How is power separated between organs like the legislative, executive, and judicial branches of government? What are the checks and balances on the principle of separation of powers? Read further to know more.
The separation of powers in the Indian polity is a fundamental principle that divides the functions and powers of government into three distinct branches or organs: the Executive, the Legislature, and the Judiciary.
This separation is essential for maintaining the checks and balances necessary to ensure the functioning of a democratic system.
It is essentially the standard that all state governments should adhere to to successfully create, administer, and apply the law to specific cases.
Also read: Separation of Powers
History of the separation of powers
A model for state governance is the separation of powers, which is frequently ill-defined and used synonymously with the “Trias Politica” principle.
- It has been established in papers that the concept of separation of powers takes into account the notion that the functions of the legislative, executive, and judicial branches of government must be founded on a tripartite division.
- To prevent one from encroaching on the domain of the other, the three organs should each be unique, autonomous, and independent in their area.
Ancient Greece is where the model was first created. This model divides the state into branches, each with its independent authorities and domains of authority, ensuring that the authority of one branch does not conflict with that of the other branches.
- The French philosopher Montesquieu advanced the Separation of Power doctrine.
- The basic philosophy behind the theory of separation of power is that there be no concentration of Government power in a single authority.
- The French Revolution taught us that one individual with unchecked power might wreak devastation.
In the 16th and 17th centuries, French philosopher Justice Bodin and British politician Locke both published their opinions on this topic. - Separation of powers was first included in a national constitution by the United States.
- The Constitution’s creators thought it was too late to incorporate the Separation of Powers idea because it had already been drafted.
India developed a parliamentary system of governance as well. They, therefore, determined it would be wise to steer clear of adopting the American model of complete division of powers.
Typically, there are three branches: the legislative, executive, and judicial. In a parliamentary system where the executive and legislative are combined, it can be distinguished by the merging of the two branches of government.
For the benefit of individual freedom, the Theory of Separation of Powers is based on the notion and idea.
Also read: Indian Federalism – 15 Issues that Challenge the Federal Structure of India
The doctrine of separation of powers
According to the doctrine of separation of powers, the three branches of government should be kept apart from one another.
- Each department should be given a distinct group of employees with autonomous jurisdictions over the others and restrictions on their operations.
- No government entity should release any duties that it is not required to. According to the principle, each branch of government must be limited to performing just its duties and cannot interfere with those of other branches.
A single set of people won’t be able to control the state’s machinery because each branch will act as a check on the others.
According to the doctrine of separation of powers:
- No person should hold more than one position within any of the three branches of the government.
- There should be no interference from that one government organ with any other government organs.
- The duties delegated to any other organ of government should not be performed by that one organ. This is the older, less modern interpretation of the doctrine of the division of powers. Because the economy was so simplistic back then when these researchers and theorists first presented their theories, a new concept of separation of powers emerged.
The doctrine’s primary goal is to stop the abuse of power in various areas of government. Public power is regulated by the constitution in our constitutional democracy. Each branch of government should stay within its purview.
Our constitution is ultimately protected by the courts, who have a responsibility to uphold it whenever it is misunderstood.
The courts are more likely to wrestle with the decision of whether to enter the purview of other parts of government while carrying out their constitutionally mandated duties, according to Moseneke CJ.
The courts have a responsibility to guarantee that the other arms of government execute their authority in a manner consistent with the Constitution within the framework of the theory of separation of powers.
Concept of the separation of powers
- The trias politica theory serves as the foundation for the separation of powers. By requiring the consent of all three branches when creating, enforcing, and managing laws, it lessens the likelihood of arbitrary government actions.
- The doctrine of the separation of powers primarily refers to three formulations of governmental powers; one individual should not serve in more than one capacity within any one of the three branches of government.
- Any interference from one governmental organ with another is improper.
- It is improper for one organ to perform the duties allocated to another.
Constitutional Provisions on the Separation of Powers
- Our Constitution does not contain any specific clauses addressing the doctrine of separation of powers. However, the Constitution has a few guiding principles:
- There is no formal or established division of powers outside of what is stated in Article 50 of our constitution, which states that “the state shall take steps to separate the judiciary from the executive in the public services of the state.”
- The executive authority of the Union and the State shall be vested in the President and the Governor, who are exempt from civil and criminal liability under Articles 53 and 143.
- Articles 121 and 211: Judicial behavior of a Supreme Court and High Court judge. Articles 121 and 211 prohibit discussion of the judicial actions of Supreme Court and High Court judges in the Parliament and State Legislature.
- Articles 122 and 212: No court may challenge the legality of legislative or parliamentary proceedings.
- According to Article 361 of the Constitution, neither the President nor the Governor is subject to legal accountability for how they carry out their official responsibilities.
Separation of powers between various organs
It is generally acknowledged that there are three main categories of governmental functions-
- Legislative
- Executive
- Judicial
Likewise, there are three main organs of the Government in a State:
- Legislature
- Executive
- Judiciary
The Legislature
According to the Indian Constitution, the legislature is held in high regard. It is mostly connected to the adoption of general laws that apply to all facets of how its citizens and institutions behave.
Parliament: The Indian Parliament is a bicameral legislature consisting of two houses: the Rajya Sabha (Council of States) and the Lok Sabha (House of the People).
- Rajya Sabha: Members of the Rajya Sabha are not directly elected by the people but are appointed by the President on the advice of the state legislatures. It represents the states and serves as the upper house of Parliament.
- Lok Sabha: Members of the Lok Sabha are directly elected by the people of India through general elections. It represents the people and serves as the lower house of Parliament.
State Legislatures: India also has state legislatures in each of its states and union territories, each with its legislative assembly and council (if applicable). These legislatures have the power to make laws on state subjects.
The Lok Sabha and the Rajya Sabha are two of India’s Parliament’s two legislative houses.
- It can start investigations, notably against the executive branch, choose the heads of the executive branch, impose taxes, authorize borrowing, draught and administer the budget, and ratify treaties.
- It also has the only authority to declare war. It can represent the will of the people by preserving an authentic and full democracy.
Given that it protects a real and complete democracy and represents the will of the people, it can be assumed that the Legislature alone cannot carry out this function entirely. If the nation’s chief financial officer is given total power, democracy is in imminent danger.
The Constitution protects a proper system of checks and balances to the doctrine of separation of powers by making the executive answerable to the popular house.
Other facades throughout the overall system can support the same goal. As a result, the two other pillarsโthe judiciary and the Executiveโbecome important.
The Judiciary
The Indian constitution was written with such precision that it calls for an impartial, independent judiciary to interpret the document and protect citizens’ rights through judicial review. As a result, the judiciary is required to interpret laws rather than create them.
- Supreme Court: The Supreme Court of India is the apex court in the country and is responsible for interpreting the Constitution and ensuring its enforcement. It has the power of judicial review, allowing it to review and strike down laws and executive actions that are found to be unconstitutional.
- High Courts: Each state in India has its High Court, which has jurisdiction over the state. High Courts primarily hear cases related to state laws, but they also handle cases involving fundamental rights and constitutional matters.
- Lower Courts: Below the High Courts are various subordinate or lower courts, including district courts, which handle civil and criminal cases at the district level.
They are not to set forth the government’s broad standards of conduct. A crucial component of the government is the judiciary (Harihar Bhattacharyya, 2015).
- One of the most powerful courts in the world is the Supreme Court of India. The judiciary has been essential in interpreting and upholding the Constitution since 1950.
- The controversy regarding the higher court’s role in hearing and considering public-interest petitions has centered on India’s Supreme Court, particularly.
The judiciary gives the government various directives in deciding these petitions, including the drafting of laws in many different areas. The judiciary’s duty should be strictly limited to vetting the laws’ constitutionality and not to ordering the government to pass legislation.
A law or executive action is only subject to judicial review if it is within the purview of the legislature, or the executive branch, or if it is by the fundamental rights protected by the Constitution and other mandatory laws.
The other branches of the government, such as the executive and legislative, must not obstruct the judiciary’s ability to carry out its duties. This is what is meant by the judiciary’s independence.
The other branches of the government shouldn’t meddle with a court’s ruling.
Judges must be able to carry out their duties impartially.
Executive
The Executive has the authority to appoint judges, veto laws, command the military, issue legal regulations and executive orders, make judgments or declarations, and refuse to spend money set aside for specific uses.
- President: The President of India is the ceremonial head of state and the Commander-in-Chief of the Indian Armed Forces. However, the President’s powers are mostly limited to constitutional and ceremonial roles. The President appoints the Prime Minister and other high officials and represents India in diplomatic matters.
- Prime Minister: The Prime Minister is the head of government and holds the highest executive authority. The Prime Minister is typically the leader of the political party or coalition with a majority in the Lok Sabha (the lower house of Parliament) and is responsible for running the government, formulating policies, and making most executive decisions.
- Council of Ministers: The Council of Ministers, headed by the Prime Minister, is responsible for implementing government policies and decisions. Ministers are typically members of Parliament and are responsible for various ministries and departments.
- Bureaucracy: The civil services, including the Indian Administrative Service (IAS) and the Indian Police Service (IPS), are responsible for implementing government policies and decisions. Bureaucrats are career civil servants who work under the direction of political leaders.
It also has the authority to pardon criminals who have been found guilty of a crime.
The Executive is a steadfast ally of democracy and is similarly anticipated to be free from interference from the other two constitutional entities.
Although it has been proven that the Executive is separate from the other two, the contradiction still exists. In real usage, it is lost. The reason is that the judiciary and legislature regularly challenge the executive’s decisions. The Executive’s independence is severely weakened as a result.
The issue of duty does not simply arise in the context of executives. Although the legislative and judiciary are both accountable, there is a structure built into each of them for carrying out those duties. This is the actual situation as it is in the real world.
Although the Indian Constitution grants the President and Governors executive powers (Articles 53 (1) and 154 (1), respectively), it also grants them certain legislative powers (Articles 123, 213 and 356) and certain judicial powers (Articles 103 and 192).
Similarly, the judiciary only performs a limited number of legislative and executive responsibilities, while the legislature performs some judicial functions (Articles 105 and 194) (Articles 145, 146, 227, and 229)
However, in the State’s public services, the judicial and executive are kept separate (Article 50). Legislation has been used in certain states to completely separate the judiciary and executive branches.
According to Articles 52 and 53 of the Indian constitution:
- 52. The President of India – There shall be a President of India.
- 53. Executive power of the Union. – (1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him by this Constitution.
- (3) Nothing in this article shall-(a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority, or (b) prevent Parliament from conferring by law functions on authorities other than the President.
Executive authority
He is the person who signs off on all executive decisions made by the Union administration. On the advice of the Prime Minister, the Chief Justice of India, and the judges of the Supreme Court and High Court, he appoints members of the Union Government, the Prime Minister, and the Council of Ministers.
He names the Attorney General of India, the Chief Election Commissioner, other Election Commissioners, the Chairman of the UPSC, the Comptroller and Auditor General of India, the State Governors, members of the Finance Commission, and ambassadors.
President of India – Discretionary Powers You Never Knew Existed! – Clear IAS
Checks and balances on the principle of separation of powers
- The Indian Constitution is founded on the concept of “checks and balances” rather than the strict division of powers.
- To prevent any one organ from becoming overly dominant, there are checks and balances in place. The Constitution ensures that any organ’s discretionary authority is used democratically.
- The judiciary has the authority to scrutinize executive and legislative actions.
- Parliament passed a bill in 1972 to implement Article 50, taking away the judicial authority previously held by the executive magistrate and transferring it to the judicial magistrate.
- The Indian Constitution’s Doctrine of Checks and Balance was introduced by the Supreme Court in the 1993 decision of P. Kannadasan v. Tamil Nadu State.
- By Article 13, if a statute is arbitrary or unconstitutional, the judiciary has the authority to invalidate it.
Additionally, it has the authority to deem unconstitutional presidential actions void. - The legislature also assesses the performance of the executive.
- Even though the judiciary is autonomous, the executive appoints the judges.
Judicial Decisions Regarding The Separation Of Powers
Because we follow a separation of functions rather than a separation of powers in India, we don’t adhere to the notion in its strictest form.
- Although the notion of the separation of powers is not expressly established in the Constitution, the court found that it is broken when one organ of government fulfills the duties of another in the case of Ram Jawaya v. The State of Punjab.
Therefore, it is plausible to conclude that our constitution does not contemplate the assumption of functions that fundamentally belong to other bodies of government, even though the Indian Constitution did not recognize the theory of separation of powers in its full rigor. - In I.C. Golak Nath v. State of Punjab, the Supreme Court asserted that the Ninth Schedule breaches the Kesavananda Bharati notion of fundamental structure. As a result, the Ninth Schedule was made subject to judicial review, which is another aspect of the basic structure theory. If a statute is unconstitutional under the terms of the Constitution, the Supreme Court has the authority to declare it void.
- In the case of Indira Gandhi v. Raj Narain, the court concluded that our Constitution broadly embraces the doctrine of separation of powers. In contrast to the United States and Australia, India does not adhere to a strict definition of the separation of powers.
- The Supreme Court was asked to decide in the Kesavananda Bharti Case of 1973 how much the legislature might alter the Constitution by the Constitution’s provisions.
Also Read: Important Judgements
Conclusion
The principle of separation of powers between various organs ensures that each branch of government operates independently within its defined sphere of authority.
However, there are mechanisms for cooperation and checks and balances between these branches to prevent the abuse of power.
- For example, the Executive is accountable to the Legislature, and the Judiciary has the authority to review and strike down unconstitutional actions by the other branches. This system of governance is designed to protect the rights and freedoms of the Indian people and maintain the rule of law.
A democratic government and diverse people like India cannot function under a constitution with a strict separation of powers between various organs.
However, the three pillars of government can cooperate democratically thanks to deliberate and moderate constitutional functional overlaps.
By bridging the gap between the legislative, executive, and judicial departments of government, mutual collaboration improves the efficiency of government. A democracy cannot function well without adhering to the doctrine of separation of powers.
Article Written By: Atheena Fathima Riyas
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