decided to tender its resignation on the advice of the central government. An alternative government was set up by the other parties who were able to prove their majority in the Assembly.
The directions of the Supreme Court to the Speaker of the Jharkhand Assembly raised a legal storm, as these were interpreted by several experts as intruding into an area that was within the jurisdiction of the legislature. This view was also endorsed by an Emergent Conference of the Presiding Officers of Legislative Bodies of India which was convened at short notice on 20 March 2005 to deliberate on the Constitutional issue arising from the verdict of the Supreme Court. In no uncertain terms, the Presiding Officers expressed their concern over “such orders passed by the courts repeatedly which tend to disturb the delicate balance of power between Judiciary and Legislature and appear to be a transgression into the independence of the Parliamentary System of our Country”.
On 23rd May 2005, the controversy relating to the Supreme Court directions in the Jharkhand case acquired a new dimension. This time, it related to the action taken by the President of India to dissolve the Bihar assembly on the recommendation of the Governor of the state, and the advice of the Union Cabinet. Over the previous few months, the state was under President’s rule, and the Assembly was in suspended animation as no party or combination of parties had emerged with a clear majority in the earlier elections in February
2005. The legislators belonging to some minority parties had become restive, and there were
strong rumors that some of them were likely to join a coalition of parties that were opposed to the previous ruling party (the Rashtriya Janata Dal) in the state, which was a member of the ruling coalition at the center. On grounds of alleged “horse-trading” among legislators, the Governor suddenly decided to recommend dissolution of the assembly to the Union Cabinet, and through it, to the President, who was then on a state visit to Moscow. The recommendation was duly accepted late at night in Moscow and the assembly was dissolved. Some of the affected legislators filed a case against the action taken by the executive branch.
The center’s legal position in this case, as filed in an affidavit before the Supreme Court was that “the Court is not to inquire – it is not concerned with – whether any advice was tendered by any minister or council of Ministers to the President, and if so, what was that advice. That is a matter between the President and his council of Ministers”. In other words, according to the government’s view, the Council of Ministers could advise the President to pass any order (irrespective of its merits); the President had no option but to accept that advice under the Constitution; and the Court had no right to examine whether the action of the executive was legal or not. After hearing the arguments, in October 2005, the Supreme Court gave a summary verdict declaring the action of the government to dissolve the Bihar assembly as being “unconstitutional” and unreasonable.
The Court, however, did not order the revival of the old assembly as fresh elections had already been announced by the Election Commission and were scheduled to take place after a few days. The Court’s verdict caused considerable public embarrassment to the government since the decision to dissolve the Assembly was taken by the President at very short notice on the advice of the Union Cabinet. One of the recent judgments, in which the doctrine of basic structure was once again in question, is I. R. Coelho v.
State of Tamil Nadu wherein it was held that the validity of any Ninth Schedule Law that has already been upheld by the Apex Court would not be open to challenge again, but if a law is held to be violative of fundamental rights incorporated in the Ninth Schedule after the date of the judgment in the Keshvananda Bharti case, then such violation would be open to challenge that it destroys the basic structure of the Constitution. Thereby, this previously protected portion of the Constitution was also brought under the ambit of the Basic structure theory and the Golden triangle comprising Art. 14, 19, and 21, making laws placed under it amenable to judicial review. BROAD SEPARATION OF POWER Under Article 75, Clause 3 of the Constitution of India, the Council of Ministers shall be collectively responsible to the House of the People. This is a clear example that shows that the executive, i. e.
the Council of Ministers, must be answerable and accountable to the legislature, i. e. the House of People. On the other hand, the legislature is not accountable to an executive, as the legislature is the House of the People, elected by the people and for the people. It faces the common people regularly, but the executive does not directly face them. The judiciary is not accountable because the basic structure of the constitution supports an independent judiciary. If the judiciary were made accountable and responsible to the legislature, then there would be no independence for the judges to make their decisions based on their discretion in certain matters where the law doesn't lay down any provisions. Federal Polity is one of the basic structures of the Indian Constitution. India follows a federal form of Government, which means it has more than one form of government.
Federalism is the division of powers between the Centre and the State Governments. India now has 29 states and a single Central Government. If in any case there is a dispute between the Central and the State, then the federal polity acts as an independent judiciary, unbiased to both the Governments. Federal Polity leads to an Independent Judiciary, which can be determined in two ways:
1) There is security in the tenure of the judges without the fear of the outcomes of their
decisions.
2) The salaries of the judges are fixed regardless of the decisions made.
IN USA
In the process of creating its Constitution, the principle of separation of powers was adopted in the United States. The President holds executive authority, Congress has legislative authority, and the Supreme Court and the courts under it have judicial authority. The formation of administrative law in the United States has been significantly influenced by the theory of separation of powers. The United States was the first nation to explicitly incorporate the notion of separation of powers into its Constitution. It was strictly and unconditionally approved. However, the idea has been applied with a considerable amount of flexibility over the years. According to the majority opinion among jurists and academics, rigid adherence to the concept would have prevented the country's administrative law from expanding and developing, which would have made modern governance extremely challenging.
It is usually said that the principle of separation of powers finds a strong mention in the United States Constitution, although the Federal Constitution of the United States of America does not expressly provide for the principle of separation of powers. Relying on the doctrine of Montesquieu, Madison, observed; “The accumulation of all powers legislative, executive, and judicial, in the same hands whether of one, a few, or many and whether hereditary, selfappointed or elective, may justly be pronounced the very definition of tyranny. ” The same ideas were expressed by Hamilton in 1788. In the American Constitution, we find that legislative, executive, and judicial powers are vested in separate entities. Section 1 of Article I declares: “All legislative powers herein granted shall be vested in a Congress of the United States”.
Section 1 of Article II says: “The executive power shall be vested in a President of the United States of America. ” Section 1 of Article III reads - “The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. ”
In America, the President is the head of the executive. The President has the power to vote on bills passed by Congress, and such bills cannot become law unless they are subsequently passed again by each House with a two-thirds majority. The veto power vested in the President is considered legislative. The President also exercises legislative power in making treaties regarding foreign affairs. Additionally, the President provides information on the state of the Union to Congress. Congress has powers to interfere with the President’s powers, such as casting votes on the Budget and playing an important role in the ratification of treaties and appointments through its senators. Congress also has judicial powers, as each house may expel its members by a two-thirds vote or punish them for "disorderly behavior.
" American judges may be removed from office only by impeachment proceedings instituted before Congress. The Courts have supervisory control over both the Congress and the President through judicial review. While the legislature enacts the law, the Courts have the role of creating laws when dealing with new problems where the law is silent. Chief Justice Hughes once said, "The Constitution is what the judges say it is. ” Most of the amendments incorporated in the American Constitution have been made by the American Supreme Court, showing that there is also no rigid personal separation of powers in the U. S. A. STRICT SEPARATION OF POWER In the USA, there is a strict separation of powers to ensure a system of checks and balances. This system helps prevent one branch of government from becoming too powerful and protects individual rights. The U. S.
Constitution establishes three independent but equal branches of government: the judicial branch, which interprets the law, and the executive branch, which proposes and enforces laws. The Framers set up the government in this manner to prevent one branch of government from becoming overly strong and to establish a system of checks and balances. The Judicial Branch- The United States Supreme Court ruled in 2012 that the Act violated the First Amendment's guarantee of freedom of speech, deeming it unconstitutional. The Executive Branch- Within a month of the Supreme Court's ruling, the Executive Branch, the Pentagon, and the President took action to establish a government-funded national database of medal citations. This database would be phased in over time and would allow for the verification of military decorations.
The Legislative Branch- Congress responded with legislation less than a year after the Alvarez decision, aiming to address the constitutional issues with the 2005 legislation that the Supreme Court had ruled in U. S Vs. Alvarez violated the First Amendment. COMPARISON OF THE DOCTRINE OF CHECKS AND BALANCES IN INDIA AND THE USA A comparison of the Constitutions of India and the US shows that while neither country provides for a strict separation of powers, the theoretical separation of powers under the US Constitution is stricter than that under the Indian Constitution. Although the separation of powers is not explicitly stated in either constitution, it is likely implied by various clauses. The key difference lies in the leadership style of the president and the executive. In the US, the administration has more power over the legislative branch compared to India.
The president in the US, as the actual executive head, operates independently within constitutional parameters and is not answerable to the legislature. In India, the president is the proclaimed head of state, with the council of ministers providing guidance and counsel while the prime minister, considered the actual head, has the authority to dissolve parliament. Another important difference is that the US Constitution guarantees complete personnel separation between the three branches of government, while the Indian Constitution does not include such a provision. Despite similarities in the application of the theory in both countries, some variances should not be ignored. Both countries have adopted structures that best suit their respective social and historical contexts. India - The President is the head of state, while the Prime Minister is the head of government.
- The President is elected by an electoral college, while the Prime Minister is chosen by the majority party in Parliament. - The President has ceremonial powers, while the Prime Minister has executive powers. - The Parliament consists of the Rajya Sabha (Council of States) and the Lok Sabha (House of the People). - The Supreme Court has the power of judicial review. USA
The President is both the head of state and the head of government. - The President is elected by the Electoral College.
The President has executive powers, while the Congress makes laws. - The Congress consists of the Senate and the House of Representatives. - The Supreme Court has the power of judicial review.
CONCLUSION
SUGGESTIONS TO IMPROVE THE DOCTRINE IN INDIA: - The following suggestions to improve the doctrine of checks and balances in India:
1 Strengthen the independence of institutions
Ensure that institutions such as the judiciary, election commission, and anti-corruption bodies are independent and free from political interference.
2 Enhance transparency and accountability
Promote transparency in the government's functioning by implementing mechanisms such as the Right to Information (RTI) and whistleblower protection laws.
3 Empower the legislature
Provide the legislature with more resources, research support, and expertise to effectively scrutinize and hold the executive accountable.
4 Strengthen oversight mechanisms
Establish robust oversight mechanisms, such as parliamentary committees, to monitor the functioning of the executive and ensure accountability.
5 Promote citizen participation
Encourage citizen engagement in decision-making through public consultations, participatory budgeting, and citizen initiatives. However, these are just some suggestions. The actual implementation would require careful consideration and consensus among various stakeholders. SUGGESTIONS TO IMPROVE THE DOCTRINE IN THE USA To improve the doctrine of checks and balances in the USA, several steps could be considered:
1 Strengthen the role of Congress
Ensure that Congress exercises its oversight responsibilities effectively by holding the executive branch accountable and conducting thorough investigations.
2 Enhance transparency and ethics
Implement stricter regulations on lobbying, campaign finance, and conflicts of interest to reduce the influence of money in politics and promote ethical behavior.
3 Promote bipartisanship
Encourage collaboration and compromise between political parties to prevent excessive polarization and promote balanced decision-making.
4 Strengthen judicial independence
Safeguard the independence of the judiciary by ensuring appointments are based on merit and not influenced by political considerations.
5 Increase civic education and engagement
Promote civic education to enhance citizens’ understanding of the importance of checks and balances and encourage active participation in the democratic process. These are just a few suggestions, and implementing them would require careful consideration and consensus among various stakeholders. In conclusion, the three organs of the state, i. e. the Legislative, the Executive, and the Judiciary do not function in isolation. The doctrine of checks and balances is vital to democratic systems like India and the USA. It ensures that no single branch of government becomes too powerful and helps maintain accountability and transparency. By strengthening the independence of institutions, promoting transparency and citizen participation, and fostering collaboration among branches, we can further enhance the effectiveness of checks and balances.
It is an ongoing process that requires continuous efforts to uphold the principles of democracy and protect the rights and interests of the people.
References
www.jstor.org www.blog.ipleaders.in www.lexforti.com https://legislative.gov.in/constitution-of-india/ https://www.whitehouse.gov/about-the-white-house/our-government/the-judicial-branch/ https://legalserviceindia.com/legal/article-7695-legal-profession-in-india-evolution-historicaldevelopment-and-regulations.html https://www.scconline.com https://www.manupatrafast.com Constitution of India – M.P. Jain Jurisprudence – V.N. Shukla Constitution of India – Bare Act
A New Introduction to Jurisprudence - Paul Cliteur, Afshin Ellian