Do you think that the constitution of India does not accept the principle of strict separation of powers rather it is based on the principle of ‘checks and balances’? Explain. (10 Marks)

Mentors Comments:

  • It’s a direct question based on the static portion of the polity. So you will not have many issues going with it.
  • In the intro, discuss what is separation of power and how it is not mentioned in the constitution.
  • In the 1st part of the main body, discuss the powers given to each of the three organs of the state and how despite not being mentioned in the constitution, the concept of separation of power works in each organ.
  • In the 2nd part of the main body, mention how it is more of a principle of checks and balances with each organ like judiciary having the power of judicial review; legislation having the power to check the powers of executive etc. In short, how it is not a watertight compartmentalisation of the organs but instead a fine line of keeping each organ in check for excess or abuse of power. As a result, no one branch or institution can become so powerful as to control the system completely.
  • Mention the relevant article numbers which show the concept of separation of power in Indian constitution like  Article 50, Articles 121 and 211 etc.

Answer:

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. Rather it is more of a version of “checks and balances”

Separation of powers:

  • 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 the judiciary.
    • Article 122 and 212: validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court. 
    • 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.

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Why SOP in India is based on the principles of Checks and Balances:

  • Although prima facie it appears that our constitution has based itself upon the doctrine of separation of powers. But, if studied carefully, it is clear that the doctrine of separation of powers has not been accepted in India in its strict sense and it’s more inclined towards proper checks and balances. 
  • The doctrine has not been awarded a Constitutional status. Thus, every organ of the government is required to perform all three types of functions. 
  • Also, each organ is, in some form or the other, dependant on the other organ which checks and balances it. The reason for the interdependence can be accorded to the parliamentary form of governance followed in our country. But, this doesn’t mean that this doctrine is not followed in India at all.
  • The executive is a part of the legislature. It is responsible to the legislature for its actions and also it derives its authority from the legislature. 
  • A system of checks and balances has been embedded so much so that the courts are competent to strike down the unconstitutional amendments made by the legislature.
  • It is also known as separation of functions. 
  • In India, the separation of functions is followed and not of powers and hence, the principle is not abided in its rigidity. Besides the functional overlapping, the Indian system also lacks the separation of personnel amongst the three departments.
  • The judgment of SC in Ram Jawaya Case:-
    • Supreme Court of India (SC) had to deal with the question of the extent of executive power and executive function in a situation where the executive was alleged to have violated the fundamental rights of the citizens vested in them by the Constitution of India without a legislative sanction. 
    • This landmark judgment delivered by our apex court in the wake of our independence is now acting as a touchstone for understanding the federal feature of the Indian Constitution through separation of powers.
    • Even years after this judgment, it becomes an important case not only in understanding the separation of powers in the Indian context but also worldwide as it discusses the basis for the new understanding of the doctrine of separation of powers in present times
  • Indian constitution ensures that the different branches control each other. This is intended to make them accountable to each other – these are the ‘checks’;
  • Secondly, the constitution divides power between the different branches of government – these are the ‘balances’. Balance aims to ensure that no individual or group of people in government is ‘all-powerful’. Power is shared and not concentrated in one branch.

So, it’s quite evident from the constitutional provisions themselves that India, being a parliamentary democracy, does not follow an absolute separation and is, rather based upon a fusion of powers, where close coordination amongst the principal organs is unavoidable and the constitutional scheme itself mentions it. 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. 

 

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