Published on 11 Jan 2025
Separation of Power doctrine in the Indian context
The Separation of Power is a political doctrine that divides the state into three different branches - legislative, executive and judiciary with each having different independent powers and responsibilities so that one branch may not interfere with the working of the other two branches.
Article 50 of the Indian Constitution also mentions the nation to opt for separation of power between the three organs of the state. However, the Indian version of Separation of Power is quite different with each branch having some power to intervene in the work of others while still maintaining their own jurisdiction. This is meant to ensure proper coordination among branches and prevent abuse of power by any branches.
Significance of Separation of Power doctrine
Prevention of abuse of power: Separation of power prevents any one branch from accumulating too much power, which can lead to abuse and tyranny.
Example: During the 1970’s, the judiciary through various judgements prevented Indira Gandhi’s attempt to abuse power.
Accountability and Transparency: The three branches respectably monitor one another to ensure transparency in operation.
Example: The Parliament through various financial committees makes the government’s fiscal policies more transparent.
Checks and balance: Each branch has some control over one another thus balancing the powers of one another, ensuring none of them enjoy dominance in governance.
Example: The President has the option to veto legislation passed by the Parliament, thus ensuring a check on the legislature. Similarly, an ordinance introduced by the President must be passed by Parliament within 6 weeks.
Efficient governance: Cooperation among the branches ensures that there is smooth and efficient governance.
Example: The Parliament formulates laws, the executive implements them under the leadership of the Prime Minister and President, and the judiciary, including the Supreme Court, ensures their adherence to constitutional principles.
The balance between legislature and executive
The legislature is the organ responsible for the formulation of laws while the executive is in charge of implementing the legislation. These two also interact with one another in the following ways
Double membership: Every member of the ministry must be a representative of the legislature. This is to ensure coordinated action between the two branches.
Example: In 2021, even when Mamata Banerjee was sworn in as Chief Minister of West Bengal, she had to contest in by-elections to secure an MLA seat.
Collective accountability: The Council of Ministers is responsible to the Parliament in general and Lok Sabha in particular and can hold office only until they enjoy the confidence of the house.
Example: NDA government faced two no-confidence motions over the past 9 years and proved it has the confidence of the house to continue in power.
Parliamentary oversight: The legislative wing oversees and criticizes the policies of the government through question hour, adjournment motions, no-confidence motions etc.
Power to dissolve legislature: The President, on the recommendation of the Prime Minister, can call for dissolving the house at any time and call for a fresh election.
Example: In 2018, Telangana opted for an early election when the Chief Minister voluntarily decided to resign 9 months before the 5 years.
President as part of Parliament: The President, an executive, is the final authority in sanctioning any legislation.
Example: In 2006, APJ Abdul Kalam refused to sign a bill protecting the MPs from disqualification for holding office of profit.
Party whip: The major executives representing the political parties will decide upon the reaction of the party towards any policy and can impose this decision upon the legislators by using the tool of whip.
Balance between legislature and judiciary
There exist many cases in which interaction happens between the law-making body and the organ responsible for upholding justice.
Power of Judicial review: The judiciary by using powers under Articles 13, 32 and 226 examines the constitutionality of laws made by the Parliament and strikes them down if found to be violative of the basic structure.
Example: In Minerva Mills case, the Supreme Court struck down clauses 4 and 5 of the 42nd amendment to limit the Parliament’s power in amending the constitution.
Disqualification of legislators: The judiciary is empowered to disqualify the legislators based on violations of laws related to elections, anti-defection laws etc.
Example: Recently the Supreme Court stayed the conviction of MP Rahul Gandhi over a defamation case.
Interpretation of Parliamentary privileges: Since the privileges are not well defined, the judiciary has the scope to interpret them to prevent misuse of such privileges.
Disqualification of judges: The judges of the Supreme Court and High Court can be disqualified by the Parliament on grounds of proven misbehaviour or incapacity.
Example: The Judges Inquiry Act, 1968 lays down the procedure to be followed by the Parliament for disqualifying a judge.
Legislations and amendments: Parliament can amend the constitution which guides the working of the judiciary or bring certain legislations which affect the powers of the judiciary.
Example: The Supreme Court presently has 33 judges and the Chief Justice. This number is decided by the Parliament through the Judges Act, 1968.
Balance between executive and judiciary
There are numerous ways in which the law-implementing body and the law-interpreting body interact with one another in the Indian system.
Review of executive actions: The judiciary has the power to monitor the executive actions to check whether due procedure was followed and can strike down any executive action that is proven to be unconstitutional.
Example: The Judiciary’s check on re-promulgation of the ordinance is an effort to restrict unbridled use of executive power.
Disqualification of executives: Cases related to the disqualification of ministers and other public officials are decided by the judiciary and other tribunals.
Example: Central Administrative Tribunal is a quasi-judicial body, responsible for adjudication of matters related to service conditions of public servants.
Judicial appointment: Though the collegium is responsible for recommending new judges, they are appointed by the government in power.
Example: Recently the Supreme Court raised concern regarding 70 collegium resolutions kept pending by the government.
Formation of tribunals: Tribunals are quasi-judicial bodies and the judges of these bodies are mostly appointed by the government.
Example: In India, the chairperson and members of the tribunals are appointed by the Central government based on the recommendation of the Search cum Selection Committee.
All these cases have shown the functioning of Indian polity and how the three organs of the state interact with one another to ensure stable and effective governance in the country.
Polity
Separation of Power
article 50
balance between judiciary and executive
General Studies Paper 2
Indian Constitution
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