What is Separation of Power? Examine the idea of separation of powers enshrined in the Indian Constitution with suitable examples? (10 marks)
Approach:
Its a direct question based on the static portion of Polity. So you should not face any problems attempting it. To score additional marks and stay ahead of the competition your attempt needs to be solid. You also have to keep the answer aligned to the demands of the question.
- In the intro,define the separation of power doctrineand mention that it isnot explicitly statedin the Constitution (because the question is about the Constitution)
- In the 1st part of the main body, discuss thethree organs of the governmentand how separation of power works in each organ.
- In the 2nd part of the main body, mention how the doctrine ofchecks and balances workswith each organ like judiciary having the power of judicial review; legislation having the power to check the powers of the executive, etc. In short, how it is not awatertight compartmentalizationof the organs but instead a fine line of keeping each organ in check for excess or abuse of power.
- You will get additional points to compare with the American Constitution where the separation is more strict.
- As a result, no one branch or institution can become so powerful as to control the system completely.
Answer
The doctrine of Separation of Power refers to the model of governance where the executive, legislative and judicial powers arenot concentrated in one bodybut instead divided into different branches. Thedegree of separationvaries.‘Strict separation’implies branches are independent of each other. On the other hand,‘checks and balances’implies that reasonable checks and balances are in place to check misuse of power.
Articles in the Consitution facilitating Separation of Powers are as follows-
- 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 154respectively, 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.
- 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 154respectively, 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.
How SOP in India is based on the principles of Checks and Balances:
Although prima facie it appears that the Constitution has based itself upon the doctrine of strict separation of powers. But, if studied carefully, it is clear that it is more inclined towards proper checks and balances.
- The doctrine has not been awarded Constitutional status. The Constitution doesn’t explicitly back any doctrine.
- Article 75implies the executive is collectively responsible to the Lok Sabha.
- Articles 13, 32, 131-136, 143, 226 and 246imply the doctrine of Judicial Review. Judiciary can strike down any legislation that violates the Constitution.
- 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 the 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.
- 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 the 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.
From the above it is clear that
- First, the 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.
It’s quite evident that theConstitution ofIndia does not accept the principle of strict separation of powers. Though it appears dilatory of the doctrine of separation of powers, it is essential in order to enable a just and equitable functioning and close coordination.
