Exercise of legislative power by the executive under Article 35

Article 35

“Notwithstanding anything in this Constitution, —

(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws —

(i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and

(ii) for prescribing punishment for those acts which are declared to be offences under this Part; and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);

(b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament.”

Background

• On the recommendation of the Jawaharlal Nehru Cabinet, the provision was added to the Constitution by presidential decree in 1954 under the administration of then-President Rajendra Prasad.
• In actuality, the Presidential Order was issued in accordance with Constitutional Article 370 (1) (d). Moreover, this clause enables the President to amend the Constitution in order to assist Jammu and Kashmir’s “State subjects” under specific circumstances.
• A further requirement of the clause is that no act of the legislature falling under it may be contested on the grounds that it violates the Constitution or another piece of national legislation.
• The contentious Constitution (Application to Jammu and Kashmir) Order of 1954 gave Jammu and Kashmir’s “State subjects” Indian citizenship.

Why is it relevant now?

So, when the President added Article 35A to the Constitution, the legislative process of passing laws was obviated.

• Only the Parliament has the authority to change the Constitution, according to Article 368(i) of the Constitution. So, did the President act in a way that was outside the law? Because the Nehru government did not present it to the parliament for debate, is Article 35A null and void? In Puran Lal Lakhanpal v. The President of India, a five-judge Supreme Court panel discussed the President’s authority to “alter” the Constitution under Article 370.
• The verdict is quiet as to whether the President can propose a new Article without the Parliament’s consent, notwithstanding the court’s observation that the President may do so under Article 370 of the Constitution. This issue is unanswered.
• Nevertheless, the constitutionality of both Article 35A and Article 370 is disputed in a writ petition submitted by the Organization We the Citizens.
• In truth, it asserts that the State of Jammu and Kashmir was never given any special status under the Indian Constitution and that four delegates from Kashmir were members of the Constituent Assembly that participated in the formulation of the Constitution.
• Article 370 was only intended to be a “temporary measure” to allow Jammu and Kashmir return to normal life and to support democracy there.
• Article 370 was not intended to be a means of bringing about permanent revisions to the Constitution like Article 35A was.

Judicial pronouncement upholding doctrine of separation of power

• In the Kesavananda Bharati Case (1973), the SC ruled that the Parliament’s ability to change the Constitution is constrained by its fundamental provisions. Hence, any alteration that violates the fundamental principles would be ruled unlawful.
• The Supreme Court declared the UP-Governor’s pardon of a criminal to be unlawful in the Swaran Singh Case (1998).
• The Honourable Supreme Court ruled in Ram Jawaya Kapoor v. State of Punjab that while the Indian Constitution does not explicitly recognise the doctrine of the separation of powers in its absolute rigidity, the various branches of the government’s roles have been sufficiently differentiated, and as a result, it is very clear that our Constitution forbids one organ or part of the state from taking on responsibilities that fundamentally belong to another.
• The Indian Constitution only has a separation of powers in a broad sense, the CJ in Indira Nehru Gandhi v. Raj Narain noted. India’s constitution does not include a strict division of powers as the American or Australian versions do. The Court additionally ruled that Parliament, while acting in accordance with its constitutional amending power, is not permitted to exercise its judicial responsibility of adjudicating a particular issue. The rigorous idea of separation of powers is difficult to uphold in the operation of modern government, and it is also difficult to define the division of powers into the executive, legislative, and judicial branches in ways that are practical.
• “The Constitution has imbued the Constitutional Courts with the jurisdiction to reject legislation established by Parliament and the state legislatures transgressing Constitutional restrictions,” it was said in P Kannadasan V State of Tamil Nadu. When a legislation passed by the legislature is declared unconstitutional by the courts due to legislative incompetence, the legislature is not permitted to create a statute that says the court’s decision must be overruled or revoked. Yet, this does not imply that the legislation cannot be amended by the same legislature that has the authority to do so. Similar to this, the legislature has the option of changing the judgment’s foundation. Therefore, the claim that the new legislation or the revised law aims to override or undermine the court’s ruling is not admissible as a defence. What is meant by “checks and balances” under a governance structure that incorporates separation of powers is this.

Relationship between Legislature and Executive 

• According to the Constitution, the legislature is collectively liable to the state’s executive branch (the Council of Ministers) (Lok Sabha). This suggests that the Parliament should oversee the government’s activities and hold it responsible for its deeds.
• The members of the council of ministers are also lawmakers, therefore, in a parliamentary system of government, the executive is not independent of the legislative.
• When the legislature loses faith in the executive, it loses its power. If the legislature loses faith in the executive/council of ministers before the end of their term, they are removed from office. So, a vote of no confidence by the legislature gives it influence over the executive.
• The roles of the head of state and head of government are distinct. The Prime Minister is in charge of the government, while the President is in charge of the state.
• The executive is given the authority to create and carry out specific policies once the parliament passes legislation in basic terms.
• The executive is not answerable to the legislative in a presidential system of government. The heads of the State and the government are the same people. An elected official need not be a minister.

Constituent Assembly and Separation of Powers

The Constituent Assembly chose not to expressly include the separation of powers theory in the Constitution for two main reasons.

1. The Constitution had already been formed, thus, the founding fathers believed it was too late to include this idea.
2. India also adopted the parliamentary system of administration from the British. They thus believed it was preferable to refrain from adopting a strict separation of powers theory similar to the American model.

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