Separation of Powers between Executive and Judicial Branches - Case Study Example

This discussion relates to understanding and contrasting codified constitutions and interpretation of constitutional principles and the constitutionsof India and Germany are compared and contrasted in this case. References to the US and UK constitutions are also made and the main areas of discussion here relates to understanding two tasks To what extent does each of the chosen constitutions include a separation of powers between the executive branch and the judicial branch Contrast the ways in which the constitutions of your choice can be amended and evaluate the respective procedures for amending the constitution The first part of the question relates to the separation between the executive and judicial branches as indicated in the two constitutions chosen and a comparative analysis is given for the two constitutions. This will have to be analyzed in terms of separation of powers and the principles that operate within the context of the constitutions selected here. The second part of the discussion relates to the amendments and the procedures related to the amendments of the two constitutions. Certain specific aspects of these constitutions as well as the safeguards incorporated or even the different forms of knowledge that could be use to interpret constitutional principles including the social and legal aspects are the main focus of this essay (Bogdanor and Rudden, 1995). The first part thus discusses main constitutional principles and separation of powers in the country in its constitutional forms. The second part of the essay discusses the amendments of a constitution and the different procedures for amending the constitutions of the two countries chosen. Part A - Judiciary and Executive - India and Canada Some of the judicial provisions given in the Indian Constitution states that - 1. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 2. The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. (Constitution of India, 2007) In the matter of separating the judiciary from the executive, the Constitution states that -'The State shall take steps to separate the judiciary from the executive in the public services of the State'. In this context the roles and structure of the Executive could be given. The Executive consists of the President of India and the Vice President. The constitution states that - a. There shall be a President of India. b. The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers sub-ordinate to him in accordance with this Constitution.(Constitution of India, retrieved 2007) The extent of the Executive Power of the Union is given by the following clauses - Extent of executive power of the Union.- (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend- (a) to the matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement: Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. (2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution. The Constitution also states that - All executive action of the Government of India shall be expressed to be taken in the name of the President. Thus in matters of the judiciary and the executive, the constitution of India specifically mentions that the judiciary and executive would remain separate so one cannot influence the other (Constitution of India, 2007). So with distribution of powers between the judiciary and the executive branches, transparency and accountability are maintained and the Parliament and has the powers to make laws and the Government can exercise rights and authority by virtue of a treaty or agreement. Any State or Governor also has executive powers that would be separate from any judicial powers that are maintained or followed within the state. Yet the President remains the highest executive and all executive action takes place under his name (Constitution of India, retrieved, 2007). The Union Judiciary in India consists of the Supreme Court with the Chief Justice of India and seven other judges. Although the President may appoint the Chief Justice, the judiciary is in no way controlled by the President or any other branch of the executive. In fact, the judiciary is responsible for settling disputes between different factions of the government, the executive and also the states. According to the Constitution of Canada - 'The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen'. According to the constitution of Canada, all powers and authorities, functions or Acts of Parliament of the United Kingdom or Canada should be exercisable with the advice and counsel of governors, Executive Councils in conjunction with the Queen's council. The constitution also states that there has to be 'One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons'. Unlike the Constitution of India, the executive and judiciary are not separate in all cases in the constitution of Canada. The Canadian Constitution states that certain rules are made exclusively by Legislative divisions although some are vested on the Queen. The Constitution states that , 'It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces' (Constitution of Canada, 2007). Part B - Amendments of Constitutions The laws, rules, statements of the Indian Constitution could be amended by several ways. Certain provisions of the constitutions could be amended by a majority vote of Parliament although these won't be considered strictly as amendments. For example, changing of boundaries or formation of new states by vote of Parliament would be an amendment. Some provisions can be amended by a majority of total membership of each house of Parliament and majority of not less than two-thirds of members of each house. Some other amendments may also require ratification by half of states and special majority votes. So amendment of the India Constitution is largely a Parliamentary and Executive process (Sripati, 2004). The Constitution states that, 'If at the joint sitting of the two Houses the Bill, with amendments, if any, as are agreed to in joint sitting, is passed by a majority of the total number of members of both Houses present and voting, it shall be deemed for the purposes of this Constitution to have been passed by both Houses'. Thus as seen the process of amendment is primarily determined by both the houses of the Parliament by the voting process. In case of the amendments to the constitution of Canada, until 1982, Canada's amendments procedure was that amendments to the BNA (British North America) Act had to be enacted by the United Kingdom Imperial Parliament. This was done so that the constitution could not be subject to any easy procedure for amendment. The constitutional convention showed a lasting binding with the UK parliament although Canada did not have much of an amending procedure or formula for the constitution (Leyland, 2007). However since the Constitution Act 1982, sections 38 to 49 stated that two-thirds majority of the provincial legislature or at least 50% of the national population as these legislatures represented, could pass votes for an amendment of the constitution (Hogg, 1992). Thus in case of Canada, the rather complicated process of Parliament depending largely on UK parliament was changed to a new procedure for amendment through legislature voting in recent times. These have been clearly stated by several scholars including (Sripati et al, 2004) for the Indian Constitutional Amendment Process and by Hogg (1992) for the process of Amendment of the Canadian Constitution. Bibliography Bogdanor, V & Rudden, B (1995), Comparing Constitutions, Oxford UP, Hogg Peter W. (1992) Formal Amendment of the Constitution of Canada Law and Contemporary Problems, Vol. 55, No. 1, Comparative United States/Canadian Constitutional Law pp. 253-260 Jowell J & Oliver D (2007), The Changing Constitution (6th ed), OUP Leyland P (2007), The Constitution of the UK: A Contextual Analysis, Hart Publishing, Loveland I (2006), Constitutional Law: A Critical Introduction, 4th ed, Oxford Munro C (1999), Studies in Constitutional Law, (2nd ed) Butterworths Sripati V.;Thiruvengadam A.K. (2004) India: Constitutional amendment making the right to education a Fundamental Right International Journal of Constitutional Law, Volume 2,Number 1, pp. 148-158(11) Turpin C & Tomkins A, British Government and the Constitution: Text, Cases and Materials,6th ed, Cambridge, 2007 Read More