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Executive , legislative and judiciary – POWERS : (SHORT NOTES)

June 19, 2021

Executive Power:-

When Art. 258(1) of Constitution of India is giving power to the President to entrust his functions to the Government of a State or its officers in relation to any matters to which the executive power of the Union extends, the intention is to entrust only executive functions and no other. The word “functions” even though it is not qualified by the word “executive” in Art. 258(1) must take its colour from what follows and if that is so the functions to be entrusted must be of the same nature as the executive power of the Union. It is true that the words following the word, “functions” describe the field within which the functions can be entrusted and this field is to be found in accordance with List I ordinarily; but it is legitimate to hold that the words following the word “functions” when they delimit the field in which the functions can be entrusted also indicate the nature of the functions to be entrusted and this to our mind is clear from the use of the words “executive power” in the clause following the word “functions” and it is only executive functions therefore which can be entrusted by the President under Art. 258(1) to the Government of a State or its officers, Jayantilal Amritlal Shodhan v. F.N. Rana, AIR 1964 SC 648: (1964) 5 SCR 294: (1964) 5 Guj LR 481.

The expression “executive power” is wide enough to connote the residue of the governmental function that remains after the legislative and judicial functions are taken away, State of M.P. v. Yashwant Trimbak(1996) 2 SCC 305: 1996 SCC (L&S) 510.

Executive power and executive function — Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away, Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: (1955) 2 SCR 225: 57 Punj LR 444.

Legislative Power:- ‘Legislature’ means — the power that makes laws.  (Per Patanjali Sastri, C.J.) The term “Legislature” is not always used in the Constitution as including the Governor, though Art. 168 makes him a competent part of the State Legislature. (Per Mahajan, J.) Word “legislature” means the House or Houses of Legislature and does not include the Governor within its ambit. In some Articles of the Constitution of India, it means the Governor as well as the Houses of Legislature, while in a number of other Articles it only means the House or Houses of Legislature, State of Bihar v. Kameshwar Singh, AIR 1952 SC 252: 1952 SCR 889: ILR 31 Pat 565. ‘Legislagture’ means – (i) either House of Parliament, (ii) the Legislative Assembly of a State or in the case of a State having a Legislative Council, either House of the Legislature of that State, (iii) Legislative Assembly of a Union Territory constituted under the Government of Union Territories Act, 1963 (20 of 1963), (iv) the Metropolitan Council of Delhi constituted under Section 3 of the Delhi Administration Act, 1966 (19 of 1966), (v) Municipal Corporations in metropolitan areas as defined in the Code of Criminal Procedure, 1973 (2 of 1974), (vi) District Councils and Regional Councils in the States of Assam and Meghalaya and in the Union Territory of Mizoram as provided in the Sixth Schedule to the Constitution or (vii) any other elective body as may be notified by the Central Government, as the case may be, [Section 2(f), Foreign Contribution (Regulation), 1976 .

Power to frame or enact law for the governance of the country by the supreme body exercising the sovereign power is known as legislative power, as was held in Kartar Singh v. State of Punjab(1994) 3 SCC 569: 1994 SCC (Cri) 899.

Legislative power and judicial power — According to the historic analysis, the essence of the distinction between legislative power and judicial power is that the Legislature makes new law which becomes binding on all persons over whom the Legislature exercises legislative power: the Judicature applies already existing law in the resolution of disputes between particular parties; and judges may not deviate from this duty. Though neither for logic nor in language has the boundary between legislation and adjudication ever been rigidly and clearly drawn, the distinction between the two is well established, Indira Nehru Gandhi v. Raj Narain1975 Supp SCC 1.

Judicial Power:-

Means the judicial power which every authority i.e. courts i.e. High Court and subordinate judiciary, established and the Union Judiciary constituted, “the Supreme Court of India” must of necessity have to decide controversies between citizen and the citizen, citizen and the State or the States inter se, whether the rights relate to life, liberty or property. The courts have power and authority to declare the law, apply the law and give a binding and authoritative decision between the parties before it and carry it into effect, Kartar Singh v. State of Punjab(1994) 3 SCC 569: 1994 SCC (Cri) 899. 2. The judicial power means the power which every severing authority must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights to life, liberty and property, Sujata Maitra v. State of W.B., 1978 CHN 831.

Judicial review and justiciability :— A distinction has to be made between judicial review and justiciability of a particular action. Power of judicial review is implicit in a written constitution and unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. Justiciability relates to a particular field falling within the purview of the power of judicial review. On account of want of judicially manageable standards, there may be matters which are not susceptible to the judicial process. Such matters are regarded as non-justiciable. In other words, during the course of exercise of the power of judicial review it may be found that there are certain aspects of the exercise of that power which are not susceptible to judicial process on account of want of judicially manageable standards and are, therefore, not justiciable, A.K. Kaul v. Union of India(1995) 4 SCC 73: 1995 SCC (L&S) 922.


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