ABSTRACT

The article studies the oldest forms of Government in the world i.e. Parliamentary form of
Government in India. The article elaborates various features of the governance form. In
addition to this, the article also brings about some light on the recent legal issues in the Indian
system of Governance detailing its various aspects. Under the Constitution, the people of
India exercise their sovereignty through Parliament at the central level and through State
Legislatures in each State. The executive power is vested in the President, who is the highest
dignitary in the realm, the symbol of the statehood, and the embodiment of the unity of the
country. He represents the sovereign will of the nation and exercises his functions by acting
on the advice and aid of the Council of Ministers. Throughout the research various cases have
been discussed which elaborates the issues and complexity of the largest democracy of the
world. In the end, the author identifies specific problems observed in practice and discusses
the challenges facing the Indian parliamentary democracy.

INTRODUCTION

The parliamentary and presidential form of government is two most famous kind of
governance forms in the world. USA has a presidential form of government while India has a
parliamentary form of government. Both governance forms have their own merits as well as
demerits.

PARLIAMENTARY FORM OF GOVERNMENT:

The Parliamentary system of government refers to “a system of government having the real
executive power vested in a cabinet composed of members of the legislature who are
individually and collectively responsible to the legislature”. In the parliamentary form of
government , the powers are distributed between the three organs of the state. The parliament
is supreme and is answerable to the people. In this system of governance the head of the state
is not the same person who is the head of the government. The countries with parliamentary
form of government can be either: Constitutional Monarchies or Parliamentary Republics.

The modern system of parliamentary system finds its origin to 1707 – 1800 in the Great
Britain. The parliamentary system can be with a bicameral legislature or unicameral
legislature. Bicameral means two houses whereas the Unicameral means one house. The
parliamentary form of government can be further divided into two Types: – Westminster
System and Consensus System. The Westminster form of government can be seen mostly in
the Common wealth of Nations. This kind of system is believed to have a more adversarial
fashion of debates and discussions and parliamentary sessions. For the purpose of elections
the elections are either single transferable vote, instant runoff voting, proportional
representation and plurality voting system. Some also use the Proportional representation
system. The western European countries have Dualism as form of Separation of Power. India
is also one of the Commonwealth Nations. The countries which were once a colony of the
British rule is called as the Commonwealth Nations. In India, the legislature and the
executive are interconnected to each other. The period of emergency during the time of Mrs.
Indira Gandhi 1975-1977 was the turning point which forced the thinkers to re think if the
parliamentary form of government is the best form of government. India adopted this kind of
government during the 1947 as it was very much familiar with this kind of government.
Therefore, the familiarity of the Indian polity with the working of the British system of
government, representation of diverse interest groups, fear of dead-lock between the
executive and legislature- all led to the adoption of the parliamentary system of government
in India by the Constituent Assembly.

India is a nation deeply divided into several groups with conflicting interests. All these varied
groups are ensured representation in the Parliament through this form of government.

The presidential form of government was rejected as there was too exclusiveness in the
functioning of Executive and Legislature. Which may further result in conflicts in the
country. Under the parliamentary form of government the nominal head of the state is the
President while the prime minister is the real head of the state. In Ram Jwaya Kapur v. State
of Panjab,17 AIR 1955 SC 549 it was observed that the executive power is vested in the President
but the President is only a formal or constitutional head of the executive. The real power is
vested in the Council of the Ministers, on whose aid and advice the President acts in the
exercise of his function. Since India has a partial separation of powers between the executive
as well as the legislature, so they are not totally independent of each other. They are mutually
dependent on each other.

The Executive organ of the government vests within it the residuary powers. In this kind of
system the executive is more responsible to the legislature. The council of ministers has a
collective responsibility towards the each other. The prime minister has the power to remove
any minister from the office without giving any reasons. The essential features of
parliamentary form of government are:

– Presence of nominal head in the government.

– Close nexus between the executive and legislature.

– Accountability of the executive.

– Collective responsibility.

– Leadership of prime Minister.

Smooth Functioning, Quick Decision Making, Flexible System, Open Administration are
some of the advantages of this system of government. The closeness between the executive
and the legislature helps in the smooth running of the country. If the party is in majority
without any kind of alliances then the decisions can be taken smoothly and quickly. In the
Indian Constitution, the constituent Assembly had proposals to incorporate the doctrine in the
constitution, but they did not accept them. As the doctrine was absolutely rigid for provisions
of the constitution, it did not make any absolute or rigid division of functions among the three
branches of the state. Often the Legislative and the Judicial functions are given to the
Executive. There is a functional separation in the constitution. The Executive power of the
union and the State is vested in the president and the Governors of the states. The president is
the head of the Executive branch. He exercises his powers on the aid and advice of his prime
Minister and his council of Ministers. The supreme court is the highest court of appeal. The
constitution recognizes the three fold functional division of governmental powers. Article 50
expressly requires the state to apply the Doctrine of independence of Judiciary form the
Executive as a sign of Efficient Government. Even the implementation of the changes does
not become an issue in the parliament. Since this kind of government is flexible in nature
they adapt to changes quickly. In this kind there can be certain drawback of system as well,
like Absolute Majority, Politicization of Administration, Unsuitable for Multi-Party system,
Emergencies and Mal- Administration. The men drafters of constitutions were people of
practical and political experiences and it was their practical expedient that they opted the
doctrine of the Separation of Powers. This end could best be achieved not by a theoretical
application of the pure form of separation of power among the three organs of the
government. But by a judicious mixing, blending and overlapping of powers which would let
them have a check and balance on the other branches and avoid the tyrannical tendencies of
the others. It is clear that the framers never intended to apply the doctrine in its strictest form.
If they actually intended to adopt the doctrine they would have done it by applying it in its
totality.

FEATURES OF PARLIAMENTARY SYSTEM:

Nominal Head of the State: The President is the highest dignitary in the realm, the symbol
of the statehood, the embodiment of the unity of the country, and represents the sovereign
will of the nation. Under this form of government, the head of the state i.e. the President in
Indian context is titular, while the Prime Minister is the Real head. This implies that the
person holding the Presidential post may have great stature but he does not exercise his
power independently. Constitutionally, all the powers belong to him and every affair of the
State runs under his name and assent as articulated in Article 77 of our Constitution, but those
powers are actually exercised by the “Council of Ministers” headed by the Prime Minister
who is the head of the Government. This has been provided by the Constitution under Article
74. Thus, there exist two heads of the executive, a real and a nominal head. The president has
to act according to the advice of the Council of Ministers or else it might be set aside.

Close Nexus between the Executive and Legislature: The Constitution-makers adopted a
partial separation of powers between the executive and legislature so that they are not totally
independent of each other. Therefore, under this system the executive and the legislature have
a close collaboration with each other. This is done by choosing the Council of Ministers from
the legislature, which involves 15% of the strength of the House of the People. The President
summons the legislature and gives his consent to the bills that are initiated and passed by the
legislature to make them Acts.

Accountability of the Executive: The executives have to perform all those residuary
functions of the government which involve the implementation and administration of various
policies & Acts and orders determined by the legislature and ordered by the judiciary
respectively. In the Parliamentary system, the executive is responsible and accountable to the
legislature for all its actions since it has the right to seek detailed information about the
working of the Ministers. The Council of Ministers remain in office as long as they enjoy the
support and confidence of the Lok Sabha, i.e., the House of the People.

Collective Responsibility: The Council of Ministers has Collective Responsibility towards

each other which mean that the council shares the responsibility for the lapses of each and
every minister. Moreover, the individual minister cannot differ from the decision of the
council, particularly the Cabinet. Thus, in order to oppose the policy or decisions of the
cabinet, the minister has to resign from the council and then refute it on the floors of the
legislature. Therefore, the ministers “swim and sink together”.

In Common Cause, a Registered Society v. Union of India,1999 6 SSC 667, the Apex
court described the meaning of “collective responsibility”. The first meaning which can
legitimately be ascribed to it is that all members of a Government are unanimous in support
of its policies and would exhibit that unanimity on public occasions although, while
formulating the policies, they might have expressed a different view in the meeting of the
Cabinet. The other meaning is that Ministers, who had an opportunity to speak for or against
the policies in the Cabinet, are thereby personally and morally responsible for its success and
failure. The Cabinet stands or falls together. In practice, collective responsibility today means
that every member of the Government must be prepared to support all Cabinet decisions both
inside and outside the House.

Leadership of the Prime Minister: J. Laski said, “Prime Minister is central to formation,
central to growth and central to the death of the Council of Ministers.” Since he is the Head
of the Government and also the Real head of the State, the President appoints and distributes
portfolios among the members of the Council of Ministers upon the recommendations of the
Prime Minister as enunciated by Article 75 of the Indian Constitution. The Prime Minister
has the power to dismiss any minister any time without assigning any reason. Also, his
resignation leads to the resignation of the entire Council of Ministers. He also serves as a
“link or pivot” between the Council and the President by conveying the decisions taken by
the council after every meeting.

The above are the essential features of the Parliamentary system of government in India.
Therefore, it can be said that this form of democracy rests on the “Body of representatives or
Political Parties” elected by the people of the country. The Indian Constitution has various
provisions facilitating the parliamentary system. It has also been held by the Supreme Court
of our country that the Parliamentary system forms the basic structure of our constitution and
therefore, many legal problems might arise if any switch from the present system is made.

CONSTITUTION AND FUNCTION OF THE INDIAN PARLIAMENT

The Indian Parliament comprises of:

1. The President and the two Houses:

2. Lok Sabha (House of the People)

3. Rajya Sabha (Council of States)

Parliament is the supreme legislative body of the country. The President is elected through
the system of Proportional Representation by means of the single transferable Vote. The
Constitution provides that the President will act on the advice of the Council of Ministers.
Lok Sabha is constituted for a term of five years through direct election held based on adult
franchise. Lok Sabha elects one of its own members as its Presiding Officer and he is called
the Speaker. He is assisted by the Deputy Speaker who is also elected by Lok Sabha. The
conduct of business in Lok Sabha is the responsibility of the Speaker. Rajya Sabha
constitutes of representatives of each State who are elected by the elected members of the
Legislative Assembly of a State and 12 members are nominated by the President. It is a
permanent body with one-third of its membership renewed every second year. The tenure of
every member is six years. The Vice-President of India is the ex-officio Chairman of Rajya
Sabha, He is elected by the members of an Electoral College consisting of members of both
the Houses of the Parliament. Rajya Sabha also elects one of its members to be the Deputy
Chairman.

FUNCTIONS OF LOK SABHA AND RAJYA SABHA

The main function of both the Houses is to pass laws. Every Bill has to be passed by both the
Houses and assented to by the President before it becomes law. The subjects over which
Parliament can legislate are the subjects mentioned under the Union List in the Seventh
Schedule to the Constitution of India. Broadly speaking, Union subjects are those important
subjects which for reasons of convenience, efficiency and security are administered on all-
India basis. The principal Union subjects are Defence, Foreign Affairs, Railways, Transport
and Communications, Currency and Coinage, Banking, Customs and Excise Duties. There
are numerous other subjects on which both the Parliament and the State Legislatures can
legislate. Under this category, mention may be made of economic and social planning, social
security and insurance, labour welfare, price control and vital statistics. Besides passing laws,
the Parliament can by means of resolutions, motions for adjournment, discussions and
questions addressed by members to Ministers exercise control over the administration of the
country and safeguard the people’s liberties.

JURISDICTION OF THE PARLIAMENT

Parliament is not a sovereign institution in India in as much as it functions within the bounds
of a written Constitution. The Indian Constitution believes in the principle of division of
power and judicial review. The powers have been distributed in such a way that the Centre
has more powers than the states as seen from the Union, State and concurrent Lists. There are
97 subjects included in the Union List and 66 subjects in the State list. The Centre is
empowered to make laws in certain special circumstances on the subjects included in the
States List as well. The Parliament can take steps in this direction provided the Rajya Sabha
declares by resolution supported by special majority that it is necessary or expedient in the
national interest to do so. When a proclamation of emergency is in operation, the Legislative
competence of Parliament is widened so as to extend to any matter in the State List.
Parliament also enjoys the power to legislate for implementing any treaty or agreement with
any country. During emergency, Parliament can issue directions to the State Government in
the matter of exercising executive powers. In case a State Government cannot be carried on in
accordance of the provisions of the Constitution, the Assembly may be suspended or
dissolved by the President and Parliament make laws in respect of that State. The Parliament
and State Assembly have equal rights to make laws in respect of that State. They have equal
rights to make laws in respect of the Concurrent List, but if a law enacted by the State is not
in consonance with the laws passed by the Centre, then the law made by the latter will
prevail. There are 47 subjects in the Concurrent List. In addition to these three Lists, mention
has been made in the Constitution about the residuary powers of the Centre in respect of any
matter not enumerated in any of the Lists. The Constitution empowers the Parliament to make
changes in the boundaries of the States and effect changes in the names of existing States. It
can create new States by uniting two or more States. It can regulate the citizenship. The
Constitution empowers the Parliament to amend the Constitution; and by virtue of this power,
it can amend even the process of amending the Constitution. It has been provided that no one
can interfere with the proceedings of Parliament. In view of the aforesaid power, it can be
said that our Parliament is a sovereign body provided it does not tinker the Basic Structure of
the Constitutions. It has to proceed according to the provisions of the written Constitution
whenever any provision becomes an obstacle; the Parliament can amend it suitably as has
been done 91 times during last 56 years.

ISSUES AND CHALLENGES

The makers of the Indian Constitution, while adopting the parliamentary form of government,
had a view that parliamentary democracy will be the best suitable form of government for
India. Most of the members of the Constituent Assembly were in favour of adopting the
British parliamentary system as the role model for Indian parliamentary democracy. Pt.
Jawahar Lal Nehru, Sardar Patel, K.M. Munshi, Dr. B.R. Ambedkar and Alladi Krishnan
Ayyer strongly believed that British parliamentary system would be the best model, which
would be able to meet with all democratic problems and aspirations in the future. But, after
66 years of the republican system of governance, we find that the operation of this
parliamentary system is not so smooth or free of hurdles. In the past period, a number of
problems have been observed in the practical functioning of parliamentary democracy.

LEGAL ISSUES FACED BY INDIAN PARLIAMENTARY GOVERNANCE:

 Role of President

The essence of the parliamentary democracy is that the Council of Ministers shall be
responsible to the House of the People. In U.N.R. Rao v. Indira Gandhi,36 the Supreme
Court observed that the President is only the constitutional head and must act on the advice of
the ministers, whereas the real executive powers are to be exercised by the Council of
Ministers. The 44th Amendment of the Constitution of India provides that the President may
require the Council of Minister to reconsider the advice, either generally or otherwise, and the
President shall act in accordance with the advice tendered after such reconsideration.
Similarly, under Article 111 of the Constitution of India, the President may return the Bill for
reconsideration (unless it is a money Bill). But if the Bill passed again by the Houses, it shall
be presented to the President for assent and the President shall have no power to withhold his
assent.

There have been few instances when the President sent a Bill for recommendation. In 1986,
President sent the 1986 Post Office (Amendment) Bill to the Cabinet. In 2006, President
Abdul Kalam sent the amended Parliament (Prevention of Disqualification) Act of 1959 for
such recommendation. He assented to it when it was presented to him again, after such
reconsideration but without any amendment. Hence, the issue arises: what is the effect of
returning a Bill to the Houses if the Council of Ministers has power to present the same Bill
after just a formality of passing the Bill again? Then, what is the role of the President's
recommendation in the parliamentary form of democracy?

36 U.N.R. Rao v. Indira Gandhi, AIR 971 SC 1002

 Delegated legislation

The main function of Parliament is to make law for the country. But, usually, what happens is
that the legislature enacts a law covering only the general principle and policies relating to
the subject matter in question, and confers the rule-making power to the government or to
some other administrative agencies. The absence of the Members of Parliament from the
proceedings, as well as some un-parliamentary activities (such as watching porn clips,
abusing others, throwing shoes, papers, paper weights and ink, sleeping during discussion,
unreasonable walk-outs, demonstrations of banners and causing disturbance by raising
unnecessary slogans) are the main causes for increasing of delegated legislation in India.

 Role of Speaker/Chairman with reference to Anti-defection Law

The office of the Speaker/Chairman has an important position which is always associated
with respect, dignity and authority. But, the convention has developed common practice that
the Speaker is appointed by the majority party (from their party membership) whereas the
Deputy Speaker is appointed from the opposition. Both the Speaker and the Deputy Speaker
remain affiliated with their respective party. The Speaker/Chairman functions as a Tribunal
while deciding on the matters regarding anti-defections and other disciplinary matters.
However, in most cases, it is observed that the Speaker/Chairman keeps his ties with the
respective party and misuses the powers by keeping the decisions pending. For example, in
the year of 2013, the Speaker of Haryana legislative assembly decided on an anti–defection
case involving five Members of State Legislative Assembly. The case was filed in 2009 and
decided almost at the end of the tenure of the government. This kind of issue raises the
question on the impartiality of the Speaker/Chairman in the parliamentary form of
Government. If the impartiality of the office of the Speaker/Chairman is not maintained, how
can it act as a tribunal?

 Qualification of Representatives
The minimum qualification to contest the election of MPs and MLAs is required in Indian
parliamentary system. Article 84 clause (c) of the Constitution of the India provides power to
the Parliament to decide the qualifications for its members. The Parliament enacted the
Representation of People’s Act, 1951 which provides for qualification and disqualifications
of the Members of Parliament. Yet, the educational qualification is not specifically provided
for being elected for the membership of the Parliament. The Haryana Government has fixed
the minimum education qualification for Panchayat elections by the Haryana Panchayati Raj
Amendment Act, 2015.The Apex Court of India also observed this amendment constitutional
valid in Rajbala v. State of Haryana (Civil Writ Petition 671/2015). When a state
government can take such a strong step to enhance the standard of elected representatives
then why the Parliament cannot take such steps to fix minimum qualifications for MPs and
MLAs.

 Right to reject and recall

The Election Commission of India has introduced the NOTA option (None of the above) in
pursuance of the order of the Supreme Court of India. The issue is: if the electorates chose the
NOTA, what purpose will it serve? If a voter does not want to vote for anyone, why would he
come to the polling station to cast his vote? If the voters cast their votes as NOTA, there is no
effect on the election. The right to reject or recall an elected representative has not been given
yet, although it seems to be a natural right along with the right to vote. After the fair and free
election, an elected representative may change his mind in the course of a legislative term, or
may be negligent in exercising his duties

 Office of the Governor

In Indian parliamentary democracy, there can be different government at the Central level as
well as at State level. Conventionally, the Government at the Central level appoints the
Governors for the States in India. Sometimes, the governor uses his discretionary powers,
which causes disturbance in the governance and policy making. The term of the Governor
depends upon the pleasure of the President which acts in accordance with the aid and advice
of the Council of Ministers in Parliament. So, the Council of Ministers use their influence
over Governors of the States. The insecurity of term of Governor‟s office can make the
Governor pro-Centre government, which is a serious issue regarding democracy.

 Reservation for women

The parliamentary institution represents the will of the citizen of the country. For adequate
representation in the democratic system, under Article 334 of the Constitution of India,
reservation of seats and special representation in Parliament is provided for SC, ST and
Anglo-Indian community. But, the issue of reservation of seats for women representation in
Parliament has not been resolved yet. Article 243D (3) of the Constitution of India provides
33% reservation for woman in Panchayat election while Article 243T (2) provides 33%
reservation for women in Municipal election. The reservation is given at the lower level, but
it is not provided at the central level. In the first Lok Sabha, the representation of women was
4.50% (22 members), while in 2014 the representation of women was 12.15% (66 members).
While the global average for Women in Parliament stands at 22.4%, India is at the 103rd
place out of 140 countries with a mere 12% representation. Within Asia, India is at the 13th
position out of 18 countries. Countries like South Sudan and Saudi Arabia have better women
representation in Parliament than India.37 With these issues, how can we secure the
representation of the citizens‟ will? There is a need to provide reservation for women
representation in Parliament as well as for the representation of socially and educationally
backwards citizens.

 Participation of citizen

The maximum participation of citizens of the country is desirable in parliamentary

democracy. But in India, due to poverty, lower numbers of educated voters and a lack of
awareness, the participation of all sections of the society are not recorded even after 65 years
of republican form of government. In 1952, the voting percentage in general elections was
61.2%. In 2014, the voting percentage was 66.4%, which is the highest percentage ever
recorded. Now, after 62 years, the increase in percentage of participation is just 5.2%. Given
the fact that 34.6% citizens do not cast their votes, such kind of growth of participation
cannot achieve the aims and aspirations of parliamentary democracy.

CHALLENGES

Indian parliamentary democracy presently faces the following challenges, which

preclude achieving the goals of parliamentary democracy:
 Lesser participation of Citizenry in democratic processes
 Education and raising awareness of the electorate,
 Corruption in politics
 Criminalization of politics
 Negative role of the media (yellow journalism, fake election surveys).

THE DOCTRINE OF SEPARATION OF POWER UNDER THE INDIAN SYSTEM :

The strict and absolute doctrine of Separation of Powers has been modified to meet the
challenges of different societies. The Indian Parliamentary system has its own systems of
modifications. From the “Pure Doctrine” of the Separation of Powers there is a little
divergence and even the American model has made a lot of modifications. The doctrine has
been adopted from the Constitution of America. The modifications have been made as the
isolation of the organs will not work due to changes in the present day requirements. To
prevent Despotic Government, the system of checks and balances has been established. The
following heads will discuss the latest application of the doctrine of separation of power in
The Indian Parliamentary set up:

ACCOUNTABILITY OF EXECUTIVE TO THE PARLIAMENT:

The Indian parliament has been facing challenges regarding the accountability of executive to
the parliament. It is believed that the decline in the effectiveness is caused by the lack of
accountability of the executive to the legislature. Also, the powers of the parliament have
been eroded due to the globalization. Firstly the economic decisions are taken keeping in
mind the global prospective. Secondly by the restructuring of the regulatory framework this
has to be given to a lot of non- elected institutions. The weakness of the Indian Parliament
has also given a slow pace to the formation and implementation of legislations. Although the
constitution of India has always aimed at the democratic accountability but in some extent
lagged behind in parliamentary accountability. Looking at the recent past, India has widened
the scope of democratic participation to a great extent.

ADMINISTRATIVE PRONOUNCEMENTS :

Administrative Adjudication is the process by which an administrative agency issues an

affirmative, negative, inactive or declaratory order. The formal proceedings before an
administrative agency adopt the process of rulemaking or adjudication. In recent times, the
administration has obtained powers of adjudication over disputes between itself and private
individuals inter alia, and has emerged with a plethora of tribunals. The administration has
secured detailed powers to grant, refuse or revoke licenses, impose sanctions and take actions
of various kinds in its discretion or subjective satisfaction. Proceeding to this, it has been
given vast powers of inquiry, analysis, investigation, search and relinquishment and
surveillance. For determination of major policies a Legislative body is best suited in the given
setup, but it also lacks time, technique and expertise to handle it. Therefore, the legislature
has to be satisfied by laying down broad policies and leave the rest to the administration, thus
has resulted in delegated legislation. In support of this, administrative adjudication has arisen
largely because of the multitude of cases arising for adjudication under the modern legislation
that need to be decided sweepingly without much formal and technical delays, and with the
special persons with the specialized skills. The courts are not in a position to fulfill these
conditions and so the administrative tribunals have come into picture. Administrative
adjudication is the power of an administrative agency of judicial powers which have been
given to them by a legislative body.

JUDICIAL REVIEW:

The countries with common law system have the method of judicial review, which is
embodied in their constitutions or any source of the same. Any law which is passed by the
legislature or executive, the power to review that law is vested in the High Courts and
Supreme Court. It is important as it the measure through which legislative and executive
remains under the surveillance. The system of the checks and balances has made it easy so
that they can check other branches. For the judicial review of legislations The Indian
Constitution has some provisions. This concept has taken from the constitution of United
States Of America. which makes the judiciary empower to make decisions and review the
laws passed by the legislature. If any part of the legislation is in coercion with the
constitution of India then it can also be rendered as unconstitutional. This power conferred on
the Judiciary has a lot of significance as it has to deal directly with people and protect the
rights of people against the tyranny of the other two organs.

In comparison with the legislative supremacy, Montesquieu was the first to introduced the
idea of separation of powers. In Marbury v. Madison case the Supreme Court ruled under
the court of John Marshall in the United States. “The Separation of powers is based on the
idea according to which, without any due process of law no wing of government should be
able to drill power over any other branch, there should be a check on power with each branch
of the government, so that it could check the other branches of government, thus creating a
bureaucratic balance among all the branches of the government. checks and balances is a key
to this idea. On the powers of the other two branches of the government by the judiciary,
judicial review is treated as a key check in the US.” Regarding judicial review, along with the
societies based on common law and those underscoring the doctrine, differences in
constructing such democratic societies led to different views being the most likely to utilize
judicial review.

Judicial accountability as an exception : Independence of theJudiciary is a one of the basic

structure of the Indian democracy as well as the constitutional culture under this
constitutional system being equally important as the guarantee of the liberties which are
given to every person in the country but are kept in check by the judiciary. It is important to
keep a check because this ensure lawfulness in the country. The three organs of the
government – Legislature, Executive and Judiciary perform the three most important
functions i.e. law making, enforcement of the law and interpretation of the laws. The basic
agenda behind this is separation of powers. This brings accountability also keeps the
government in check and also the rights and liberties guaranteed to us are safeguarded. The
another principle that has been working with the separation or balance of power is the system
of checks and balances. In simple words the principle of checks and balances means that no
organ of the government should be have unchecked powers. The power of one organ should
be checked and balanced by the other two. So in this way the balance is also achieved. In
India the executive is answerable and accountable to both legislature as well as the judiciary.
Because of the anti defection law there has been a decrease in accountability. The parliament
also is answerable and accountable to the people and also the other two branches.
Independence is an embankment of the rule of law. It is equally important that Judges should
be independent in implementing law and rendering judicial decisions, if the law, which is to
be applied to all citizens in the country, is equal to all. Judges can be subject to intimidation
and pressures from litigants, including criminal element of society. Independence of judiciary
is accepted principle adopted by most of the democratic countries.

Indian Judiciary and the acceptance of the Doctrine in its practice : The President being
the executive head is also empowered to exercise legislative powers. He may promulgate
ordinances in his capacity of legislative in order to meet the situation as Article 123(1) says
“If at any time president is satisfied the circumstances that exist which render it necessary for
him to take immediate action, he may promulgate such ordinances as the circumstances
appear to him to require except when both houses of parliament are in session,”. Due to
failure of constitutional machinery, when president declares the proclamation of emergency,
the legislative power under Article 357 of our constitution has been given to The President to
make any laws in order to meet the situations. Under article 372 and 372A, a power has also
been conferred on the president of India to adapt any law in the country by making such
accommodations and adjustments whether by way of repeal or amendment as may be
necessary or expedient for the purpose or to bring the provisions of such law in accordance
with the provisions of the constitution. Judicial function under Article 103(1) of the
constitution exercised by the president of India is notable in connection. According to this
article of the constitution “As mentioned inArticle 102(1)If any question arises as to whether
a member of either house of the parliament has become subject to disqualification,the
question shall be referred for the decisions of the president and his decision shall be final. Pg.
no. 41 Bare Act. Article 50 lays emphasis to separate the judiciary from the executive. But in
practice we find that the powers of judiciary also exercised by the executive as in
appointment of judges underArticle 124, 126, and 127. The legislature also exercises the
judicial function in removal of president under Article 56 in a prescribed manner. Judiciary
also exercises legislative power; high court and Supreme Court are empowered to make
certain rules in legislative character. Whenever a certain provision of law against the
constitution or public policy found by the high court and the Supreme Court it declares the
same null and void, and then in the legal system the amendments may be incorporated.
Sometimes high courts and Supreme Court formulate the principle on the point where law is
silent. The power is also legislative in character.