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Constitutional Law II

The Judiciary Under the Indian Constitution

The judiciary in India serves as the guardian of the Constitution, ensuring that the rights and liberties of its citizens are protected and upheld. It acts as an independent and impartial body, ensuring the rule of law and acting as a check on the powers of the executive and legislative branches of government. The structure, powers, and functions of the judiciary are enshrined in the Indian Constitution through various articles, and its role has been further elucidated through landmark judgments.

Constitutional Provisions

The Constitution of India provides for a hierarchical and integrated judiciary consisting of the Supreme Court, High Courts, and Subordinate Courts. The key articles that deal with the structure and functioning of the judiciary include:

  1. Article 124 – It provides for the establishment and composition of the Supreme Court. The Supreme Court is the highest judicial forum and the final court of appeal under the Constitution.
  2. Article 214 and 215 – These articles deal with the establishment of High Courts in States and their jurisdiction. High Courts have jurisdiction over a state, and their decisions can be appealed in the Supreme Court.
  3. Article 233 to 237 – These articles deal with the appointment and conditions of service of District Judges and Subordinate Judiciary.
  4. Article 32 – Known as the ‘Heart and Soul of the Constitution,’ it provides for the right to constitutional remedies. It empowers citizens to directly approach the Supreme Court for the enforcement of their fundamental rights.
  5. Article 226 – Similar to Article 32 but applicable to High Courts, it empowers citizens to approach High Courts for the enforcement of their fundamental rights and other legal rights.

Landmark Judgments

Over the years, the judiciary in India has delivered several landmark judgments that have shaped its role and functioning. Some of these judgments include:

  1. Keshavananda Bharati v. State of Kerala (1973) – This case is famous for introducing the ‘Basic Structure Doctrine.’ The Supreme Court held that while Parliament has the power to amend the Constitution, it cannot alter its basic structure or framework.
  2. Maneka Gandhi v. Union of India (1978) – This case expanded the scope of Article 21 (Right to Life and Personal Liberty) by interpreting it to include the Right to Travel Abroad.
  3. A.K. Gopalan v. State of Madras (1950) – In this case, the Supreme Court narrowly interpreted Article 21, stating that the Right to Life is limited to the protection of life and personal liberty from physical restraint.
  4. Vishaka v. State of Rajasthan (1997) – This case laid down guidelines to prevent sexual harassment of women at the workplace, filling a legislative vacuum and emphasizing the judiciary’s role in addressing societal issues.

Challenges and Reforms

While the Indian judiciary plays a crucial role in upholding the rule of law and protecting the rights of citizens, it faces several challenges, including delays in the disposal of cases, mounting backlog, and issues related to judicial appointments.

To address these challenges, various reforms have been proposed, such as the introduction of the National Judicial Appointments Commission (NJAC) to streamline the appointment process of judges. However, the validity of the NJAC Act was challenged and subsequently struck down by the Supreme Court in the Supreme Court Advocates-on-Record Association v. Union of India (2015) case, emphasizing the judiciary’s commitment to maintaining its independence and autonomy.

Functions of the Indian Judiciary: Understanding its Role

The judiciary in India plays a multifaceted role in the governance and administration of justice. Ensconced within the constitutional framework, the judiciary’s functions extend beyond mere dispute resolution. Let’s delve deeper into the pivotal functions of the Indian judiciary and understand its overarching role in the democratic fabric of the nation.

  1. Administration of Justice:
    The judiciary serves as the ultimate arbiter of disputes, ensuring that justice is meted out impartially. By meticulously examining evidence and interpreting laws, the courts determine the guilt or innocence of individuals and impose penalties accordingly. This foundational role underpins the rule of law and safeguards citizens’ rights against arbitrary actions.
  2. Creation of Judge-made Law (Case Law):
    In situations where existing laws are ambiguous or inadequate, judges, drawing upon their wisdom and judicial precedent, create ‘case law’. These judicial decisions, based on the doctrine of ‘stare decisis’, provide guidance for future cases and contribute to the evolution of the legal landscape.
  3. Guardian of the Constitution:
    The Supreme Court, as the sentinel on the qui vive, acts as the custodian of the Constitution. It resolves conflicts of jurisdiction between the central and state governments and reviews legislative and executive actions to ensure they conform to constitutional provisions. Through ‘judicial review’, the judiciary safeguards the fundamental rights of citizens and maintains the delicate balance of power in a federal structure.
  4. Protector of Fundamental Rights:
    The judiciary stands as a bulwark against the potential excesses of the State, ensuring that citizens’ fundamental rights are inviolable. Through the issuance of writs, the superior courts offer protection against arbitrary actions by the government or its agencies, reinforcing the democratic ethos of the country.
  5. Supervisory Functions:
    The higher judiciary exercises supervisory jurisdiction over subordinate courts, ensuring uniformity in the administration of justice and upholding the principles of justice, equity, and fairness across the judicial hierarchy.
  6. Advisory Functions:
    Apart from its adjudicatory role, the Supreme Court of India also offers advisory opinions on constitutional matters, serving as a constitutional consultant to the executive when approached, thereby contributing to the interpretation and understanding of constitutional provisions.
  7. Administrative Functions:
    Beyond its judicial functions, the judiciary also undertakes administrative responsibilities. Courts may engage in activities such as granting licenses, administering estates, registering marriages, appointing guardians, and overseeing the welfare of minors and individuals with disabilities.
  8. Special Role in a Federation:
    In federal systems like India, the judiciary plays a critical role in settling disputes between the central and state governments and acts as an arbitrator in inter-state disputes, ensuring harmonious relations and maintaining federal equilibrium.
  9. Conducting Judicial Enquiries:
    Judges are often entrusted with the responsibility of heading commissions of enquiry to investigate errors or omissions by public servants, thereby ensuring accountability and transparency in public administration.

Indian Judiciary – Civil Courts

The Indian judiciary is structured to cater to a wide range of legal disputes, distinguishing between civil and criminal matters to ensure specialized and efficient adjudication. While criminal courts handle cases involving violations of criminal law, civil courts are entrusted with resolving disputes arising from civil matters. Let’s delve into the intricacies of civil courts in India and understand their functioning, jurisdiction, and significance.

Civil Courts and Civil Law

Civil law encompasses a vast array of disputes that do not involve criminal offenses. These disputes generally arise between individuals, entities, or entities and individuals, and revolve around rights, obligations, and remedies available under civil law. Some common examples of civil cases include:

  • Divorce and matrimonial disputes
  • Eviction and property disputes
  • Consumer grievances and disputes
  • Debt recovery and bankruptcy proceedings
  • Contractual disputes
  • Inheritance and succession disputes

Jurisdiction and Powers of Civil Courts

Civil courts, while handling civil cases, exercise jurisdiction based on the pecuniary value of the dispute and the territorial jurisdiction. The hierarchy of civil courts in India is as follows:

  1. District Courts:
  • District Judges: They preside over District Courts and are senior judicial officers responsible for overseeing civil trials within their jurisdiction.
  • Magistrates of Second Class: They handle cases of lesser pecuniary value and possess limited judicial powers compared to District Judges.
  • Civil Judge (Junior Division): These are entry-level judicial officers who handle civil cases of smaller pecuniary value and assist higher judicial officers in the administration of justice.

2. High Courts:

    • High Courts possess original, appellate, and supervisory jurisdiction over civil matters within their territorial jurisdiction. They hear appeals from decisions of subordinate civil courts and exercise writ jurisdiction to enforce fundamental rights and check administrative actions.

    3. Supreme Court:

      • The Supreme Court is the apex judicial body in India and hears civil appeals from High Courts and matters of constitutional importance. It exercises original, appellate, and advisory jurisdiction over civil matters, ensuring uniformity in the interpretation and application of civil laws across the country.

      Distinguishing Features of Civil Courts

      While civil courts and criminal courts share the common goal of administering justice, there are distinct differences in their functions and powers:

      • Nature of Proceedings: Civil courts deal with disputes between private parties seeking legal remedies, whereas criminal courts adjudicate disputes between the state and an individual alleged to have committed a criminal offense.
      • Powers of Judges:
      • Civil Court Judges: They possess the authority to adjudicate disputes, award damages, issue injunctions, and grant specific performance of contracts, among other remedies. However, their powers are confined to civil remedies, and they cannot impose criminal sanctions.
      • Criminal Court Judges: They have the power to convict and punish individuals found guilty of committing criminal offenses, including imprisonment, fines, and other penal sanctions.

      Understanding the Types of Jurisdiction of Civil Courts

      Jurisdiction is a fundamental concept in the legal system, delineating the authority and scope of a court to adjudicate and decide upon matters brought before it. In the context of civil courts in India, jurisdiction is categorized into four distinct types, each serving a specific purpose and ensuring the efficient administration of justice. Let’s delve into these types of jurisdiction and understand their significance in the functioning of civil courts.

      1. Subject Matter Jurisdiction:
      • Definition: Subject matter jurisdiction pertains to the authority of a court to adjudicate cases of a particular type or category.
      • Significance: This type of jurisdiction ensures that a court with specialized knowledge and expertise handles cases falling within its purview, thereby ensuring efficient and informed decision-making.
      • Example: Family courts have subject matter jurisdiction over matrimonial disputes, while consumer courts have jurisdiction over consumer grievances and disputes.

      2. Territorial Jurisdiction:

        • Definition: Territorial jurisdiction relates to the geographical boundaries within which a court can exercise its authority and adjudicate cases.
        • Significance: This type of jurisdiction ensures that disputes are adjudicated by a court located within the geographical proximity of the parties involved, facilitating easy access to justice and enhancing the convenience of litigants.
        • Example: A District Court in a particular district has territorial jurisdiction over disputes arising within that district.

        3. Pecuniary Jurisdiction:

          • Definition: Pecuniary jurisdiction refers to the authority of a court to hear and decide cases based on the monetary value or amount involved in the dispute.
          • Significance: This type of jurisdiction ensures that cases are heard by courts commensurate with the pecuniary value of the dispute, thereby streamlining the adjudication process and ensuring equitable distribution of judicial workload.
          • Example: A Civil Judge (Junior Division) may have pecuniary jurisdiction up to INR 20 lakhs, while a District Judge may have jurisdiction over cases exceeding INR 20 lakhs.

          4. Appellate Jurisdiction:

            • Definition: Appellate jurisdiction pertains to the authority of a higher court to hear appeals or review decisions rendered by a lower court.
            • Significance: This type of jurisdiction ensures that parties aggrieved by the decisions of lower courts have an avenue for redressal and review of their grievances, thereby upholding the principles of justice, fairness, and accountability in the judicial system.
            • Example: The Supreme Court and High Courts possess appellate jurisdiction to hear appeals from judgments of subordinate civil courts, ensuring uniformity and consistency in the interpretation and application of laws.

            Indian Judiciary and Criminal Courts

            The Indian judiciary is a well-structured and hierarchically organized system responsible for administering justice and upholding the rule of law. Criminal courts, as a significant component of the judiciary, play a pivotal role in addressing violations of criminal law and ensuring that perpetrators of crimes are held accountable. Let’s explore the structure, functions, and jurisdiction of criminal courts within the Indian judiciary.

            Hierarchy of Criminal Courts in India

            The criminal courts in India are organized into a hierarchical structure, with each court having a distinct jurisdiction and responsibility. The primary tiers of criminal courts include:

            1. Magistrates’ Courts:
            • Judicial Magistrate of First Class: Empowered to handle cases punishable with imprisonment up to three years and fines.
            • Judicial Magistrate of Second Class: Empowered to handle cases punishable with imprisonment up to one year and fines.
            • Executive Magistrates: Primarily responsible for maintaining law and order and ensuring public peace.

            2. Sessions Courts:

              • Presided over by a Sessions Judge, these courts handle serious criminal cases such as murder, rape, dacoity, and other offenses punishable with imprisonment exceeding seven years.
              • They also hear appeals from the judgments of Magistrates’ Courts.

              3. High Courts:

                • High Courts possess original and appellate jurisdiction over criminal matters within their territorial jurisdiction.
                • They hear appeals from the judgments of Sessions Courts and exercise supervisory jurisdiction over criminal proceedings in subordinate courts.

                4. Supreme Court:

                  • As the apex judicial body, the Supreme Court hears appeals from the judgments of High Courts in criminal cases and exercises jurisdiction over matters of constitutional significance and public importance.

                  Types of Criminal Courts based on Jurisdiction

                  1. Territorial Jurisdiction:
                  • Criminal courts exercise jurisdiction based on the geographical boundaries within which the offense was committed.
                  • The jurisdiction of the court is determined by the place where the offense occurred or where the accused resides.

                  2. Pecuniary Jurisdiction:

                    • Criminal courts have jurisdiction based on the severity of the offense and the prescribed punishment.
                    • The jurisdiction is determined by the value of the fine or the term of imprisonment prescribed for the offense.

                    Functions and Powers of Criminal Courts

                    1. Trial of Offenses:
                    • Criminal courts conduct trials to determine the guilt or innocence of the accused based on the evidence presented.
                    • They ensure fair and impartial proceedings, safeguarding the rights of the accused and victims.

                    2. Awarding Punishments:

                      • Criminal courts have the authority to impose penalties, including imprisonment, fines, and other punitive measures, on individuals found guilty of committing criminal offenses.

                      3. Protection of Rights:

                        • Criminal courts protect the fundamental rights of individuals, ensuring that legal safeguards are adhered to during the investigation, trial, and sentencing stages.

                        4. Appellate and Review Jurisdiction:

                          • Higher criminal courts, including High Courts and the Supreme Court, exercise appellate jurisdiction to review the judgments and orders of lower courts, ensuring consistency and correctness in the application of criminal laws.

                          Conclusion

                          The judiciary under the Indian Constitution serves as a bulwark against arbitrary exercise of power and ensures the protection of fundamental rights and liberties. Through its constitutional provisions and landmark judgments, it has played a pivotal role in shaping the legal landscape of the country. While challenges persist, the judiciary’s commitment to upholding the rule of law and delivering justice remains unwavering.

                          Reservation: Statutory Commissions Statutory provisions

                          In India, reservation refers to the practice of setting aside a certain percentage of seats or opportunities for historically marginalized or underrepresented groups, such as Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC), in education, government jobs, and political representation. Statutory provisions are legal enactments passed by legislatures that establish the framework for reservation policies. In the context of India, reservation policies are primarily governed by constitutional provisions and statutes. Here are some key statutory provisions related to reservation in India:

                          1. Constitution of India: The Constitution of India provides the foundational framework for reservation policies through various provisions, including:
                          • Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth. Clause (4) of Article 15 allows the state to make special provisions for the advancement of socially and educationally backward classes of citizens or for SCs/STs.
                          • Article 16: Equality of opportunity in matters of public employment. Clause (4) of Article 16 enables the state to make provisions for the reservation of appointments or posts in favor of any backward class of citizens that, in the opinion of the state, is not adequately represented in the services under the state.
                          • Article 46: Promotion of educational and economic interests of SCs, STs, and other weaker sections.
                          1. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: This Act provides for the prevention of atrocities against members of SCs and STs and also includes provisions for certain special protections and benefits for these communities.
                          2. Other Backward Classes (OBCs): Various states in India have enacted legislation or issued government orders to provide for reservation for OBCs in education and public employment. These vary from state to state and may include specific statutes or executive orders.
                          3. Reservation Acts by State Governments: Many state governments in India have enacted specific laws or issued government orders to provide reservations in education, jobs, and other areas for different communities based on local demographics and socio-economic considerations.
                          4. Statutory Commissions: Statutory commissions such as the National Commission for Scheduled Castes (NCSC), National Commission for Scheduled Tribes (NCST), and the National Commission for Backward Classes (NCBC) are established under various acts of Parliament to safeguard the interests of these communities and ensure the implementation of reservation policies. a.National Commission for Scheduled Castes (NCSC): Established under the National Commission for Scheduled Castes Act, 2003, this commission is tasked with monitoring the implementation of constitutional and legal safeguards for the Scheduled Castes and investigating specific complaints regarding the violation of rights. b.National Commission for Scheduled Tribes (NCST): Established under the National Commission for Scheduled Tribes Act, 2003, this commission has a similar mandate as the NCSC but focuses on the welfare and protection of Scheduled Tribes.

                          These statutory provisions form the legal basis for reservation policies in India and are aimed at promoting social justice, equality, and inclusivity in various spheres of public life. In India, statutory commissions have been established to oversee the implementation of reservation policies and safeguard the interests of marginalized and underrepresented communities. Here are some of the key statutory provisions related to reservations and the relevant commissions, along with notable case laws:

                          1. Notable Case Laws:
                          • Indra Sawhney & Ors. vs. Union of India (1992): Popularly known as the “Mandal Commission case,” this landmark judgment upheld the validity of reservations for OBCs in public employment, subject to certain conditions. The case addressed the constitutionality of reservations based on caste and led to significant debates on affirmative action in India.
                          • M. Nagaraj & Others vs. Union of India (2006): This case dealt with the issue of whether the state can provide reservations in promotions for SCs and STs in public employment. The Supreme Court upheld the validity of such reservations but laid down certain guidelines and conditions for their implementation.
                          • B.K. Pavitra & Ors. vs. Union of India & Ors. (2019): In this case, the Supreme Court ruled that the state government cannot exceed the 50% cap on reservations, except in extraordinary circumstances, and upheld the Karnataka government’s decision to provide reservations in promotion for SCs and STs.

                          These case laws illustrate the evolving jurisprudence surrounding reservation policies in India and the role of statutory commissions in overseeing their implementation and addressing related legal challenges.

                          Collegium System in India

                          Articles 124(2) and 217 of the Indian Constitution deal with appointing judges to the Supreme Court and High Courts.

                          In India, the President is the nominating authority who chooses judges based on the collegium’s recommendations. The Collegium System is not mentioned in the Indian Constitution or any other legislation. However, the Hon’ble Supreme Court of India reiterated the country’s judiciary’s independence and political influence in judge nominations. Supporters support the collegium system because it ensures the freedom of the judiciary and the nomination of deserving and unbiased judges in the country. However, detractors believe it is an ineffectual method since the collegium system lacks transparency and accountability and is frequently accused of nepotism and corruption.

                          Article 124(2) talks about the appointment of Supreme Court Judges and states, “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Court in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than Chief Justice of India shall always be consulted……”

                          Therefore, the power to appoint the Supreme Court Judges (including the Chief Justice of India) vests with the President of India. However, this needs to be done in “consultation” with the Chief Justice of India (CJI) in the case of a Supreme Court judge other than the CJI.

                          Article 217(1) talks about the appointment of High Court Judges and states, “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years……”

                          Therefore, the judges to the High Courts are appointed by the President upon “consultation” with the Chief Justice of India and the Governor of the relevant state and the Chief Justice of the High Court also, in case of a judge other than the Chief Justice of the High Court. The word “consultation” has been interpreted by the Supreme Court in various case laws (discussed later) which led to the evolution of the Collegium System in India.

                          Who Heads the Collegium System?

                          • The SC collegium is headed by the CJI (Chief Justice of India) and comprises four other senior-most judges of the court.
                          • A High Court collegium is led by the incumbent Chief Justice and two other senior-most judges of that court.
                          • Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.

                          The Collegium System in India is nowhere mentioned in the Constitution and it evolved through the judicial interpretations of these constitutional provisions by the Supreme Court in the landmark case laws which are now collectively called “Four Judges Cases”.

                          First Judges Case

                          The seven-judge bench determined the matter in the First Judges Case, S.P. Gupta v. Union of India, AIR 1982 SC 149, and introduced the notion of the collegium system in India. The court analyzed the regulations governing the appointment of judges in this case and made significant observations. The court stated that “the Chief Justice of India, the Chief Justice of the High Court, and such other Judges of the High Courts and of the Supreme Court…. are merely constitutional functionaries having a consultative role, and the power of appointment resides solely and exclusively in the Central Government.” However, such consultation should take place.

                          The court ruled that the Central government was not required to follow and might overturn the opinions of such constitutional authorities, even if their opinions were similar and unanimous. It further stated that when opinions differ on the nomination of a Judge in a High Court, the opinion of any of the constitutional functionaries cannot take precedence, and it is up to the Central Government to decide whether the appointment should be made or not. In the instance of Supreme Court judge appointment, the view of the Chief Justice of India (CJI) cannot be given precedence because the provisions include consultation rather than “concurrence.” Finally, the court’s verdict this case favored the executive (central government), and the executive remained the authority in India with the right to nominate judges.

                          However, the court in this case concluded that the then-current procedure of appointing judges was insufficient. The court recommended that a collegium comprised of people who are expected to have knowledge of the people who may be fit for appointment on the Bench and of the qualities required for appointment be formed to advise the President on the appointment of judges, which should be broad-based and involve consultation with people with broader interests.

                          Second Judges Case

                          In the Supreme Court Advocates on Record Association And Anr. v. Union of India, 1993 Supp (2) SCR 659, the nine-judge bench overruled the judgement in the ‘First Judges Case’. The court also emphasised the independence of the judiciary in this case and even observed that “The requirement of prior “consultation” with the superior Judiciary is a logical consequence of having an “independent Judiciary” as basic feature of the Constitution.”

                          In the case of Supreme Court judges appointed under Article 124, the CJI’s opinion shall be the collective opinion of the “Chief Justice of India, two senior-most Supreme Court Judges, and the senior Supreme Court Judge who comes from the State.”In the case of High Court judges appointed under Article 217, the process will begin with the CJI’s recommendation, which will include the views of two senior-most Judges of the High Court, two senior-most Judges of the Supreme Court, and the opinion of the senior Judge conversant with the affairs of the concerned High Court.

                          The Supreme Court ruled that the Chief Justice of India’s opinion shall take precedence in the appointment of judges, and no appointment can be made unless it is in accordance with the Chief Justice of India’s position. In terms of the transfer of justice/judge under Article 222, the court ruled that the motion will be launched by the CJI, and the recommendation will be binding on the Executive.]The ‘Second Judges Case’ was how the collegium system was adopted in India to appoint judges.

                          Third Judges Case

                          In the ‘Third Judges Case’ (Special Reference Case  1 of 1998), the Supreme Court expanded the strength of the collegium which now includes the CJI and four senior-most Supreme Court judges in case of a Supreme Court Judge appointment or High Court Justice/Judge transfer and two senior most Supreme Court judges in case of a High Court Judge appointment It also defined the meaning of consultation and held that “the expression “consultation with the Chief Justice of India” in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India.”

                          Fourth Judges Case

                          The Supreme Court ruled in Advocates on Record Association and Anr. v. Union of India, (2016) 5 SCC 1, that the 99th Constitutional Amendment Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014 were unconstitutional and void.The NJAC was composed of the Chief Justice of India (as Chairman), two senior most Supreme Court judges, the Law and Justice Minister, and two eminent persons (selected by a committee comprised of the Prime Minister, the Chief Justice of India, and the Leader of the Opposition) who would make recommendations to the President regarding judicial appointments.

                          What are the Issues Related to the Collegium System?

                          • Exclusion of Executive:
                          • The full absence of the government from the judicial nomination process resulted in a system in which a few judges appoint the rest in perfect secrecy.
                          • Furthermore, they are not answerable to any administrative authority, which may lead to the wrong candidate being chosen while the right candidate is overlooked.
                          • Chances of Favouritism and Nepotism:
                          • The collegium method does not establish any particular criteria for vetting candidates for the position of CJI, which leaves room for nepotism and favouritism.
                          • It leads to Court system transparency, which is extremely detrimental to the country’s management of law and order.
                          • Against the Principle of Checks and Balances:
                          • The notion of check and balance is breached in this system. In India, three organs act partially independently, yet they keep a check and balance on the overwhelming powers of any organ.
                          • However, the collegium system vests enormous authority in the judiciary, leaving little room for balance and raising the potential for abuse.
                          • Close-Door Mechanism:
                            • Critics have pointed out that this system lacks an established secretariat.It is regarded as a closed-door affair, with no public awareness of how and when a collegium meets, or how its decisions are made.
                            • Furthermore, no official minutes of collegium proceedings exist.
                            • Unequal Representation:
                              • The composition of the higher courts is another source of concern; women are significantly underrepresented in the higher judiciary.

                          Right to Constitutional Remedies: Heart and Soul of the Constitution

                          Introduction:

                          All part III of the Constitution of India ensures specific essential privileges to its residents, these freedoms incorporate the right to opportunity (as outlined by article 19 ), the right to correspondence (as should be visible in articles 14 and 15 ), the right against abuse (as identified in articles 23 and 24 ), and so forth. These privileges assume a significant part in aiding to safeguard and advance the freedoms of the people, as well as advancing uniformity. However, just announcing these freedoms wouldn’t have the option to guarantee that they keep on existing through the hardships of political life, the creators of the Constitution understood that assuming these privileges were to be genuinely made accessible to individuals, it needed to make these privileges enforceable by the legal executive to keep the regulations from staying simple paper regulations. It is with this acknowledgement that a right without a cure is just a trivial convention that the right to sacred cures was achieved in India.

                          This right to protected cure is discussed in Article 32 of the Constitution, meaning it is a key right in itself, making it an arrangement that is special to the Constitution of India. Under this article, if an individual accepts that they have been denied any of their principal privileges, they reserve the option to move toward the high court to get the expected lawful cures and get their freedoms upheld. Further, it gives the High Court, or some other court enabled by parliament, the ability to implement these central privileges of individuals through important instruments like the issuance of writs. The right to Sacred Cures is something that has been portrayed in Smash Singh V. Province of Delhi as an honour and obligation of the court to guarantee that the “privileges expected to be essential are kept central”, comparative feelings were reverberated by the court in Territory Of Madras versus V.G. Column. It was likewise expressed in Romesh Thappar V Province of Madras that the security of the freedoms of individuals lies at the actual focus of safeguarding a popularity-based lifestyle. The main exemption for the right to established cures that exists is in a circumstance where the President pronounces a public crisis under Article 352 of the Constitution then this right gets suspended for individuals, this implies that regardless of whether somebody accepts that their central privileges have been encroached, they will not be able to move toward the High Court to implement something very similar.
                          Even though this exemption has been broadly condemned, the producers of the Constitution accepted that it is a means to an end because the interests of the individual can’t be permitted to obstruct, or hurt, the interests of the state at large, and in compatibility of a similar the right to established cure can be diminished in such uncommon conditions.
                          Article 32 can likewise be utilized by the courts to grant satisfactory remuneration, the court contemplated that by giving financial pay, any comparative demonstrations will be dissuaded from now on. The court involved Article 32 to give remuneration in cases like Rudul Shah V. Association of India and Bhim Singh V. Territory of Jammu and Kashmir and repeated that in the event that they are not permitted to do as such under Article 32 then it would deliver the article futile in M.C Mehta.

                          WRITS


                          As we have previously talked about, to have the option to uphold the principal freedoms of individuals, the courts have been equipped with specific instruments. The main one of them is the ability to give writs.
                          A writ alludes to a composed request by a court with an important ward which the court uses to order a specific body to play out a predefined act or swear off playing out a demonstration. As we have previously seen, the High Court holds the option to give writs under Article 32, yet this power isn’t elite to the summit court. The High Courts of fitting locale additionally have the ability to give writs as given by Article 226 of the Indian Constitution, and this power isn’t to be presented to the High Courts in disparagement of Article 32.
                          Concerning the ward of the Great Court to utilize Article 226 to give writs, it had at first been set down in the Khajoor Singh case as well as the Saka Venkata Rao case that the power or government against whom the writ is to be given should be situated inside the regional locale of the Great Court. This position was changed by the eleventh Amendment of 1961 which expressed that any high court inside whose purview the reason for activity emerged would be permitted to give writs.
                          The ability to give writs is more extensive for the High Courts than it is for the High Court, this should be visible from the way that while the High Court can utilize its writ purview to authorize the major privileges of individuals, the High Courts have been provided the ability to give writs to maintain key freedoms as well as other Protected as well as lawful freedoms. An example of the Great Courts utilizing their writ ward to uphold established privileges should be visible on account of Narayan Prasad V. Territory of Chhattisgarh when two siblings were denied No Protest Authentications for the exchange of their property by the extraordinary court. They moved toward the High Court to uphold their right as given by Article 300-An of the Constitution, and this was maintained by the court who expressed that they should be conceded something similar since an established right has been allowed to them.

                          The writs are grouped into five kinds; these are talked about underneath:


                          The Writ of Habeas Corpus: The exacting interpretation of the writ is “to have the body”. This is utilized by the court to set free somebody who, legally speaking, has been improperly kept. It was held in Narayan V. Ishwarlal, that whether or not the writ is thoughtful or criminal would rely on the techniques in which the detainment was executed.


                          A significant component of the writ is that on account of habeas corpus, the convention of locus standi has been loose. This regulation expresses that main an individual who has a current immediate association with the case will be allowed to move toward the court for help. On account of this writ, this tenet was facilitated by the court on account of Sheela Barse V. Province of Maharashtra, this was finished in court since, supposing that there is what is going on where a kept individual can’t argue, some other party, for example, their family ought to be permitted to record a writ request for their sake.

                          Furthermore, regardless of whether somebody who has been confined composes a letter to an appointed authority, it tends to be utilized as adequate grounds to record the writ, this was held in Sunil Batra V. Delhi Organization. At last, the courts likewise have the ability to take suo moto insight and document a writ themselves. While managing a habeas corpus request, the courts may likewise investigate the legitimateness of the confinement without having the individual so kept, delivered before them. This was found on account of Kanu Sanyal V. Locale Judge.

                          When the writ is given by the court, the individual who has been unfairly confined is delivered under the watchful eye of the court, and in the event that the court observes that the detainment was not supported then it arranges their delivery. They can consider the confinement to be unlawful on grounds of due system laid out by regulation not being followed, or that the detainment was not made as per the law. In specific cases, the courts might try and venture to such an extreme as to grant praiseworthy harms, for example, was found on account of Bhim Singh.

                          This writ can, nonetheless, not be conjured in that frame of mind as where the detainment is a consequence of a legal procedure, the individual has been placed into limitation under a naturally legitimate regulation, or on the other hand if it is considered that the court doesn’t have the proper regional locale.

                          The Writ of Mandamus: Mandamus in a real sense signifies, ‘we request’, this writ is a type of order by the courts to different bodies, which could be protected, legal, or non-legal, or by a higher court to a lower court, to play out a particular demonstration, or prevent them from playing out a specific demonstration which falls outside the extent of their powers, these demonstrations should be required in nature and not optional.
                          It is essential to recall that this writ can’t be recorded against a confidential party who doesn’t have a legitimate obligation to carry out the role, it can likewise not be utilized against the President, as held in the S.P Gupta case, or lead representatives, as said in C.G Govindan V Province of Gujrat. It can likewise not be brought against sub-par officials who are limited by the headings given by their seniors. It can anyway be documented against a confidential individual in the event that it tends to be shown that they acted in conspiracy with a public power, this was set down in the instances of The Praga Devices Organization v. C.V. Imanual, and Sohanlal v. Association of India. The court has likewise expressed that the standard of locus standi is to be kept while giving this writ.

                          Courts can give the writ in a circumstance where there exists some legitimate right of the solicitor that has been encroached because of the non-execution of an obligation that a party, be it a public power or a confidential party, lawfully will undoubtedly perform but has not done as such.

                          A few situations where this writ was utilized by the court incorporate the instance of Rashid Ahmad V. Civil Board where the court held that regardless of whether a sufficient elective cure is accessible, it can’t act as a bar towards giving the writ regardless of whether it very well may be thought about by the court. Indeed, even in PUCL V. Association of India, the courts gave a proceeding with mandamus, and that implies that the state was expected to show up under the steady gaze of the court at normal stretches and show that they were doing whatever it may take to give the right to food under Article 21 of the constitution. Here the proceeding with mandamus was utilized by the court to consistently screen the state for a long time after the underlying suit was gotten 2001.

                          The Writ of Certiorari: Certiorari signifies ‘to ensure’. This writ is involved by higher courts as a type of order to a lower court or a lower semi-legal body to send the records of a procedure that is forthcoming before it to the higher court. This is typically done when it is accepted that the lower court doesn’t have the fundamental ward as was seen in Rafiq Khan V. Province of U.P where the Allahabad HC suppressed a request by the sub-divisional judge who had altered the request by the Panchayati Adalat to convict the blamed under the pertinent segments for the IPC in light of the fact that the justice missing the mark on expected locale to have the option to change orders.
                          It is additionally utilized assuming the lower court abuses the standard of normal equity while giving its judgment, or on the other hand on the off chance that there is a blunder of regulation made by the lower court that is evident apparently, i.e., they have obviously dismissed specific legal arrangements, this was found for the situation T.C Basappa V. T. Nagappa. The writ can’t be given in the event that the choice by the lower court is made because of a blunder in realities, and it must be documented against a lower court and not against a higher court or a court of equivalent standing, this was explained in Surya Dev Rai V. Smash Chander Rai.

                          It is essential to recall that the higher court just has a warning purview while giving this writ, and it can’t be utilized in that frame of mind of re-appraising locale. It likewise follows the convention of locus standi to an exceptionally rigid degree.

                          The Writ of Forbiddance: This is otherwise called a stay request, under this writ utilized by a higher court to preclude a lower court from proceeding with procedures or acting past their extent of abilities. The primary point behind the writ is to keep courts from acting external their extent of locale, as was found in East India Organization Ltd. V. The Gatherer of Customs as well as the Bengal Insusceptibility Co. Ltd case, and it is accessible while the procedures are forthcoming and before a request has been made.
                          The Writ of Quo Warranto: This writ is utilized to investigate the lawfulness of a case made by an individual or a power to act in some open office, it tries to check regardless of whether they are qualified for the situation by looking at the activities of the selecting authority. The fundamental thought behind having this writ is to keep somebody from serving in a position of authority that they are not qualified for to keep hurt from coming to people in general. This writ can be given by anybody, the circumstances for giving the writ are that the workplace can’t be private and should be a public one (this was expressed in Jamalpur Arya Samaj V. Dr. D. Smash ) which was made either by a Rule or by the Constitution. Further, it should be an extremely durable office and the writ must be given against an individual who is as of now holding the workplace or is somebody who was precluded from the workplace but won’t empty. This writ falls totally on the prudence of the courts.

                          CONSTITUTIONAL REMEDIES THROUGH PUBLIC INTEREST LITIGATION


                          A PIL alludes to a case that is embraced to address complaints of people in general and can be recorded by anybody. A PIL is recorded under Article 32 in the High Court, Article 226 in the High Court, and Segment 133 of the Code of Criminal Methods in a justice. The courts can likewise start the cycle on the gathering of a report, email, letter, and so forth. The PIL can be treated similarly as a writ request and when the court is fulfilled that the letter is from the oppressed party, it can start procedures. It is a basic piece of the Established Cures since it advances correspondence as well as the security of individual freedoms of individuals who may not be able to support themselves. Moreover, because of its economical nature, it tends to be made accessible to additional individuals and helps the courts in maintaining the freedoms of minorities and raising public mindfulness.
                          While the expectation behind acquainting PIL’s was assistance make equity more available to all areas of society, it has likewise drawn analysis. A portion of the analysis evened out towards PIL’s incorporates the way that the courts have abused PIL’s to exceed their limits and break the detachment of abilities by making strategies on subjects like contamination and inappropriate behaviour. Further, because of the sheer volume of PIL’s that get documented because of their cheap nature, besides the fact that it prompts an expansion in the weight of the courts, periodically they invest energy on unimportant PIL’s while overlooking additional squeezing concerns.
                          At the point when it was seen that there was uncontrolled maltreatment of PIL’s occurring, rules were set down with respect to PIL’s in the Province of Uttaranchal V. Balwant Singh where the court expressed that any individual who documents a paltry PIL should be fined up to Rs. 1 Lakh. It further said that the courts should check the certifications of the solicitor before they take up a PIL, and they should guarantee that the PIL contains a significant inquiry important to general society at large.

                          CONSTITUTIONAL REMEDIES AND RES JUDICATA


                          Res Judicata generally converts into a matter that has been chosen. That’s what the regulation expresses assuming a matter has proactively been concluded by a court of equipped purview, it is restricting on the gatherings except if upset by means of allure or update. The inquiry in this manner emerges, will an application under Article 32 be viable in the event that a comparable request has been dismissed by the High Court under Article 226? The standard isn’t just a simple detail, it tracks down its foundations in the advancement of public strategy.


                          The court held in Daryao V. Province of Uttar Pradesh that the convention of res judicata would stay a bar on the viability of a request under Article 32 under the steady gaze of the High Court assuming a similar has been chosen by the High Court under Article 226. Further, it is essential to take note that in a circumstance where a writ request is forthcoming under the steady gaze of a High Court, it can’t be documented under the steady gaze of the High Court, this was set down in PN Kumar V. Metropolitan Company of Delhi, in the event that such a circumstance was to emerge, the party should just be permitted to move to the High Court on claim.

                          Conclusion:


                          Articles 32 and 226 play a fantastic impact in empowering the courts to make equity more open to all segments of society. Through the standard legal survey, they have made the Constitution into a powerful record that is better acclimated to present-day times. Giving established solutions for individuals thanks to PIL’s has incomprehensibly helped the hindered speak loudly against the wrongs committed against them.
                          It is consequently that Article 32 has been considered to be a foundation of our majority rules government by previous CJI BP Gajendragadkar, M V Pylee noticed that the initial three segments of Article 32 assist with making the essential privileges genuine, and this, thusly, makes them the “delegated piece of the whole part”.
                          While these articles truly do furnish the legal executive with incredible powers to have the option to help people in general, it is important that customary checks be kept up on the use of this power by the courts, it must be seen that the Legal executive work with a degree of restriction and don’t violate their limits. All things considered, with incredible power comes extraordinary obligations.

                          Current Constitutionalism

                          Balancing Continuity & Evolution Constitutional texts worldwide are subject to two distinct modes of interpretation. One approach, known as “originalism”, which involves interpreting and applying the Constitution in alignment with its original intent at the time of drafting. The two primary tenets of originalism assert that the constitutional meaning was predetermined upon textual adoption and that the discernible historical meaning of the constitutional language carries legal significance, often prevailing in most circumstances.

                          In contrast, “living constitutionalism” adopts a more dynamic approach, frequently aligning with contemporary jurisprudence. Advocates of this theory contend that societal circumstances and ideals evolve, necessitating corresponding transformations in the legal content of constitutional doctrine. Acknowledging that the Constitution cannot remain static indefinitely, proponents assert that it must be amenable to the expectations and values of successive generations.

                          A living constitution demonstrates adaptability to new situations, evolves organically through time, and remains responsive to societal changes, all without requiring formal modification. Broad and Open-Ended Language – Foundation for Interpretation The phrase “living constitutionalism” is believed to have its origins in Howard Lee McBain’s book titled “The Living Constitution,” initially published in 1927. Living constitutionalism represents a legal theory and interpretative method within constitutional law that underscores the dynamic and evolving nature of the Constitution.

                          This perspective posits that the legal content of constitutional doctrine is subject to change in response to shifting circumstances and societal values. At its core, living constitutionalism advocates for a departure from rigidly adhering to the original intent or understanding of the Constitution’s framers at the time of its inception. Instead, it proposes that the Constitution should be interpreted in the context of contemporary conditions and cultural advancements.

                          However, it is often argued for a more adaptable and flexible approach to constitutional interpretation, recognizing the need for the Constitution to be responsive to the ever-changing requirements and ideals of society. Central to the living constitutionalism framework is the belief that the framers intentionally drafted the Constitution with broad and open-ended language, allowing for varied interpretations and future applications.

                          This approach contends that constitutional provisions should be given a dynamic and evolving meaning to address present-day social, political, and technological developments. As such, living constitutionalism promotes a view of the Constitution as a living and responsive document, capable of accommodating the evolving needs and aspirations of successive generations. Rejecting Originalism – Turning Point in Evolution of the Indian Constitution The Indian Constitution, a dynamic and living document, is presently perceived and applied as such, despite its historical evolution. Initial cases that arose soon after the Constitution’s enactment demonstrate an interpretation aligned with the framers’ intentions. The judgement on Supreme Court Advocates on Record Assn. v. Union of India W.P. 1303 OF 1987 marked a pivotal moment when the Court decisively rejected the originalism theory of interpretation, emphasizing that the Constitution should not be limited to the framers’ perspectives, constrained by the conditions and outlook of their time.

                          The Court acknowledged the unforeseen nature of contemporary issues, the existence of undiscussed matters, and controversial deferred issues with conflicting intentions. Preserving Core Values – The Focal Point in Jurisprudential Exploration Justice Kaul’s judgment further developed this perspective, affirming that the Constitution must adapt to reflect the evolving facets of modern society and that “core values” inherent in the Constitution manifest themselves diversely in varying ages, situations, and conditions, all while finding a strong foundation in the Preamble, which elevates human dignity. Also, the landmark K.S. Puttaswamy  (2017) 10 SCC 1. judgement introduced two significant theoretical concepts in constitutional law, i.e., living constitutionalism and natural rights support. Although living constitutionalism is not explicitly enshrined in the Indian Constitution, the Supreme Court of India has embraced this approach in several monumental rulings.

                          Consequently, this approach prompted a series of landmark judgments, primarily focusing on the Parliament’s authority to amend the Constitution and the extent of such amendments. The Indian Constitution is a vibrant and adaptable instrument, continually responding to societal transformations, upholding its core values, and remaining receptive to interpretive nuances that foster a just and evolving legal landscape. The question of the Parliament’s constitutional amendment powers remains a focal point in the jurisprudential exploration of the Constitution’s dynamic character. Balancing Core Values and Societal Progress through Living Constitutionalism Preserving the bedrock of the Indian Constitution stands as a momentous undertaking in the seminal case of Sajjan Singh v. State of Rajasthan. AIR 1965 SC 845.

                          Embedded within the majority of the Indian Constitution are fundamental aspects that are deemed immutable. Justice Khanna discerns the principal advantage in the form of fundamental rights extended to all citizens. Notably, Article 368 of the Indian Constitution grants the Parliament the authority to amend any provision, encompassing Fundamental Rights. A profound jurisprudential debate ensued, wherein respondents in the landmark Golaknath Judgment  I.C. Golaknath and Ors. v. State of Punjab and Anr. 1967 SCR (2) 762. contended that the framers did not intend for the Constitution to be rigid, while petitioners asserted that Parliament lacked the jurisdiction to modify basic rights. The Court ultimately ruled that Parliament could not alter the Fundamental Rights.

                          The landmark decision in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225. ushered in the concept of living constitutionalism in India. At its core, this judgment centred on the pivotal question of Parliament’s power to amend any aspect of the Constitution, including Fundamental Rights. Through a majority verdict, the Supreme Court firmly held that while Parliament retains the authority to amend the Constitution, it is restrained from altering its fundamental structure or essential features.

                          Living Constitutionalism in Action In the Kesavananda Bharati case, the Court introduced the doctrine of basic structure, encompassing the notion that certain foundational aspects of the Constitution are impervious to amendment, as they constitute the very essence of the constitutional framework. Embracing a living constitutionalist approach, the Court acknowledges that the Constitution’s interpretation must safeguard its core values while adapting to the ever-evolving fabric of society. This jurisprudential stance ensures the preservation of the Constitution’s fundamental principles while allowing for pragmatic adaptations that cater to the progress and welfare of the nation.

                          Living constitutionalism is an interpretive paradigm in constitutional law that accentuates the dynamic and adaptive character of the Constitution, necessitating its interpretation to align with prevailing societal circumstances. This approach contends that the Constitution should be construed in light of present-day realities, reflecting evolving societal values and understandings of constitutional principles. Illustrative examples of living constitutionalism in action are evident in the interpretations of the Commerce Clause, the landmark Brown v. Board of Education decision, and the historic Obergefell v. Hodges Obergefell v. Hodges 576 U.S. 644 (2015) decision. In these instances, the application of living constitutionalism enabled the Constitution to respond to changing social dynamics and evolving conceptions of constitutional norms. Notwithstanding its detractors, proponents of living constitutionalism maintain that this approach fortifies the Constitution’s sustained relevance and efficacy in addressing contemporary challenges and safeguarding individual rights.

                          SEPARATION OF POWERS

                          The legislative, executive, and judicial branches of a democratic nation’s government are known as the trias politica model, and each branch has its own distinct independent powers and responsibilities. India is a democracy with power divided among these branches, which each oversee a different aspect of government.

                          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.

                          SIGNIFICANCE OF SEPARATION OF POWERS

                          Concentration of power in one centre/authority, can lead to maladministration, corruption, nepotism and abuse of power.

                          Separation of powers helps in-

                          1. Preventing autocracy
                          2. Create efficient administration
                          3. Independency of power is maintained
                          4. Prevents the legislature from enacting arbitrary or unconstitutional laws.

                          Separation of the judiciary and executive branches is covered in Article 50 of the Indian Constitution. It states that the State must take action to keep the executive and judicial branches apart in its public services.
                          According to Montesquieu, if the Executive and the Legislature are the same person or group of people, there is a risk that the Legislature will pass oppressive laws that the Executive will implement to further its own objectives. This creates the potential for arbitrary rule and turns the Judge into a legislator rather than a law interpreter.

                          If the legislative authority were added to the power of that person, it would be arbitrary power, which would amount to complete tyranny, if one person or group of people could use both the executive and judicial powers in the same case. The doctrine’s value comes from its attempt to protect human liberty by preventing the consolidation of power in the hands of one person or group of people. Therefore, it is important to avoid the various government institutions from intruding on one another’s jurisdiction. In India, the legislative branch also includes the executive. The President, who is in charge of the executive branch, follows recommendations of the Council of Ministers.

                          The three branches of government’s roles are sufficiently distinct, even though the Indian Constitution does not acknowledge the notion of absolute rigidity in the separation of powers.State of Punjab v. Ram Jawaya, AIR 1955 SC 549. None of the three government organs can assume the duties that have been delegated to them.State of Kerala v. Keshanand Bharti, AIR 1973 SC 1461; State of J&K v. Asif Hameed, AIR 1989 SC 1899. The Supreme Court ruled in State of Bihar v. Bihar Distillery Ltd. (AIR 1997 SC 1511) that the judiciary must acknowledge the fundamental character and significance of the legislative process and must show it the respect and consideration it deserves.

                          The judiciary is likewise supposed to get the respect and consideration it deserves from the Legislative and Executive. The Indian Constitution acknowledges and upholds the idea of equality among the three branches of the government. The plan already includes the idea of checks and balances.

                          Relationship between Legislature and Judiciary

                          Even though the functions of the executive and the judiciary are well-defined in the Constitution, the system of checks and balances ensures that each one can impose checks on the other.

                          • The judiciary can strike down laws that it considers unconstitutional or arbitrary.
                          • The legislature, on its part, has protested against judicial activism and tried to frame laws to circumvent certain judgments.
                          • Judicial activism is said to be against the principle of separation of powers.
                          • There have been instances where the courts have issued laws and policies through judgements. For example, the Vishakha Guidelines where the SC issued guidelines on sexual harassment.
                          • In 2010, the SC directed the government to undertake the distribution of food grains.
                          • If the judiciary oversteps its mandate and crosses over into the territory of the legislature or the executive, it is called judicial overreach.

                          Judicial Supremacy and Parliamentary Sovereignty

                          To strike a balance between the judiciary and the legislature, the Indian constitution uses the following principles:

                          • The doctrine of Parliamentary Sovereignty has been adapted from the British Constitution.
                          • The doctrine of Judicial Supremacy has been adapted from the American Constitution.
                          • The power of judicial review of the Supreme Court of India is narrower in scope than the Supreme Court of the USA.
                          • The Constitution of India guarantees ‘established procedure by law’ in Article 21 instead of the ‘due process of law’ provided in the American Constitution.
                          • The Indian Constitution has opted for an amalgamation of Britain’s principle of parliamentary sovereignty and the judicial supremacy of the USA.
                          • The Supreme Court, on the one hand, can declare the parliamentary enactments as unconstitutional using the power of judicial review.
                          • The Parliament, on the other hand, can amend a large chunk of the Constitution using its constituent power.

                          Relationship between Legislature and Executive

                          The Constitution states that the executive branch of the State (Council of Ministers) shall be collectively responsible to the Legislature (Lok Sabha). This implies that the Parliament should supervise the work of the government and hold it accountable for its actions.

                          • In a parliamentary form of government, the executive is not separated from the legislature in that the members of the council of ministers are members of the legislature.
                          • The executive loses power when it loses the confidence of the legislature. The executive/council of ministers is dismissed if it loses the legislature’s confidence before its tenure is over. So, the legislature controls the executive through a vote of no-confidence.
                          • The head of government and head of state are different. The head of the government is the Prime Minister while the head of state is the President.
                          • The parliament makes laws in general broad terms and delegates the powers to the executive to formulate detailed policy and implement them.
                          • In a presidential form of government, the executive is not accountable to the legislature. One person is the heads of both the State as well as the government. A minister need not be from the legislature.

                          Relationship between Executive and Judiciary

                          There are several provisions in the Constitution that make the judiciary independent. This is because, it is believed that for a democracy to remain efficient and effective, the judiciary must be independent. The judiciary is said to be the guardian of the constitution. If the executive also assumes judicial powers, that sort of a government tends to become oppressive.

                          However, there are some judicial functions which are performed by the executive as well. They are:

                          1. The appointments of the judges are made by the executive.
                          2. The President and the Governors also enjoy the power to pardon, reprieve, etc. These are direct judicial functions.
                          3. Under the system of administrative adjudication, the executive agencies have the power to hear and decide cases involving particular fields of administrative activity.

                          The judiciary also performs some executive functions. It can review the actions of the executive and declare them void if found unconstitutional.