INTRODUCTION :- The term “Separation of Powers” was coined by the 18th century philosopher Montesquieu. Separation of powers is a model that divides the government into separate branches, each of which has separate and independent powers. By having multiple branches of government, this system helps to ensure that no one branch is more powerful than another. Typically, this system divides the government into three branches: the Legislative Branch, the Executive Branch, and the Judicial Branch. The United States federal government and forty states divide their governments into these three branches.
LEGAL ASPECTS:-
Article 1 of the United States Constitution establishes the Legislative Branch, which consists of Congress. Congress, in addition to other enumerated responsibilities, is responsible for creating laws. As a general rule, the nondelegation doctrine prohibits the Legislative Branch from delegating its lawmaking responsibilities. Congress can, however, provide agencies with regulatory guidelines if it provides them with an “intelligible principle” to base their regulations on.
Article 2 of the United States Constitution establishes the Executive Branch, which consists of the President. The President approves and carries out the laws created by the Legislative Branch.
Article 3 of the United States Constitution establishes the Judicial Branch, which consists of the United States Supreme Court.The Judicial Branch interprets the laws passed by the Legislative Branch.
CHECKS AND BALANCES :-
Separation of Powers in the United States is associated with the Checks and Balances system. The Checks and Balances system provides each branch of government with individual powers to check the other branches and prevent any one branch from becoming too powerful.
For example, Congress has the power to create laws, the President has the power to veto them, and the Supreme Court may declare laws unconstitutional. Congress consists of two houses: the Senate and the House of Representatives, and can override a Presidential veto with a 2/3 vote in both houses.
The Checks and Balances System also provides the branches with some power to appoint or remove members from the other branches. Congress can impeach and convict the president for high crimes, like treason or bribery.
The House of Representatives has the power to bring impeachment charges against the President; the Senate has the power to convict and remove the President from office.
In addition, Supreme Court candidates are appointed by the President and are confirmed by the Senate. Judges can be removed from office by impeachment in the House of Representatives and conviction in the Senate.
In this way, the system provides a measure, in addition to invalidating laws, for each branch to check the others.
Category: Articles
Judicial Review in USA
Judicial Review in U.S.A
The US Constitution is the supreme law of the land. The Supreme Court has the power to interpret it and preserve its supremacy by preventing its violations by the Congress and the President. This provision has been the basis of the judicial review power of the Supreme Court. “Judicial Review ” is the principle and authority which give the Supreme Court of USA the power to reject or abrogate any law which is made by Congress or states. According to this power Supreme Court of USA reject or abrogate any law which does not suit or conform to the constitution of USA or apposite the constitution of USA or violate the Constitution It has come to be recognised as the most distinctive attribute and function of the Supreme Court. As such, it can be said Judicial Review is the power of the Supreme Court to determine the constitutional validity of federal and state laws whenever these are challenged before it in the process of litigation. It is the power to reject such laws as are held to be it ultra vires.
There is no clear mention of the Judicial Review power of the court in any part of the US Constitution. Its origin has been the result of a judicial decision and its continuance has been possible due to some conventions.
The U.S. Constitution does not mention judicial review. This power, however, was used before 1787 by courts in several of the American states to overturn laws conflicting with state constitutions. In 1789 the Congress of the United States passed the Judiciary Act, which gave federal courts the power of judicial review over acts of state government. This power was used for the first time by the U.S. Supreme Court in Hilton v. Virginia (1796).
In 1803, the power of judicial review was used for the first time by the U.S. Supreme Court to declare an act of Congress unconstitutional. Acting under the doctrine of Implied Powers, the Supreme Court in its judgement in Marbury v. Madison case (1803), admitted its existence and used it. In this case, Chief Justice John Marshall explained and justified the exercise of judicial review to strike down an unconstitutional act of Congress or states. While doing so the Supreme Court referred to Article VI, Section 2 of the Constitution which reads, “This Constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” This article of the constitution was taken to mean that the judges have the power and duty to uphold the supremacy of the Constitution by not allowing any federal or state laws to violate its provisions. While giving judgement in this case, which involved an interpretation of the Judiciary Act 1789, Chief Justice Marshall enunciated this doctrine and observed that “a written Constitution is superior to all other acts of government made under it; and it is the sworn duty of federal judges to follow the constitution and give effect only to constitutional law and determine which law prevails where there is conflict. If a Congressional law conflicted with the Constitutional law, the court was bound to uphold the Constitution as the highest law of land.” “Courts are to respect the Constitution and the Constitution is superior to any ordinary Act of legislature.” Since then the Supreme Court has been exercising this this unique power and has declared a number of legislative powers null and void.
After the historic judgement in the Marbury v. Madison case, the Supreme Court has been regularly using this power. After 1803, it was used only in 1857 in the Dred Scott case. Till today nearly 100 Congressional statutes have been declared unconstitutional by the Supreme Court. The Court has always refused to apply judicial review to political questions.
Judicial Review is neither automatic nor mechanical. The bills passed by the Congress and the state legislatures become operative the moment these become laws. These do not automatically go to the court for judicial review. It is only when any law is specifically challenged or when during the course of litigation in a case, the issue of the constitutionality of any law arises that the conducts judicial review.
After the judicial review is conducted the Supreme Court can give 3 types of decisions. These are as follows:
i. That the law is unconstitutional.
In this case, the law stands struck down and it ceases to operate form the date on which the Supreme Court declares it invalid.
ii. That the law is constitutional and fair.
In this case, the law continues to operate as before without any change.
iii. That any part or some parts of the law are unconstitutional.
In this case, only the part or parts declared unconstitutional cease to operate and the rest of law continues to operate. If, however, the part or parts declared unconstitutional are so integral to the law that it cannot operate without them, the whole law becomes invalid.
Judicial review is done by a bench of the Supreme Court and not by a single judge. The verdict is given by majority. Sometimes it is a majority of only a single judge.
· Due process of law as the basis of judicial review
On the basis of the Fifth Amendment of the Constitution, the scope of judicial review has become very vast. In one of its clauses, it has been laid down that “the Government cannot deprive anyone of life, liberty or property without due process of law.” The term “Due Process of Law” means that the life, liberty or property of the people cannot be subjected to arbitrary and unfair limitations by the law or the executive or even by the judges in the process of awarding punishments. In simple words, it stands for free and fair trial for meeting the ends of justice. The Supreme Court has used this principle to determine the validity of laws. The Supreme Court while conducting judicial review, tests (1)as to whether the law has been made strictly in accordance with the provisions of the Constitution or not; and (2)as to whether the law satisfies the ends of justice and meets ‘due process of law’ i.e. whether it is fair and just or not. The law is declared invalid if it fails to satisfy either of these two tests.
· Limitations on the Supreme Court in respect of Judicial Review
1) The Court does not conduct judicial review over political issues.
2) While declaring a law unconstitutional the Court has to assign reasons and specify the provisions of the Constitution that it violates.
3) The Supreme Court conducts judicial review only in cases actually brought before it. It cannot initiate the process of its own.
4) The law declared invalid ceases to operate for the future. The work already done on its basis continues to be valid.
5) The Court has to demonstrate clearly the unconstitutionality of the law which is sought to be declared invalid.
Competition Commission of India- Composition
Competition Commission of India
Competition Commission of India (CCI) is a statutory body of the Government of India responsible for enforcing the Competition Act, 2002, it was duly constituted in March 2009.
The Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act) was repealed and replaced by the Competition Act, 2002, on the recommendations of Raghavan committee.
Competition Commission of India aims to establish a robust competitive environment through proactive engagement with all stakeholders, including consumers, industry, government and international jurisdictions by being a knowledge intensive organization with high competence level and through professionalism, transparency, resolve and wisdom in enforcement.
Composition of CCI
• The Commission consists of one Chairperson and six Members as per the Competition Act who shall be appointed by the Central Government.
• The commission is a quasi-judicial body which gives opinions to statutory authorities and also deals with other cases. The Chairperson and other Members shall be whole-time Members.
• Eligibility of members: The Chairperson and every other Member shall
1. be a person of ability, integrity and standing and who, has been, or is qualified to be a judge of a High Court, or,
2. has special knowledge of, and professional experience of not less than fifteen years in international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter which,
3. in the opinion of the Central Government, may be useful to the Commission.
Functions and Role of CCI
• To eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade in the markets of India.
• To give opinion on competition issues on a reference received from a statutory authority established under any law and to undertake competition advocacy, create public awareness and impart training on competition issues.
• The Competition Commission of India takes the following measures to achieve its objectives:
• Consumer welfare: To make the markets work for the benefit and welfare of consumers.
• Ensure fair and healthy competition in economic activities in the country for faster and inclusive growth and development of the economy.
• Implement competition policies with an aim to effectuate the most efficient utilization of economic resources.
• Develop and nurture effective relations and interactions with sectoral regulators to ensure smooth alignment of sectoral regulatory laws in tandem with the competition law.
• Effectively carry out competition advocacy and spread the information on benefits of competition among all stakeholders to establish and nurture competition culture in Indian economy.
• The Competition Commission is India’s competition regulator, and an antitrust watchdog for smaller organizations that are unable to defend themselves against large corporations.
• CCI has the authority to notify organizations that sell to India if it feels they may be negatively influencing competition in India’s domestic market.
• The Competition Act guarantees that no enterprise abuses their ‘dominant position’ in a market through the control of supply, manipulating purchase prices, or adopting practices that deny market access to other competing firms.
• A foreign company seeking entry into India through an acquisition or merger will have to abide by the country’s competition laws.
• Assets and turnover above a certain monetary value will bring the group under the purview of the Competition Commission of India (CCI).
Judgements of CCI
• CCI imposed a fine of ₹63.07 billion (US$910 million) on 11 cement companies for cartelisation in June 2012. It claimed that cement companies met regularly to fix prices, control market share and hold back supply which earned them illegal profits.
• CCI imposed a penalty of ₹522 million (US$7.6 million) on the Board of Control for Cricket in India (BCCI) in 2013, for misusing its dominant position.
• The CCI found that IPL team ownership agreements were unfair and discriminatory and that the terms of the IPL franchise agreements were loaded in favor of BCCI and franchises had no say in the terms of the contract.
• CCI imposed a fine of ₹10 million upon Google in 2014 for failure to comply with the directions given by the Director General (DG) seeking information and documents.
• CCI imposed a fine of ₹258 crores upon Three Airlines in 2015.
• Competition Commission of India (CCI) had penalized the three airlines for cartelisation in determining the fuel surcharge on air cargo.
• CCI ordered a probe into the functioning of Cellular Operators Association of India (COAI) following a complaint filed by Reliance Jio against the cartelization by its rivals Bharti Airtel, Vodafone India and Idea cellular.
• The commission ordered an antitrust probe against Google for abusing its dominant position with Android to block market rivals. This probe was ordered on the basis of the analysis of a similar case in the EU where Google was found guilty and fined.
• CCI issued letters to handset makers in 2019, seeking details of terms and conditions of their agreement with Google.
• This is to ascertain if Google imposed any restrictions on them for using the company’s apps in the past 8 years from 2011.
Need of CCI
• Promote free enterprise: Competition laws have been described as the Magna Carta of free enterprise. Competition is important for the preservation of economic freedom and our free enterprise system.
• Protect against market distortions: The need for competition law arises because market can suffer from failures and distortions, and various players can resort to anti- competitive activities such as cartels, abuse of dominance etc. which adversely impact economic efficiency and consumer welfare.
• Thus, there is a need for competition law to provide a regulative force which establishes effective control over economic activities.
• Promotes domestic industries: During the era in which the economies are moving from closed economies to open economies, an effective competition commission is essential to ensure the continued viability of domestic industries, carefully balanced with attaining the benefits of foreign investment increased competition.
US President Election and Powers
Introduction:-
The US Presidential Election takes place every four years on the first Tuesday in November. Candidate must be
• at least 35 years old,
• born in the United States and
• lived in the US for the previous 14 years in order to be eligible.
Traditionally, candidates make their intention to run for President public in the year before the election takes place. Since there is no national authority which conducts the elections, local authorities organize the election with the help of thousands of administrators.
Presidential primaries and caucuses –
The election process starts with the primaries and caucuses in January or February of the election year.
1. Primaries are organized by state and local authorities using a secret ballot to cast votes for hopeful presidential candidates from each of the major parties. (34states)
2. Caucuses are private events organized by political parties themselves. Here, voters decide publicly which candidate they prefer. Afterwards, organizers count the votes and calculate how many votes each candidate receives. (16 states)
Delegates
Each state, the District of Columbia and some US territories are allocated a number of delegates, usually determined by population size. These delegates represent their state in the national party convention and vote to decide each party’s presidential candidate.
There a two main types of delegates:
1. pledged delegates – who have to support the candidate to whom they were assigned in a primary or caucus
2. unpledged or superdelegates – who can choose freely which candidate they would like to support
National conventions
The national convention of each party is held in the summer of an election year. A majority of delegates’ votes is needed to receive the nomination of the party, which is often already reached and known before the national conventions take place. If no majority is reached, the national convention is where the presidential candidate will be selected.
General Election campaigning
After the nominee for each political party have been chosen, the presidential candidates go head-to-head campaigning throughout the country. They go on rallies and take part in debates to win the support of voters across the nation. Moreover, they explain their plans and views to society.
Electoral College
On Election Day, voters go to the polling place and cast their vote for their prefered candidate. The voters elect their President and Vice President indirectly. Both are chosen by electors through the Electoral College process.
States are allocated electors based on the number of seats they have in the House of Representatives and Senate. In total there are 538 electors (435 House of Representatives seats + 100 Senate seats + 3 for Washington D.C.). After ballots have been cast, all votes go to a statewide tally. Washington D.C. and 48 states use the winner-takes-all procedure where the election winner receives all the electors in that state. Maine and Nebraska are the exceptions because they have a proportional system. A candidate has to “win” at least 270 electors in order to become President. Voting at the Electoral College takes place in the weeks after Election Day the winner is usually always announced on the night of the election.
Inauguration Day
Inauguration Day takes place on January 20 at the U.S. Capitol building in Washington D.C. First, the Vice President is sworn in, followed by the President. Both officially become President and Vice President after reciting the oath of office which has been used since the late 18th century.
Powers of President of USA :-
The powers of President of USA could be divided into two parts:-
1. Formal Powers
2. Informal Powers
Formal powers of the president
1. Executive-
• Take care that the laws be faithfully executed.
• Nominate officials (with Senate confirmation).
• Request written opinions from administrative officials.
• Fill administrative vacancies during congressional recesses.
2. Foreign policy
• Act as Commander in Chief of the armed forcesMake treaties (with Senate ratification)
• Nominate ambassadors (with Senate confirmation)
• Receive ambassadorsConfer diplomatic recognition on other governments.
3. Judicial
• Grant reprieves and pardons for federal offenses (except impeachment)
• Nominate federal judges (with Senate confirmation)
4. Legislative
• Recommend legislation to Congress.
• Present information on the State of the Union to Congress.
• Convene Congress on extraordinary occasions
• Adjourn Congress if House and Senate cannot agree .
• Veto legislation (Congress may overrule with supermajority)
Informal powers of the president
1. Bargaining and persuasion- Setting priorities for Congress and attempting to get majorities to put through the president’s legislative agenda.
2. Issuing executive orders- Regulations to run the government and direct the bureaucracy
3. Issuing signing statements- Giving the president’s intended interpretation of bills passed by Congress.
4. Negotiating executive agreements- Agreements with heads of foreign governments that are not ratified by the Senate.
Salient Features of US Constitution
Although there are many interesting features in its constitution but the most important are:
1. Written Constitution:
First prominent feature of the American constitution is that unlike the British Constitution, it is written or documentary .It is very brief document and contains about 4000 words and at least 10—12 pages. It consists of preamble and seven articles only. Three of the articles are related to structure and powers of Legislative (Article 1), Executive (Article 2) and Judiciary (Article 3) and the other four dedicated to position of states (Article 4), modes of amendments (Article 5),
supremacy of national power (Article 6) and ratification (Article 7). It also holds that constitution is the supreme law of the land. Article one is the longest and cannot be amended. Like other constitutions, it also consists of preamble; a single sentence that introduces and defines purpose of the document.
2. Rigid Constitution:
Another feature of the American constitution is that it is rigid, which means that it cannot be amended by the congress by the ordinary procedure. The procedure is very difficult. The procedure to amend Constitution consists of 2 steps;
a. Proposal for Amendment:
There are two ways to propose for amendment. Either two-third (67%) of both the houses (Senate and House of Representatives) shall propose for amendment to constitution or on the application of legislatures of two-third (67%) states shall call a convention for proposing amendment.
b. Ratification of Proposal:
The amendment shall be ratified by the legislatures of three fourth (75 %) of all states or by the convention of three fourth of states.
3. Popular Sovereignty:
The U.S constitution establishes the popular sovereignty of the people. This means in U.S, the people rule i.e. they have delegated their powers to the government and the government owes its authority to the will of the people. The principle of popular sovereignty is stated in the Preamble of constitution as “we the people do ordain and establishthis constitution for United States of America.”This means that the ultimate seat of authority in United States is the American people.
4. Bicameral Legislature:
The constitution of USA provides for bicameral legislature. According to Article 1, “All legislative powers are vested in Congress.” In United States, congress is the parliament, which consists of two houses; House of Representatives and the Senate. House of Representative is regarded as the Lower House and the Senate is the Upper House.
5. Separation of Powers:
American constitution is based on the principle of “separation of powers”. The main power of the country is divided in 3 branches i.e. the legislature, the executive and the judiciary.
6. Checks & Balances:
The framers of the U.S constitution were aware that a department, if left unchecked, would become oppressive. They; therefore, introduced checks and balances in the constitution. The separation of powers confirms the system of Checks and Balances. This system prevents misuse of powers. The powers are provided in such a way that it provides a check upon other institutions.
7. Judicial independence:
The direct consequence of separation of powers is the doctrine of judicial independence. In United States all the judicial powers are enjoyed by the Supreme Court and other federal courts, no other office can influence its independence.
8. Federal System:
The U.S constitution provides for a federal system of government. Federalism is a device by which independent states form a union without losing their identity. According to Article 1, the federal government has jurisdiction over 18 matters and residuary powers are vested in states. States are autonomous bodies and centre cannot interfere in their affairs. In case of conflict, Supreme Court decides or settles the I dispute.
9. Presidential System:
The constitution provides for a presidential form government. Article 2 provides the powers, election and their matters related to president. President is elected for a term of 4 years and is not answerable to Congress and cannot dissolve Congress. He has a cabinet to assist him in running his executive powers.
10. Republicanism:
The constitution calls for a republican system with President as elected head of the state. The constitution derives its authority from the people and is supreme law of the land. Neither centre nor states can override it.
11. Fundamental Rights and Liberty:
Another important feature of the American constitution is that it ensures certain fundamental rights for everyAmerica citizen. He cannot be deprived of these rights by any lawful authority. The first ten amendments to the constitution are called “Bill of Rights”. The Bill Of Rights provides for the rights of a person’s property, liberty, freedom of speech, press, religion and assembly.
12. Dual Citizenship:
The constitution provides for dual citizenship i.e every American citizen is entitled to the right of dual citizenship. First of all, he is the citizen of Americaand secondly he is the citizen of that state in which he lives. The feature of dual citizenship was introduced in the American constitution by the 4th amendment.
13. System of Spoils:
When a president is elected, he does appointment of public offices. If in elections, the President is elected who is of the opposition party, he dismisses the public office bearers and makes fresh appointments. Under this system, a civil servant intend by one president on political consideration cannot claim his office when an opposition President secures victory in polls.
14. Judicial Review:
ate important feature of the American constitution is the power of judicial Review. The Supreme court in U.S is supreme not only in theory but also in practice. Iu U.K no court can challenge the power of Parliament; however in United States all the laws passed by the congress and state legislatures are subject to judicial review.
Legal Prudentia 