The Executive, the Legislature and the Judiciary are all treated under our Constitution with respective spheres. The jurisdiction of this Court and of High Courts under our Constitution is dealt with by Articles under the Heads of the Union Judiciary and the State Judiciary. Under Article 136 any Tribunal or Court is amenable to the jurisdiction of this Court.
Judicial review in many matters under statute may be excluded. In many cases special jurisdiction is created to deal with matters assigned to such authorities. A special forum is even created to hear election disputes. A right of appeal may be conferred against such decision, if Parliament acts as the forum for determination of election disputes it may be a question of parliamentary privilege and the courts may not entertain any review from such decisions. That is because the exercise of power by the Legislature in determining disputed elections may he called legislative power. A distinction arises between what can be called the traditional judicial determination by courts and tribunals on the one hand and the peculiar jurisdiction by the legislature in determining controverted elections on the other.
The legal order is a system of general and individual norms connected with each other according to the principle that law regulates its own creation. Each norm of this order is created according to the provisions of another norm and ultimately according to the provisions of the basic norm constituting the unity of this system, the legal order. A norm belongs to a certain legal order, because it is created by an organ of the legal community constituted by this order. Creation of law is application of law. The creation of a legal norm is normally an application of the higher norm, regulating its creation. The application of higher norm is the creation of a lower norm determined by the higher norm. A judicial decision is an act by which a general norm, a statute, is applied but at the same time an individual norm is created binding one or both parties to the conflict. Legislation is creation of law. Taking it into account is application of law. The higher norm may determine the organ and the procedure by which a lower norm and the contents of the lower norm are created. For a norm the creation of which is not determined at all by another norm cannot belong to another legal order. The individual creating a norm cannot be considered the organ of the legal community, his norm-creating function cannot be imputed to the community, unless in performing the function he applies a norm of the legal order constituting the community. Every law-creating act must be a law-applying act. It must apply a norm preceding the act in order to be an act of the legal order or the community constituted by it. When settling a dispute between two parties a court applies a general norm or statutory or customary law. Simultaneously, the court creates an individual norm providing that a definite sanction shall be executed against a definite individual. The individual norm is related to the general norm as the statute is related to the constitution. The judicial function is thus like legislation, both creation and application of law. The judicial function is ordinarily determined by the general norms both as to procedure and as to the contents of the norm to be created, whereas legislation is usually determined by the constitution only in the former respect.
The general norm, which attaches abstractly determined consequences, has to be applied to concrete cases in order that the sanction determined in abstract may be ordered and executed in concrete. The two essential elements of judicial functions are to apply a pre-existing general norm in which a certain consequence is attached to certain conditions. The existence of the concrete conditions in connection with the concrete consequence are what may be called individualization of the general and abstract norm to the individual norm of the judicial decision.
The power of the legislature to validate matters which have been found by judgments or orders of competent courts and Tribunals to be invalid or illegal is a well-known pattern. The legislature validates acts and things done by which the basis of judgments or orders of competent courts and Tribunal is changed and the judgments and orders are made ineffective. All the Sales Tax Validation cases, the election validation cases are illustrations of that proposition.
Judicial review is not to be founded on any Article similar to the American Constitution. In the Australian Constitution also the judicial power is located in the court, The doctrine of separation of powers is carded into effect in countries like America, Australia. In our Constitution there is separation of powers in a broad sense, But the larger question is whether there is any doctrine of separation of powers when it comes to exercise of constituent power. The doctrine of separation of powers as recognised in America is not applicable to our country. (See Delhi Laws Act, (1951) SCR 747 at pages 965-66 = (AIR 1951 SC 332 at p, 395):Jayantilal Sodhan v. F. N, Rana, (1964) 5 SCR 294 :Chandra Mohan v, State of Uttar Pradesh, (1967) 1 SCR 77 at page No. 87 = (AIR 1966 SC 1987 at p, 1993) and Udai Ram Sharma v. Union of India, (1968) 3 SCR 41 at v. 67 = (AIR 1968 SC 1138 at p 1152).
The rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to our country. Many powers which are strictly judicial have been excluded from the purview of the courts. The whole subject of election has been left to courts traditionally under the common Law and election disputes and matters are governed by the Legislature. The question of the determination of election disputes has particularly been regarded as a special privilege of Parliament in England. It is a Political question in the United States. Under our Constitution Parliament has inherited all the privileges, powers and immunities of the British House of Commons. In the case of election disputes Parliament has defined the procedure by law. It can at any time change that procedure and take over itself the whole question. There is, therefore, no question of any separation of powers being involved in matters concerning elections and election petitions.
When the constituent power exercises powers the constituent power comprises legislative, executive and judicial powers. All powers flow from the constituent power through the Constitution to the various departments or heads. In the hands of the constituent authority there is no demarcation of powers. It is only when the constituent authority defines the authorities or demarcates the areas that separation of power is discussed. The constituent power is independent of the doctrine of separation of powers. The constituent power is sovereign. It is the power which creates the organs and distributes the powers.
The constituent power is sui generis. It is different from legislative power. The position of unlimited law making power is the criterion of legal sovereignty. The constituent power is sovereign because the Constitution flows from the constituent power.
Every organ of the State has to ascertain facts which make the foundation of its own decision. The executive usually collects its materials through its departments. The judiciary acts in a field where there are two or more parties before it and upon evidence placed before it pronounces its verdict according to principles of natural justice. The legislature is entitled to obtain information from any source. The legislature may call witnesses. The rule of Audi Alterm Partem is not applicable in a legislative process. Legislation is usually general. It may sometimes be for special reasons an individual case. There is no doubt that the constituent power is not the same as legislative power. The distinction between constituent power and legislative power is always to be borne in mind be cause the constituent power is higher in norm.
It is true that no express mention is made in our Constitution of vesting in the judiciary the judicial power as is to be found in the American Constitution. But a division of the three main functions of Government is recognised in our Constitution. Judicial power in the sense of the judicial power of the State is vested in the Judiciary. Similarly, the Executive and the Legislature are vested with powers in their spheres, Judicial power has lain in the hands of the Judiciary prior to the Constitution and also since the Constitution. It is not the intention that the powers of the Judiciary should be named to or be shared by the Executive or the Legislature or that the powers of the Legislature or the Executive should pass to or be shared by the Judiciary.
The constituent power is sovereign. Lawmaking power is subject to the Constitution, Parliament may create forum to hear election disputes. Parliament may itself hear election disputes for example.