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Application of Separation of Powers in India

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APPLICATION OF SEPARATION OF POWERS IN INDIA

Separation of powers in Indian context:

  1. “Doctrine of separation of powers is structural rather than functional.”
  2. In India not only there is a ‘functional overlapping’ but there is ‘personnel overlapping’ also.

A proposal of incorporation of the doctrine of separation of powers was proposed in the constituent assembly and the Constitutional history of India exhibits that the framers of the Indian constitution had no sympathy with the doctrine. In India separation of powers has not been awarded a Constitutional status. The doctrine of separation of powers is a part of the doctrine of basic structure of the Indian constitution although it isn’t explicitly noted in it and consequently, no law and amendment can be surpassed violating it. The functions of various organs of the state have been diligently defined by the makers of the constitution. Parliamentary form of governance is followed in India.

In Indian Constitution it is expressly mentioned that the executive power of the Union and of a state is vested by the constitution in the President and the Governor, respectively by articles 53(1) and 154(1), but there is no corresponding provision vesting the legislative and judicial powers in any organ. So accordingly it has been held that there is no strict separation of powers.

Although prima facie it appears that our constitution has based itself upon doctrine of separation of powers. The Indian constitution has not entirely incorporated the doctrine of separation of powers but has taken a lot from the concept and kept it as a guiding force. The theory of separation of power has just been used as a guiding principle to separate the powers only to that extent to which it alienates the organs of the government from each other.

In India fusion and not rigidity of separation of power is followed. The legislature or the executive cannot interfere with the judicial functions of the judiciary as it is independent in its field. The conduct of any judge cannot be discussed in the Parliament as per the Constitution. The High Court and the Supreme Court has been given the power of judicial review and they can declare any law passed by the Parliament as unconstitutional. The judges of the Supreme Court are appointed by the President in consultation with Chief Justice Of India and the judges of the Supreme Court. The power to formulate Rules for efficient conduct of business vests with the Supreme Court.

Article 50 of the Constitution puts an obligation over the state to take steps to separate the judiciary from the executive. But since it’s a Directive Principle of State Policy, therefore it’s unenforceable. In a similar way certain constitutional provisions provide powers, privileges and immunities to MP’s, immunity from judicial scrutiny into the proceedings of the house, etc. Such provisions are thereby making legislature independent, in a way. The President is conferred with the executive power as it is provided in the Constitution. The Constitution enumerates the powers and functions of the President. The President and the Governor are immune from civil and criminal liabilities.

Separation of Power- Parliament & Executive

India, since it is a parliamentary form of government, therefore it is based upon intimate contact and close co-ordination among the legislative and executive wings. However, the executive power vests in the President but, in reality he is only the formal head and that, the real head is the Prime Minister along with his Council of Ministers. The reading of the article 74(1) makes it clear that the executive head has to act in accordance with the aid and advice given by the cabinet. Generally the legislature is the repository of the legislative power but, under some specified circumstances President is also empowered to exercise legislative functions. Like while issuing an ordinance, framing rules and regulations relating to public service matters, formulating law while proclamation of emergency is in force. These were some instances of the executive head becoming the repository of legislative functioning. President performs judicial functions also like while assenting to death sentences.

Separation of Power- Parliament & Judiciary

Parliament can also exercise judicial functions, like in the matter of the breach of its privilege. In case of impeaching the President both the houses take active participation and decide the charges. Judiciary also performs various administrative functions when it has to supervise all the subordinate courts below. It exercises legislative power also when it formulates the rules regarding their own procedure for the conduct and disposal of cases.

Executive functions of the legislature

The legislature is prone to perform the following executive functions: a special role is played by the legislature in the executive field, especially in the parliamentary form of government. As a matter of fact, the life of the executive in a cabinet form of government is totally dependent on the will of the legislature. It is the legislature which elects the executive from itself. After election, the executive has to be responsible to the legislature. If the legislature expresses its no-confidence in the executive, the latter must resign. Thus, from birth to its death, the executive is tied to the chariot-wheel of the legislature.

Legislative functions of the executive

The executive also performs some legislative functions as noted below:

    In a parliamentary system of government the chief executive like the Queen of England and the President of India summons and prorogues the legislature. The authority can dissolve the lower house and order for fresh elections.

    It is a practice in almost all the countries of the world to refer the bill passed by the legislature to the chief executive for approval. Unless the chief executive okays the bill, it cannot be law. The chief executive can withhold his assent which is called the veto power of the executive over the legislature.

    When the legislature is in recess, some urgent laws can be made by the chief executive by promulgating ordinances which will have the force of law. The life of an ordinance varies from state to state. It is a short-term measure. This is a direct legislative fiat of the executive.

    In a parliamentary form of government the executive has a mass of legislative spade-work. It is the executive that initiates a bill in the legislature. So in a cabinet government a minister initiates bills in the legislature. A bill sponsored by a private member has little scope of success in the absence of direct patronage from the ministers. Thus we find that the Prasar Bharati Bill to ensure autonomy to the All India Radio and the Doordarshan was piloted by the Minister for Information and broadcasting in the V. P. Singh Government.

  1. The executive makes what is called “delegated legislation”. The legislature cannot make the minutest details of all laws. It frames only the broad laws. The minor aspect of the legislation is done by the rule-making powers of the executive. These rules and regulations which have the same force as law is the exclusive legislative domain of the executive.
  2. The executive also shares the legislative functions of the nature of financial legislations like the budget and theFinance Act. In India, no money bill can be introduced in the legislature without the prior approval of the President.

Thus all three organs act as a check and balance to each other and work in coordination and cooperation to make our parliamentary system of governance work. India being an extremely large and diverse country needs a system like this where all organs are responsible to each other as well as coordinated to each other, otherwise making governance possible becomes a very rigid and difficult task.

JUDICIAL PRONOUNCEMENTS

In Keshavanand Bharti case (1973), the Supreme Court held that the amending power of the Parliament is subject to the basic features of the constitution. So, any amendment violating the basic features will be held unconstitutional. This scheme cannot be altered by even resorting to Art.368 of the constitution.

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. Cabinet ministers in India both executive and legislative functions. Art. 74(1) gives the upper hand to the cabinet ministers over the executive by making their aid and advice mandatory for the President, who is the formal head of the State.

In Indira Nehri 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 case (1998) the Supreme Court declared the Governor’s pardon of a convict unconstitutional. In subsequent judgments, the Supreme Court upheld the rulings of the Keshavananda Bharti case regarding the non-amend ability of the basic features of the Constitution and strict adherence to the doctrine of separation of powers.

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Application of Separation of Powers in India. (2018, October 26). GradesFixer. Retrieved January 23, 2021, from https://gradesfixer.com/free-essay-examples/application-of-separation-of-powers-in-india/
“Application of Separation of Powers in India.” GradesFixer, 26 Oct. 2018, gradesfixer.com/free-essay-examples/application-of-separation-of-powers-in-india/
Application of Separation of Powers in India. [online]. Available at: <https://gradesfixer.com/free-essay-examples/application-of-separation-of-powers-in-india/> [Accessed 23 Jan. 2021].
Application of Separation of Powers in India [Internet]. GradesFixer. 2018 Oct 26 [cited 2021 Jan 23]. Available from: https://gradesfixer.com/free-essay-examples/application-of-separation-of-powers-in-india/
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