Structure, organization and functioning of the Executive and the Judiciary

<<–2/”>a >h4 style=”text-align: center;”>Union Executive:-President

The Union executive consists of the President, the Prime Minister and the Council of Ministers.

Powers and functions of The President of India

The President is the head of the Indian State. He is the first citizen of India and acts as the symbol of unity, Integrity and solidarity of the nation. ARTICLE 52 of our constitution provides for a President of India .

Article53 (1) says that the executive power of the union shall be vested in the President and shall be exercised by him either by directly or through officers subordinate to him in the constitution.

Article 53(2) declares the President as the supreme commander of the defence forces and exercise of his power would be regulated by law.

Executive Powers of President: The Constitution of India vests the executive powers of the Union in the President.

He/She appoints the Prime Minister, who is the leader of the majority party or group of parties having majority in the lower house, the Lok Sabha.
He/She also appoints other members of the Council of Ministers on the recommendations of the Prime Minister.
All executive actions of the Union must be expressed to be taken in the name of the President.
He/She also appoints Governors in the States, the Attorney General of India, the Comptroller and the Auditor General of India, the Ambassadors and High Commissioners as well as the Administrators of the Union Territories.
He/She also appoints the Chairman and Members of the Union Public Service Commission as well as the Chief Justice and Judges of The Supreme Court and the High Courts.
The President is the supreme commander of the Armed Forces and appoints the Chiefs of the three wings, Army, Airforce and Navy.

Legislative Powers of the president

President summons both the Houses of the Parliament for sessions.
President also prorogues the sessions.
President is also responsible for dissolving the Lok Sabha.
The first session of each year and the first session of newly elected Lok Sabha after the general Elections begin with the address of the President.
President can nominate two members in the Lok Sabha belonging to the Anglo Indian community.
President has the power to send messages to the Parliament.
President can nominate 12 members to the Rajya Sabha.
President submits the reports of UPSC, Finance Commission etc. to the Parliament. the assent of the President. To introduce certain bills in the
No bill can become a law without Parliament, prior permission of the President is required. E.g. Money bills.
President possesses Veto power.
President has Ordinance making power under Article 123.

Financial Powers of the president

All money bills are introduced in the Lok Sabha only with the prior approval of the President.
The President has the control over Contingency Fund of India. It enables her to advance
money for the purpose of meeting unforeseen expenses.
Annual budget and railway budget are introduced in the Lok Sabha on the recommendation of the President.
The President appoints the Finance Commission after every five years. It makes recommendations to the President on some specific financial matters, especially the distribution of Central taxes between the Union and the States.
The President also receives the reports of the Comptroller and Auditor-General of India, and has it laid in the Parliament.

Diplomatic Powers of the president:

The President has the power of appointing Indian Ambassadors to other countries
He receives ambassadors, High Commissions and diplomatic envoys from foreign Nations.
All treaties and international agreements are concluded in the name of the President.
The president represents India in International Conferences.

Judicial Powers of the president

The President, as head of state, can pardon a criminal or reduce the punishment or suspen cummute or remit the sentence of a criminal convicted by the Supreme Court or High Courts for an offence against the federal laws.
Presidents pardoning power comprises of Pardon, reprieve, remission, respite and commutation.
The President can pardon a person convicted by a Court Martial. His/her power of pardon includes granting of pardon even to a person awarded death sentence. But, the President performs this function on the advice of Law Ministry.
Advisory Jurisdiction under Article 143 also comes under judicial powers of the President.

Emergency Powers of the president:-

Article 352: Proclamation of Emergency – due to external intrusion or war the President of India can declare a state of emergency through a Proclamation. This Article suggests that such a Proclamation can be revoked or a varied Proclamation can also be issued. However, the decision of the Cabinet ministers to issue such a proclamation must be sent to the President in written form prior to his issuance of the same. According to the Article, all such Proclamations should be presented to both the Houses of the Parliament. The Proclamations, if not accepted by a resolution, will be counted as ineffective after one month. If the Proclamation is not accepted after the passing of a second resolution, then it will become ineffective after the expiry of 6 months of the second resolution. It is also mentioned in the Article that not less than two-thirds of the members of any of the Parliamentary Houses should be required to pass a resolution. There are certain rules specified in this Article regarding the President revoking or issuing a varied Proclamation during Emergency.
Article 353: Effect of Proclamation of Emergency – this Article states that the Proclamation of Emergency includes extending the executive power of the union to the states in the form of directions. The Parliament, as per this Article, can confer the power to make laws, upon the officers or authorities of the Union.
Article 354: Application of provisions relating to distribution of revenues while a Proclamation of Emergency is in operation – provisions made under Articles 268 to 279 can be modified or exceptions can be made by the President of India by an Order while the Proclamation period of emergency is going on. Information about all such Orders must be conveyed to both the Houses of Parliament.
Article 355: Duty of the Union to protect States against external aggression and internal disturbance – this Article states the fact that the Union or Center is solely responsible for defending the various states from all types of violence and aggressions erupting from outside and disturbances occurring within the nation’s territory.
Article 356: Provisions in case of failure of constitutional machinery in States – the President of India can take charge of a state if the reports submitted to him by the Governor suggest that the government of the state has become incapable of exercising the Constitutional powers. The President is also subjected to exercise the powers of the government of such state by Proclamation. The Proclamation issued under such circumstances become ineffective after 6 months from the date of issuance, if not revoked during this time period. All such Proclamations have to be presented to both the Houses of Indian Parliament and will expire after two months. The Legislative powers of such state shall also be exercised by the Parliament. In the Houses of Parliament there are certain rules and regulations regarding the expiry of the Proclamation and the time period normally depends upon the fact whether it has been revoked earlier or not.
Article 357: Exercise of legislative powers under Proclamation issued under article 356 – the powers of the Legislature shall be exercised by the Parliament during emergency. The Parliament has the right to delegate Legislative powers to the President of India or any such authority. The President of India, after the Proclamation of Article 356, can make laws and shall have access to the consolidated fund during the time period when the House of the People is not in operation.
Article 358: Suspension of provisions of article 19 during emergencies – any provision under Article 19 will not be effective during emergency and the states can make law and undertake executive action. However, only those laws and executive actions containing recital related to emergency during the Proclamation of Emergency are effective as per the Article.
Article 359: Suspension of the enforcement of the rights conferred by Part III during emergencies – the President of India can suspend all ongoing proceedings in any court of the nation during emergencies by an Order. The President can also call upon all pending court proceedings in case of emergencies. All such orders declaring the suspension of court proceedings have to be submitted to both the Houses of Parliament.
Article 360: Provisions as to financial emergency – a declaration shall be made by the President of India through a Proclamation regarding the financial crisis of the nation if such situation arises. Such a Proclamation can be revoked and has to be presented in both the Houses of the Parliament. The Proclamation thus issued will become null and void after two months if the same is not approved through a resolution passed by the Houses of Parliament. In case the Houses are not in session the Article suggests certain specific guidelines regarding the Proclamation. This Article also includes provisions relating to the salary and allowance reduction of those who are employed with Union and state departments. A provision relating to money bills and other Financial Bills passed by the State Legislature is mentioned in the Article. This provision states that all such bills have to be considered by the President during financial instability.

Table of Contents

Vice President

Vice-President performs a dual role : (1) as Vice-President (2) as the Chairman of Rajya Sabha. The Vice-President is the ex-officio Chairman of Rajya Sabha which means that whosoever is the Vice-President, he/she presides over the Rajya Sabha and performs normal duties of a presiding officer. These include maintenance of order in the House, allowing members to speak and ask questions, and putting bills and motions to vote.

He/She is elected by an electoral college which consists of the members of both Houses of the Parliament. He/She is

elected according to the system of Proportional Representation by means of a single transferrable vote, and the voting is by secret ballot.

The Vice-President can be removed from his office by a resolution of the Rajya Sabha passed by its members and agreed by Lok Sabha. At least fourteen days’ notice is necessary before such resolution is moved.

The Vice-President is the ex-officio Chairman of Rajya Sabha which means that whosoever is the Vice-President, he/she presides over the Rajya Sabha and performs normal duties of a presiding officer. These include maintenance of order in the House, allowing members to speak and ask questions, and putting bills and motions to vote. Since the Vice-President is not a member of the Rajya Sabha, he/she cannot vote in the House. But, in case of a tie (Equality of votes in favour and against a bill), the Vice President exercises his/her casting vote so that a decision can be reached.

If ever a vacancy arises in the office of President, due to death, resignation or impeachment, the Vice-President officiates as the President for not more than six months (see above). During that period, he enjoys all powers of the President, and does not preside over the House when he officiates as President.

In case the President is temporarily unable to discharge his/her functions, the Vice-President may be called upon to discharge his/her functions, without becoming officiating President.

Prime Minister and the Council of Ministers

The executive powers of the President are exercised by the Council of Ministers. The Constitution provides that “there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the excercise of his functions”. Here the word “shall” indicates that the President cannot function without the Council of Ministers. The President is the constitutional head of State, but the real Head of the government is the Prime Minister.

The Constitution of India provides for a parliamentary System of Government and, therefore, divides the executive into two parts: the nominal and real executive. The President of India is the nominal executive and the Council of Ministers is the real executive which works under the Leadership of Prime Minister. Article 74, 75, and 78 of the constitution provide for provisions relating to the council of Ministers and the Prime Minister.

The Prime Minister shall be appointed by the President and other Ministers shall be appointed by the President upon the advice of the Prime Minister. The Ministers hold office during the pleasure of the President. The council of Ministers shall be collectively responsible to the Lok Sabha. A minister who for any period of six consecutive months is not a member of the Parliament shall at the expiration of that period cease to be a Minister.

The Prime Minister being the head of the Council of Ministers, selects the Ministers to be sworn in by the President. The Ministers in fact are chosen by the Prime Minister and remain Ministers as long as they enjoy the confidence of the Prime Minister. The Prime Minister distributes portfolios among Ministers. The President can change the portfolios as and when he desires. The Prime Minister can drop a Minister or ask for his/her resignation. The Prime Minister presides over the meetings of the Cabinet and conducts its proceedings. As head of the Cabinet, he/she largely influences the decisions of the Cabinet. The Prime Minister co-ordinates the working of various ministers.

The Prime Minister, as the leader of the Lok Sabha, is also the leader of the Parliament. In the capacity as the leader of the majority party it is he who decides, in consultation with the Speaker, the complete agenda of the house. The summoning and proroguing of the house is decided upon by him. He can address each house of the Parliament but can vote only in the house to which he belongs. The Prime Minister has the most effective power to ask for Dissolution of the Lok Sabha.

The Prime Minister is the Ex-officio Chairman of the Planning Commission (Now Niti Ayog) as well as of the National Development Council. He/She represents the nation at the international conferences as the head of the government.

Constitution of India states that “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice: Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.”

Union Judiciary : The Supreme Court ; its role and powers

The Supreme Court is the highest court of The Indian Republic. Judiciary, the third organ of the government, has an important role to play in the governance. It settles the disputes, interprets laws, protects Fundamental Rights and acts as guardian of the Constitution. India has a single unified and Integrated Judicial System and that the Supreme Court is the highest court in India.

The promulgation of Regulating Act of 1773 by the King of England paved the way for establishment of the Supreme Court of Judicature at Calcutta. The Letters of Patent was issued on 26 March 1774 to establish the Supreme Court of Judicature at Calcutta, as a Court of Record, with full power & authority to hear and determine all complaints for any crimes and also to entertain, hear and determine any suits or actions against any of His Majesty’s subjects in Bengal, Bihar and Orissa. The Supreme Courts at Madras and Bombay was established by King George – III on 26 December 1800 and on 8 December 1823 respectively.

Federal Court of India was established under the Government of India Act 1935. The Federal Court had jurisdiction to solve disputes between provinces and federal states and hear appeal against Judgements from High Courts.

After India attained independence in 1947, the Constitution of India came into being on 26 January 1950. The Supreme Court of India also came into existence and its first sitting was held on 28 January 1950.

The Chief Justice and other judges of the Supreme Court are appointed by the President of India. While appointing the Chief Justice, the President is constitutionally required to consult such other judges of the Supreme Court as he deems proper, but outgoing Chief Justice is always consulted. Normally, the senior most judge of the Supreme Court is appointed as the Chief Justice of India, although there is no constitutional requirement to do so. While appointing other judges, the President is bound to consult the Chief Justice and other senior judges, if he deems proper.

The original Constitution of 1950 envisaged a Supreme Court with a Chief Justice and 7 puisne Judges – leaving it to Parliament to increase this number.

According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal. Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. Primarily, it is an appellate court which takes up appeals against judgments of the High Courts of the states and territories.

The Supreme Court is a Court of Record. It has two implications. All its decisions and judgments are cited as precedents in all courts of the country. They have the force of law and are binding on all lower Courts, and indeed the High Courts. As a Court of Record, the Supreme Court can even send a person to jail who may have committed contempt of the court.

As a Federal Court: Supreme Court is the Federal Court of India, India being a federation; powers are divided between the Union and State governments. The Supreme Court of India is the final authority to see to it that the Division of Powers as specified in the constitution is obeyed by both the Union and the State governments. So, Article 131 of the Indian Constitution vests the Supreme Court with original and exclusive jurisdiction to determine the justiciable disputes between the Union and the States or between the States.

Interpreter of the Constitution and Law: The responsibility of interpreting the constitution rests on the Supreme Court. The interpretation of the constitution which the Supreme Court shall make must be accepted by all. It interprets the constitution and preserves it. Where a case involves a substantial question of law as to the interpretation of the constitution either certified by the High Court or being satisfied by the Supreme Court itself, an appeal shall lie to the Supreme Court for interpretation of the question of law raised.

As a Court of Appeal: The Supreme Court is the highest court of appeal from all courts in the territory of India. Appeal lies to the Supreme Court of the cases involving interpretation of the constitution. Appeals in respect of civil and criminal cases also lie to the Supreme Court irrespective of any constitutional question.

Advisory Role: The Supreme Court has an advisory jurisdiction in offering its opinion an any question of law or fact of public importance as may be referred to it for consideration by the President.

Guardian of the Constitution: The Supreme Court of India is the guardian of the constitution. There are two points of significance of the Supreme Court’s rule as the protector and guardian of the constitution.

First, as the highest Federal Court, it is within the power and authority of the Supreme Court to settle any dispute regarding division of powers between the Union and the States.
Secondly, it is in the Supreme Court’s authority to safeguard the fundamental rights of the citizens.

In order to discharge these two functions it is sometimes necessary for the Supreme Court to examine or review the legality of the laws enacted by both the Union and the State Governments. This is known as the power of Judicial Review. Indian Supreme Court enjoys limited Power of Judicial Review.

Writ Jurisdictions: Under Article 32 of the constitution of Supreme Court can issue Writs for the enforcement of fundamental rights. These writs are in the nature of Habeas Corpus, Mandamas, Prohibition, and Quo-Warranto Certiorari.

Power of Judicial Review and Supreme Court: The power of the Judiciary to examine the validity of such law is called Judicial Review. The Supreme Court of India enjoys limited power of Judicial Review. Judicial Review empowers the courts to invalidate laws passed by the legislature. Supreme Court of India also enjoys the power of Judicial Review. If it occurs to the Supreme Court that any law enacted by Parliament or by a State Legislature curbs or threatens to curb the citizen’s fundamental rights, the Supreme Court may declare that law as unlawful or unconstitutional.

High Court: Organization, Powers and functions

The India High Courts Act 1861 was enacted to create High Courts for various provinces and abolished Supreme Courts at Calcutta, Madras and Bombay and also the Sadar Adalats in Presidency towns. These High Courts had the distinction of being the highest Courts for all cases till the creation of Federal Court of India, which was established under the Government of India Act 1935.

Art-214 of the constitution provides that, “There shall be a High Court for each state” Art-231 further provides that , “Parliament may by law establish a common High court for two or more states and a union territory.” At present for example there is a common High court for the states of punjab, Haryana and Union Territory of Chandigarh. Similarly. There is Common High court for Assam, Nagaland, Manipur, Meghalaya, Tripura and Mijoram.

A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and—

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in SUCCESSION;

A High Court judge may be removed before he or she attains the age of 62 years, only on the ground of incapacity or proved misbehaviour. He or she may be removed if both the Houses of Parliament adopt a resolution by a majority of their total membership and by two thirds majority of members present and voting, separately in each House in the same session. Such a resolution is submitted to the President, who then can remove the concerned judge.

The jurisdiction of the High court can basically be divided into-

(a) Original Jurisdiction and (b) Appellate Jurisdiction

(a) Original Jurisdiction:The original jurisdiction of the High Courts is very limited.

(i) Cases related to Fundamental rights.(Can even issue writs for legal rights)

(ii) Constitutional jurisdiction.

(iii) Power of judicial review

(iv) The cases related to matters such as will, divorce, Contempt of Court.

(v) Election disputes.

(b) Appellate Jurisdiction:When a High Court hears an appeal against the decision of a lower court, it is called Appellate Jurisdiction.The High Court can hear appeals against the decisions of the lower Courts in the following cases:

(i) Civil cases

(ii) Appeals in revenue cases against the decision of the revenue board.

(iii) In cases related to succession,insolvency, patent, Design etc.

2. appeal in criminal cases-

(i) If the session judge has awarded imprisionment for seven year or more.

(ii) where the session judge has awarded capital punishment.

3. Constitutional Cases– if the high court certify that perticular cases is fit for appeal before itself and involves a substantial question of law.

Administrative powers

It supervises and superintends the working of all the courts subordinate to it.
It makes rules and regulations for the court subordinate to it and cun change such law.
It can transfer any case from one court to another court
It can investigate or enquire in to the record or anotherconnected documentsof any court subordinate to it.

Subordinate Judiciary

Articles 233 to 237 in Part VI of the Constitution make the following provisions to regulate the organization of Subordinate Courts and to ensure their independence from the executive . Articles 233 to 237 in Part VI of the Constitution make the following provisions to regulate the organization of subordinate courts and to ensure their independence from the executive .

The framework of the current legal system has been laid down by the Indian Constitution , which states for an integrated and uniform judiciary system and the judicial system derives its powers from it. There are various levels of judiciary in India— different types of courts, each with varying powers depending on the tier and jurisdiction bestowed upon them. They form a hierarchy of importance, in line with the order of courts in which they sit, with the Supreme Court of India at the top, followed by High Courts of respective states with District Judges sitting in District Courts and Magistrates of Second Class and Civil Judge (Junior Division) at the bottom.

Type of cases

Civil cases pertain to disputes between two or more persons regarding property, breach of agreement or contract, divorce or landlord – tenant disputes. Civil Courts settle these disputes. They do not award any punishment as violation of law is not involved in civil cases.
Criminal cases relate to violation of laws. These cases involve theft, dacoity, rape, pickpocketing, physical assault, murder, etc. These cases are filed in the lower court by the police, on behalf of the state, againt the accused. In such cases the accused, if found guilty, is awarded punishment like fine, imprisonment or even death sentence.
Revenue cases relate to land revenue on agriculture land in the district.

The District Courts of India are presided over by a judge. They administer justice in India at a district level. These courts are under administrative and judicial control of the High Court of the State to which the district concerned belongs.

The highest court in each district is that of the District and Sessions Judge. This is the principal court of civil jurisdiction. This is also a court of Sessions. Sessions-triable cases are tried by the Sessions Court. It has the power to impose any sentence including capital punishment.

There are many other courts subordinate to the court of District and Sessions Judge. There is a three tier system of courts. On the civil side, at the lowest level is the court of Civil Judge (Junior Division). On criminal side the lowest court is that of the Judicial Magistrate. Civil Judge (Junior Division) decides civil cases of small pecuniary stake. Judicial Magistrates decide criminal cases which are punishable with imprisonment of up to five years.

At the middle of the hierarchy there is the Court of Civil Judge (Senior Division) on the civil side and the Court of the Chief Judicial Magistrate on the Criminal side. Civil Judge (senior division) can decide civil cases of any valuation. There are many additional courts of Additional Civil Judge (senior division).The Jurisdiction of these addition courts is the same as that of the principal court of Civil Judge (Senior Division). The Chief Judicial Magistrate can try cases which are punishable with imprisonment for a term up to seven years. Usually there are many additional courts of Additional Chief Judicial Magistrates. At the top level there may be one or more courts of additional district and sessions judge with the same judicial power as that of the District and Sessions judge.

The Judiciary plays a very important role as a protector of the constitutional values that the founding fathers have given us. They try to undo the harm that is being done by the legislature and the executive and also they try to provide every citizen what has been promised by the Constitution under the Directive Principles of State Policy. All this is possible thanks to the power of judicial review.

All this is not achieved in a day it took 50 long years for where we are right now, if one thinks that it is has been a roller coaster ride without any hindrances they are wrong judiciary has been facing the brunt of many politicians, technocrats, academicians, lawyers etc. Few of them being genuine concerns, and among one of them is the aspect of Corruption and power of criminal contempt. In this paper I would try to highlight the ups and downs of this greatest institution in India.

The Rule of Law is the bedrock of Democracy, and the primary responsibility for implementation of the rule of law lies with the judiciary.1 This is now a basic feature of every constitution, which cannot be altered even by the exercise of new powers from parliament. It is the significance of judicial review, to ensure that democracy is inclusive and that there is accountability of everyone who wields or exercises public power. As Edmund Burke said: “all persons in positions of power ought to be strongly and lawfully impressed with an idea that “they act in trust,” and must account for their conduct to one great master, to those in whom the political Sovereignty rests, the people”.2

India opted for parliamentary form of democracy, where every section is involved in policy-making, and decision taking, so that every point of view is reflected and there is a fair representation of every section of the people in every such body. In this kind of inclusive democracy, the judiciary has a very important role to play. That is the concept of accountability in any republican democracy, and this basic theme has to be remembered by everybody exercising public power, irrespective of the extra expressed expositions in the constitution.3

The principle of judicial review became an essential feature of written Constitutions of many countries. Seervai in his book Constitutional Law of India noted that the principle of judicial review is a familiar feature of the Constitutions of Canada, Australia and India, though the doctrine of Separation of Powers has no place in strict sense in Indian Constitution, but the functions of different organs of the Government have been sufficiently differentiated, so that one organ of the Government could not usurp the functions of another.4

The power of judicial review has in itself the concept of separation of powers an essential component of the rule of law, which is a basic feature of the Indian Constitution. Every State action has to be tested on the anvil of rule of law and that exercise is performed, when occasion arises by the reason of a doubt raised in that behalf, by the courts. The power of Judicial Review is incorporated in Articles 226 and 227 of the Constitution insofar as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution, the judiciary in India has come to control by judicial review every aspect of governmental and public functions.5

Extent of Judicial Review in India:

The initial years of the Supreme Court of India saw the adoption of an approach characterised by caution and circumspection. Being steeped in the British tradition of limited judicial review, the Court generally adopted a pro-legislature stance. This is evident form the rulings such as A.K. Gopalan, but however it did not take long for judges to break their shackles and this led to a series of Right to Property cases in which the judiciary was loggerhead with the parliament. The nation witnessed a series of events where a decision of the Supreme Court was followed by a legislation nullifying its effect, followed by another decision reaffirming the earlier position, and so on. The struggle between the two wings of government continued on other issues such as the power of amending the Constitution.6 During this era, the Legislature sought to bring forth people-oriented socialist measures which when in conflict with fundamental rights were frustrated on the upholding of the fundamental rights of individuals by the Supreme Court. At the time, an effort was made to project the Supreme Court as being concerned only with the interests of propertied classes and being insensitive to the needs of the masses. Between 1950 and 1975, the Indian Supreme Court had held a mere one hundred Union and State laws, in whole or in part, to be unconstitutional.

After the period of emergency the judiciary was on the receiving end for having delivered a series of judgments which were perceived by many as being violative of the basic Human Rights of Indian citizens 7and changed the way it looked at the constitution. The Supreme Court said that any legislation is amenable to judicial review, be it momentous amendments8 to the Constitution or drawing up of schemes and bye-laws of municipal bodies which affect the life of a citizen9. Judicial review extends to every governmental or executive action – from high policy matters like the President’s power to issue a proclamation on failure of constitutional machinery in the States like in Bommai case, to the highly discretionary exercise of the prerogative of pardon like in Kehar Singh case or the right to go abroad as in Satwant Singh case.Judicial review knows no bounds except the restraint of the judges themselves regarding justifiability of an issue in a particular case.

Judicial Review of Political Questions:

In the initial stages of the judicial adjudication Courts have said that where there is a political question involved it is not amenable to judicial review but slowly this changed, in Keshavananda Bharathi’s case,10 the Court held that, “it is difficult to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal constitution…. Judicial Review of constitutional amendments may seem involving the Court in political question, but it is the Court alone which can decide such an issue. The function of Interpretation of a Constitution being thus assigned to the judicial power the State, the question whether the subject of law is within the ambit of one or more powers of the legislature conferred by the constitution would always be a question of interpretation of the Constitution.”

Than it was in Special Courts Bill, 1978, In re, case where the majority opined that, “The policy of the Bill and the motive of the mover to ensure a speedy trial of persons holding high public or political office who are alleged to have committed certain crimes during the period of emergency may be political, but the question whether the bill or any provisions are constitutionally invalid is a not a question of a political nature and the court should not refrain from answering it.” What this meant was that though there are political questions involved the validity of any action or legislation can be challenged if it would violate the constitution. This position has been reiterated in many other cases11 and in S.R. Bommai’s case the Court held, “though subjective satisfaction of the President cannot be reviewed but the material on which satisfaction is based open to review…” the court further went on to say that, “The opinion which the President would form on the basis of Governor’s report or otherwise would be based on his political judgment and it is difficult to evolve judicially manageable norms for scrutinizing such political decisions. Therefore, by the very nature of things which would govern the decision-making under Article 356, it is difficult to hold that the decision of the president is justiciable. To do so would be entering the political thicker and questioning the political wisdom which the courts of law must avoid. The temptation to delve into the President’s satisfaction may be great but the courts would be well advised to resist the temptation for want of judicially manageable standards. Therefore, the Court cannot interdict the use of the constitutional power conferred on the President under Article 356 unless the same is shown to be male fide.”

As Soli Sorabjee points out, “there is genuine concern about misuse by the Centre of Article 356 on the pretext that the State Government is acting in defiance of the essential features of the Constitution. The real safeguard will be full judicial review extending to an inquiry into the truth and correctness of the basic facts relied upon in support of the action under Article 356 as indicated by Justices Sawant and Kuldip Singh. If in certain cases that entails evaluating the sufficiency of the material, so be it.”

What this meant was the judiciary was being cautious about the role it has to play while adjudicating matters of such importance and it is showing a path of restraint that has to be used while deciding such matters so that it does not usurp the powers given by the Constitution by way of the power of review at the same it is also minimizing the misusing of the power given under Article 356 to the President.

Judicial Review as a part of the Basic Structure:

In the celebrated case of Keshavanda Bharathi v. State of Kerela, the Supreme Court of India the propounded the Basic Structure Doctrine according to which it said the legislature can amend the Constitution, but it should not change the basic structure of the Constitution, The Judges made no attempt to define the basic structure of the Constitution in clear terms. S.M. Sikri, C.J mentioned five basic features:

Supremacy of the Constitution. 2. Republican and democratic form of Government. 3. Secular character of the Constitution. 4. Separation of powers between the legislature, the executive and the judiciary. 5. Federal character of the Constitution.

He observed that these basic features are easily discernible not only from The Preamble but also from the whole scheme of the Constitution. He added that the structure was built on the basic foundation of dignity and freedom of the individual which could not by any form of amendment be destroyed. It was also observed in that case that the above are only illustrative and not exhaustive of all the limitations on the power of amendment of the Constitution. The Constitutional bench in Indira Nehru Gandhi v. Raj Narain (1975 Supp SCC 1.) held that Judicial Review in election disputes was not a compulsion as it is not a part of basic structure. In S.P. Sampath Kumar v. Union of India((1987) 1 SCC 124 at 128.), P.N. Bhagwati, C.J., relying on Minerva Mills Ltd. ((1980) 3 SCC 625.) declared that it was well settled that judicial review was a basic and essential feature of the Constitution. If the power of judicial review was absolutely taken away, the Constitution would cease to be what it was. In Sampath Kumar the Court further declared that if a law made under Article 323-A(1) were to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure and hence outside the constituent power of Parliament.

In Kihoto Hollohan v. Zachillhur (1992 Supp (2) SCC 651, 715, para 120) another Constitution Bench, while examining the validity of para 7 of the Tenth Schedule to the Constitution which excluded judicial review of the decision of the Speaker/Chairman on the question of disqualification of MLAs and MPs, observed that it was unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and para 7 of the Tenth Schedule violated such basic structure.

Subsequently, in L. Chandra Kumar v. Union of India ((1997) 3 SCC 261) a larger Bench of seven Judges unequivocally declared:

“that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure”.

Though one does not deny that power to review is very important, at the same time one cannot also give an absolute power to review and by recognizing judicial review as a part of basic feature of the constitution Courts in India have given a different meaning to the theory of Check’s and Balances this also meant that it has buried the concept of separation of powers, where the judiciary will give itself an unfettered jurisdiction to review any thing every thing that is done by the legislature.

Expansion of Judicial Review through Judicial Activism:

After the draconian exposition of power by the Executive and the Legislature during Emergency the expectations of the public soared high and the demands on the courts to improve the administration by giving appropriate directions for ensuring compliance with statutory and constitutional prescriptions. Likewise the judiciary has taken an activist view the Beginning with the Ratlam Municipality case 12the sweep of Social Action Litigation13 had encompassed a variety of causes14.

With the interpretation given by it in Menaka Gandhi case the Supreme Court brought the ambit of constitutional provisions to enforce the human rights of citizens and sought to bring the Indian law in conformity with the global trends in human-rights-jurisprudence. This was made possible in India, because of the procedural innovations with a view to making itself more accessible to disadvantaged sections of Society giving rise to the phenomenon of Social Action Litigation/Public Interest Litigation15. During the Eighties and the first half of the Nineties, the Court have broken there shackle’s and moved much ahead from being a mere legal institution, its decisions have tremendous social, political and economic ramifications. Time and again, it has sought to interpret constitutional provisions and the objectives sought to be achieved by it and directed the executive to comply with its orders.

SAL, a manifestation of judicial activism, has introduced a new dimension regarding judiciary’s involvement in public administration16. The sanctity of locus standi and the procedural complexities are totally side-tracked in the causes brought before the courts through SAL. In the beginning, the application of SAL was confined only to improving the lot of the disadvantaged sections of the society who by reason of their POVERTY and ignorance were not in a position to seek justice from the courts and, therefore, any member of the public was permitted to maintain an application for appropriate directions17.

The new role of the Supreme Court has been criticised in some quarters as being violative of the Doctrine of Separation of Powers; it is claimed that the Apex Court has, by formulating policy and issuing directions in respect of various aspects of the country’s administration, transgressed into the domain of the executive and the legislature. As Justice Cardozo puts it, “A Constitution states or ought to state not rules for the passing hour but principles for an expanding future.”18 It is with this view that innovations in the rules of standing have come into existence.

Limitation on the power of review:

The expansion of the horizon of judicial review is seen both with reverence and suspicion; reverence in as much as the judicial review is a creative element of interpretation, which serves as an omnipresent and potentially omnipotent check on the legislative and executive branches of government. But at the same time there is a danger that they may trespass into the powers given to the legislature and the executive.

One many say that if there is any limitation on judicial review other than constitutional and procedural19 that is a product of judicial self-restraint. As justice Dwivedi empathically observed, “Structural socio-political value choices involve a complex and complicated political process. This court is hardly fitted for performing that function. In the absence of any explicit Constitutional norms and for want of complete evidence, the court’s structural value choices will be largely subjective. Our personal predilections will unavoidably enter into the scale and give colour to our judgment. Subjectivism is calculated to undermine legal certainty, an essential element of rule of law.”20

The above observations also reveal another assumption to support an Attitude of self-restraint, viz., the element subjectiveness in judicial decision on issues having socio-political significance. When one looks at the decisions of the Supreme Court on certain questions of fundamental issues of constitutional law one can see that there is a sharp division among the judges of the apex court on such basic questions of power of the Parliament to amend the Constitution, federal relations, powers of the President etc. This aptly demonstrates the observation of the judge. This would mean that though there has been expansion of powers of judicial review one cannot also say that this cannot be overturned.

Judicial self-restrain in relation to legislative power manifests itself in the form the there is a presumption of constitutionality when the validity of the statute is challenged. In the words of Fazl Ali, “…the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles”21

In applying the presumption of constitutionality the Courts sometimes apply an interpretational device called ‘reading down’. The essence of the device is that “if certain provisions of law construed in one way would make them consistent with the constitution, and another interpretation would render them unconstitutional, the court would lean in favour of the former construction.”22 But all this depends on the outlook and values of the judge.23

When it come judicial review of administrative action though the presumption of validity is not so strong in the case of administrative action as in the case of statutes. Still, when the legislature expressly leaves a matter to the discretion of an administrative authority the courts have adopted an attitude of restraint. They have said we cannot the question the legality of the exercise of discretionary power unless and until it is an abuse of discretionary power (which includes mala fide exercise of power, exercising the power for an improper motive, decision based on irrelevant considerations or in disregard of relevant consideration, and in some cases unreasonable exercise of power) and non-exercise of discretion ( which come when power is exercised without proper delegation and when it is acted under dictation).

The relevant considerations which should make the judicial choice in favour of activism or restraint are the policy and scheme of the statute, the object of conferring discretionary powers, the nature and scope of the discretion, and finally, the nature of the right and interests affected by the decision. Any impulsive move to activism without a serious consideration of these factors may only be viewed as undesirable. Judicial activism, being an exception, not the general rule, in relation to the control of discretionary power, needs strong reasons to justify it. In the absence of such strong support of reasons the interventionist strategy may provoke the other branches of Government may retaliate and impose further limitations on the scope of judicial review.

Conclusion:

Accountability is an essential part of the rule of law. It is essential for another reason, as in the earlier editions of Dicey,24 of course modified in later editions, referring to John Wilkes’s case,25 that “conferment of any discretion tends to arbitrariness and therefore there is something inconsistent with the rule of law.” But then, as time passed, it was realized that conferment of some discretion for the purpose of application to the facts of a given case is something you cannot do away with. The area of discretion should be the minimum possible, and set norms, standards or guidelines should regulate it, so that it does not tend to become arbitrary. Therefore, the rule of non-arbitrariness is something to be tested by the judiciary whenever the occasion arises.26

The Growth of judicial review is the inevitable response of the judiciary to ensure proper check on the exercise of public power. Growing awareness of the rights in the people; the trend of judicial scrutiny of every significant governmental action and the readiness even of the executive to seek judicial determination of debatable or controversial issues, at times, may be, to avoid its accountability for the decision, have all resulted in the increasing significance of the role of the judiciary. There is a general perception that the judiciary in this country has been active in expansion of the field of judicial review into non-traditional areas, which earlier were considered beyond judicial purview.

The Judges have a duty to perform, which is even more onerous to keep the judicial ship afloat on even keel. It must avoid making any ad hoc decision without the foundation of a juristic principle, particularly, when the decision appears to break new grounds. The judgments must be logical, precise, clear, and sober, rendered with restraint in speech avoiding saying more than that, which is necessary in the case.27

It must always be remembered that a step taken in a new direction is fraught with the danger of being a likely step in a wrong direction. In order to be a path-breaking trend it must be a sure step in the right direction. Any step satisfying these requirements and setting a new trend to achieve justice can alone be a New Dimension of Justice and a true contribution to the growth and development of law meant to achieve the ideal of justice.,

The Executive Branch

The Executive Branch is one of the three branches of the United States government. The other two branches are the Legislative Branch and the Judicial Branch. The Executive Branch is responsible for carrying out the laws that are made by the Legislative Branch. The President is the head of the Executive Branch.

The President is elected every four years. To be eligible to be President, a person must be a natural-born citizen of the United States, at least 35 years old, and a resident of the United States for at least 14 years.

The President’s powers and duties are outlined in Article II of the Constitution. The President is the Commander-in-Chief of the armed forces. The President also has the power to veto laws passed by Congress. The President can also make treaties with other countries, but these treaties must be ratified by the Senate.

The Vice President is the President’s second-in-command. The Vice President is also the President of the Senate. The Vice President is elected at the same time as the President.

The President’s Cabinet is a group of advisors who help the President make decisions. The Cabinet is made up of the heads of the 15 executive departments. The executive departments are:

Department of State
Department of the Treasury
Department of Defense
Department of Justice
Department of the Interior
Department of Agriculture
Department of Commerce
Department of Labor
Department of Health and Human Services
Department of Housing and Urban Development
Department of Transportation
Department of Energy
Department of Education
Department of Veterans Affairs

The President also appoints a number of other officials, including the heads of independent agencies. Independent agencies are not part of any executive department. They are responsible for carrying out specific tasks, such as regulating the Environment or overseeing the safety of food and drugs.

The Judiciary Branch

The Judicial Branch is the third branch of the United States government. The other two branches are the Legislative Branch and the Executive Branch. The Judicial Branch is responsible for interpreting the laws that are made by the Legislative Branch. The Supreme Court is the highest court in the United States.

The Supreme Court is made up of nine justices. The justices are appointed by the President and confirmed by the Senate. The justices serve for life, or until they resign or retire.

The Supreme Court has the power to declare laws unconstitutional. This power is called judicial review. Judicial review is an important power because it allows the Supreme Court to ensure that the laws that are made by the Legislative Branch are consistent with the Constitution.

The Supreme Court also has the power to hear cases that involve disputes between states or between the federal government and a state. The Supreme Court also has the power to hear cases that involve federal laws.

The Supreme Court is an important part of the United States government. The Supreme Court’s decisions have a significant impact on the lives of all Americans.

Separation of Powers

The separation of powers is a system of government in which the powers of the government are divided among three branches: the legislative, executive, and judicial branches. This system is designed to prevent any one branch of government from becoming too powerful.

The legislative branch is responsible for making laws. The executive branch is responsible for carrying out the laws. The judicial branch is responsible for interpreting the laws.

The separation of powers is an important principle of American government. It helps to ensure that the government is accountable to the people and that no one branch of government becomes too powerful.

Checks and Balances

Checks and balances are a system of government in which each branch of government has the power to check the power of the other branches. This system is designed to prevent any one branch of government from becoming too powerful.

The legislative branch can check the power of the executive branch by passing laws that limit the executive’s power. The executive branch can check the power of the legislative branch by vetoing laws that it does not agree with. The judicial branch can check the power of both the legislative and executive branches by declaring laws unconstitutional.

Checks and balances are an important principle of American government. They help to ensure that the government is accountable to the people and that no one branch of government becomes too powerful.

The Executive Branch is the branch of government that is responsible for carrying out the laws passed by the Legislative Branch. The Executive Branch is headed by the President, who is elected by the people. The President appoints a Cabinet to help him or her carry out the duties of the office. The Cabinet is made up of the heads of the 15 executive departments, which are responsible for different areas of government, such as the Department of State, the Department of Defense, and the Department of the Treasury.

The Judiciary Branch is the branch of government that is responsible for interpreting the laws. The Judiciary Branch is headed by the Supreme Court, which is made up of nine justices who are appointed by the President and confirmed by the Senate. The Supreme Court has the power to strike down laws that it deems unconstitutional.

The Executive and the Judiciary are two of the three branches of government in the United States. The third branch is the Legislative Branch, which is responsible for making the laws. The Executive and the Judiciary are responsible for carrying out and interpreting the laws, respectively.

Here are some frequently asked questions about the Executive and the Judiciary:

What are the powers of the Executive Branch?
The Executive Branch is responsible for carrying out the laws passed by the Legislative Branch. The President, who is the head of the Executive Branch, has the power to veto laws passed by Congress, to appoint judges to the federal courts, and to command the armed forces.
What are the powers of the Judiciary Branch?
The Judiciary Branch is responsible for interpreting the laws. The Supreme Court, which is the highest court in the United States, has the power to strike down laws that it deems unconstitutional.
How are the Executive and the Judiciary related to each other?
The Executive and the Judiciary are two of the three branches of government in the United States. The third branch is the Legislative Branch, which is responsible for making the laws. The Executive and the Judiciary are responsible for carrying out and interpreting the laws, respectively.
What are some examples of how the Executive and the Judiciary have worked together in the past?
One example of how the Executive and the Judiciary have worked together in the past is the case of Brown v. Board of Education. In this case, the Supreme Court ruled that racial segregation in public schools was unconstitutional. The President, at the time, Dwight D. Eisenhower, supported the Supreme Court’s decision and helped to enforce it.
What are some examples of how the Executive and the Judiciary have disagreed in the past?
One example of how the Executive and the Judiciary have disagreed in the past is the case of Bush v. Gore. In this case, the Supreme Court ruled that a recount of ballots in the 2000 presidential election in Florida should be stopped. The President, at the time, George W. Bush, supported the Supreme Court’s decision, which ultimately led to his victory in the election.
What are some challenges that the Executive and the Judiciary face today?
One challenge that the Executive and the Judiciary face today is the issue of political polarization. In recent years, there has been an increase in the level of partisanship in American politics. This has made it more difficult for the Executive and the Judiciary to work together on issues that require bipartisan support.
What are some potential solutions to the challenges that the Executive and the Judiciary face today?
One potential solution to the challenges that the Executive and the Judiciary face today is to increase the level of cooperation between the two branches of government. This could be done by encouraging more bipartisanship in Congress and by having the President and the Supreme Court work together to find common ground on issues.
What are the implications of the challenges that the Executive and the Judiciary face today?
The challenges that the Executive and the Judiciary face today have the potential to undermine the stability of the American government. If the two branches of government are unable to work together, it could lead to gridlock and a breakdown in the system of checks and balances. This could have serious consequences for the future of the United States.

The President of India is elected by:
(a) The members of the Lok Sabha and the Rajya Sabha.
(b) The members of the Electoral College consisting of elected members of both the Houses of Parliament and the Legislative Assemblies of the States.
(c) The members of the Electoral College consisting of elected members of both the Houses of Parliament and the Legislative Assemblies of the States and the elected members of the Legislative Councils of the States.
(d) The members of the Electoral College consisting of elected members of both the Houses of Parliament and the Legislative Assemblies of the States and the elected members of the Legislative Councils of the States and the members of the Rajya Sabha.
The Vice-President of India is elected by:
(a) The members of the Lok Sabha and the Rajya Sabha.
(b) The members of the Electoral College consisting of elected members of both the Houses of Parliament and the Legislative Assemblies of the States.
(c) The members of the Electoral College consisting of elected members of both the Houses of Parliament and the Legislative Assemblies of the States and the elected members of the Legislative Councils of the States.
(d) The members of the Electoral College consisting of elected members of both the Houses of Parliament and the Legislative Assemblies of the States and the elected members of the Legislative Councils of the States and the members of the Rajya Sabha.
The Prime Minister of India is appointed by:
(a) The President of India.
(b) The Vice-President of India.
(c) The Speaker of the Lok Sabha.
(d) The Chief Justice of India.
The Council of Ministers is collectively responsible to:
(a) The President of India.
(b) The Vice-President of India.
(c) The Speaker of the Lok Sabha.
(d) The Chief Justice of India.
The Supreme Court of India consists of:
(a) The Chief Justice of India and not more than 30 other judges.
(b) The Chief Justice of India and not more than 25 other judges.
(c) The Chief Justice of India and not more than 20 other judges.
(d) The Chief Justice of India and not more than 15 other judges.
The High Court of a State consists of:
(a) The Chief Justice of the State and not more than 25 other judges.
(b) The Chief Justice of the State and not more than 20 other judges.
(c) The Chief Justice of the State and not more than 15 other judges.
(d) The Chief Justice of the State and not more than 10 other judges.
The jurisdiction of the Supreme Court extends to:
(a) All cases arising out of any law made by Parliament.
(b) All cases arising out of any law made by Parliament or the Legislature of a State.
(c) All cases arising out of any law made by Parliament or the Legislature of a State or any treaty or agreement entered into by India with any other country.
(d) All cases arising out of any law made by Parliament or the Legislature of a State or any treaty or agreement entered into by India with any other country or any question of law or fact arising under the Constitution of India.
The Supreme Court has the power to issue:
(a) Writs of habeas corpus, Mandamus, certiorari, quo warranto and prohibition.
(b) Writs of habeas corpus, mandamus, certiorari, quo warranto, prohibition and quod non obstante.
(c) Writs of habeas corpus, mandamus, certiorari, quo warranto, prohibition, quod non obstante and procedendo.
(d) Writs of habeas corpus, mandamus, certiorari, quo warranto, prohibition, quod non obstante, procedendo and de homine replegiando.
The High Court has the power to issue:
(a) Writs of habeas corpus, mandamus, certiorari, quo warranto and prohibition.
(b) Writs of habeas corpus, mandamus, certiorari, quo warranto, prohibition and quod non obstante.
(c) Writs of habeas corpus, mandamus, certiorari, quo warranto, prohibition, quod non obstante and procedendo.
(d) Writs of habeas corpus, mandamus, certiorari, quo warranto, prohibition, quod non obstante, procedendo and de homine replegiando.
The jurisdiction of the High Court extends to:
(a) All cases arising out of any law made by the