It is accepted at all hands that the judiciary should be kept separate from the executive. The judiciary is the guardian of the liberty of the people and this function can be performed efficiently and honestly only when it is independent of the control of the executive.
If both these functions are combined in a single person as is the case with the Deputy Commissioner in India, who combines in him both the executive and judicial powers, the liberty of the people cannot be safe at his hands.
As Montesquieu said, the executive will become oppressive. There shall be left no restraint upon its officers and the rights of the people will depend upon their mercy.
Judiciary must be made independent of the executive. However, as the government is an organism these organs cannot be separated completely. In a modern state executive performs judicial and semi-judicial functions and the judiciary performs certain executive functions.
Judicial Functions of the Executive:
(1) The executive makes appointments of judges in most of the states of the world. Thus it enjoys an indirect influence over the judiciary.
(2) The chief executive enjoys the prerogative of pardon, reprieve and respite. It is a direct judicial power.
(3) In continental countries, the executive performs judicial functions in the matter of administrative law. The cases, in which the public servants or government departments and agencies are involved, are tried and decided by the administrative courts which are a part of the administration rather than by the ordinary judicial courts.
(4) In every country there have come into existence the ‘judicial tribunals’ and administrative tribunals. Even in the course of execution of laws the executive has to take decisions of judicial nature. There is no appeal against such decisions in the ordinary courts.
Executive Functions of the Judiciary:
It is very rare with the judiciary to perform executive powers. Yet under federal constitution the judiciary reviews the Acts of the Executive and may declare them as ultra vires if the same are inconsistent with the spirit of the constitution.
This power is enjoyed by the Supreme Courts of India and the United States. | It holds enquiries and investigations, grants licenses and administers properties of minors etc.