K. Hrili David
Origin:
Montesquieu, a French scholar, first conceived the principle of separation of power. He found that concentration of power in one person or a group of persons resulted in tyranny. . He therefore, felt that the governmental power should be vested in three different organs, the legislature, the executive and the judiciary. The principle can be stated as follow:
1. Each organ should be independent of the other.
2. No one organ should perform functions that belongs .0 the other. .
The principle therefore is that the legislature performs essentially legislative functions. It has to monitor and supervise over the policy of the government. It passes budget, approves treaties and convents, passes laws and discusses various actions and policies of government. The executive essentially perform executive functions. It has to maintain. Law and order, administer, deal with foreign countries and see that its policies and programmes are implemented. It legislate subjects to the delegation of legislative power by the legislature and/or under the control .of the legislature. The judiciary in the courts decides disputes, interpret the laws and determine legality of the government actions and civil and criminal liability of private persons and state officials. This shows that every organ of the govt. is required to perform all the three types of functions namely, the legislative, the executive and judiciary.
Meaning Of Judiciary: The word ‘Judiciary’ according to oxford dictionary means ‘the judges of a country or a state’. According to Mitra’s legal and commercial dictionary the term Judiciary means ‘it is one of the organs of the .state, the other two organs being the executive and legislature. The laws of a free Government are construed and applied by the judiciary. An independent judiciary is indispensable to a democratic form of Government. In federal form of government it is the judiciary that maintains a balance between the Centre and the units. It protects the basic rights of the citizens against the high-handedness of the executive’. As per Collin paperback English dictionary, ‘judiciary means a branch of the central authority in a country that administers justice’
Government And Its Judiciary: In any form of government, the presence of the three important organs i.e. the executive, the legislature and the judiciary is a must for the administrative functions of the government. If all these elements are not mutually separated from each other, there is not only functional over lapping but also personal over lapping. If democracy is to survive in our society, the people at power in a democratic society need to be controlled and the power the greater need for control arises. A control device is to be channelized and all administrative actions are to be tested with reference to the constitutional provisions. Therefore, in its absence of independent separate judiciary, there is misuse or abuse of authority in various forms like overriding law, violation of established procedures, lack of integrity, favoritism or nepotism or improper conduct, gross inefficiency, misuse of discretion and above all encroachment on fundamental rights and freedom of citizens.
Judicial Power: Judiciary is the pillar of the “rule of law and therefore is accountable to every citizen of the state and shall not deny to any person equality before the law and equal protection of the law.
Judiciary is the custodian of the constitution and the highest forum for its interpretation. It exhibits boldness, fearlessness and independence in administering justice. Traditionally, the role of judiciary is to try to punish those violating the law of the land. An independent, separate and strong judiciary becomes very vital for the integral part of our system of governance in our state without which there in danger” of committing excesses and functioning arbitrarily by the officials, bureaucrats and politicians in power. Judiciary has always been recognized as one of the essential organs of the democracy and an indispensable third pillar in the democratic system of government.
Chief justice Marshall of the American Supreme Court defined judicial power as “Power to state authoritatively what the law is”. In this light, only the supreme or tile highest court can be said to .have judicial power and the subordinate courts can have judicial functions only. One of the citing examples of the Supreme decided case;
In T.N. Godavannan thirumulpad (120) Vs Ashokhot, (2006) 5 SCC 1, para 31 .
“Disobedience of the supreme courts order strikes at the very root 9fthe rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. Hence it is not only the third pillar but also the central pillar of the democratic state. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. That is why it is imperative and invariable that courts’ orders are to be followed and complied with.” “
“In our democratic polity under the constitution based on the concept of rule of law” which we have adopted and given to ourselves and which serves as an aorta” in the Anatomy of our democratic system, ‘THE LAW IS SUPREME.”
Judicial control has become an important area of administrative law because courts have proved more effective and useful than the legislative in the matter.
Thus, making any authority power, individual, stale ‘etc. incompetent to act contrary to the existing law. It gives dimensions for the restraints on the power of the Judges and other executive influence on the increased activities of the state and the tremendous increase in the power of the administrative authorities in the state has resulted in new vistas of judicial junctions.
Scope of judiciary
The courts of law intervene in any of the following grounds:
(a) Abuse of power; (b) Lack of jurisdiction; (c) Error of law; (d) Error in fact finding; and (e) Procedure error.
The court’s intervention may be sought if the administrator uses his authority vindictively to harm persons. The court also intervenes if the administrator commits jurisdictional errors which include absence of jurisdiction, excess of jurisdiction., and refusal to exercise jurisdiction. The courts may also intervene if the official misconstrues the law or departs from the rules of procedure that have been laid down. An administrative act or quasi-judicial decision can be challenged also on the ground that it is unconstitutional.
The Need Of An Independent Separate Judiciary:
The Constitution has made due provisions for the independence and impartial judiciary and to place it beyond executive or legislative interference or influence. It has the key role in. ensuring for exercising the administrative powers in accordance with law and act as a Watch-dog to keep various instrumentalities and agencies within the bounds of law and to strike down arbitrary exercise of administrative authorities. Without which there is a danger to commit excess and degenerate into arbitrary powers and such leads to endanger the stability of our democratic institution and the concept of rule of law.
In this context following provisions are very important in the separation of judiciary from executive:
1. Judges are appointed by the President of the Country.
2. Very less chance of politics in the appointment of judges.
3. The independence of the court is further safeguarded by the provisions that the actions and decisions of the judges in their official capacity are immune from criticism in the sense that no motive may be imputed to them.
4. Judges are to act without fear or favour.
Therefore, in its absence of independent separate judiciary, there is misuse or abuse of authority in various forms like overriding law, violation of established procedures, lack of integrity, favoritism or nepotism or improper conduct, gross inefficiency, misuse of discretion and above all, encroachment on fundamental rights and freedom of citizens.
