The Indian Constitution is based on the principle of checks and balances, rather than a rigid separation of powers?

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Question – Express your opinion on the statement that, “The Indian Constitution is based on the principle of checks and balances, rather than a rigid separation of powers? 12 February 2022

AnswerIt is a principle of constitutional law whereby the three branches, the executive, the legislature and the judiciary, exist separately, with separate and independent powers and responsibility, so that the powers of one branch are not in conflict with those of the other.

On the other hand, the theory of checks and balances describes the forces that each branch has to “check” the other branches and ensure the balance of power. As with checks and balances, each of the three branches can limit the powers of the others, and thus no branch can be very powerful.

Indian Constitution is not static but a living document. It is the “religion of all religions” for Indians. The Indian Constitution has made arrangements to maintain a complex and delicate balance, exploring the relationship between the three branches.

Checks and Balances:

Legislature:

  • With reference to the judiciary: The power to impeach and remove judges and to amend, and revalidate, the laws declared ‘beyond the authority’ or ultra vires of the Court.
  • With respect to the executive: The legislature can dissolve the government by passing a vote of no confidence following the prescribed procedure. The legislature has been given the power to evaluate the work of the executive through Question Hour and Zero Hour. Along with this, the legislature also has the power to impeach the President.

Executive:

  • In the context of the judiciary: the role of appointing the Chief Justice and other judges.
  • With respect to the legislature: Powers derived under delegated law. Power to make necessary rules, for the effective implementation of relevant laws under the provisions of the Constitution.

Judiciary:

  • With respect to the executive: Judicial review means the power to review the actions of the executive, with the aim of ensuring that constitutional provisions are not violated in the course of executive action.
  • With respect to the legislature: The right to amend the Constitution was limited under the ‘Basic Structure of the Constitution’ by the Supreme Court in the Kesavananda Bharati case (1973).

Way forward:

  • It is imperative to implement a comprehensive ‘Legislative Impact Assessment’ system, under which all legislative proposals can be assessed on the basis of their social, economic, environmental and administrative impacts. A new Legislative Committee of Parliament should be constituted to oversee and coordinate the legislative planning. This committee can inquire into such cases of executive going out of its jurisdiction, where the freedom of citizens is harmed by the action of the executive.
  • The formation of a shadow cabinet or ‘shadow cabinet’ can be considered in India to strengthen the role of the opposition.

It is evident from the above examples that the reason for the interdependence is accorded to the parliamentary form of governance followed in our country. But, this doesn’t mean that the doctrine of separation of power is not followed in India at all.  The principle of ‘Separation of Power’ is a principle of restraint which has in it the precept, innate in the prudence of self-preservation, that discretion is the better part of valour.

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