This article has been written by Ms. Nidhisha Alajangi, a 2nd year BBA LL.B Student from SVKM Narsee Monjee Institute of Management Studies, Bengaluru.
INTRODUCTION
India, being a democratic nation, has its authority split between the branches of Legislative, Executive, and Judiciary, also known as the trias politica model, with each branch having its own autonomous power and responsibility.
MAIN CONTENT
WHAT IS SEPARATION OF POWERS
The technique of government in three branches, namely Legislative, Executive, and Judicial, is separation of powers.Three fundamental characteristics of this division are: Each organ should be staffed by distinct individuals;
One organ should not interfere with the operation of the other organs; powers should be independent.One organ should not do the job of another.Separation of power protects society from the arbitrary and illogical authority of the state by preventing the abuse of power and the buildup of power in a few hands.
SIGNIFICANCE OF SEPARATION OF POWERS
The concentration of power in a single centre or authority may result in mismanagement, corruption, nepotism, and the abuse of power.Separation of powers contributes to: –
- Preventing autocracy
- Develop effective management
- Power independence is maintained
- Prevents lawmakers from passing arbitrary or unlawful legislation.
CONSTITUTIONAL STATUS ON SEPARATION OF POWERS IN INDIA
Separation of powers is a component of the Constitution’s fundamental structure. Let’s examine some of the Constitution’s clauses that propose separation of powers:
Article 50
Separation of the judiciary and the executive, this article argues that the State must take measures to separate the judiciary and the executive in the State’s public services.
Article 123
In specific situations, the President, as the country’s chief executive, is authorised to exercise legislative authority (Promulgate ordinances).
Article 121 and Article 211
These provisions prohibit lawmakers from discussing the behaviour of a Supreme Court or High Court judge. They can only do so in the event of an impeachment.
Article 361
The President and Governors are immune from legal action.
THEORY OF CHECKS AND BALANCE, CONSTITUTION OF INDIA AND SEPARATION OF POWERS:
The system of checks and balances contributes to the efficient operation of the three branches of government. It ensures that no component of the government acquires excessive authority. For instance, the legislative branch creates laws, the executive branch enacts them, and the judiciary branch may declare a legislation unconstitutional and ensure it is not enacted. The legislative branch may also remove an ineffective judge from office. The judicial appointments are made by the executive branch and approved by the legislative branch. Likewise, the branches serve as checks and balances to ensure that no one branch has excessive influence. This is a description of the checks and balances theory. When seen in a solely Indian perspective, three government agencies are granted distinct but not absolute powers. All three have their separate powers and tasks, although one may halt the work of another if the first has violated certain constitutional rules.
For such checks and balances amongst three organs, the Constitution additionally contains clauses such as:
Judges are part of the judiciary, however in cases where they have behaved improperly, they may be dismissed by the President upon an address from both chambers of Parliament submitted within the same session. The speech must be supported by a majority of the total membership in each house, as well as a majority of at least two-thirds of the members present and voting in each house. 14 By doing so, two things may be accomplished: first, the judiciary cannot remove any judges using its discretionary authority in both cases: when a judge has really engaged in misconduct and when there is political pressure or bias against a judge. A judge cannot be dismissed for any reason unless the legislature acts. Second, a legislative body may remove a judge by impeachment, but only with a two-thirds vote. That implies the legislature may intervene in the judicial process, but only with a two-thirds majority.
Similarly, the supreme court of India’s judicial branch has the authority to nullify legislation approved by the legislature. It may also deem executive actions invalid if they contravene the constitution or a statute established by the legislature.
ISSUES AROUND PRACTICE OF SEPARATION OF POWERS AND JUDICIAL VIEWS- INDIAN CASE LAWS
Judge B.C. ray opined in sub-committee on Judicial Accountability v. Union of India & others that,
While the Constitution divides the functions of the state among the three branches of government — the Legislature, the President, and the Judiciary — the idea of Separation of Powers has not been rigorously adhered to, and there is considerable overlap of authorities in the grey areas.
He said, “…that tight Separation of Powers as under the American or Australian Constitutions does not apply to our nation, and many purely judicial functions have been barred from the jurisdiction of the courts under our Constitution.
Y.V. Chandrchud J. reached the same conclusion in the case of A. K. Roy v. Union of India and Others41. Opinionated that,
The theory of the political issue has no place in our Constitution since it is founded on and a result of a rigorous division of powers in the U.S. Constitution, but our Constitution is not based on a tight separation of powers.In another instance, the Supreme Court correctly stated:
“The Indian Constitution has not, in fact, recognised the doctrine of separation of powers in its absolute rigidity, but the functions of the various parts or branches of the government have been sufficiently differentiated, and so it can be said that our Constitution does recognise the doctrine of separation of powers in its essentials.”does not envision the adoption, by one department or portion of the government, of responsibilities that are fundamentally the responsibility of another. When such powers are granted to the executive by the legislature, the executive may certainly execute departmental or subordinate legislation’s powers.
- In India, there is an ongoing tug of war between the legislative and the court. In several decisions, the Supreme Court expresses its position on the matter. While I have previously discussed a number of case laws, it is superfluous for me to elaborate on them again.As a consequence of the practise of separation of powers in a nation, whether the separation is total or partial, such as in India, two significant issues might be explored. Every application of any kind produces both negative and positive results. Here, I’d like to mention two things that demonstrate the merits of the system of separation of powers.
- The lengthy process of drafting or revising laws, which includes the introduction of legislation, their debate, majority approval, and the President’s approval, makes it difficult to pass any act. The legislative and executive branches of government are responsible for the process of lawmaking. In fact, a bill may only become law with the President’s approval; there is a condition precedent. The number of pending legislation increases due to a separation of powers or functions between the legislature and the president that is not an absolute separation of duties. Till the thirteenth session of the fourteenth Lok Sabha, a total of 304 bills (270 private member bills and 34 government bills) are pending (270 private member bills and 34 government legislation). If we had perfect separation and the legislature had the ultimate power to enact laws without such clauses, the issue of pending legislation might be resolved. It is true that not all laws are pending due to a delay in the President’s approval, but such instances do exist.
- Judicial Activism is only feasible at this time due to the separation of powers, which has given the judiciary an autonomous and distinct character. According to the specifics of each instance, a distinction will be made between a good and a bad outcome. In instances such as Ashok Hurra v. Rupa Bipin Zaveri43, the practise of judges has been characterised as judicial activism. It would be inappropriate to debate the issue’s pros and cons at this time. This crucial judicial activity is only feasible due to the separation and independence of the judicial branch.
CONCLUSION
We may conclude that the Indian constitution separates powers because they do not get excessive authority or discretionary power that undermines democratic values.
Regarding checks and balances, the supreme court of India has ruled as follows: “where an Act passed by a state legislature is invalidated by the courts on the grounds that the state legislature was not competent to pass it, the state legislature cannot pass a law declaring that the court’s judgement shall not operate; it cannot overturn or annul the court’s decision. But, this does not imply that the legislature with the authority to pass this legislation cannot implement it. Similarly, a legislator is permitted to change the foundation of a ruling while adhering to the constitutional restriction. In such a scenario, the Court’s ruling becomes null and void. The new legislation cannot be challenged on the grounds that it attempts to evade the Court’s judgement. The Court noted that this is what is meant by “checks and balances” under a government structure reflecting the principle of separation of powers.
REFERENCES
https://www.jstor.org/stable/24469690
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2254941
https://www.researchgate.net/publication/339842657_SEPARATION_OF_POWERS_LAW_AND_PRACTICE_IN_INDIA
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