- Introduce the concept of separation of power and separation of functions in India. How it is distinctive than other constitutions in the world. What is the constitutional backing of this doctrine.
- The main answer will be in two parts. First, discuss the salient features of the doctrine in Indian sense and what are its themes. You have to discuss that rather than strict classification of the doctrine, its more of a check and balance thing in India. How three organs are intermingled rather than watertight divisions between them.
- In the second part, you have to mention the working of the doctrine and how How each wing affects others. Quote various judgments that have changed the scope and meaning of separation of power like Kesavananda case and Indira Gandhi v Raj Narain case. Judicial activism is a major bone of contention for the other two organs.
- Conclude the answer by discussing why this doctrine is necessary and how it can be improved upon.
In India, separation of functions is followed and not of powers and hence, the principle is not abided in its rigidity. In India, strict separation of powers is not followed as it is followed in the U.S. Apart from the directive principle laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers. But a system of checks and balance has been embedded so much so that the courts are competent to strike down the unconstitutional amendments made by the legislature.
Nature of Separation of Power in India:
- The doctrine of separation of powers is a part of the basic structure of the Indian Constitution even though it is not specifically mentioned in it. Hence, no law and amendment can be passed violating it.
- The logic behind the doctrine is of polarity rather than strict classification, meaning thereby that the center of authority must be dispersed to avoid absolutism.
- Hence the doctrine can be better appreciated as a doctrine of ‘check and balance’.
- The system of checks and balances is essential for the proper functioning of three organs of the government.
- Different organs of the state impose checks and balances on the other.
- Checks and balances act in such a way that no organ of the state becomes too powerful.
- The constitution of India makes sure that the discretionary power bestowed upon any organ of the state does not breach the principles of democracy. For instance, the legislature can impeach judges but as per the condition i.e. two-third majority.
Working of separation of power in India:
- If we study the constitutional provisions carefully, it is clear that the doctrine of separation of powers has not been accepted in India in its strict sense.
- In India, not only there is functional overlapping but there is personnel overlapping also.
- The Supreme Court has declared void the laws passed by the legislature on many occasions and the actions taken by the executive if they have violated any provision of the Constitution or the law passed by the legislature in case of executive actions.
- The executives have affected the functioning of the judiciary by making appointments to the office of Chief Justice and other judges in many instances.
- The executive resorting to pass ordinance’s, legislature passing NJAC law, keeping some laws under the 9th schedule earlier to keep it away from Judicial review have upset the balance among them.
- In Ram Jawaya v. Punjab (1955) case, the Supreme Court held up the observation that the executive is derived from the legislature and is dependent on it for its legitimacy.
- In Kesavananda Bharati case (1973), the Supreme Court held that the amending power of the Parliament is subject to the basic features of the constitution.
- In Indira Gandhi v. Raj Narain (1975) case, the Supreme Court held that adjudication of a dispute is a judicial function and parliament cannot even under constitutional amending power is competent to exercise this function.
- In Swaran Singh’s case (1998) the Supreme Court declared the Governor’s pardon of a convict unconstitutional.
As the doctrine of separation of powers is not codified in the constitution, there is a necessity that each pillar of the State to evolve a healthy trend that respects the powers and responsibilities of other organs of the government. A democracy can thrive only when all the organs cooperate together. It’s time to resolve the differences and move forward with a common goal to take India on great heights.