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The Role of the Indian Court in Maintaining the Separation of Powers, Slides of Law

The importance of the Indian court upholding the principle of separation of powers as laid down by Montesquieu. It highlights instances where courts have overstepped their bounds and encroached upon the executive or legislative domain. The document emphasizes the need for judicial restraint and the importance of each branch of government staying within its assigned functions to maintain the balance in the Constitution.

Typology: Slides

2020/2021

Uploaded on 04/08/2021

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Whether Court can direct creation of post not provided by the
establishment?
When a State action is challenged, the function of the court is to examine
the action in accordance with law and to determine whether the legislature
or the executive has acted within the powers and functions assigned under
the constitution and if not, the court must strike down the action. While
doing so the court must remain within its self-imposed limits. The court
sits in judgment on the action of a coordinate branch of the Government.
Unfortunately, despite these observations in the above mentioned
decisions of this Court, some courts are still violating the high
constitutional principle of separation of powers as laid down by
Montesquieu.
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Whether Court can direct creation of post not provided by the

establishment?

When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. Unfortunately, despite these observations in the above – mentioned decisions of this Court, some courts are still violating the high constitutional principle of separation of powers as laid down by Montesquieu.

Recently, the Courts have apparently, if not clearly, strayed into the executive domain or in matters of policy. For instance, the orders passed by the High Court of Delhi in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorized schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in the hospital, the kind of air Delhiites breathe, etc. These were matters pertaining exclusively to the executive or legislative domain. If there is a law, Judges can certainly enforce it, but Judges cannot create a law and seek to enforce it.

  • (^) In Tata Cellular v. Union of India [AIR 1996 SC 11] this Court observed that the modern trend points to judicial restraint in administrative action. The same view has been taken in a large number of other decisions also, but it is unfortunate that many courts are not following these decisions and are trying to perform legislative or executive functions. In our opinion adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges' preferences. The Court must not embarrass the administrative authorities and must realize that administrative authorities have expertise in the field of administration while the Court does not
  • (^) In Ram Jawaya v. State of Punjab [AIR 1955 SC 549] , a Constitution Bench of this Court observed: The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption by one organ or part of the State, of functions that essentially belong to another.