Separation of powers in India | Law Optional Notes for UPSC PDF Download

Introduction

In India, there exists a system of separation of functions rather than a strict separation of powers, as observed in the United States. While India's approach to separation of powers is not as rigid, it does incorporate a system of checks and balances to ensure that each branch of government operates within its prescribed limits. The judiciary, in particular, holds the authority to invalidate any laws passed by the legislature that are found to be unconstitutional.
Most modern constitutional systems, including India's, do not strictly adhere to the classical concept of a rigid separation of powers among different branches of government. This is because such a strict division is often impractical. Instead, the Indian Constitution implicitly embraces the idea of separation of powers by providing for a reasonable division of functions and powers among the three branches of government.

Three Organs Of Government

The three organs of government in India are as follows:

• Legislature: The primary function of the legislature is to create and enact laws. It forms the basis for the functioning of the executive and the judiciary. In many ways, the legislature is accorded the highest importance among the three organs because without the creation of laws, there can be no implementation or enforcement of laws.
• Executive: The executive branch is responsible for implementing and enforcing the laws passed by the legislature. It serves as the administrative head of the government and includes individuals such as ministers, prime ministers, presidents, and governors.
• Judiciary: The judiciary is tasked with interpreting the law, settling disputes, and administering justice to all citizens. It is often considered the guardian of democracy and the Constitution. The judiciary comprises the Supreme Court, High Courts, District Courts, and other subordinate courts.

What is Separation of Powers?

The doctrine of the separation of powers, when interpreted in its strictest sense, is characterized by a rigid division of governmental functions.

Historical Origins of the Concept

• The origins of this concept can be traced back to the works of Aristotle in the 4th century BCE, where he delineated three key branches of government: the General Assembly, Public Officials, and the Judiciary.
• A similar concept was followed in the Ancient Roman Republic.

Development in Modern Times

• In modern times, the concept of the separation of powers was systematized and given a more scientific framework by the 18th-century French philosopher Montesquieu in his influential work "The Spirit of Laws" (De l'esprit des lois).
• Montesquieu's ideas were informed by his observations of the English system, which exhibited a growing tendency toward a more distinct separation of powers among the three branches of government.
• John Locke, another prominent philosopher, further contributed to the development of this concept.

Purpose of the Separation of Powers

• The primary aim of the separation of powers is to prevent the concentration and abuse of power by either a single individual or a group of individuals within the government.
• It serves as a safeguard against arbitrary, irrational, and tyrannical exercises of state power.
• Additionally, the separation of powers is designed to ensure and protect the freedom and rights of all members of society.
• An essential aspect of this doctrine is the allocation of specific functions to the appropriate branches of government, thereby enabling each branch to effectively carry out its respective duties.

Meaning of the Separation of Powers

The Separation of Powers doctrine involves the division of the governmental apparatus into three distinct branches, namely, the Legislature, the Executive, and the Judiciary. While various authors may offer different definitions, the doctrine generally encompasses three key features:

• Each branch should consist of individuals who are separate and distinct from one another in terms of their roles and functions; in other words, individuals holding positions in one branch should not be involved in another branch.
• There should be no interference by one branch in the operations of the other branches; each branch should function independently.
• Each branch should restrict itself to its designated functions and not intrude upon the functions of the other branches; they should adhere strictly to their prescribed roles.

However, in complex nations like India, conflicts and encroachments among the branches often arise.

Significance of the Doctrine

• The Separation of Powers doctrine holds great significance in democratic systems as it serves several crucial purposes:
• It acts as a safeguard against the emergence of autocratic rule within a democratic framework.
• It protects the individual liberties and rights of citizens, shielding them from arbitrary government actions.
• The doctrine contributes to the creation of an efficient and effective administration by assigning specific roles and responsibilities to each branch, thereby preventing concentration of power.
• It ensures the independence of the judiciary, allowing it to function without undue influence.
• By restricting the legislature from passing arbitrary or unconstitutional laws, it helps maintain the rule of law within the system.

Constitutional Status Of Separation Of Powers In India

Within the framework of the Indian Constitution, the Separation of Powers is structured as follows:

• Legislature: This branch comprises Parliament, consisting of the Lok Sabha and the Rajya Sabha, as well as the legislative bodies at the state level.
• Executive: At the central level, the Executive consists of the President, while at the state level, it includes the Governor.
• Judiciary: The Judiciary includes the Supreme Court, the High Courts, and all other subordinate courts.

Key Articles of the Constitution pertaining to Separation of Powers:

• Article 50: This article places an obligation on the State to maintain a separation between the judiciary and the executive. However, it falls under the Directive Principles of State Policy, making it non-enforceable.
• Articles 53 and 154: These articles vest the executive powers of the Union and the States in the President and the Governor, respectively, while granting them immunity from civil and criminal liability.
• Articles 121 and 211: These articles stipulate that the legislatures are prohibited from discussing the conduct of judges of the Supreme Court or High Courts, except in cases of impeachment.
• Article 123: This article grants the President, as the executive head, the authority to exercise legislative powers, such as promulgating ordinances, under specific circumstances.
• Article 361: The President and Governors are provided immunity from court proceedings, and they cannot be held accountable to any court for the performance of their official powers and duties.

The Indian Constitution establishes a system of checks and balances through various provisions:

• The judiciary holds the power of judicial review over the actions of both the executive and the legislature.
• The judiciary has the authority to declare any law passed by the legislature as unconstitutional or arbitrary if it violates Fundamental Rights, as outlined in Article 13.
• The judiciary can also invalidate executive actions that are deemed unconstitutional.
• The legislature has the responsibility of reviewing the functioning of the executive.
• While the judiciary operates independently, the appointment of judges is carried out by the executive.
• The legislature can also modify the basis of judgments while adhering to constitutional constraints.

The system of checks and balances ensures that none of the branches of government becomes excessively powerful. The Constitution guarantees that any discretionary authority vested in a particular branch complies with democratic principles.

Functional Overlap

• 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.

Judicial Pronouncement

• Kesavananda Bharati v State of Kerala (1973): In this case, the Supreme Court ruled that the Parliament's amending power is subject to the fundamental features of the Constitution. Therefore, any amendment that violates these fundamental features will be deemed unconstitutional.
• Swaran Singh Case (1998): In this case, the Supreme Court declared the Governor of Uttar Pradesh's pardon of a convict as unconstitutional.
• Ram Jawaya Kapoor V State of Punjab (1955): In this case, it was determined that the Indian Constitution does not strictly adhere to the doctrine of separation of powers in its absolute form. Instead, the functions of different branches of the government have been sufficiently differentiated. Therefore, it can be concluded that the Constitution does not contemplate one organ assuming functions that inherently belong to another.
• Indira Nehru Gandhi v. Raj Narain (1975): In this case, when a dispute regarding the election of the Prime Minister was pending before the Supreme Court, it was held that the adjudication of a specific dispute is a judicial function. Parliament, even under its constitutional amending power, cannot exercise this judicial function. The amendment was considered ultra vires primarily because the constituent body performed a judicial function, which, according to the principle of separation of powers, it should not have done. This judgment provided further clarity on the place of this doctrine in the Indian context.

Conclusion

The strict interpretation of the doctrine of separation of powers is considered undesirable and impractical. Consequently, it has not been fully embraced in any country. However, this does not diminish the doctrine's relevance in today's world. The logic behind this doctrine remains valid.
The underlying logic of the doctrine emphasizes a distribution of authority to prevent absolutism, rather than strict categorization. This means that the concentration of power in a single entity should be avoided, as it can lead to absolutism. Therefore, while it is essential to prevent power from becoming overly centralized, it is equally important to maintain a system of checks and balances for the smooth functioning of government.