28.

Discuss the relationship between the : 

i. Judiciary and the Executive.

ii. Judiciary and the Legislature. 

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i. Judiciary and the Executive - In spite of the emphasis on the separation of the judiciary, as the basis of the independence and impartiality of the judges, the executive exercises a certain control over the judiciary as much as judicial decisions can only be enforced by the executive supported by the force at its command. Should the executive fail to take necessary steps to enforce a decision, the judiciary would have no means of compelling such action, except the writ of mandamus, which in those circumstances might be disregarded.

The Judiciary has the power to nullify any and every act of the executive, which in its opinion, involves a dishonest or excessive or arbitrary use of power by the executive. The Judiciary can conduct judicial review over the rules made by the executive whenever any of these rules is challenged by the people.

ii.  Judiciary and the Legislature - The legislature makes law and the courts interpret and apply it. This is the most obvious relation between the judiciary and the legislature. The legislature sanctions all appropriations necessary for the maintenance of the judicial department. In this way the legislature controls the judiciary. Except in the United States and India, where the federal judiciary is provided and its tenure fixed by their Constitutions, judicial departments are created by legislative statute and may be modified or abolished by legislative enactments. The interrelation of the judiciary and the legislature can best be found in case-law or judge-made law. Judges not only interpret law, but they also make it. Whenever a case before a court for decision is not covered by law, it is the duty of judges not to determine what the legislature meant, but “to guess what it would have intended on a point not present, if the point had been present.” In this way, judges legislate to fill up the casus omisus or the cases of omission. Judges also create a law for the particular case in determining the exact meaning of law, expanding its details and applying the general principles of justice or morality. In Britain, India and the United States, judicial decisions are cited as precedents and are considered binding in subsequent cases on the principle of stare devises. Judge-made law, thus, forms a large part of the system of jurisprudence. In countries where codes based on Roman law are used, as in France, precedents are not considered binding.