Doctrine of Separation of Power and Appointment of Judges in India
The transition from Medieval to Modern era highlights the setting up of
democratic constitution from arbitrary rule. The major fundamental in a
democratic constitution is division of powers among the three major organs of
the government, i.e., Executive, Judiciary and Legislative and their independent
functioning. The concept of separation of powers, also known as trias politica
was a result of political and philosophical development over the centuries
across the world.
The Doctrine of Separation of powers was originated by
Aristotle in his book entitled Politics and was defined by John Locke in his
theory Two Treatise of Government (1689). However, John Locke did not consider
the three organs as equals, placing legislative as supreme than the other two.
It was French philosopher Montesquieu who propounded the theory of separation of
power systematically, scientifically and clearly. Emphasising on the political
liberty of people, he explained the need of democratic setup and how abstaining
from concentration of powers will help to safeguard the individual's interest.
Meaning of Doctrine of Separation of PowerThe theory of separation of power is mainly based on three factors, that the
same person should not form part of more than one organ, one organ should not
interfere with any other organ and one organ should not exercise the functions
assigned to the other. Understanding the role of government in protecting the
right and interests of an individual, separation of power is a measure to avoid
the abuse of power. The doctrine of separation of powers throws light on the
individual working of the three major organs of the government namely,
executive, judiciary, and legislative, these three powers of government, in a
free democracy, must always function independently and avoid the arbitrariness
or concentration of powers in one or few hands.
Position in India
In India the executive powers are enumerated by the President, parliament is
competent to make laws subject to provisions of the constitution and the
judiciary is independent in its field. In the Constitution of India, there are
no such provisions regarding the doctrine of separation of powers but Article
50, part IV and part V give us some directive principle in separating the
judiciary from the executive.
As compared to the US and USA where separation of power is followed in a broad
sense, in India, deviation from the strict separation of power is allowed and
there is functional as well as personal overlapping. However, we follow the
principle of check and balances as part of this doctrine, where separate
branches or organs have the power to prevent certain actions of the other organ.
The Supreme court has the power to declare any law or amendment void which is
passed by the legislative or executive if it violates the provisions of the
constitution under Article 142 and Article 145 of our constitution. Similarly,
the executive has the power to pass the law under ordinance under article 123,
and also judicial power under article 103 (1) and article 217 (3).
The President also enjoys the power to consult to the supreme court under
article 143 and the pardoning power under article 72 of our constitution.
Similar to these check and balances instruments, the appointment of judges in
the supreme court and high courts is highly affected by the executive, and
judges of constitutional courts can not be removed without the two-thirds
majority of the total members of both the houses individually.
As per Article 124(2) of the constitution, every judge in the supreme court is
appointed by the president by warrant under his hand seal after consultation
with other judges of the supreme court and of the high court as he may deem
necessary. This means the President is not bound to consult anyone in appointing
of Chief Justice of India while he is bound to consult to Chief Justice of India
in the appointment of other judges. Till 1973, the senior-most judge of the
Supreme court was appointed as Chief Justice of India, however, this practice
was changed when Justice A.N Roy was made CJI after superseding three
The debate on this was answered in the three landmark cases:S.P Gupta v. Union of India
In this case, it was said that the President is not bound to act in accordance
to consultation and has the right to take a contrary view. It was laid down that
the union government has the executive supremacy in the appointment of Supreme
Supreme Court Advocates on Record Association v. Union of India
In this case, the first judge case was overruled and held that in the matter of
appointment of judges of the Supreme Court and High court, seniority shall be a
basis, and the advice of the Chief Justice is binding on the President.
After this came the third judge case which was in reference to the case of 1998.
It was laid that collegium of Chief Justice of India and four seniors most
judges will be made and their recommendation will be sent to the president and
only opinion of CJI will not be considered as a consultation. Thereafter, the
99th Amendment of the constitution brought into light the formation of National
Judicial Appointment commission consisted of CJI, two seniors most judges, Union
law minister, and two eminent people nominated by prime minister, CJI and leader
of opposition, provided in Article 124(A). Hence, by this CAA the methodology of
appointment of judges was largely shared by political executive.
This CAA was struck down by Supreme court Advocates on Record Association v.
Union of India and the amendment cannot be sustained as it impairs the doctrine
of separation powers and independence of judiciary. Till 1973 to present
situation, the collegium system under the protocol of memorandum of protocol has
ensured the independence of judiciary and the best way of appointment of judges.
However, with the development and evolvement of the system a more efficient way
surely needs to be found to ensure fairer procedure in the appointment and to
maintain the doctrine of separation of power.
The doctrine of separation of power even though is not mentioned in our
constitution, we have followed it whenever is needed with large exceptions. This
doctrine is interpreted by every state in their own understanding and
requirements. With many advantages and disadvantages, this doctrine has been
followed since the time of Aristotle as the basic structure with many amendments
as per the modern governments.
When this doctrine can prove to increase the efficiency of different organs by
removing the overlapping of work, it can also give reverse effects as it is not
being followed in the strict sense.
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