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UPSC Sansad TV: Special Report- Doctrine of Separation of Powers

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Introduction:

The Constitution lays down the structure and defines and demarcates the role and functions of every organ of the State and establishes norms for their inter-relationships, checks and balances. The doctrine of separation of powers implies that each pillar of democracy – the executive, legislature and the judiciary – perform separate functions and act as separate entities.

Separation of powers:

  • The doctrine of separation of power claims that state power is not a single entity but rather a composite of different governmental functions carried out by state bodies independently of each other.
  • The objective is to ensure that different branches of government should work autonomously with minimal interference from others. It also aims to reduces over-centralisation of power in the hand any branch of the Government and thus reduce instances of abuse of power.
  • The constitution of India embraces the idea of separation of powers in an implied manner. Despite there being no express provision recognising the doctrine of separation of powers, the Constitution does make the provisions for a reasonable separation of functions and powers between the three organs of Government

Articles in the Constitution:

  • Article 50:State shall take steps to separate the judiciary from the executive. This is for the purpose of ensuring the independence of the judiciary.
  • Article 122 and 212:Validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court. Also, Legislators enjoy certain privileges with regard to speech and anything said in the Parliament cannot be used against them.
  • Judicial conduct of a Judge of the Supreme Court and the High Court cannot be discussed in the Parliament and the State Legislature,according to Article 121 and 211 of the Constitution.
  • Articles 53 and 154respectively, provide that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.
  • Article 361:The President or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office.

Functional overlap:

  • The legislature besides exercising law making powers exercises judicial powers in cases of breach of its privilege, impeachment of the President and the removal of the judges.
  • The executive makes appointments to the Judiciary and thus affects its functioning.
  • Ministers are members of the legislature.
  • Legislative power can be exercised by the executive. For example, President or the Governor can promulgate ordinances when the legislature is not in session.
  • The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial functions. Administrative tribunals which are a part of the executive also discharge judicial functions.
  • Besides the functional overlapping, the Indian system also lacks the separation of personnel amongst the three departments.

Judicial pronouncements:

  • Constitutional scheme does not provide any formalistic division of powers. It is through judicial pronouncements, passed from time to time, that the boundaries of applicability of the doctrine have been determined.
  • In the re Delhi Laws Act case, SC observed that one organ should not perform functions which belong to others in India.
  • In Keshavananda Bharti case, the doctrine of separation of powers is acknowledged as an integral part of the basic features of constitution.
  • In the Indira Gandhi vs Raj Narain case, this doctrine was made clearer. Court observed that in the Indian Constitution, there is separation of powers in a broad sense only. A rigid separation of powers as under the American Constitution does not apply to India.

Concept of Checks and Balances:

There is a system of checks and balances wherein the various organs impose checks on one another by certain provisions. The aim of checks and balances is to safeguard that different branches of government control each other internally (checks) and serve as counter weights to the power possessed by the other branches (balances).

  • The judiciary has the power of judicial review over the actions of the executive and the legislature.
  • The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
  • It can also declare unconstitutional executive actions as void.
  • The legislature also reviews the functioning of the executive.
  • Although the judiciary is independent, the judges are appointed by the executive.
  • The legislature can also alter the basis of the judgment while adhering to the constitutional limitation.

Checks and balances ensure that no one organ becomes all-too powerful. The Constitution guarantees that the discretionary power bestowed on any one organ is within the democratic principle.

Conclusion:

  • It’s quite evident that the Constitution ofIndia does not accept the principle of strict separation of powers.
  • Though it appears dilatory of the doctrine of separation of powers, it is essential in order to enable a just and equitable functioning and close coordination.
  • All organs of the system are interlinked and work in collaboration for nation building.