CREATION & IMPLEMENTATION OF LAW:

Interplay Between Branches of Government &

Laws For Society
Name: Sunidhi Gupta
Roll no.: 20010489
Course: Sociology II
KEY WORDS: Law, Legislature, Executive, Judiciary, Implementation, Developmental Laws

ABSTRACT

The research paper deals with the concept of how different organs of the government which are
the legislative, executive and judiciary are interlinked in the implementation of law and order in
the society. It studies the various aspects of how overlapping the fine line between the
functioning of any of this organ can be fatal for the society in general. There are also elements
which evaluate that there are specific times when stepping into another organ’s function is
actually beneficial for the society. Both sides of the coin have been substantiated with requisite
examples.

INTRODUCTION

There are governments of various countries whose governing system is based on the principle of
the ‘Doctrine of Separation of Powers’. Under this doctrine the powers are classified amongst
different branches which are the Legislature, Executive and Judiciary. There are countries like
U.S.A which have strict separation of powers amongst these three organs but the separation of
these organs in not so rigid in India.(Rao 2005, 113) The main aim of this paper is to understand
how these three organs are inter-dependent and the role of law in their functioning with reference
to India. It will also ponder upon if these institutions can function as independent entities.

In India, legislature, executive and judiciary function within their own spheres where legislature
is responsible for making laws, the executive implements laws and policies, maintaining law and
order and the judiciary is responsible for dispute resolution. But the powers of legislature and
executive can be subjected to judicial review and this is the quasi-federal function. This flexible
approach to the doctrine is backed by provisions in the Constitution though the Doctrine is not
explicitly mentioned which points towards how different organs of the government do not
function independently in India. The flow of this paper examines the cross-sections of all these
institutions in the process of law making in the society.(Dubey 2019, 80-81) The focus lies on
how the formation of executive branch and its direct consequences on the legislature as well as
judiciary. Another topic this paper talks about is that law as a subject or provision cannot be
handled by one branch and so even after the functions of organs are inter-dependent the fine line
to differentiate needs to be examined and understood.

LITERATURE REVIEW

Works of literature discuss the fact of what is a good law and how it is made. Law making
institutions claim that laws are good but the lacunae lie in the implementation. But it cannot be
ignored that a law is not just provisions which are desirable to maintain order in the society, there
must be a method chalked out for implementation of the aim and identification of a competent
agency for the same. If the converse is observed, any changes made on the implementor’s end
disturbs the basic calculation on which the law was devised. Law making which comes under
legislature and implementation which is a function of executive are held by a tight bond with one
of the main elements is the implementing institutions where needs to be a relevant selection after
complete research.(Seidman et al. 1994, 128-129) This element is the bureaucracy who are the
permanent members of the executive organ who carry out the administrative work i.e giving
opinions and advice along with collecting and presenting information for the other executive half
which are the elected representatives to take decisions. The choosing of such trained professional
officers who form implementation agencies is what forms an interlinked law making and
implementing process.(Ghai n.d.)

The judiciary which is the third organ of government though is termed as the interpreter of law,
also works as an implementing agency. In the mythology of the western capitalists, the courts are
believed to be the capital investment in law’s empire. They resolve disputes that come in the
form of contract and tort cases where private parties sue each other; cases criminal in nature
where government takes an individual to court or administrative laws where individuals take
action against officials which is considered to be implementation of law by interpreting it
according to facts. There is also the example of 13th century England which substantiates the idea
of judiciary seen as an implementation tool. During that period, the Crown had created law
courts but institutions like police who searched for violation were not established and the courts
relied on complaints made by citizens to implement laws through dispute resolution. The change
in economic and social graph, by the 18 th century also relied on expanded court systems which
functioned with the help of administrative staff. This offers the view of how judiciary and
executive have been functioning inter-dependently from centuries before. (Seidman et al. 1994,
132-133)

The constitution also plays a very important role in reflecting the range of interaction between
each branch of the government. The way in which provisions mentioned in the Constitution are
adopted in functioning determine how law and order is maintained. Each of the organ its power
to function, check and make decisions to help form a mosaic which is not tangled but fits in to
each other. The Constitution displays broader aspects like rules for dissolution of legislature,
formation of cabinet or president’s rights and limits and it also supports the independence of
judiciary. (Bockenforde 2011, chap. 4, 10) So, the existence of Constitutional aspects also
explains the relation between various organs. But a fine line between these organs has to be
drawn to not make their system of checks and balances detrimental which will be discussed in
later section.

RESEARCH METHODS

The main source to discuss this topic has been book chapters and precedential Indian cases
which support the idea of interactive functioning among the three organs of the government. The
landmark case of Kesavananda Bharati vs. Union of India where the Supreme Court of India had
countered the power that the Parliament had to amend the Constitution. The 13 Judge bench had
stated that amending of the Constitution did not include hampering the basic structure of the
Constitution. Following this the practice of judicial review was also included under the umbrella
of basic structure. (Rao 2005, 114) This was one of the main cases which established the relation
between functioning of governmental organs like legislature and judiciary and the impact of
Constitutional provisions for the same. One of the chapters in a book which guides on the
formation of executive branch and the consequences of various methods presses over the fact
that executive plays a uniquely powerful role and how leader elected forms the global image for
a country. All these articles reflect individualistic importance of functions of the organs as well
as them working in coordination with each other. (Bockenforde 2011, chap. 4, 11) But examples
of situations and cases are also mentioned wherein they supersede limits which are either
beneficial or detrimental.
FINDINGS & DISCUSSION

The main discussion of this paper is on how various organs of the government have individual
functions in operating law and order in the society but there exists no clear distinction but just a
fine line to differentiate. They work inter-dependently and tend to perform each other’s function
which sometimes is helpful and other times fatal.

The courts are traditionally interpreting institutions and do not order the executive and legislative
to enact and implement a certain legislation. But in recent times the Apex Court has been setting
out interim legislations for areas which have not been covered under any Acts or instructions by
the executive. One of the examples were the guidelines which were implemented in relation to
sexual harassment in workplace. These were laid down basic human rights mentioned in the
Constitution and provisions given in Convention on the Elimination of all forms of
Discrimination against Women (CEDAW) which is ratified by India. The court also gave a
clarification statement which said the directions given by them in court are enforceable in law till
the time suitable legislation comes in place. On similar grounds court had laid down procedural
safeguards for cases which concerned the adoption of abandoned children. In the case of P.V
Narasimha Rao vs. State which involved the Prevention of Corruption Act, 1988 the court had
found that the aforementioned Act did not have any provision regarding authorities who were
competent to give permission for prosecution of a Member Parliament. It was the court who
came up with the interim measure that till the time legislation was not made, permission should
be taken from the Presiding Officer of the House concerned. But again, this practice of creating
interim legislations was considered as an option not trying to supersede the function of any of the
other organs. In the Vineet Narain vs. Union of India case, the Court established the if a
legislation has not been enforced then the executive is responsible to fill in with its orders
considering they are coterminous in terms of action, and if they do not take a step then the
judiciary moves in to give out provisions based on existing legislations. (Rao 2005, 116-117)

The intervention of judiciary is not just in situations concerning in action of legislature and
executive but when their actions cause injustice to the public at large. One case to substantiate
this situation is Keshav Singh vs. Speaker, Legislative Assembly where the complainant was
prisoned for contempt of Legislative Assembly of U.P because affairs of Assembly were their
exclusive domain separate from influence. This case also involved resolution to make the Judge
and advocate produced in custody. Here the President of India also used the Article 143(1) of the
Constitution to involve the Supreme Court who held that the powers and privileges of a State
Legislature cannot be exclusive and can be taken to the court by the aggrieved party. They also
said that the Legislative Assembly was not competent to question the judge or advocate in
custody. (Rao 2005, 118-119)

The Keshav Singh case inclined towards the fact that none of the organs can misuse the powers
against the public who has given them the power which is the basic essence of Separation of
Powers. Another issue this discussion brings in is the importance of a document called
Constitution which is the basis of the law and law-makers. The Constitution is a text which
provides framework and provisions for enforcement and implementation of laws including
formation of the organs of the government and degree of interference in other’s function. The
Constitutional design plays a very important role in what capacity each of the organ would
operate, though the impact of implementing this document is unanticipated because it is affected
by the various social, economic and political factors and so no design can be claimed as apt for
the technical problems of a country. One example of how a varied Constitutional design can be
change maker is the election of the government who primarily constitutes the executive branch
of the government. The executive can be centralized with powers concentrated in the hands of a
few and it has its own set of benefits but sometimes become the reason of conflicts at national
level due marginalization. On the contrary, executive branch can be decentralized with more
people involved in decision making process but the negative aspect is that it delays the decision-
making process and so a balance has to made in the formation of executive. The Constitution
which is written after taking all stakeholders in consideration and has specified powers makes it
easier to draw distinction between traditional functions of an institution and the extent to which
another organ’s involvement is acceptable. (Bockenforde 2011, chap. 4, 11-13)

Also, the paper has discussed on how courts are taking initiatives to implementing provisional
guidelines for areas which have not been taken under by the legislature. Law implementation by
judiciary is not a new concept according to existing research where in the Colonial rule in Africa
district officers of local courts served as magistrates and local administrators. But there are
limitations to judiciary functioning as legislature and not optimum for enforcing developmental
laws. This was realized by the colonial empire as well because with the industrialization, they
started using institutions apart from courts to implement new laws and following the
independence administrative and judicial system were formed separately with laws being
implemented by the admin system. (Seidman et al. 1994, 133-34)

There are limitations in the process of implementation by the courts because they have been
designed for dispute resolution. Court is reactive in nature and waits for the plaintiff to approach
for implementation while developmental laws require proactive steps. Also, there are people who
do not have the resources to file law suits and avoid litigation in their best interests rather than
fighting procedurally slow or corrupt courts. It handicaps government from implementing its
initiatives. The court generally focuses on the dispute present before it not considering other
people being affecting and its decisions are based on past actions and interpretation of relevant
laws rather than social implications of choices made. The courts follow legal provisions and do
not consider any legislative facts like surveys which bring forth opinions. Moreover, the
implementation of a decision given by a court is not evaluated neither are the consequences
discovered to make sure appropriate social development happened. The judicial procedures are
rigid, slow and formal because they have intricacies of the claims made by people which serve
justice while development has to be speedy process. Judges in courts are trained to interpret a
law rather than forming one and that is why there is bureaucracy which has trained experts to
support political executive who have knowledge of a certain field. Courts and its members
cannot make polycentric decision because the complexity of developmental laws is different,
rather courts tend to make simple decisions pertaining to case at hand. (Seidman et al. 1994, 135-
38) This points towards the fact that legislative function of the judiciary can have loopholes and
that they are neither the best solution in each case nor can they supersede the functioning of the
legislature and executive.

CONCLUSION

To conclude it can be understood that each organ of the government has its own role to play for
maintaining law and order in the country. The Constitution as a document establishes how these
parts of the political system come together to run the nation and it is this document which either
directly or indirectly through its provisions throw light over the existence of Doctrine of
Separation of Powers. Apart from this it is important to focus on the nuanced implementation of
the organs checking each other’s functioning because giving in provisions is not the enough.
Each institution is having to make consistent efforts so that no one becomes supreme and even if
executive is formed with a majority in both houses, the judiciary can check over their powers for
maintaining peace in the country. (Rao 2005, 120-21)

REFERENCES

1. Dubey, Anil. 2019. ‘Legislative Role of Judiciary in India: A Critical Appraisal’. ILI
LAW Review. (Summer): 80-97
2. Ghai, K.K. n.d. ‘Executive: Definition, Functions and Types of Executive’. Your Article
Library. https://www.yourarticlelibrary.com/political-science/executive-definition-
functions-and-types-of-executive/40360
3. Markus Bockenforde. 2011. A Practical Guide to Constitution Building. Stromsburg:
International Institute for Democracy and Electoral Assistance
4. Rao, P. Parameshwar. 2005. ‘Separation of Powers in Democracy: An Indian
Experience’. The Canadian Journal of Peace and Conflict Studies 37, no. 1(May): 113-
122
5. Seidman, Ann and Robert B. Seidman. 1994. ‘Implementing Institutions: From Courts to
Bureaucracy’. Development Theory and Practice. 128-141

Cases

1. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

2. PV Narasimha Rao v State(CBI/SPE) (1998) 4 SCC 626
3. Vineet Narain & Others v. Union of India & Another, 1 SCC 226
4. Keshav Singh v. Speaker, Legislative Assembly, 1965 AIR 745