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Constitutional Law II

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.