Indian state represents a contemporary approach in constitutionalising the doctrine of separation of powers. Essentially, there is no strict separation of powers under constitution, both in principle and practice.
In India, there are three distinct activities in the Government through which the will of the people are expressed. The legislative organ of the state makes laws, the executive forces them and the judiciary applies them to the specific cases arising out of the breach of law.
Each organ while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the general public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs.
The question which is important here is that what should be the relation among these three organs of the state, i.e. whether there should be complete separation of powers or there should be coordination among them.
“So far as the courts are concerned, the application of the doctrine (the theory of separation of powers) may involve two propositions: namely,
a) that none of the three organs of Government, Legislative Executive and Judicial, can exercise any power which properly belongs to either of the other two;
b) that the legislature cannot delegate its powers.”
-Dr. D.D. Basu
Separation of Powers
The Constitution of India embraces the idea of separation of powers in an implied manner. Despite there being no express provision recognizing the doctrine of separation of powers in its absolute form, the Constitution does make the provisions for a reasonable separation of functions and powers between the three organs of Government.
By looking into the various provisions of the Constitution, it is evident that the Constitution intends that the powers of legislation shall be exercised exclusively by the legislature.
Similarly, the judicial powers can be said to vest with the judiciary. The judiciary is independent in its field and there can be no interference with its judicial functions either by the Executive or by the Legislature. Also, the executive powers of the Union and the State are vested in the President and the Governor respectively.
The Constitution of India lays down a functional separation of the organs of the State in the following manner:
- Article 50: State shall take steps to separate the judiciary from the executive. This is for the purpose of ensuring the independence of judiciary.
- Article 122 and 212: validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court. This ensures the separation and immunity of the legislatures from judicial intervention on the allegation of procedural irregularity.
- Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be discussed in the Parliament and the State Legislature, according to Article 121 and 211 of the Constitution.
- Articles 53 and 154 respectively, 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.
- 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 may further affect the functioning of the judiciary by making appointments to the office of Chief Justice and other judges.
- Legislature exercising judicial powers in the case of amending a law declared ultra vires by the Court and revalidating it.
- While discharging the function of disqualifying its members and impeachment of the judges, the legislature discharges the functions of the judiciary.
- Legislature can impose punishment for exceeding freedom of speech in the Parliament; this comes under the powers and privileges of the parliament. But while exercising such power it is always necessary that it should be in conformity with due process.
- The heads of each governmental ministry is a member of the legislature, thus making the executive an integral part of the legislature.
- The council of ministers on whose advice the President and the Governor acts are elected members of the legislature.
- Legislative power that is being vested with the legislature in certain circumstances can be exercised by the executive. If the President or the Governor, when the legislature or is not in session and is satisfied that circumstances exist that necessitate immediate action may promulgate ordinance which has the same force of the Act made by the Parliament or the State legislature.
- The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre and in the States respectively, the authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution. The executive also exercises law making power under delegated legislation.
- 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.
- Higher administrative tribunals should always have a member of the judiciary. The higher judiciary is conferred with the power of supervising the functioning of subordinate courts. It also acts as a legislature while making laws regulating its conduct and rules regarding disposal of cases.
Besides the functional overlapping, the Indian system also lacks the separation of personnel amongst the three departments.
Applying the doctrines of constitutional limitation and trust in the Indian scenario, a system is created where none of the organs can usurp the functions or powers which are assigned to another organ by express or necessary provision, neither can they divest themselves of essential functions which belong to them as under the Constitution.
Further, the Constitution of India expressly provides for a system of checks and balances in order to prevent the arbitrary or capricious use of power derived from the said supreme document. Though such a system appears dilatory of the doctrine of separation of powers, it is essential in order to enable the just and equitable functioning of such a constitutional system.
By giving such powers, a mechanism for the control over the exercise of constitutional powers by the respective organs is established. This clearly indicates that the Indian Constitution in its plan does not provide for a strict separation of powers.
Instead, it creates a system consisting of the three organs of Government and confers upon them both exclusive and overlapping powers and functions. Thus, there is no absolute separation of functions between the three organs of Government.