The relation between the two is two-fold: first, judicial powers of the executive and its control over the judiciary; second, administrative powers of the judiciary and its control over the executive. The executive exercises a certain control over the judiciary because it not only appoints members of the judiciary in most cases but also enforces judicial decisions. Promotion and transfer of judges are controlled by the executive. Besides, the executive exercises the power to pardon, reprieve and commute the sentences given by the judiciary. The court-martial is another example of an executive court. The judicial powers of the executive are extensively found in countries of continental Europe where a separate law (administrative law) is administered by administrative courts for administrative personnel. Such function is known as ‘administrative adjudication’. The judiciary also exercises good amount of control over the executive. Judiciary has administrative functions as noted earlier. Excepting the Chief Executive, all other members of the executive can be asked by the judiciary to appear before it. Executive actions can be subjected to judicial review. Where there is separation of powers, judiciary serves as a check upon the executive. In modern welfare states, perfect harmony and coordination are to be maintained among the three primary organs of the state for the effective implementation of social security and social welfare measures. Collective good of the community should be the primary goal of all branches of government. Hence any theory of complete separation of powers is neither desirable nor practicable. A limited form of checks and balances is to exist among different organs for the sake of efficiency of governmental functions as well as for guaranteeing fundamental freedoms of people. The balance between the authority of the state and the liberty of individuals is to be maintained for the common purpose of realizing the general good of the community. Justice is the need of any civilized society. No society can survive unless it provides an efficient Justice delivery system that can alleviate the concern of the people within reasonable time frame. Former Chief Justice R.C. Lahoti argues, ‘The Judiciary has assumed only such roles as would enable it to fulfill the ideas of the constitution. The role of court is not just to interpret laws but to safeguard the rights that legitimately belong to the people. It must be independent, efficient and active if democracy has to have a meaning for the people of India’.
In modern nation-states, which have adopted the idea of constitutionalism and limited government, an independent judiciary has become one of the essential requisites of a democratic government. Any government based on a written constriction, which clearly sets limits on governmental powers and defines the rights of citizens, requires a neutral agency to decide disputes among citizens or between the individual and the state. Therefore, besides applying laws to particular cases and upholding the constitution, the judiciary is also responsible for safeguarding the rights of the people against encroachment by other individuals, institutions or the state itself. In the Constituent Assembly (est. in 1946), the framing of draft provisions establishing the Supreme Court was done by an ad-hoc committee of five members-B.N. Rau, K.M. Munshi, M.L. Mitter, Varadacharian and Alladi Krishnaswamy Ayyar. The objectives of the framers of the Indian constitution were to provide an independent and strong judiciary, which would work within the framework of the Supremacy of Constitution, and a parliamentary formal democracy in India. The Supreme Court of India, however, is more than a federal Supreme Court. Under Article 32, it is made the protector of all the Fundamental Rights embodied in the constitution and it has to guard these rights jealously against every infringement at the hands of either the Union Government or the State Governments. It is also an all India Supreme Appellate court having both criminal and civil jurisdictions. It gets not only the opportunity to interpret the constitution and the laws enacted by Parliament but also the laws passed by the state legislatures. It stands at the apex of India’s judicial hierarchy, with effective power to supervise and control the working of the entire system and to ensure the realization of the high judicial standards that it might set as integral part of the democratic system of government to be established by the constitution. The writ of the Supreme Court runs not only all over the country but also within all fields of law, constitutional civil and criminal.
|Structure, Organisation and Functioning Of The Executive|
|Relationship between the Executive, Legislature and the Judiciary|