The separation of powers has acquired a unique feature within the constitutional system

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Question – In the case of India, the separation of powers has acquired a unique feature within the constitutional system. Explain. 25 December 2021

Answer – The Constitution of India envisioned a tripartite government, consisting of the executive, legislature and judiciary, though varying in powers, but governed by a system of checks and balances. The independence of these three institutions is sacrosanct, and is protected by the principle of separation of powers in the Constitution. All three are discharging their different mandates. In these, the position of the judiciary is to review executive and legislative action and to prevent abuse of power. When individual liberties are under threat, an autonomous judiciary is needed to protect the constitutional shield provided to the people.

Generally, two general models prevail regarding the separation of powers among the organs of the state. The first is the principle of separation of powers propounded by Montesquieu. The second is the Westminster Model which provides for a flexible separation of powers principle based on the principle of supremacy of Parliament. However, the Indian Constitution has provided for a unique form of separation of power. Thus it presents the third model of power separation.

In India, the following provisions have been made in the constitution for separation of powers:

  • Article 50 states that in order to ensure the independence of the judiciary, the state shall take steps to separate the judiciary from the executive.
  • According to Articles 122 and 212, the validity of the proceedings of Parliament and the State Legislative Assemblies respectively cannot be called in question in any court of law. Thus the immunity of the members from judicial interference has been ensured.
  • According to Articles 121 and 211, the judicial conduct of the judges of the Supreme Court and the High Court cannot be discussed in the Parliament and the State Legislature respectively.
  • According to Article 361, the President or the Governor is not liable to any court for the exercise of the powers and performance of the duties of his office.

Here, three organs of the state have been recognized by the constitution, but different types of powers have not been clearly divided among these organs. This is a functional overlap, which is reflected through the following:

  • Under the parliamentary system of India, the political executive is also a part of the legislature.
  • Its judicial powers are exercised by the legislature in cases of violation of its privileges, impeachment of the President and removal of judges.
  • The executive exercises its legislative powers to make laws through the passage of delegated legislation and ordinances.
  • The tribunals and other quasi-judicial bodies that are part of the executive discharge judicial functions and most of their members are from the judiciary.
  • The President has been given the power to determine the number of judges as well as appoint them.
  • Under the power of judicial review, the judiciary can give directions to the executive in the form of constitutional and statutory measures.

Thus, a system of checks and balances also exists in the Indian system to prevent arbitrary use of powers by any one organ. In addition, the Supreme Court has reiterated the importance of separation of powers in several judicial decisions. In Kesavananda Bharati Case (1973) states that the principle of separation of powers is an integral part of the basic structure of our Constitution. In this regard, the Supreme Court struck down the National Judicial Appointments Commission Bill (2014) as unconstitutional and a threat to the independence of the judiciary.

Repeated interference by one part of the government in the affairs of another tends to reduce the confidence of the people in its integrity, quality and efficiency. At the same time, it undermines the spirit of democracy, as too much accumulation of powers in any one organ of governance undermines the principle of ‘checks and balances’.

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