General Studies Paper 2 (Indian Polity & Constitution)
Question:- The functional overlap seen in executive, legislative and judiciary dilutes the principle of separation of powers. Comment. Answer in 250 words (15 marks)
Jun 03, 2022

INTRODUCTION:  Write about what you understand by the ‘principle of separation of powers’. Add information about its role in Indian polity. Enlist Constitutional provisions related to this principle.

BODY PARAGRAPH: Explain various Articles and provisions which dilute the principle of separation of powers separately for Executive, Legislature and Judiciary.

CONCLUSION: Write about the importance of this dilution for a the political functioning of a diverse and large country like India.

 

Answer:-

INTRODUCTION:

Separation of powers’ refers to the model of governance where the executive, legislative and judicial powers are not concentrated in one body but instead divided into different branches. The doctrine of separation of powers is part of the basic structure of our Constitution – Kesavnanda Bharti case, IR Coelho case, 2007 etc. This scheme of the Constitution cannot be changed even by resorting to Article-368 of the Constitution.

 

LINKAGE POINT:

Although this doctrine doesn’t find an explicit mention in the Constitution but various constitutional provisions ensure separation of powers .They are:
1. Article 50: State shall take steps to separate the judiciary from the executive.
2. Article 121 and 211: Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be discussed in the Parliament and the State Legislature.
3. Article 122 and 212: Validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court.
4. 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.

The parliamentary system of government in India is based on the principle of co-operation and co-ordination between the various organs of government. Hence, naturally, there is some overlapping of functions of various organs as described below:

 

EXECUTIVE
1. The President of India who is the supreme executive authority in India exercises law making powers in the form of ordinance making power under Article-123.
2. Also, under Article-103(1) and Article-217(3) he has some Judicial powers.
3. He has the consulting power to the SC of India under Article-143 and also the pardoning power in Article-72 of the Constitution.
4. The executive also affects the functioning of the judiciary by making appointments to the office of Chief Justice of India and other judges.

 

LEGISLATIVE
1. The Council of Ministers (Executive) is selected from the legislature and this Council is responsible to the legislature.
2. The council of ministers on whose advice the President and the Governor acts are elected members of the legislature.
3. The legislature exercising judicial powers in cases of breach of its privileges, impeachment of the President under Article-61 and removal of judges.
4. The legislative body has the punitive powers under Article-105(3).

 

JUDICIARY
1. Under Article-142 and Article-145 of our constitution, the Supreme Court functions as an Executive in order to bring about the complete justice(the SC has the power to declare void the laws passed by legislature and actions taken by the executive if they violate any provision of the constitution).
2. The power to amend the constitution by Parliament is subject to the scrutiny of the Court. (The Court can declare any amendment void if it changes the basic structure of the constitution.)
3. In many cases courts have issued directions for the Parliament to make policies. (Add example from current affairs before exam.)

 

CONCLUSION:

Montesquieu, who first propounded the doctrine of separation of powers asserted that liberty cannot be protected unless and until there is clear cut division of powers. However, the functional overlapping as seen above ensures checks and balances, rule of law, keeps check on arbitrariness, and ensures cooperation. For a democratic polity and diverse society like India, a Constitutional system with strict separation of powers is undesirable and impracticable. Judicious and calculated constitutional functional overlapping has made way for democratic collaboration of the three organs of the government. Such mutual cooperation bridges the executive, legislative and judicial gap facilitating smooth functioning of government.