Rule 0f Law And Seperati0n 0f P0wer; And Judiciary Acting 0ver Parliament

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT Abstract In India, the Constitution is regarded as Supreme law of the land. No one is above the Constitution. It provides for three organs of the Government, viz., the Legislature, Executive and the Judiciary, each to function independently so that the rule of law in the state could be upheld in the State. But, due to ineffective legislature and also because of the powers of the executive being in the hands of one person, there has been a series of inaction by the legislature. Henceforth, the Judiciary has involved itself to bridge the gap in the law which the state is lacking by means of establishing new doctrines, expanding the horizons of the law by giving wide interpretations and also by declaring new principles. Thus, the question arouse is that whether in doing so, is Judiciary encroaching the powers of the Legislature?

INTODUCTION The concept of Rule of Law is the supremacy of law and the doctrine of Separation of Powers establishes that there should be different heads or organs of the Government; each acting independently of each other so that the law of the State could be enforced properly; and the true spirit of the Law gets reflected in its enforcement.

Rule of Law The concept of the Rule of Law is of old origin. Sir Edward Coke is said to be the originator of this concept, when he said that “the King must be under God and Law” and thus vindicated the supremacy of law over the pretentions of the executives1. The concept of Rule of Law has been developed by Dicey in the course of his lectures at the Oxford University in his book “The Law of the Constitution” published in 1885. According to him, whenever there is discretion there is room for arbitrariness.2

1 2

Judicial Activism’ and the enforcement of Socio-Economic Rights- The Indian Experience by C.J.Balakrishnan Dicey: LAW 0F THE C0NSTITI0N, 8th Edn., p.198

1

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT According to Prof. Diccy, “Rule of Law” contains three principles or it has three meanings as stated below: 1. Supremacy of Law 2. Equality before Law; and 3. Predominance of Legal Spirit. “However, Dicey's ‘Rule of Law’ was not accepted in full and John Finnis’ doctrine was accepted in the Indian Constitution. According to Finnis, by “Rule of Law” is meant a system in which:i.

Its rules are prospective;

ii.

Possible to comply with;

iii.

Promulgated;

iv.

Clear;

v.

Coherent with each other;

vi.

Sufficiently stable;

vii.

The making of decrees and orders as guided by rules that are themselves promulgated, clear, stable, and relatively general;

viii.

Those who administer rules are accountable for their own compliance with rules relating to their activities and who perform these consistently and in accordance with law.”3

Separation of Powers “Montesquieu, a French scholar, found that concentration of power in one person or a group of persons results in tyranny. And therefore for decentralization of power to check arbitrariness, he felt the need for vesting the governmental power in three different organs, the legislature, the executive, and the judiciary. The principle implies that each organ should be independent of the other and that no organ should perform functions that belong to the other. Through his doctrine Montesquieu tried to explain that the union of the executive and the legislative power would lead to the despotism of the executive, for it could get whatever 3

Jurisprudence (Legal The0ry) by Dr. S.R.Myneni, pg.411, 2nd Edn.,2004

2

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT laws it wanted to have, whenever it wanted them. Similarly the union of the legislative power and the judiciary would provide no defence for the individual against the state. The importance of the doctrine lies in the fact that it seeks to preserve the human liberty by avoiding concentration of powers in one person or body of persons.”4 Separating the executive from the judiciary has been a demand of the Congress Party and others before independence. The same individual acting as prosecutor, judge, jury was unacceptable.5 “The role of separation of powers in India is simple. The three organs of the Government viz. the Legislature, the Executive and the Judiciary are not independently independent but inter-dependently independent.”6 On a glance at the provisions of the Constitution of India, it appears that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution, executive powers are with the President, legislative powers with the Parliament and judicial powers with the Judiciary - Supreme Court, High Courts and subordinate courts.7

Acting of Judiciary over Parliament (Judicial Activism) Judicial Review in India stands on a more solid basis than in United States because it is not based on any judicial dogma, but is provided for by the constitution itself.8 ‘Judicial Review’ means a form of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In general terms judicial review may be appropriate where: ody has taken an unlawful decision or action, and

4

Seperation of Powers: Its Scope and Changing Equations, Legal Service India.com Working a Democratic Constitution by Granville Austin; p.139 6 Public Interest Litigation and Judicial Activism by Kamal Uddin; http://twocircles.net/book/export/html/135427 7 Doctrine of Separation of Powers; LegalQuest.in 8 Dynamism of Judicial Control and Administrative Adjudication by Noor Mohammed Bilal, p.197 5

3

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT Judicial review does not involve the court in deciding whether the public body has made the ‘right’ or ‘correct’ decision, but whether the correct legal basis has been used in reaching it.9 The scope of judicial review was illustrated by Garner in his book, Administrative Law10, where in the courts have authority to review the law, if there is :- 1) breach of the principles of natural justice, 2)excess of powers or are substantively ultra vires; 3)errors of procedure or procedural ultra vires, 4) errors of law, 5) failure to perform a duty, 6) bad faith or abuse of power. “The power of judicial review gave birth of judicial activism in India”.11 The term "judicial activism" was coined for the first time by Arthur Schlesinger Jr. in his article "The Supreme Court: 1947," published in Fortune magazine in 1947.Though the history of judicial activism dates back to 18o3, when concept of Judicial review was evolved by Chief Justice Marshall in celebrated case of Mar Bury v/s Madison The emergence of judicial review gave birth to a new movement which is known as judicial activism.12 Judicial Activism means "a philosophy of judicial decision making whereby judges allows their personal views about public policy among other factors to guide their decision".13 “Judiciary has become the centre of controversy in the recent past. The judiciary has shed its pro-status-quo approach and taken upon itself the duty to enforce the basic rights of the poor and vulnerable sections of society, by progressive interpretation and positive action. The violation of basic human rights has also led to judicial activism. Finally, due to the misuse and abuse of some of the provisions of the Constitution, judicial activism has gained significance. Besides the above mentioned factors, there are some other situations that lead to judicial activism. These are:  When the legislature fails to discharge its responsibilities.  In case of a hung parliament where the government is very weak and instable.

9

The Public Law Project 7th Edn.p 115-117 11 Article: Judicial Activism and Democracr by Anil Diwan 12 Article: Judicial Activism in India by Kanchan Jha 13 Black Law Dicti0nary, 8th Edn. 10

4

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT  When the governments fail to protect the basic rights of the citizens or provide an honest, efficient and just system of law and administration,  When the party in power misuses the courts of law for ulterior motives as was done during the Emergency period, and  Finally, the court may on its own try to expand its jurisdiction and confer on themselves more functions and powers”.14 Moreover, “Judicial Activism has become necessary because of a number of lacunae in the functioning of the legislature and the executive. Both the legislature and the executive are guilty of either over-action or inaction”15. According to Justice Douglas, Judiciary is the guardian of the conscience of the people as well as of the law of the land.

Indian Constitution itself provides scope or makes space for emergence of judicial activism. Articles 13, 32,226,141 and 142 are of considerable importance in judicial activism. “Article 13 conferred wide power of judicial review to the Apex court. In the exercise of the judicial review, it can examine the constitutionality of executive or legislative act. The High Courts have also the same power in this regard. Article 32 and 226 makes the Supreme Court as well as the High Courts the protector and guarantor of the fundamental rights. Article 141 indicates that the power of the Supreme Court is to declare the law and not enact it, but in the course of its function to interpret the law, it alters the law. Art 142 enables the Supreme Court in exercise of its jurisdiction to pass such order or make such order as is necessary for doing complete justice in any cause or matter pending before it.”16 Judicial Activism was explained and recognized by the Supreme Court in Golaknath’s case17 wherein “the court laid down the judicial principle of Prospective overruling by giving wider beneficial interpretation of Article 13 of the Constitution of India.”18 Through these Articles, the Supreme Court as well as High Courts have redressed several social, environmental and other issues. 14

Short Essay in Judicial Activism in India by Dnyanesh Kumar; http://www.preservearticles.com/2011092714143/short-essay-on-judicial-activism-in-india.html 15 Is judiciary crossing its limits: Law Resource India; http://indialawyers.wordpress.com/2011/03/12/isjudiciary-crossing-its-limits/ 16 J.N. Pandey, The Constitutional Law of India, CLA 2010 17 I.C. Golaknath & ors. Vs State of Punjab & another, 1967 SCR (2) 762 18 Ibid

5

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT In “S.P Gupta v/s Union of India19, popularly known as Judges Transfer case, the strict rule of locus-standi was given a final rest”. In this case Justice Bhagwati observed “where a legal wrong or legal injury is caused or threatened to a person or determinate class of persons and as such person or determinate class of person is by reason of poverty, helplessness or disability of socially or economically disadvantaged position, unable to approach the court of relief; any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Art 226 and in Supreme Court under Art 32, seeking judicial redress for the legal wrong or injury caused to such person.”20 This gave a new horizon to Indian Judiciary to deal with cases for the benefit of the public by the introduction of Public Interest Litigation (PIL). Now, any public spirited citizen can move or approach the Court of Law for the any cause either in the interests of the public or for public welfare by filing a petition before: 1. the Supreme Court under Article 32 of the Indian Constitution; 2. the High Courts under Article 226 of the Indian Constitution; and 3. the Court of Magistrate under Section133 of the Code of Criminal Procedure. Justice Krishna Iyer in “Fertilizer Corporation, Kamgar Union vs. Union of India21, enumerated the following reasons for liberalization of the rule of Locus Standi: 

Exercise of State power to eradicate corruption may result in unrelated interference with individuals' rights. Social justice wants liberal judicial review for administrative action.



Restrictive rules of standing are antithesis to a healthy system of administrative action.



Activism is essential for participative public justice".22

Judicial activism earned a human face in India by liberalising access to justice and giving relief to disadvantaged groups and the have-nots under the leadership of Justices V.R. 19

1981 Supp SC 87 Ibid. 21 A.I.R 1981 SC 344 22 Ibid. 20

6

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT Krishna Iyer and P.N. Bhagwati.23 However, judicial activism in India has now taken on an interesting face. The courts in India pursue a form of review which can be described at best as ‘dialogic’ — a term used famously by Peter Hogg and Allison Bushell in the context of the Canadian Supreme Court’s decisions.24

Cases pertaining to new principles and/ or guidelines laid down by Judiciary  Rule of Absolute Liability In M.C.Mehta Vs. Union of India25, the Hon’ble Supreme Court of India introduced the doctrine of Absolute Liability. The Court directed the Company manufacturing hazardous and lethal chemicals and gases posing danger to health and life of workmen and people living in its neighbourhood, to take all necessary measures and to pay compensation to the victim of Oleum gas.

 Sexual Harassment at work places In Vishaka Vs. State of Rajasthan,26 the Supreme Court has laid down exhaustive guidelines to prevent sexual harassment of working women in places of their work until a legislation is enacted for that purpose. The court held that it is the duty of the employer or other responsible person in work-places or other institutions, whether public or private, to prevent sexual harassment of working women.

 Colourable use of Legislation invalid In S. R. Bommai v. Union of India,

27

the Supreme Court discussed at length

provisions of Article 356 of the Constitution of India and related issues. This case had

23

Judicial Activism in India, Anil Diwan Dialogic Judicial Activism in India, Abhinav Chandrachud 25 (1986) 2 SCC 176 26 AIR 1997 SC 3011 27 AIR 1994 SC 1918 24

7

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT huge impact on Centre-State Relations. The misuse of Article 356, to impose central authority on states, was stopped after this judgement.

 Right to Privacy “By the expression, ‘right to privacy’ is meant, the right to be left alone, to live one’s life with the minimum degree of interference. In the expanded form, it includes a right against interference with his or her private life, family and home life, attack on his honour and reputation. It is a right against disclosure of irrelevant and embracing facts relating to his private life; spying, prying, watching and be setting and interference with his correspondence.”28 In Kharak Singh vs State of U.P, the Hon’ble Supreme Court has held that the domiciliary visits is an infringement of right to privacy and is violative of citizen’s fundamental right of personal liberty guaranteed under Article 21 of the Constitution of India.29 In People’s Union for Civil Liberties vs Union of India, popularly known as phone tapping case, the Supreme Court has held that right to life and personal liberty includes right to privacy and right to privacy includes telephone conversation in privacy at home or office and thus telephone being a serious invasion of an individual’s right to privacy and violates Article 21 of the Indian Constitution.30

 Right to Travel Abroad In Satwant Singh vs. Assistant Passport Officer, New Delhi, it was held by the Supreme Court that the right to go abroad is a part of person’s ‘personal liberty’ within the meaning of Article 21 of the Constitution of India, and consequently no person can be deprived of this right except according to the procedure prescribed by Law.31 In this case, it was contended on behalf of the Union Government that the right

28

Dr. H.0.Agarwal: Human Rights, p.273, Edn.2010 AIR 1963 SC 1295 30 AIR 1997 SC 568 31 AIR 1967 SC 1836 29

8

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT to travel is not included in the personal liberty, but it was not accepted by the Court.32 The court observed that the expression personal liberty provided under Article 21 takes in right of locomotion to go where and when one pleases, and to travel abroad.33 In Maneka Gandhi vs. Union of India34, the Supreme Court upheld the decision of Satwant Singh’s case. “The Court held that no person can be deprived of his right to go abroad unless there is a Law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure.”35

 Right to Speedy Trial “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge and shall be entitled to trial within a reasonable time or to release. This principle is not expressly stated in the Indian Constitution. The Fundamental rights enshrined in the Constitution does not include that a person has a right to be tried without undue delay. However, the Supreme Court in Hussainara Khatoon vs. Home Secretary, State of Bihar36 has held that though speedy trial is not specifically enumerated as fundamental rights, yet it is implicit in broad sweep and content of Article 21 which deals with right to life and liberty.”37

 Right to provide Free Legal Assistance “Everyone shall be entitled to be tried in his presence and to defeng himself in person or through legal assistance of his own choice; to be informed if he does not have legal assistance of his right to have legal assistance in any case where the interest of justice so require and without payment by him in any case if he does not have sufficient

32

Ibid. at p.1837 Ibid. at p.1852 34 AIR 1978 SC 597 35 Ibid. at p.622 36 AIR 1976 SC 1360 37 Ibid at p. 276 33

9

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT means to pay for it.”38 This principle was laid down by the Supreme Court in M.H.Hoskot vs. State of Maharashtra39 that the right to free legal services is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and is implicit in Article 21 of the Indian Constitution.

 Right of Prisoners to be treated with Humanity All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.40 “But in the Indian Constitution there is no such provisions in Part III which can safeguard the discretionary and sometimes brutal treatment given to the prisoners. However, Justice Krishna Iyer of the Supreme Court in Charles Shobraj vs. Superintendent, Central Jail, Tihar, New Delhi41; recognised that the right to life is more than mere animal existence, or vegetable substance. Even in prision, a person is required to be treated with dignity.”42

 Right of not to be Imprisoned for Inability to fulfil a Contractual obligation No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. However, in the Indian Constitution this right is not specifically guranted under Part III. But in Jolly George Verghese vs. Bank of Cochin,43 it was held by the Supreme Court that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is a violatin of Article 21 of the Constitution of India.

 Right to Compensation Anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to compensation. This right was upheld bythe Hon’ble Supreme 38

Article 14 of the Covenant on Civil and Political Rights AIR 1978 SC 1548 40 Article 10 of the Covenant of Civil and Political Rights 41 AIR 1978SC 1514 42 Ibid. at p. 281 43 AIR 1980 SC 470 39

10

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT Court in D.K. Basu vs. State of West Bengal44 held that monetary compensation should be awarded for established infringement of fundamental rights guaranteed under Article 21.

 Right to Information Everyone shall have the right to freedom of expression. This right shall include freedom to seek, receive and impart information and ideas of all kinds, either orally or in writing or in print or in the form of art or through any other media of his choice. The Indian Constitution while under Article 19 (1) (a) gurantees the freedom for speech and expression as fundamental rights, the right to information is not specifically mentioned in Part III of the Constitution. In S.P.Gupta vs. Union of India45, Justice Bhagwati stated that the concept of an open Government is the direct emanation from the right to speech and expression guranted under Article 19(1)(a). Therefore disclosure of information in regard to the functioning of the must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The efforts of the highest Court in preventing social evils, environmental pollution, etc, is indeed laudable when the legislature is lagging behind in bridging the lacuna in existing legal system and administration is not well equipped to meet the challenge.46

Whether the Judiciary is encroaching upon the powers of the Legislature? The accent of the provisions of the Constitution of India is towards securing all round development of the individual and ensuring his dignity through Rule of Law47. Even the Indian Constitution does not provide for absolute Separation of Powers. The main idea behind this concept among the framers of the Constitution of India was that the rule of law can be maintained only when there is no absolute concentration of powers in one single 44

AIR 2006 SC p.1117 to p.1129 SCC Supp. (1981) 87 p.275 46 Ibid, p.260 47 Introduction to Jurisprudence; Dr. Avtar Singh, p.369, 2nd Edn. 2008 45

11

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT organ. The main frame of the principle of Rule of Law excludes “arbitrariness”. Whenever there is arbitrariness or unreasonableness, there is denial of rule of law. In Bachan Singh Vs. State of Punjab,48 it was held that the Rule of Law has three basic and fundamental assumption. They are:1) Law making must be essentially in the hands of a democratically elected legislature; 2) Even in the hands of the democratically elected legislature, there should not be unfettered legislative power; and 3) There must be independent judiciary to protect the citizens against excesses of executive and legislative power. Law is the manifestation of the principles of justice, equity and good conscience.49 “Law is a Social Engineering to remove the existing imbalance and to further the progress, serving the needs of the Socialist Democratic Bharat under the Rule of Law. The prevailing social conditions and actualities of life are to be taken onto account in adjudging whether or not the impugned legislation would sub serve the purpose of the society.”50 Adjustment of law to the social needs is a continuing process. Law must always be responsive to the social development. This continuing process requires watchful legislature and alert judiciary.51 In India, there are mainly three organs of the Government; i.e, Legislature, Executive and Judiciary. India is a welfare state, and being a welfare state, Government plays a very dominant role in moulding the society; or in large perspective; the State. Directive principles laid down in Part IV of the Indian Constitution establishes duty on the Government to seek welfare of the people. Legislature is to legislate laws and enact laws for achieving the welfare of the people. Executive are given the responsibility to execute the laws made by the legislature and the Judiciary to adjudicate them. Moreover, the Supreme Court has been made the protector and guardian of the Constitution. The Constitution also empowered the Supreme Court and the High Courts to protect the Rights and Freedoms granted under Part III. Any 48

Bachan Singh v. State 0f Punjab, (19820 3 SCC 24; 1982 SCC (Cri) 535; AIR 1982 SC 1325 Dalmia Cement (Bharat) Ltd. V. Union of India,(1996) 10 SCC 104 50 Ashok Kumar Gupta v. State of UP, (1997) 5 SCC 201; 1997 SCC (L&S) 1299 51 Intoduction to Jurisprudence; Dr. Avtar Singh, p.369, 2nd Edn. 2008 49

12

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT law made by the parliament or by the legislative body would in all circumstance be considered as unconstitutional by the Supreme Court and High Courts and they can protect them by issuing writs, directions and orders as is considered essential to meet the requirements of a democratic and welfare state. The outer frame appears to be a perfect democratic state, but the inner framework is based on a very weak foundation. India is a State, where a considerable population are illiterate and are unaware of their rights guaranteed under Part III of the Constitution of India. Although, there is a separation of power, but the legislative and the executive power, both are mostly in the hands of one. Thus, there is only Judiciary on one hand and other two organs (Executive + Legislative) on one hand. As a result of it, the rule of law has been put at hold in reality. As the masses are ignorant of their rights, and the corrupt and inefficient legislature through their executive actions are seeking to achieve their inert desire to loot the people without paying any hindrance to protect them in reality. Moreover, the legislature of our democratic state has been very weak. It has been lacking both in duty and ability to enact any progressive laws for the people of this democratic nation. As a result, the rights of the people are getting hampered. The Indian society is filled with lots of social evil which needs to be eliminated. As there has been constant inaction from the legislative organ of the government to solve the major issues which people are facing, the judiciary had stepped into the shoes of the legislature. The legislature has mainly two important duty to perform, i.e, to reform the laws to meet the present situation and to enact new laws which may be necessary to remedy the future wrongs that may arise in course of development in science and technology or due to progress in society and criminal or wrongful intent in the minds of the people. As the Judiciary itself cannot suo moto initiate legal proceedings even if it has knowledge about the wrongs, happening around it. So, it had taken steps to out rule the locus standi formulae in cases pertaining to public domain, which made it possible to protect the rule of law. As a result of it, the principle of Public Interest Litigation came to play. All these are done simply to promote the remedy which the law itself intended, i.e, to protect and

13

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT uphold the interest of each individual against any arbitrary and unreasonable action of the Government. For these reasons, the Hon,ble Supreme Court of India has expanded Article 21 to include in its broad interpretation right to bail, the right to a speedy trial, immunity against cruel and unusual punishment, the right to dignified treatment in custodial institutions, the right to legal aid in criminal proceedings and above all the right to live with basic human dignity. It has also established new doctrines, such as, public trust doctrine, doctrine of promissory estoppel, doctrine of absolute liability, and host of principles such as polluter’s pay principle, etc. and offered guidelines in most important case as those relating to women, i.e, sexual harassment at work places, and most importantly laid down the foundation of Public Interest Litigation.

Hence it can be deduced that the principles laid down and or laws declared by the Judiciary in India does not at all encroach upon the powers conferred on the Legislatures by the Constitution of India. These are merely the powers which are being granted to the Judiciary by the Constitution and the Judiciary is making best use of it for the betterment of the society and citizens at large. As rightly pointed out by M.C.Chagla52, former Chief Justice of India, that “the Courts are not a department of Government. They are an authority coordinate with the Legislature and the Executive. Even Parliament, however wide and vast its powers, can only function under the Constitution. Even if legislation is passed by an overwhelming majority and Parliament has expressed its clear intention in no unequivocal terms, the legislation can be tested on the anvil of judicial review and if it falls the test, Parliament must submit to the decision of the Court. It is a mistake to call this a confrontation between Parliament and the Judiciary. Each is discharging its duty assigned to it by the Constitution. If we have faith in our Constitution, we should call it collaboration between two coordinate authorities rather than confrontation.”

52

The Role of Judiciary in Parliamentary Democracy

14

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT Conclusion Henceforth, it can be said that the rule of separation of power in today’s scenario cannot be worked out in a proper way. There is a need for a new and better doctrine which serves the purpose of the present democratic need, whether it is a parliamentary or presidential type of government. If we take the background of the major countries like U.S.A, U.K, India, Russia, France, Germany, Spain and U.A.E, it can be seen it there is no complete separation of power which Montesque had advocated. All the organs of the Government are subject to each other’s scrutiny by way of checks and balance. Thus, it can be better said that all the organs of the government should behave in a way that they do not violate the principal law or the rule of law of the country and it should be upheld in all circumstances for the better protection of the rights, liberties and freedoms of the people of that state. So, each organ are impliedly required to restraint their powers to the sphere which has been provided or set forth in the Constitution and to undertake steps that serves the purpose for which it is there. Any act, inaction or abuse of such powers by one organ calls for interference of the other organ. Reference can here be made of Nuremberg trial, where in the Court has held that the judges are not to act upon the laws which are against the humanity or based on unreasonable classification or are arbitrary in nature or are against the moral principles; even if such laws are passed by the parliament. They are to restraint themselves from participating in it and serve the purpose of the nation by bringing in modification or interpretations to the laws. Similarly, Parliament is to observe that the law made by it are not against the rule of law, or against the Constitution or against the public morale and humanity. It should also from time to time keep an eye on the social changes and scientific advancement so that the laws meet the demands of the time and must not involve in colourable legislation. The Executive should also refrain from executing the laws which are against natural justice or which is in violation of the rights, liberties and freedoms of common man or is against the state or constitution in particular. This is the doctrine of Self Restraint, whereby, all the organs try to fulfil the aspirations of the nation and uphold the rule of law, without interfering into the domain of the other. The Constitution must in all circumstances be considered supreme, and the laws made by the legislature should pass the test of reasonableness and the objectives of the Constitution. If any organ of the Government crosses its limits or encroaches upon the

15

RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY ACTING 0VER PARLIAMENT powers of the other organs or exceeds its jurisdiction, the act shall be considered as invalid and any abuse of law or any action shall be termed as void ab initio; and the principle of checks and balance will come into play.

***

16