(MACHINERY OF GOVERNMENT)
Constitution
➢ The term Constitution is derived from the Latin word "Constitute" meaning "to
establish". It is the basic document of the state.
➢ Aristotle defined Constitution as "the way of life which the state has chosen for
itself". Austin says that Constitution fixes the structure of supreme government.
➢ In simple words, we can say a Constitution is the constitutional law of the state.
Constitutional law enjoys the position of being the supreme and fundamental law of
the state.
➢ It lays down the organisation and functions of the government of state. The
Government can use only those powers which the Constitution grants to it.
➢ "Constitution is the collection of principles according to which the powers of the
government, the rights of the governed and the relations between the two are adjusted.
➢ "Constitution is a body of judicial rules which determine the supreme organs of state,
prescribes their modes of creation, their mutual relations, their spheres of action and
the fundamental place of each of them in relation to state."
➢ "Constitution of a state is that body of rules or laws; written or unwritten which
determine the organisation of government, the distribution of powers to the various
organs of government and the general principles on which these powers are to be
exercised."
➢ Constitution is the sum total of the constitutional laws of the state as it lies down:
➢ The government of state gets organised and works in accordance with the provisions
of the Constitution. People get their rights protected from the constitution. No one, not
even the government, can violate the Constitution.
Features of Constitution
➢ Each state has a Constitution which lays down the organisation, powers and functions
of the Government of the State.
➢ The government always works according to the Constitution, no law or order of the
government can violate the Constitution. Constitution is the supreme law and all
government institutions and members are bound by it.
➢ Constitution enjoys supreme importance in the state because:
- It reflects the sovereign will of the people.
- It lies down of the aims, objectives, values and goals which the people want to
secure.
- It contains description and guarantee of the fundamental rights of the people.
- It gives a detailed account of the organisation of the government; the organisation,
powers and functions of its three organs and their inter-relationship.
- In a federation, the Constitution lays down the division of powers between the
central government and the governments of the federating states/provinces. It is
binding upon both the centre and the state governments.
- It specifies the power and method of amendment of the Constitution.
- It lays down the election system and political rights of people.
-. It provides for independence of judiciary and rule of law.
- The constitution governs all and no one can violate its rules.
➢ Every democratic Constitution guarantees to the citizens a protection against arbitrary
governmental actions. A democratic state, like India, has a written and supreme
constitution which binds its entire people and their government.
Types of Constitution
➢ Written Constitution
- A written constitution means a constitution written in the form of a book or a
series of documents combined in the form of a book.
- It is a consciously framed and enacted constitution. It is formulated and adopted
by a constituent assembly or a council or a legislature.
- "A written constitution is a consciously planned constitution, formulated and
adopted by deliberate actions of a constituent assembly or a convention."
- It provides for a definite design of government institutions, their organisations,
powers, functions and inter-relationships.
- It embodies the constitutional law of the state. It enjoys the place of supremacy.
The government is fully bound by its provisions and works strictly in accordance
with its provisions.
- A written constitution can be amended only in accordance with a settled process
of amendment written in the constitution itself. It is a duly passed and enacted
Constitution.
- The Constitutions of India, the USA, Germany, Japan, Canada, France,
Switzerland and several other states, are written constitutions.
➢ Unwritten Constitution
- An unwritten constitution is one which is neither drafted nor enacted by a
Constituent Assembly and nor even written in the form of a book. It is found in
several historical charters, laws and conventions.
- It is a product of slow and gradual evolution. The government is organised and it
functions in accordance with several well settled, but not wholly written rules and
conventions.
- The people know their Constitution. They accept and obey it, but do not possess it
in a written form. An unwritten constitution cannot be produced in the form of a
book.
- However, an unwritten constitution is not totally unwritten. Some of its parts are
available in written forms but these do not stand codified in the form of a legal
document or a code or a book.
- "An unwritten constitution is one in which most and not all, rules are unwritten
and these are not found in any one charter or document."
- The Constitution of the United Kingdom is an unwritten constitution.
➢ Flexible Constitution
- A Flexible Constitution is one which can be easily amended. Several political
scientists advocate the view that a flexible constitution is one in which the
constitutional law can be amended in the same way as an ordinary law.
- Constitutional amendments are passed in the same manner by which an ordinary
law is passed.
- British Constitution presents a classic example of a most flexible constitution. The
British Parliament is a sovereign parliament which can make or amend any law or
constitutional law by a simple majority.
- Laws aiming to affect changes in a constitutional law or in any ordinary law are
passed through the same legislative procedure i.e., by a simple majority of votes in
the legislature.
- Similarly, a Constitution is flexible when the procedure of amending it is simple
and the changes can be made easily.
- Has ability to change easily in accordance with the changes in the social and
political environment of the society and state.
- It is very helpful in meeting emergencies because it can be easily amended.
- Because of its dynamic nature, there are fewer opportunities for revolt. The
constitution has the ability to keep pace with the changing times. The people do
not feel the need for revolutionary changes.
- Since the flexible constitution keeps on developing with times, it always continues
to be popular and remains up-to-date.
- Sometimes a flexible constitution is often, a source of instability. Flexibility
enables the government in power to give it a desired dress and content.
- Also it is not suitable for a federation. In a federation, a flexible constitution can
lead to undesirable changes in the constitution by the federal government or by the
governments of federating units.
➢ Rigid Constitution
- The Rigid Constitution is one which cannot be easily amended. Its method of
amendment is difficult. For amending it, the legislature has to pass an amendment
bill by a specific, usually big, majority of 2/3rd or 3/4th.
- For passing or amending an ordinary law, the legislature usually passes the law by
a simple majority of its members.
- A rigid constitution is considered to be the most fundamental law of the land. It is
regarded as the basic will of the sovereign people. That is why it can be amended
only by a special procedure requiring the passing of the amendment proposal by a
big majority of votes which is often followed by ratification by the people in a
referendum.
- The Constitution of United States of America is a very rigid constitution.
- A rigid constitution is a source of stability in administration. It maintains
continuity in administration.
- It cannot become a tool in the hands of the party exercising the power of the state
at a particular time.
- It prevents autocratic exercise of the powers by the government.
- A rigid constitution is ideal for a federation.
- Sometimes a rigid constitution is that it fails to keep pace with fast changing
social environment.
- Also because of its inability to change easily, at times, it hinders the process of
social development. So it can be a source of hindrance during emergencies.
- Even it has inability to easily change can lead to revolts against the government.
So a rigid constitution can be a source of conservativeness. It can grow becomes
old very soon because it cannot Keep pace with times.
➢ Evolved Constitution
- An evolved constitution is one which is not made at any time by any assembly of
persons or an institution. It is the result of slow and gradual process of evolution.
- Its rules and principles draw binding force from the fact of their being recognised
as ancient, historical, time-tested and respected customs and conventions.
- Some of these conventions get recognised by law and hence become enforceable
while others are followed because these are supported by public opinion, their
practical utility and moral commitment in their favour.
- Evolved Constitutions is the product of historical evolution and of political needs
and practical wisdom of the people. The Constitution of Great Britain presents a
key example of an evolved constitution.
➢ Enacted Constitution
- An Enacted Constitution is a man-made constitution. It is made, enacted and
adopted by an assembly or council called a Constituent Assembly or
Constitutional Council.
- It is duly passed after a thorough discussion over its objectives, principles and
provisions.
- It is written in the form of a book or as a series of documents and in a systematic
and formal manner.
- The Constitutions of India the USA, Japan, China and most of other states are
enacted constitutions.
Legislature
➢ The term ‘legislature’ is a generic term meaning a body which legislates. The term
‘Legg means law and “lature’ the place and etymologically Legislature means a place
for law-making.
➢ The legislature is that organ of the government which passes the laws of the
government. It is the agency which has the responsibility to formulate the will of the
state and vest it with legal authority and force. In simple words, the legislature is that
➢ Legislature enjoys a very special and important in every democratic state. It is the
assembly of the elected representatives of the people and represents national public
Functions of a Legislature
- The first and foremost function of a legislature is to legislate i.e. to make laws. In
ancient times, laws used to be either derived from customs, traditions and religious
law. It is the legislature which formulates the will of the state into laws and gives it a
legal character.
➢ Deliberative Functions
- To deliberate upon matters of national importance, public issues, problems and needs is
- A near universal rule is that “the legislature of the state is the custodian of national
purse.” It holds the purse of the nation and controls the finances. No money can be
- Each year the executive has to prepare and get passed from the legislature the
- In the budget, the executive has to place the account of the actual income and
expenditure of the previous year and estimated income and expenditure for the
New Year.
- Not only the legislature passes the budget but also it alone can approve the
- A modern legislature has the power to exercise control over the executive. In a
parliamentary system of government, like the one which is at work in India, for all
its actions, decisions, and policies, the executive is collectively responsible before
the legislature.
- It is accountable before the legislature. The legislature has the power to remove
- The Prime Minister and all other ministers are essentially the members of the
legislature. They are bound by the rules and procedures of the Parliament.
- In a Presidential form of government, like the one which is at work in the USA,
the legislature exercises some checks over the executive. It can appoint
- By the use of its power to legislate and pass the budget, the legislature exercises a
fair amount of control over the executive. Thus, whether a political system has a
➢ Constituent Functions
- In almost every state, it is the legislature which has the power to amend the
constitution. For this purpose legislature has to pass special laws, called amendments,
- In some states the requirement is that the legislature must pass the amendment with
➢ Electoral Functions
- A legislature usually performs some electoral functions. The two houses of the
India. In Switzerland, the Federal Legislature elects the members of the Federal
➢ Judicial Functions
- It is customary to give some judicial power to the legislature. Usually, the legislature
high public officials on charges of treason, misdemeanour and high crimes and
pass a resolution for the removal of Judges of the Supreme Court and of the High
➢ Ventilation of Grievances
- A legislature acts as the highest forum for ventilation of public grievances against
the executive. Besides representing every interest and shade of opinion, the legislature
acts as the national forum for expressing public opinion, public grievances and public
aspirations. Parliamentary debates and discussions throw a flood light over various
➢ Miscellaneous Functions
- Some legislatures are assigned specific executive tasks. For example, the US
Senate (Upper House of US Legislature) has the power to confirm or reject the
- In India, the Rajya Sabha has been given the power to establish or eliminate any
All India Service. Legislatures also perform the function of approving or rejecting
or amending all the policies and plans made by the executive. In the US
- Thus the legislative organs of the government play a very important and active
role in the exercise of the sovereign power of the state. In fact legislature is the
chief source of law. It is the mirror of national public opinion and the symbol of
Types of Legislature
➢ Bicameral
- India, USA, UK, France, Russia, Switzerland, Australia and a large number of
legislatures
- Where the legislature is bicameral, “the first house is usually called the lower
from becoming arbitrary and despotic. A single chamber with all the legislative
power can become corrupt and despotic. The second chamber is needed for
single chamber. With a view to satisfy mass passions and demands, the single
exercises a checking and modifying influence on the bill passed by the first house.
- The legislative work in the modern welfare state has become highly complex and
- The second chamber performs the role of a reviser. “When deliberations have to
- The emergence of welfare state has produced a manifold increase in the scope of
pass all the legislative work so the second house is needed for sharing the
legislative work.
- The two houses can together correctly act as the barometer of public opinion. A
single house can grow out of tune and fail to keep in harmony with public opinion.
The second house chosen at a different time can help the legislature in
consist of the elected representatives of the people as a whole, and the upper
house can give representation to the minorities and special interests and groups
chambers of commerce.
- The passing of laws by two houses leads to some delay. However, this delay is
very useful. It helps the crystallisation of public opinion on all bills before they
become laws.
deliberation.
system, the lower house gives representation to the people of the state as a whole
and the upper house gives representation to the units of the federation.
- A second chamber makes it possible for the state to use the political and
administrative ability of such people, who for certain reasons are not in a position,
or are not quite willing to enter the lower house through elections. The second
chamber can, as such, help the induction of experience and ability into the
legislature.
- The second chamber can be given a longer and continuous term for securing
stability. The lower house, being the representative of the people has to be given a
shorter tenure. As against this, the second chamber can be given a longer tenure
- It has been due to such a consideration that a member of Indian Rajya Sabha has
six year tenure and this house has a quasi- permanent character—it is never
dissolved as a whole and only l/3rd of its members retires after every two years.
➢ Unicameral
- The state legislatures of all the Canadian and Swiss cantons (provisions) are
- Several states, mostly the small states and provinces of a federal system, have
unicameral legislatures, i.e. legislatures with single houses.
one. People are sovereign. Their will is one and cannot be divided. They are best
-
- The second chamber is either mischievous or superfluous. If the second chamber
dissents from the first, it is mischievous; if it agrees with it, it is superfluous. This
stages before getting a place in the statutes book, there is no need for a second
chamber is needed.
- The second chamber is always a source of unwanted delay. A bill has to pass
through several stages in the first house before getting passed. When it goes to the
second house, it has to again pass through a similar process. It causes unwanted
and harmful delay. In this process, the legislation gets unnecessarily delayed so
- The second chamber is never in a position to check the so called despotism of the
The Indian Rajya Sabha can only delay a money bill for 14 days only and an
usually dominated by the rich businessmen, capitalists, landlords and the ‘elitist’
-
- The supporters of unicameral legislatures advocate that the special interests of
minorities and weaker sections of society can be given representation in the lower
house without any loss. This can be done without disturbing the nature and
elections.
- The existence of two chambers means more burdens on the finances of the state
without much use, because the second chamber almost always fails to perform its
due role in the legislative process. The second chamber entails heavy expenditure
and renders no useful purpose so there is no need for a second chamber.
Executive
➢ The term ‘Executive’ has been defined both in its broad and narrow forms. In its
broad form, it is taken to mean all the functionaries, political power-holders (Political
Executive) and permanent civil servants who undertake the execution of laws and
policies and run the administration of state.
➢ In its narrow form, it is taken to mean only the executive heads (ministers i.e. the
political Executive), who head the government departments, formulate the policies
and supervise the implementation of the laws and policies of the government.
➢ In the narrow form, the civil service and its administrative functions are not included
in the realm of the Executive.
➢ “In a broad and collective sense, the executive organ embraces the aggregate or
totality of all the functionaries and agencies which are concerned with the execution
of the will of the state as that will has been formulated and expressed in terms of law.”
➢ “In its broadest sense, the executive department consists of all government officials
except those acting in legislative or judicial capacity. It includes all the agencies of
government that are concerned with the execution of states will as expressed in terms
of law.”
➢ The permanent executive i.e. bureaucracy/civil service runs the day-to- day
administration and works in government departments. It works under the supervision
and control of the political executive.
➢ Two Parts of Executive are Political Executive & Permanent Executive
- The Political Executive (Ministers)
• It consists of the executive head of the state and other heads of the executive
departments is ministers.
• Ministers are political leaders. They are mostly elected representative of the
people and responsible for all their decisions and policies before the public.
• Political Executive work for a fixed tenure of about 5 years.
• It acts as a temporary executive in the sense that it changes after every election.
• After completing one tenure, ministers have to again contest elections. They can
again become ministers only when the party to which they belong returns to
power as the majority party.
• The ministers are amateurs, non-experts and non-professionals. Their function is
to formulate policies and get these policies and laws approved from the
Legislature.
• Thereafter these policies and laws of the State are implemented by the civil
servants, who work under the control of Political Executive.
• The political executive heads the government. Each minister is head of a
department or some of the government.
- The Non-political Permanent Executive (Civil Servants)
• It consists of the civil servants (Bureaucracy) from the lowest to the
highest levels. It carries out the day to day administration by working in
the government departments. The civil servants are politically neutral.
They do not owe allegiance to any political party.
• Their job is to carry out the laws and policies of the government without
any political consideration. They are specially educated and trained
persons. They are experts and professionals. They give expert advice and
opinion as well as collect, classify and present data to the political
executive on the basis of which the latter takes all decisions.
• Once appointed, the civil servants remain in office till the attainment of the
retirement age, usually up to the age of 55 or 60 years. They get regular
and fixed salaries and are hierarchically organised into higher and lower
relationships.
➢ Enforcement of Laws
- The primary function of executive is to enforce laws and to maintain law and order
in the state. Whenever a breach of law takes place, it is the responsibility of the
executive to plug the breach and bring the offenders to book.
- Each government department is responsible for the implementation of the laws and
policies concerning its work. For maintaining law and order in the state, the executive
organises and maintains the police force.
➢ Appointment-making Functions
- All major appointments are made by the chief executive. As for example, the
President of India appoints the Chief Justice and other Judges of the Supreme
Court and High Courts. Ambassadors, Advocate General of India, Members of
Union Public Service Commission, Governors of States etc.
- Likewise, the President of the United States makes a very large number of key
appointments. All the secretaries who head various government departments,
Judges of the Supreme Court and other Federal Courts, the Federal officials in the
States etc., are appointed by the US President.
- However, all such appointments require the approval of the US Senate (Upper
House US Congress i.e. Parliament).
- The members of the civil service are also appointed by the Chief executive. This
is, usually, done on the recommendation of a service recruitment commission. In
India, the Union Public Service Commission annually holds competitive
examinations for All India Services, Central Services and Allied Services.
- It recruits on merit, candidates for appointment to these cadres. The appointments
are done by the Chief executive in accordance with the recommendations of the
UPSC. Similar practice prevails in almost all the states. As such appointment-
making is a function of the executive.
➢ Treaty-making Functions
- It is the responsibility of the executive to decide as to which treaties are to be
signed with which other countries. The executive negotiates the treaties in
accordance with the procedure defined by international law and also in accordance
with the provisions the constitution of the state.
- Each treaty is signed by a member of the executive. Most of the treaties also
require ratification by the legislature of the State. It is again the responsibility of
the executive to secure legislative approval for the treaties signed by it.
➢ Defence, War and Peace Functions
- One of the key functions of the state is to defend and preserve the unity and
integrity of the country and protect it in the event of an external aggression or war.
It is the responsibility of the executive to undertake this work.
- To organise military for the defence of the state, to prepare for and fight the war,
if it becomes necessary, and to negotiate and sign peace settlement after every
war, are the functions performed by the executive.
- The executive is the final judge of the nature of the threat to the security of the
country. It has the prime responsibility to take all such steps as are needed in the
interest of the security and integrity of the state. The chief executive of the state is
also the supreme commander of the armed forces of the state.
➢ Foreign Policy-making and the Conduct of Foreign Relations
- In this age of ever-increasing global interdependence, it has become one of the
most important functions of a government to formulate the foreign policy of the
state and to conduct foreign relations. This function is also performed by the
executive.
- The executive formulates the goals of national interest and fixes the priorities. It
first formulates the foreign policy of the nation and then implements it for
securing the defined goals of national interest. The executive appoints the
ambassadors of the state to other states.
➢ Policy-making
- Modern welfare state has to carry out a large number of functions for securing the
socio-economic-cultural development of its people. It has to formulate policies,
prepare short-term and long-term plans and implement these. All actions of the
state are guided by definite policies and plans.
- It is the executive which undertakes the task of policy-making and developmental
planning. These are the two most important functions of the executive, because by
these the state carries out its objective of promoting the welfare of its people.
➢ Functions relating to Law-making
- Law-making is primarily the function of the legislature. However, the executive
also plays a role in law-making. In this sphere too the role of the executive has
been increasing by leaps and bounds.
- In a parliamentary system, the ministers are also members of the legislature and
they play a leading role in law-making.
- Most of the bills for legislation are introduced and piloted by them in the
legislature. Most of the time of the legislature is spent in passing the governmental
bills. The bills passed by the legislature become laws only after these are signed
by the Head of the State.
➢ Law-making under the system of Delegated Legislation
- The system of delegated legislation has considerably increased the law-making role
of the executive. Under this system, the legislature delegates some of its law-making
powers to the executive.
- The executive then makes rules on the basis of these powers. The amount of
delegated legislation made by the executive far out-weighs the laws passed by the
legislature.
➢ Financial Functions
- It is the legislature which is the custodian of all finances. It has the power to
impose, or reduce or eliminate a tax. However, in actual practice, the executive
exercises a number of financial functions.
- It has the responsibility to prepare the budget. It proposes the levy of new taxes or
changes in tax structure and administration. It collects and spends the money as
sanctioned by the legislature.
-
- The executive decides the ways and means through which the money is to be
collected and spent. It formulates all economic policies and plans.
- It takes suitable measures for regulating the production and distribution of goods,
money supply, prices and exports and imports. It contracts foreign loans,
negotiates foreign aid and maintains the financial credibility of the state.
➢ Some Semi-Judicial Functions
- The appointment of judges by the executive is regarded as the best method for
ensuring the independence of judiciary. In almost all democratic systems, the chief
executive has the power to appoint judges.
- Further, he has the right to grant pardon, reprieve and amnesty to criminals. Under
the system of administrative adjudication, the executive agencies have the power to
hear and decide cases involving particular fields of administrative activity.
➢ Grant of Titles and Honours
- Another important function of the executive is to grant titles and honours to the
people in recognition of their meritorious services to the nation. Such persons who
do commendable work in their respective spheres of activity—Art, Science,
Literature etc. are granted titles by the executive.
- It also grants titles to such defence personnel who show exemplary courage and
devotion to duty during war or peace. Even ordinary citizens are granted honours
in recognition of their meritorious work for the society.
- All decisions in this respect are taken by the executive. These are the major
functions performed by the Executive. Executive has indeed emerged as the most
powerful organ of the government.
Types of Executive
.
➢ Hereditary and Elected Executives
- When the executive assumes office by the law of hereditary succession, it is called
the hereditary executive. When the executive is directly or indirectly elected by the
people for a fixed period or even for life, it is called the elected executive.
- In Britain, Japan and Malaysia there are hereditary chief executives. In India, USA,
Germany and many other states there are elected chief executives.
➢ The Judiciary is the third organ of the government. It has the responsibility to apply
the laws to specific cases and settle all disputes. The real ‘meaning of law’ is what the
judges decide during the course of giving their judgements in various cases.
➢ From the citizen’s point of view, Judiciary is the most important organ of the
government because it acts as their protector against the possible excesses of
legislative and executive organs. Role of Judiciary as the guardian-protector of the
constitution and the fundamental rights of the people makes it more respectable than
other two organs.
Functions of Judiciary
- The judiciary has the supreme responsibility to safeguard the rights of the people. A
citizen has the right to seek the protection of the judiciary in case his rights are
violated or threatened to be violated by the government or by private organisations or
fellow citizens. In all such cases, it becomes the responsibility of the judiciary to
protect his rights of the people.
- In a federal system, the judiciary has to perform an additionally important role as the
guardian of the constitution and the arbiter of disputes between the centre and states.
- It acts as an independent and impartial umpire between the central government and
state governments as well as among the states. All legal centre-state disputes are
settled by the judiciary.
- Very often the courts are given the responsibility to give advisory opinions to the
rulers on any legal matter. For example, the President of India the power to refer to
the Supreme Court any question of law or fact which is of public importance.
- Judges are very often called upon to head Enquiry Commissions constituted to
enquire into some serious incidents resulting from the alleged errors or omissions on
the part of government or some public servants.
- Commissions of enquiry headed by a single judge are also sometimes constituted for
investigating important and complicated issues and problems.
➢ Miscellaneous Functions
- Some such functions are the appointment of certain local officials of the court,
choosing of clerical and other employees. Cases relating to grant of licenses,
patents, and copy rights, the appointment of guardians and trustees, the admission
of wills, to appoint trustees to look after the property of the minors, to settle the
issues of successions of property and rights, issue of administrating the estates of
deceased persons, the appointment of receivers, naturalization of aliens, marriage
and divorce cases, election petitions and the like.
- Through all these functions, the Judiciary plays an important role in each state. It
also plays a role in the evolution of Constitution through the exercise of its right to
interpret and safeguard it against all legislative and executive excesses.
Independent Judiciary
➢ The constitution of India adopts diverse devices to ensure the independence of the
judiciary in keeping with both the doctrines of constitutional and Parliamentary
sovereignty. Elaborated provision is in place for ensuring the independent position of
the Judges of the Supreme Court and the High Courts.
➢ The judges of the Supreme Court and the High Courts have to take an oath before
entering office that they will faithfully perform their duties without fear, favour,
affection, ill-will, and defend the constitution of India and the laws. Recognition of
the doctrine of constitutional sovereignty is implicit in this oath.
➢ The process of appointment of judges also ensures the independence of judiciary in
India. The judges of the Supreme Court and the High Courts are appointed by the
President. The constitution of India has made it obligatory on the President to make
the appointments in consultation with the highest judicial authorities. He of course
takes advice of the Cabinet. The constitution also prescribes necessary qualifications
for such appointments. The constitution tries to make the appointments unbiased by
political considerations.
➢ The Constitution provides for the security of tenure of Judges. The judges of the
Supreme Court and the High Court’s serve “during good behaviour” and not during
the pleasure of the President, as is the case with other high Government officials.
They cannot be arbitrarily removed by the President. They may be removed from
office only through impeachment. A Judge can be removed on the ground of proved
misbehaviour or incapacity on a report by both Houses of Parliament supported by a
special majority.
➢ Their salaries and allowances are charged upon the Consolidated Fund of India.
Further, the salaries and allowances of Judges of Supreme court and High courts
cannot be reduced during their tenure, except during a financial emergency under
Article 360 of the constitution.
➢ The activities of the Judges cannot be discussed by the executive or the legislature,
except in case of removal of them in India
➢ The retirement age is 65 years for Supreme Court judges and 62 years for High court
judges. Such long tenure enable the judges to function impartially and independently
➢ A retired Supreme Court judge cannot practice engage in legal practice in any court in
India. However, a retired High court judge can practice law in a state other than the
state in which he served as a High Court judge. These restrictions ensure that a retired
judge is not able to influence the decision of the courts
➢ 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. Then, there are People’s courts
known as Lok Adalats. If no decision is reached at these Lok Adalats, then the cases
move to courts.
➢ The power of judiciary to review and determine the validity of a law or an order may
be described as the powers of Judicial Review’. It means that the constitution is the
supreme law of the land and any law inconsistent therewith is void through judicial
review.
➢ It is the power exerted by the courts of a country to examine the actions of the
legislatures, executive and administrative arms of government and to ensure that such
actions conform to the provisions of the nation’s Constitution. Judicial review has two
important functions, like, of legitimizing government action and the protection of
constitution against any undue encroachment by the government.
➢ The Supreme Court has been vested with the power of judicial review. It means that
the Supreme Court may review its own Judgement order. Judicial review can be
defined as the competence of a court of law to declare the constitutionality or
otherwise of a legislative enactment.
➢ Being the guardian of the Fundamental Rights and arbiter of the constitutional
conflicts between the Union and the States with respect to the division of powers
between them, the Supreme Court enjoys the competence to exercise the power of
reviewing legislative enactments both of Parliament and the State’s legislatures.
➢ The power of the court to declare legislative enactments invalid is expressively pro-
vided by the Constitution under Article 13, which declares that every law in force, or
every future law inconsistent with or in derogation of the Fundamental Rights, shall
be void.
➢ Other Articles of the Constitution (131-136) have also expressively vested in the
Supreme Court the power of reviewing legislative enactments of the Union and the
States. Articles 131-136 entrusts the court with the power to adjudicate disputes
between individuals, between individuals and the state, between the states and the
union; but the court may be required to interpret the provisions of the constitution and
the interpretation given by the Supreme Court becomes the law honoured by all courts
of the land.
➢ The jurisdiction of the Supreme Court was curtailed by the 42nd Amendment of the
Constitution (1976), in several ways. But some of these changes have been repealed
by the 43rd Amendment Act, 1977. But there are several other provisions which were
introduced by the 42nd Amendment Act 1976 not repealed so far.
➢ The Indian Constitution adopted the Judicial Review on lines of U.S. Constitution.
Parliament is not supreme under the Constitution of India. Its powers are limited in a
manner that the power is divided between centre and states.
➢ Moreover the Supreme Court enjoys a position which entrusts it with the power of
reviewing the legislative enactments both of Parliament and the State Legislatures.
This grants the court a powerful instrument of judicial review under the constitution.
➢ Article 372 (1) establishes the judicial review of the pre-constitution legislation.
➢ Article 13 declares that any law which contravenes any of the provisions of the part of
Fundamental Rights shall be void.
➢ Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental
rights to the Supreme and High Courts.
➢ Article 251 and 254 states that in case of inconsistency between union and state laws,
the state law shall be void.
➢ Article 246 (3) ensures the state legislature’s exclusive powers on matters pertaining
to the State List.
➢ Article 245 states that the powers of both Parliament and State legislatures are subject
to the provisions of the constitution.
➢ The legitimacy of any legislation can be challenged in the court of law on the grounds
that the legislature is not competent enough to pass a law on that particular subject
matter; the law is repugnant to the provisions of the constitutions; or the law infringes
one of the fundamental rights.
➢ There is no express provision in our constitution empowering the courts to invalidate
laws, but the constitution has imposed definite limitations upon each of the organs,
the transgression of which would make the law void. The court is entrusted with the
task of deciding whether any of the constitutional limitations has been transgressed or
not.
➢ The strategy of judicial review can be divided broadly into public law review and
private law review. Under the Constitution, legislative and administrative actions can
be reviewed by courts under Articles 32, 136, 226 and 227. Such review is called
public law review. Article 32 guarantees the right to move the Supreme Court if any
fundamental right can be reviewed under this provision.
➢ It has the power to take action of contempt of court. Those who violate or disobey the
decisions of the courts are proceeded against under this power. They can be punished
and sent to jail. Obviously the contempt power is the only weapon in the hand of
judiciary to see that their decisions are executed.
➢ Locus standi is the first limitation on judicial review. This means that only a person
aggrieved by an administrative action or by an unjust provision of law shall have the
right to move the court for redressal. Under this traditional rule a third party who is
not affected by the action cannot move the court.
➢ Another limitation is that before a person moves the High Courts and the Supreme
Court invoking their extraordinary jurisdiction, he should have exhausted all
alternative remedies. For example, these may be a hierarchy of authorities provided in
legislation to look-into the grievances of the affected party. The aggrieved person
should first approach these authorities for a remedy before invoking extraordinary
jurisdiction of the courts.
➢ However, the alternative remedies should be equally efficacious and effective as the
remedies available from the courts are. If they are not, the jurisdiction can be invoked.
In cases of manifest injustice and the violation of procedural fairness, alternative
remedy is not a bar.
➢ A rule has been evolved to avoid repeated adjudication on the same matter between
the same parties. If the case is finally disposed of on merits the same issue cannot be
re-agitated by any of the parties filing another case. This limitation is called res
judicata.
Writs
Article 226 can be, and is more often, used for reviewing the action of administration. One
can say that there is an increase of litigation in this respect. The High Court can issue
directions, orders or writs in the nature of habeas corpus mandamus, prohibition, quo-
warranto, and certiorari for the enforcement of fundamental rights or for any other purpose.
➢ Habeas corpus is a writ issued by the court to bring before the court a person from
illegal custody. The court will examine the legality of detention and release the person
if detention is found illegal.
➢ Mandamus is issued to a public authority to do an act which under law, it is obliged to
do or to forbear from doing.
➢ Prohibition is a write to prevent a court or tribune! From doing something in excess of
its authority. High Court has power to issue an order of prohibition to the executive
authority prohibiting it from acting without jurisdiction.
➢ Certiorari is a write issued to a judicial or quasi-judicial authority to correct its order.
This writ is issued on specified grounds like violation of natural justice; excess, abuse
or lack of jurisdiction; fraud; and error of law apparent on the face of the record.
➢ Quo-warranto is a writ issued to a person who authorised occupies a public office to
step down from that office. High courts and the Supreme Court have the power to
issue not only these writs but also appropriate directions and orders.
➢ The French scholar Montesquieu pointed out as early as in the sixteenth century that
placing power in the hands of only one organ or group in a government entails
tyranny.
➢ Thus to check this problem he felt that the solution would be to vest power in three
distinct organs of the government, namely, the legislature, the executive and the
judiciary. This would allow each organ to be independent of the other such that no
encroachment or overlapping of powers may exist and a harmony may be reached
which would aid the smooth running of the government.
➢ These words state the Doctrine of Separation of Powers as given by Montesquieu,
“There would be an end of everything, were the same man or same body, whether of
the nobles or of the people, to exercise those three powers, that of enacting laws, that
of executing laws, that of executing public resolutions, and of trying the causes of
individuals."
➢ This doctrine stands testimony to Montesquieu belief that powers of the executive and
the legislature if vested in the same hands would result in a situation of arbitrariness
and despotism, for the executive will be enabled with the power of having any laws it
wishes, to be passed, alternatively if the judiciary and legislature or executive were
not separated then the common man would have no defence against the state.
➢ These Montesquieu saw as a serious threat to the liberty of the people and in order to
preserve them extolled the theory of separation of powers.
➢ Therefore, the separation of powers doctrine, in theory, aims at separating power and
disseminating it such that tyranny by the government may be prevented entirely as
equal power vests in three separate organs which act as a check and balance for each
other.
➢ Thus assigning a different function to each organ and creating exclusive functions for
them counters the concentration of powers and makes this doctrine a success. In fact
this doctrine has been adopted around the world in many constitutions and in ours to
an extent as well. It is a remarkable way of protecting human liberty and creating a
system of governance which is responsible and fair.
➢ It is often understood that in our country the debate about the separation of powers
dates as long back as the Constitution itself. It was extensively debated in the
Constituent Assembly.
➢ It was not given constitutional status in our Constitution finally but it does clearly
seem that the constitution of India has been made keeping the separation of powers
doctrine in mind, but nowhere is this explicitly stated or embraced by the constitution
itself.
➢ Since ours is a parliamentary system of governance, though an effort has been made
by the framers of the constitution to keep the organs of the government separated
from each other, but a lot of overlapping and combination of powers has been given to
each organ.
➢ The legislative and executive wings are closely connected with each other due to this;
the executive is responsible to the legislature for its actions and derives its powers
from the legislature.
➢ The head of the executive is the president, but a closer look shows that he is only a
nominal head and the real power rests with the Prime Minister and his Cabinet of
ministers as in Article 74(1). In certain situations the President has the capacity to
exercise judicial and legislative functions.
➢ For example, while issuing ordinances Art, The judiciary too performs administrative
and legislative functions. The parliament too may perform judicial functions, for
example if a president is to be impeached both houses of Parliament are to take an
active participatory role.
➢ Thus all three organs act as a check and balance to each other and work in
coordination and cooperation to make our parliamentary system of governance work.
India being an extremely large and diverse country needs a system like this where all
organs are responsible to each other as well as coordinated to each other; otherwise
making governance possible becomes a very rigid and difficult task.
➢ It is important to note that the separation of powers is still an important guiding
principle of the constitution. Most noteworthy is our judicial system which is
completely independent from the executive and the legislature.
➢ The High Courts and Supreme Courts have the power of judicial review which
empowers them to declare any law passed by the parliament unconstitutional if it so
decides. As in regard to the judges, they are extremely well protected by the
Constitution, their conduct is not open to discussion in the Parliament and their
appointment can only be made by the President in consultation with the Chief Justice
of India and the judges of the Supreme Court.
➢ It can be understood thus that there is a difference when there are ‘essential’ powers
of one of the organs of the government and the ‘incidental’ powers of the organs.
Hence, though one organ cannot usurp the ‘essential’ powers of an organ, it can
exercise its powers on the ‘incidental’ powers for smooth cooperative running of the
nation.
➢ This distinction clearly demarcates the amount of power one organ can wield over the
activities of another. For example, though the judiciary has the right to judicial
activism to check legislatures which may be unconstitutional, it cannot usurp powers
such as making laws themselves.
➢ But it is clear that the Separation of Powers doctrine has not been implemented in its
strictest format in our country nor been given Constitutional status but a diluted and
modern approach is followed to aid and guide our parliamentary system of
governance.
➢ Absolute majority
- It refers to a majority of more than 50% of the total membership of the house. For
example, as the total membership of Lok Sabha is 545, absolute majority in Lok
Sabha means – 50% of 545 plus 1, i.e. 273.
- In the normal business of the Parliament or State Legislature absolute majority is
not generally used. But this majority is used during general election, for the
formation of government at Centre and States.
➢ Effective Majority
- Effective Majority of house means more than 50% of the effective strength of the
house. This implies that out of the total strength, we deduct the vacant seats.
When Indian Constitution mentions “all the then members” that refers to effective
majority.
- For example, in Rajya Sabha, out of the total strength of 245 members if there are
45 vacancies, then the effective strength of the house is 200. Then the effective
majority is 50% of 200 plus 1, i.e. 101.
- Used during removal of Vice-president in Rajya Sabha – Article 67(b) and
removal of Speaker and Deputy Speaker in Lok Sabha and State Legislative
Assembly.
➢ Simple Majority
- This refers to majority of more than 50% of the members present and voting. This
is also known as functional majority or working majority.
- Simple majority is the most frequently used form of majority in Parliamentary
business. When the constitution or the laws do not specify the type of majority
needed, simple majority is considered for voting.
- To understand simple majority, let us consider a situation in Lok Sabha. On a
particular day, out of the total strength of 545, 45 were absent and 100 abstained
from voting on an issue. So only 400 members were present and voting. Then the
simple majority is 50% of 400 plus 1, i.e. 201.
- Ordinary bills need to be passed with simple majority in both Houses of the
Parliament before it is send to Indian President for his assent.
- It is used to pass Ordinary/Money/Financial bills, to pass Non-Confidence
Motion/Adjournment Motion/Censure Motion/Confidence Motion, for the
removal of Vice President in Lok Sabha– A67(b), to declare financial emergency,
to declare state emergency (President’s rule), election of Speaker/Deputy Speaker
of Lok Sabha and State legislatures., Constitution Amendment Bill under Article
368 which needs to be ratified by states
➢ Special Majority
- Special Majority as Per Article 249 requires a majority of 2/3rd members present
and voting. For example if out of the 245 members in Rajya Sabha, if only 150 are
present and voting, then the special majority required as per article 249 would be
101. It is used to pass the Rajya Sabha resolution to empower the parliament to
make laws in state list. (Valid up to 1 year, but can be extended any number of
times).
- Special Majority as per Article 368 requires a majority of 2/3rd members present
and voting supported by more than 50% of the total strength of the house. This
type of majority is used for most of the Constitution amendment bills, to pass a
constitution amendment bill in Rajya Sabha, in addition to getting the support of
123 members; the bill should be favoured by more than 2/3rd of the members
present and voting.
- Essential to pass a constitutional amendment bill which does not affect federalism,
for removal of judges of SC/HC, for approval of national emergency requires
special majority as per Article 368 in both houses and for Resolution by the state
legislature for the creation/abolition of Legislative Council (Article 169).
- Special Majority as per Article 368 + 50 percent state ratification by simple
majority is required when a constitutional amendment bill try to change the
federal structure. Special majority as per article 368 plus state ratification requires
a majority of 2/3rd members present and voting supported by more than 50% of
the state legislatures by a simple majority. A good example would be the bill
which introduced the National Judicial Appointments Commission (NJAC). It
required the support of at-least 15 state legislatures out of the 29 states. Needed to
pass a constitutional amendment bill which affect federalism like – position of
High Court Judges requires a majority of 2/3rd members of the total strength of
the house. In Lok Sabha the special majority as per article 61 is 364 while in
Rajya Sabha, the special majority as per article 61 is 164.
Political Processes