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.

 

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.