DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

INDEPENDENCE OF JUDICIARY AND ITS ROLE

SUBJECT

ADMINISTRATIVE LAW

NAME OF THE FACULTY

Dr. P. Sridevi

Name of the Candidate

Roll No. & Semester

M. Aruna Sri Satya, 2015067

6th Semester, Section A

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ACKNOWLEDGEMENT:

I honestly put forward my heartfelt thankfulness to our respected Administrative law lecturer Mrs.
Sridevi mam for giving me a golden opportunity to take up this project regarding independence of
judiciary and its role. I have tried my best to collect information about the project in various
possible ways to depict clear picture about the given project topic.

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 CERTIFICATE

PROJECT TITLE: INDEPENDENCE OF JUDICIARY

FACULTY’S NAME: Dr. P. Sridevi

I M. Aruna Sri Satya hereby declare that this project INDEPENDENCE OF JUDICIARY
Submitted by me is an original work done by me. I have accredited all those sources using which
the project has been made.

Signature of the student Signature of the Faculty

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 ABSTRACT

This project deals with independence of judiciary. It deals with the separation of powers under the
constitution and regarding the provisions under the constitution under the constitution which
provide for establishing an independent judiciary. This project deals with importance and need of
independent judiciary.

Independent judiciary was given high importance in the Indian Constitution. Independent judiciary
is necessary in any country for maintaining the democracy. It means that the judiciary is free in its
own sphere from any political influence and is out of the sphere of influence of other two organs
I.e., executive and the judiciary.

The hierarchy of judicial system in India plays an important role in maintaining the independence
of judiciary. Supreme Court is the highest court for justice. Then, there are High Court and District
Courts in every states.

This project deals with the supervision of judiciary over administrative actions and how it is done.
This project also deals with a comparative study between English and Indian laws. This project
also deals with the limitations on the judicial review. This project also deals with doctrine of
proportionality and doctrine of legitimate expectation. This project also deals with the judicial
remedies available against the administrative actions like injunction, estoppel, writs and other
remedies. This project deals with the case study on this topic.

OBJECT AND SCOPE:

This project deals with independence of judiciary in constitution and administrative aspects.

RESEARCH QUESTIONS:

How far the independence of judiciary is maintained in India?

What are the constitutional provisions safeguarding the independence of judiciary?

RESEARCH METHODOLOGY:

In this project the researcher is using doctrinal type of research methodology.

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TABLE OF CONTENTS:

1) INTRODUCTION…………………………………………………………………..5
2) SEPARATION OF POWERS………………………………………………………6
3) CONSTITUTIONAL PROVISIONS……………………………………………….9
4) ADMINISTRATIVE COURT……………………………………………………..12
5) JUDICIAL REVIEW OF ADMINISTRATIVE ACTION………………………..13
6) OTHER COUNTRIES……………………………………………………………...17
7) CONCLUSION……………………………………………………………………..22
8) BIBLIOGRAPHY…………………………………………………………………..22

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1) INTRODUCTION

The framers of the Indian Constitution at the time of framing of our constitution were concerned
about the kind of judiciary our country should have. To secure the stability and prosperity of
the society, the framers at that time understood that such a society could be created only by
guaranteeing the fundamental rights and the independence of the judiciary to guard and enforce
those fundamental rights. Also in a country like India, the independence of the judiciary is of
utmost importance in upholding the pillars of the democratic system hence ensuring a free
society.

It is a well-known fact that the independence of the judiciary is the basic requisite for ensuring
a free and fair society under the rule of law. Rule of law that is responsible for good governance
of the country can be secured through unbiased judiciary.

The doctrine of Separation of Powers which was brought into existence to draw upon the
boundaries for the functioning of all the three organs of the state: Legislature, Executive and
the Judiciary, provides for a responsibility to the judiciary to act as a watchdog and to check
whether the executive and the legislature are functioning within their limits under the
constitution and not interfering in each others functioning. This task given to the judiciary to
supervise the doctrine of separation of powers cannot be carried on in true spirit if the judiciary
is not independent in itself. An independent judiciary supports the base of doctrine of separation
of powers to a large extent.

Whenever there is a talk regarding the independence of the judiciary, there is also a talk of the
restrictions that must be imposed on the judiciary as an institution and on the individual judges
that forms a part of the judiciary. In order to ensure smooth functioning of the system there must
be a right blend of the two.1

1
http://www.justlaw.co.in/images/Independence-%20of-the-Judiciary.pdf

6
 Historical background:

The fundamental concept of judicial independence came into being in England and Wales in 1701
with the enactment of the Act of Settlement. This statute formally recognised the principles of
security of judicial tenure by establishing that High Court Judges and Lords Justice of Appeal hold
office during good behaviour. Appropriate and formal mechanisms had to be in place before a
judge could be removed.

Before 1701 senior judges held office at the sovereign’s pleasure and there are many examples of
judges being removed from office for failing to decide cases in accordance with the wishes of the
King or Queen. Since the Act of Settlement it has only been possible to remove a senior judge
from office through an Address to the Queen agreed by both Houses of Parliament.2

2) SEPARATION OF POWERS

MEANING OF SEPERATION OF POWERS:

Understanding that a government's role is to protect individual rights, but acknowledging that
governments have historically been the major violators of these rights, a number of measures have
been devised to reduce this likelihood.

The concept of Separation of Powers is one such measure. The premise behind the Separation of
Powers is that when a single person or group has a large amount of power, they can become
dangerous to citizens.

The Separation of Power is a method of removing the amount of power in any group's hands,
making it more difficult to abuse. It is generally accepted that there are three main categories of
governmental functions: (i) the legislative, (ii) the Executive, and (iii) the Judicial.

At the same time, there are three main organs of the Government in State i.e. legislature, executive
and judiciary. According to the theory of separation of powers, these three powers and functions
of the Government must, in a free democracy, always be kept separate and exercised by separate
organs of the Government. Thus, the legislature cannot exercise executive or judicial power; the
executive cannot exercise legislative or judicial power of the Government.

2
http://www.ruleoflawus.info/Judiciary/An_Independant_Judiciary.pdf

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IMPORTANCE OF THE DOCTRINE:

The doctrine of separation of power in its true sense is very rigid and this is one of the reasons of
why it is not strictly accepted by a large number of countries in the world. The main object, as per
Montesquieu - Doctrine of separation of power is that there should be government of law rather
than having willed and whims of the official. Also another most important feature of this doctrine
is that there should be independence of judiciary i.e. it should be free from the other organs of the
state and if it is so then justice would be delivered properly.

The judiciary is the scale through which one can measure the actual development of the state if the
judiciary is not independent then it is the first step towards a tyrannical form of government i.e.
power is concentrated in a single hand and if it is so then there is a cent percent chance of misuse
of power.

Hence the Doctrine of separation of power do plays a vital role in the creation of a fair government
and also fair and proper justice is dispensed by the judiciary as there is independence of judiciary.
Also the importance of the above said doctrine can be traced back to as early as 1789 where the
constituent Assembly of France in 1789 was of the view that there would be nothing like a
Constitution in the country where the doctrine of separation of power is not accepted.3

ORIGIN OF SEPARATION OF POWERS:

The concept of separation of powers grew out of centuries of political and philosophical
development. Its origins can be traced to 4th century B.C., when Aristotle, in his treatise entitled
Politics, described the three agencies of the government viz. the General Assembly, the Public
Officials, and the Judiciary. In republican Rome, there was a somewhat similar system consisting
of public assemblies, the senate and the public officials, all operating on the principle of checks
and balances. Following the fall of the Roman Empire, Europe became fragmented into nation
states, and from the end of the middle ages until the 18th century, the dominant governmental
structure consisted of a concentrated power residing in the hereditary ruler, the sole exception
being the development of English Parliament in the 17th century.270 With the birth of the
Parliament, the theory of the three branches of government reappeared, this time in John Locke‘s
Two Treatise of Government (1689), where these powers were defined as ‘legislative‘, ‘executive‘,

3
http://www.esil-sedi.eu/sites/default/files/Murati_0.PDF

8
and ‘federative‘. Locke, however did not consider the three branches to be co-equal, and nor
considered them as designed to operate independently. He considered the legislative branch to be
supreme, while the executive and federative functions as internal and external affairs respectively,
which were left within the control of the monarch, a scheme which obviously corresponded with
the dual form of government prevailing in England at that time, that is, The Parliament and The
King. The King was considered as the repository of all executive and judicial powers and was
believed to be the sole protector of the laws of nature. However, the need for the independence of
the judiciary from the hands of the king and his other servants was a long felt demand since early
times which was further influenced by the writings of Fortescue, a political thinker of that time.
On similar lines, Chief Justice Coke in 1607 went a step further and said that judicial matters were
not to be decided by natural reason but by the artificial reason and judgment of law, which law is
an act which requires long study and experience before that a man can attain cognizance of it.
Nonetheless, it was much clear in the minds of people that the only part that the king played in
administration of justice was that of the appointment of judges.

Throughout the 17th and 18th centuries, English writers endeavored to expound one theory of
separation in the absence of the other. It was not until Baron-de-Montesquieu that a really
influential synthesis of the duo appeared.4

IN INDIA

The Constitutional history of India reveals that the framers of the Indian Constitution had no
sympathy with the doctrine. This is evident from its express rejection in spite of attempts being
made.289 It even sheds no light to the application of the doctrine during the British Regime. The
Constituent Assembly, while in the process of drafting the Constitution, had dwelt at length for
incorporating the doctrine and ultimately rejected the idea in toto. Dr. B.R. A. Ambedkar, who was
one among the members of the Constituent Assembly, while comparing the Parliamentary and
Presidential systems of India and America respectively, remarked as thus

Ram Jawaya Kapur v. State of Punjab5, the Court through Mukherjee J. held that The Indian
Constitution has indeed not recognized the doctrine of separation of powers in its absolute rigidity,
but the functions of different parts or branches of the government have been sufficiently

4
http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/9/10_chapter%204.pdf
5
AIR 1955 SC 549

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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

3) CONSTITUTIONAL PROVISIONS

THE INDEPENDENCE OF THE JUDICIARY

Many provisions are provided in our constitution to ensure the independence of the judiciary. The
constitutional provisions are discussed below:

Security of Tenure:

The judges of the Supreme Court and High Courts have been given the security of the tenure. Once
appointed, they continue to remain in office till they reach the age of retirement which is 65 years
in the case of judges of Supreme Court (Art. 124(2)) and 62 years in the case of judges of the High
Courts (Art. 217(1)). They cannot be removed from the office except by an order of the President
and that too on the ground of proven misbehavior and incapacity. A resolution has also to be
accepted to that effect by a majority of total membership of each House of Parliament and also by
a majority of no less than two third of the members of the house present and voting. Procedure is
so complicated that there has been no case of the removal of a Judge of Supreme Court or High
Court under this provision.6

Salaries and Allowances:

The salaries and allowances of the judges is also a factor which makes the judges independent as
their salaries and allowances are fixed and are not subject to a vote of the legislature. They are
charged on the Consolidated Fund of India in case of Supreme Court judges and the Consolidated
Fund of state in the case of High Court judges. Their emoluments cannot be altered to their
disadvantage (Art. 125(2)) except in the event of grave financial emergency.

6
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2250316

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Powers and Jurisdiction of Supreme Court:

Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail
them. In the civil cases, Parliament may change the pecuniary limit for the appeals to the Supreme
Court. Parliament may enhance the appellate jurisdiction of the Supreme Court. It may confer the
supplementary powers on the Supreme Court to enable it work more effectively. It may confer
power to issue directions, orders or writs for any purpose other than those mentioned in Art. 32.
Powers of the Supreme Court cannot be taken away. Making judiciary independent.

No discussion on conduct of Judge in State Legislature / Parliament:

Art. 211 provides that there shall be no discussion in the legislature of the state with respect to the
conduct of any judge of Supreme Court or of a High Court in the discharge of his duties. A similar
provision is made in Art. 121 which lays down that no discussion shall take place in Parliament
with respect to the conduct of the judge of Supreme Court or High Court in the discharge of his
duties except upon a motion for presenting an address to the President praying for the removal of
the judge.7

Power to punish for contempt:

Both the Supreme Court and the High Court have the power to punish any person for their
contempt. Art. 129 provides that the Supreme Court shall have the power to punish for contempt
of itself. Likewise, Art. 215 lays down that every High Court shall have the power to punish for
contempt of itself.

Separation of the Judiciary from the Executive:

Art. 50 contains one of the Directive Principles of State Policy and lays down that the state shall
take steps to separate the judiciary from the executive in the public services of the state. The
object behind the Directive Principle is to secure the independence of the judiciary from the
executive. Art. 50 says that there shall be a separate judicial service free from executive control.8

7
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2250316
8
http://mulnivasiorganiser.bamcef.org/?p=482

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Appointment of Judges

The Collegium system is one where the Chief Justice of India and a forum of four senior-most
judges of the Supreme Court recommend appointments and transfers of judges. However, it has
no place in the Indian Constitution. It is not mentioned in either in the original constitution of India
or successive amendments.

The system was evolved through Supreme Court judgments in the Three Judges Cases:

S.P. Gupta case (December 30, 1981) or the First Judges Case9: It declared that the primacy
of the CJI’s recommendation on judicial appointments and transfers can be refused for cogent
reasons. The ruling gave the Executive primacy over the Judiciary in judicial appointments for the
next 12 years.

Supreme Court Advocates on Record Association versus Union of India or the Second Judges
Case (October 6, 1993)10: The majority verdict gave back CJI’s power over judicial appointments
and transfers. It says the CJI only need to consult two senior-most judges. The role of the CJI is
primal in nature because this being a topic within the judicial family, the Executive cannot have
an equal say in the matter, the verdict reasoned. However, confusion prevails as the CJIs start
taking unilateral decisions without consulting two colleagues. The President is reduced to only an
approver.

In Special Reference case of 1998 or the Three Judges Case (October 28, 1998) 11: On a
reference from former President K.R. Narayanan, the Supreme Court lays down that the CJIs
should consult with a plurality of four senior-most Supreme Court judges to form his opinion on
judicial appointments and transfers.

9
AIR 1982 SC 149
10
(1993 (4) SCC 441)
11
1998 (7) SCC 739

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 4) ADMINISTRATIVE COURT

An administrative court is a type of court specializing in administrative law, particularly disputes

concerning the exercise of public power. Their role is to ascertain that official acts are consistent
with the law. Such courts are considered separate from general courts.

The administrative acts are recognized from the hallmark that they become binding without the
consent of the other involved parties. The contracts between authorities and private persons fall
usually to the jurisdiction of the general court system. Official decisions contested in
administrative courts include:

 taxation
 dispensation of monetary benefits
 environmental licenses
 building inspection
 child custody
 involuntary commitment
 immigration decisions
 summary public payments (other than fines imposed by general courts)

In several countries, in addition to general courts, there is a separate system of administrative

courts, where the general and administrative systems do not have jurisdiction over each other.
Accordingly, there is a local administrative court of first instance, possibly an appeals court and
a Supreme Administrative Court separate from the general Supreme Court.12

The parallel system is found in countries like Egypt, Greece, Germany, France, Italy, some of the
Nordic Countries, Portugal and others. In France, Greece, Portugal and Sweden, the system has
three levels like the general system, with local courts, appeals courts and a Supreme Administrative
Court. In Finland, Italy and Poland, the system has two levels, where the court of first instance is
a regional court. In Germany, the system is more complicated, and courts are more specialized.

In Finland, legality of decisions of both state agencies and municipal authorities can be appealed
to the administrative courts. In accordance with the principle of the legal autonomy of

12
https://mckinneylaw.iu.edu/iiclr/pdf/vol10p245.pdf

13
municipalities, administrative courts can only review and rule on the formal legality of the
decision, not its content. In the case of state agencies, administrative courts may rule on the actual
content of the decision.13

In the United States, administrative courts are tribunals within administrative agencies, and are
distinct from judicial courts. Decisions of administrative courts can be appealed to a judicial court.

Notably, in 1952, the Communist East German government abolished the administrative courts as
"bourgeois". This limited the citizens' ability to contest official decisions. In 1989, re-
establishment of the system began in DDR, but the German reunification made this initiative
obsolete.

5) JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

Judicial review is a great weapon in the hands of judges. It comprises the power of a court to hold
unconstitutional and unenforceable any law or order based upon such law or any other action by a
public authority which is inconsistent or in conflict with the basic law of the land.

Judicial review has been declared by the courts as a part of the basic structure of the constitutional
ethos in India and also that in as much as all administrative bodies are required to act in consonance
with the legal regime and principles of natural justice in dealing in pursuance of their actions.
Broadly speaking, judicial review in India deals with three aspects:
 Judicial review of legislative action;
 Judicial review of judicial decision; and
 Judicial review of administrative action.
The underlying object of judicial review is to ensure that the authority does not abuse its power
and the individual receives just and fair treatment and not to ensure that the authority reaches a
conclusion which is correct in the eye of law.
Judicial review of administrative action is perhaps the most important development in the field of
public law in the second half of this century. In India, the doctrine of judicial review is the basic
feature of Indian Constitution. Judicial review is the most potent weapon in the hands of the
judiciary for the maintenance of the rule of law. Judicial review is the touchstone of the

13
https://mckinneylaw.iu.edu/iiclr/pdf/vol10p245.pdf

14
Constitution. The Supreme Court and High Courts are the ultimate interpreters of the Constitution.
It is, therefore, their duty to find out the extent and limits of the power of coordinate branches, viz.
executive and legislature and to see that they do not transgress their limits. This is indeed a delicate
task assigned to the judiciary by the Constitution.
Judicial review is thus the touchstone and essence of the rule of law. The power of judicial review
is an integral part of Indian Constitutional system and without it, there will be no government laws
and the rule of law would become a teasing illusion and a promise of unreality. The judicial review,
therefore, is a basic and essential feature of the Constitution and it cannot be abrogated without
affecting the basic structure of the Constitution.
In recent times, judicial review of administrative action has become extensive and expansive. The
traditional limitations have vanished and the sphere of judicial scrutiny is being expanded.14
In a recent decision, called upon the examine the validity of a Circular issued by the Director
General of Foreign Trade (DGFT) in respect of import of marbles in India, Justice S. Muralidhar
is the Delhi High Court culled out the following tests which are required to be observed to test the
validity of administrative action by the judiciary.
Two essential legal principles govern the exercise of the power of judicial review by a High Court
in matters such as these.
 The court will not sit in appeal over the ultimate decision of the administrative body. It is
really concerned about the procedure adopted in arriving at such decision. Was it a fair,
reasonable and just procedure? Were relevant materials considered and irrelevant materials
kept out? As far as the final decision is concerned, is it vitiated by malafides or is it so
arbitrary that no reasonable person would, in the circumstances, have arrived at it.
 In policy matters, the Court will be slow to interfere. As the case law reveals, where the
question is of reasonableness of restrictions imposed through an import policy, the degree
of deference shown by the judicial wing to the executive is greater.
In Dy. Assistant Iron & Steel Controller v. L. Manichand15 the Supreme Court explained:
In granting licences for imports, the authority concerned has to keep in view various factors which
may have impact on imports of other items of relatively greater priority in the larger interest of the
over-all economy of the country which has to be the supreme consideration; and an applicant has

14
http://www.ruleoflawus.info/Judiciary/An_Independant_Judiciary.pdf
15
1972 AIR 935

15
no absolute vested right to an import license in terms of the policy in force at the time of his
application because from the very nature of things at the time of granting the license the authority
concerned may often be in a better position to have a clearer over-all picture of the various factors
having an important impact on the final decision on the allotment of import quota to the various
applicants.
It was observed in Liberty Oil Mills v. Union of India16 “The import policy of any country,
particularly a developing country, has necessarily to be tuned to its general economic policy
founded upon its constitutional goals, the requirements of its internal and international trade, its
agricultural and industrial development plans, its monetary and financial strategies and last but not
the least the international political and diplomatic overtones depending on 'friendship, neutrality
or hostility with other countries'. There must also be a considerable number of other factors which
go into the making of an import policy. Expertise in public and political, national and international
economy is necessary before one may engage in the making or in the criticism of an import policy.
Obviously courts do not possess the expertise and are consequently incompetent to pass judgment
on the appropriateness or the adequacy of a particular, import policy. But we may venture to assert
with some degree of accuracy that our present import policy is export oriented. Incentives by way
of import licenses are given to promote exports”
In M.P. Oil Extraction v. State of M.P17 it was held “The executive authority of the State must
be held to be within its competence to frame policy for the administration of the State. Unless the
policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be
clearly held to be arbitrary and founded on mere ipsi dixit of the executive functionaries thereby
offending Article 14 of the Constitution or such policy offends other constitutional provisions or
comes in conflict with any statutory provision, the Court cannot and should not out step its limit
and tinker with the policy decision of the executive functionary of the State. This Court, in no
uncertain term, has sounded a note of caution by indicating that policy decision is in the domain
of the executive authority of the State and the Court should not embark on the unchartered ocean
of public policy and should not question the efficacy or otherwise of such policy so long the same
does not offend any provision of the statute or the Constitution of India. The supremacy of each
of three organs of the State i.e. legislature, executive and judiciary in their respective field of

16
1984 AIR 1271
17
1997 Supp (1) SCR 671

16
operation needs to be emphasised. The power of judicial review of the executive and legislative
action must be kept within the bounds of constitutional scheme so that there may not be any
occasion to entertain misgivings about the role of judiciary in out stepping its limit by unwarranted
judicial activism being very often talked of in these days. The democratic set up to which the polity
is so deeply committed cannot function properly unless each of the three organs appreciates the
need for mutual respect and supremacy in their respective field.”
In Ugar Sugar Work s Limited v. Delhi Administration18 the Supreme Court observed thus “It
is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily
interfere with the policy decisions of the executive unless the policy can be faulted on grounds of
mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality,
perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be
faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does
not justify invalidating the policy. In tax and economic regulation cases, there are good reasons
for judicial restraint, if not judicial deference, to judgment of the executive. The Courts are not
expected to express their opinion as to whether at a particular point of time or in a particular
situation any such policy should have been adopted or not. It is best left to the discretion of the
State.”
It should be remembered that the object and scope of judicial review of administrative action is
different from that of appeal. The object of judicial review of administrative action by the ordinary
courts is to keep the administrative authorities within the bounds of their powers under the law.
Appeal, on the other hand, means that the superior administrative tribunal or court to whom appeal
lies under the law, has the power to reconsider the decision of the inferior tribunal on the merits.
Appeal, however, is a creature of statue and there is no right of appeal unless there is a specific
statutory provision creating that right.19
The power of revision is usually placed at the hands of the highest authority, e.g., the State
Government, to correct any illegality or irregularity in the proceedings before the inferior
authorities. There are:
 Sometimes the statue expressly states that the power of revision may be exercised suo motu
as well as on the application of the party aggrieved;

18
2001 (2) SCR 630
19
https://mckinneylaw.iu.edu/iiclr/pdf/vol10p245.pdf

17
  Sometimes the statue only authorizes the superior authority to use his power or revision
suo motu or of his own motion, e.g., original s. 33 of the Income-tax Act, 1 922. In such a
case the party aggrieved has no right to relief and the revisional authority has no duty to
perform, on the application of such party ;
 Difficulty of interpretation arises where neither the words ‘suo motu’, nor ‘on application’
are used by the statue.20
6) OTHER COUNTRIES

U.S.A

The doctrine of Separation of Powers forms the foundation on which the whole structure of the
Constitution is based. It has been accepted and strictly adopted in U.S.A. Article I; Section 1 vests
all legislative powers in the Congress. Article II; Section 1 vest all executive powers in the
President and Article III; Section 1 vests all judicial powers in the Supreme Court. Jefferson
quoted, The concentration of legislative, executive and judicial powers in the same hands in
precisely the definition of despotic Government. On the basis of this theory, the Supreme Courts
was not given power to decide political questions so that there was not interference in the exercise
of power of the executive branch of government. Also overriding power of judicial review is not
given to the Supreme Court. The President interferes with the exercise of powers by the Congress
through his veto power. He also exercises the law-making power in exercise of his treaty-making
power. He also interferes in the functioning of the Supreme Court by appointing judges. The
judiciary interferes with the powers of the Congress and the President through the exercise of its
power of judicial review. It can be said that the Supreme Court has made more amendments to the
American Constitution than the Congress. To prevent one branch from becoming supreme, protect
the "opulent minority" from the majority, and to induce the branches to cooperate, governance
systems that employ a separation of powers need a way to balance each of the branches. Typically
this was accomplished through a system of "checks and balances", the origin of which, like
separation of powers itself, is specifically credited to Montesquieu. Checks and balances allow for

20
http://www.justlaw.co.in/images/Independence-%20of-the-Judiciary.pdf

18
a system based regulation that allows one branch to limit another, such as the power of Congress
to alter the composition and jurisdiction of the federal courts.

Legislative Power

Congress has the sole power to legislate for the United States. Under the non delegation doctrine,
Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the
Supreme Court held in the 1998 case Clinton v. City of New York21 that Congress could not
delegate a "line-item veto" to the President, by which he was empowered to selectively nullify
certain provisions of a bill before signing it. The Constitution Article I, Section 8; says to give all
the power to Congress. Congress has the exclusive power to legislate, to make laws and in addition
to the enumerated powers it has all other powers vested in the government by the Constitution.
Where Congress does not make great and sweeping delegations of its authority, the Supreme Court
has been less stringent.

One of the earliest cases involving the exact limits of non-delegation was Wayman v. Southard22
(1825). Congress had delegated to the courts the power to prescribe judicial procedure; it was
contended that Congress had thereby unconstitutionally clothed the judiciary with legislative
powers.

Executive Power

Executive power is vested, with exceptions and qualifications, in the president by Article II,
Section 1, of the Constitution. By law the president becomes the Commander in Chief of the Army
and Navy, Militia of several states when called into service, has power to make treaties and
appointments to office "with the Advice and Consent of the Senate" receive Ambassadors and
Public Ministers, and "take care that the laws be faithfully executed". By using these words, the

21
524 U.S. 417 (1998)

22
23 U.S. 10 Wheat. 1 1 (1825)

19
Constitution does not require the president to personally enforce the law; rather, officers
subordinate to the president may perform such duties. The Constitution empowers the president to
ensure the faithful execution of the laws made by Congress. Congress may itself terminate such
appointments, by impeachment, and restrict the president. The president's responsibility is to
execute whatever instructions he is given by the Congress. Congress often writes legislation to
restrain executive officials to the performance of their duties, as authorized by the laws Congress
passes.

Judicial power

Judicial power is the power to decide cases and controversies is vested in the Supreme Court and
inferior courts established by Congress. The judges must be appointed by the president with the
advice and consent of the Senate, hold office for life and receive compensations that may not be
diminished during their continuance in office. If a court's judges do not have such attributes, the
court may not exercise the judicial power of the United States. Courts exercising the judicial power
are called "constitutional courts." Congress may establish "legislative courts," which do not take
the form of judicial agencies or commissions, whose members do not have the same security of
tenure or compensation as the constitutional court judges. Legislative courts may not exercise the
judicial power of the United States.

In Murray's Lessee v. Hoboken Land & Improvement Co.23 (1856), the Supreme Court held
that a legislative court may not decide "a suit at the common law, or in equity, or admiralty," as
such a suit is inherently judicial. Legislative courts may only adjudicate public rights. Even though
of above all, Separation of Powers is not accepted in America in its strict sense, only it has attracted
the makers of most modern Constitution, especially during 19th Century.

In a leading case: Marbury v. Madison24, is a landmark case in United States law. It formed the
basis for the exercise of judicial review in the United States under Article 288 of the Constitution.
This case resulted from a petition to the Supreme Court by William Marbury, who had been

23
59 U.S. 18 How. 272 272 (1856)

24
5 U.S. (1 Cranch) 137 (1803)

20
appointed by President John Adams as Justice of the Peace in the District of Columbia but whose
commission was not subsequently delivered. Marbury petitioned the Supreme Court to force
Secretary of State James Madison to deliver the documents, but the court, with John Marshall as
Chief Justice, denied Marbury's petition, holding that the part of the statute upon which he based
his claim, the Judiciary Act of 1789, was unconstitutional. Marbury v. Madison was the first time
the Supreme Court declared something "unconstitutional", and established the concept of judicial
review in the U.S. The landmark decision helped define the "checks and balances" of the American
form of government. Separation of powers has again become a current issue of some controversy
concerning debates about judicial independence and political efforts to increase the accountability
of judges for the quality of their work, avoiding conflicts of interest, and charges that some judges
allegedly disregard procedural rules, statutes, and higher court precedents. It is said on one side of
this debate that separation of powers means that powers are shared among different branches; no
one branch may act unilaterally on issues, but must obtain some form of agreement across
branches. That is, it is argued that "checks and balances" apply to the Judicial branch as well as to
the other branches. It is said on the other side of this debate that separation of powers means that
the Judiciary is independent and untouchable within the Judiciaries' sphere.

In this view, separation of powers means that the Judiciary alone holds all powers relative to the
Judicial function, and that the Legislative and Executive branches may not interfere in any aspect
of the judicial branch. The doctrine of separation finds its home in U.S. It forms the basis of the
American constitutional structure. Article I vests the legislative power in the Congress; Article II
vests executive power in the President and Article III vests judicial power in the Supreme Court.
The framers of the American constitution believed that the principle of separation of powers would
help to prevent the rise of tyrannical government by making it impossible for a single group of
persons to exercise too much power. Accordingly they intended that the balance of power should
be attained by checks and balances between separate organs of the government. This alternative
system existing with the separation doctrine prevents any organ to become supreme. Despite of
the express mention of this doctrine in the Constitution, U.S. incorporates certain exceptions to the
principle of separation with a view to introduce system of checks and balances.25

25
http://www.justlaw.co.in/images/Independence-%20of-the-Judiciary.pdf

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For example, a bill passed by the Congress may be vetoed by the President in the exercise of his
legislative power. Also treaty making power is with the President but it‘s not effective till approved
by the Senate. It was the exercise of executive power of the senate due to which U.S. couldn‘t
become a member to League of Nations. The Supreme Court has the power to declare the acts
passed by the congress as unconstitutional. There are other functions of an organ also which are
exercised by the other. India, too, followed U.S. in adoption of the checks and balances which
make sure that the individual organs doesn‘t behold the powers absolutely. This means that
functioning of one organ is checked by the other to an extent so that no organ may misuse the
power. Therefore, the constitution which gives a good mention of the doctrine in its provisions
also does not follow it in its rigidity and hence has opted for dilution of powers just like India.26

U.K.

Before we go to India, it‘s important to know the constitutional setup of the country to which India
was a colony and ultimately owes the existence of the form of government it has. U.K. follows a
Parliamentary form of government where the Crown is the nominal head and the real legislative
functions are performed by the Parliament. The existence of a cabinet system refutes the doctrine
of separation of powers completely. It is the Cabinet which is the real head of the executive, instead
of the Crown. It initiates legislations, controls the legislature, it even holds the power to dissolve
the assembly. The resting of two powers in a single body, therefore denies the fact that there is any
kind of separation of powers in England.

7. CONCLUSION

The independence of the judiciary as is clear from the above discussion hold a prominent position
as far as the institution of judiciary is concerned. It is clear from the historical overview that judicial
independence has faced many obstacles in the past especially in relation to the appointment and
the transfer of judges. Courts have always tried to uphold the independence of judiciary and have
always said that the independence of the judiciary is a basic feature of the Constitution. Courts
have said so because the independence of judiciary is the pre-requisite for the smooth functioning
of the Constitution and for a realization of a democratic society based on the rule of law. The

26
https://mckinneylaw.iu.edu/iiclr/pdf/vol10p245.pdf

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interpretation in the Judges Case giving primacy to the executive, as we have discussed has led to
the appointment of at least some Judges against the opinion of the Chief Justice of India. The
decision of the Judges Case was could never have been intended by the framers of the Constitution
as they always set the Second Judges Case the task of keeping judiciary free from executive and
making it self-competent. The decision of and the Third Judges Case is a praiseworthy step by the
Court in this regard.27

8. BIBLIOGRAPHY

Lectures on Administrative Law, C. K. Takwani, 6th Edition

Lectures on Administrative Law, Rega Surya Rao, 2nd Edition

Administrative Law, D. P. Sathe, 7th Edition

Constitution of India, P. M. Bakshi, 14th Edition

Online References:

 http://www.justlaw.co.in/images/Independence-%20of-the-Judiciary.pdf
 http://www.esil-sedi.eu/sites/default/files/Murati_0.PDF
 http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/9/10_chapter%204.pdf
 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2250316
 http://mulnivasiorganiser.bamcef.org/?p=482
 https://mckinneylaw.iu.edu/iiclr/pdf/vol10p245.pdf
 http://www.ruleoflawus.info/Judiciary/An_Independant_Judiciary.pdf
 https://supreme.justia.com/cases/federal/us/59/272/case.html

27
http://www.justlaw.co.in/images/Independence-%20of-the-Judiciary.pdf

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