The Position of Separation of Powers between Australia and India

In some countries, rigid separation of powers has been ef­fected by written Constitutions. Take, for instance, the Australian Constitution Section 71 of the Commonwealth of Australian Constitu­tion. Act (63 and 64 Vict. Chapter 12) provides that the judicial power of the Commonwealth shall be vested in a Federal, Supreme Court to be called the High Court of Australia and in such other federal Courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.

The High Court shall consist of a Chief Justice, and so many other Justices, no less than two, as the Parliament prescribes. The scheme of sections 71 to 80 which form part of Chapter III of the said Constitution is that the judicial power of the State can be conferred only on courts recognised by the Provisions of the said Chapter.

In other words, it is not competent for the Legislature in Australia to confer judicial power properly so called on anybody or authority other than or apart from the Court recog­nised by Chapter III, and, therefore, the use of the expression “judi­cial power” or its conferment in regard to Tribunals which are not Courts properly so called, would, under the Australian Constitution, be wholly inappropriate.

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If any tribunals other than Courts are estab­lished and power is given to them to deal with and decide special dis­putes between the parties, the power which such tribunals would exercise cannot be described as judicial power but would have to be called quasi judicial power.

Under the Constitution of India there is no rigid separation of powers as under the Australian Constitution. Therefore, in India it is not constitutionally inappropriate or improper to say that judicial power of the State can be conferred on the hierarchy of Courts estab­lished under the Constitution of India as well as on the tribunals which are not Courts strictly so called.

Indeed, the fact that Article 136 (1) of our Constitution refers to Courts and tribunals and makes the determination, sentence or order passed by them subject to appeal to the Supreme Court by special leave, shows that our Constitution assumes that judicial power of the State can be vested in and exercised by both Courts and tribunal alike.

The function discharged by the Courts and the tribunals men­tioned in Article 136 (1) is essentially the same, though the following may be different:—

(a) The nature of the questions entrusted to their jurisdic­tion,

(b) The procedure required to be followed by them, and

(c) The extent and character of their powers.

Though the Indian Constitution is based on a broad separation of powers, there is no rigidity or exclusiveness involved in it as under the Australian Constitution, and, therefore, the main test in determin­ing the status of any authority in the context of Article 136 (1) whether or not inherent judicial power of the State has been trans­ferred to it.