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Q1. “The system of checks and balances is used to keep the government from getting too powerful in one branch.  In light of above statement, Do you think the Executive activism had upset the constitutional system of checks and balances in context of Ordinance? Discuss. (200 words)

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  • Osho Korde

    One of the defining features of our Constitution is the separation of powers between the legislature, executive and the judiciary. The problem is: a water-tight division of powers is next to impossible.
    The most glaring example of the executive usurping the powers of the legislature is seen in the context of what is known as Notification of Bills. A Bill becomes law only after it is passed by Parliament and receives the assent of the President.
    Parliament may also give the power to the government to bring different parts of the Act into force on different dates. Such a delegation of power is often done for administrative reasons. For instance, an Act may require the setting up of a regulator, or certain other infrastructure — such as special courts — which requires time — e.g., the government may need to hire staff or provide office space. And here lies the scope for mischief on the part of the executive: by not issuing the relevant notification within a reasonable period, the executive effectively assumes law-making functions. This is unconstitutional since the power to make laws rests with the legislature, not the executive.

    Meanwhile, with politicians too busy practising the art of survival, the judiciary can only grow more powerful. Through the ’90s the legislature has been fractious and the executive weak, paving the way for the the judiciary to play an activist role.
    But in the midst of all the public applause, the dangers of an all-powerful judiciary cannot be overlooked. For it is easy for the judiciary to be above the law. They simply have to re-interpret it.