[Solved] Do you think that constitution of India doesn’t accept principle of strict separation of powers rather it is based on the principle of checks and balances? ( UPSC GS-2 Mains 2019)

Constitution of India : It is a doctrine of constitutional law under which the three branches, the executive, legislative & judicial, are kept separate, each with separate and independent powers and responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches.

 On the other hand, doctrine of Checks and balances describe the powers each branch has to “check” the other branches and ensure a balance of power. With checks and balances, each of three branches can limit the powers of the others, and this way; no branch can becomes too powerful.

 Constitution of India :How Indian constitution doesn’t accept principle of strict separation of powers?

 • Art 50 of Constitution of India is a directive principle of state policy. It gives a direction to the State to keep Judiciary independent of the Executive, particularly in judicial appointments.

 • Indian Constitution adopted procedure established by law and it gives supremacy to parliamentary role (also called as political wisdom).

 • Article 13 (2) and Article 32 of Indian constitution gives power to Judiciary to declare any law null and void if it infringes with Fundamental rights guaranteed by Indian Constitution. Even administrative function of Supreme Court is controlled by Supreme Court.

 • Though Indian President being executive head can also make law under Article 123 (ordinance).

 • If studied carefully, it is clear that doctrine of separation of powers has not been accepted in India in its strict sense. The executive is a part of the legislature. It is responsible to the legislature for its actions and also it derives its authority from legislature.

 • In India, since it is a parliamentary form of government, therefore it is based upon intimate contact and close co-ordination among the legislative and executive wings. However, the executive power vests in the President but, in reality he is only a formal head and, the Real head is the Prime minister along with his Council of Ministers.

 • The reading of Art. 74(1) makes it clear that the executive head has to act in accordance with the aid and advice given by the cabinet.

 • It’s quite evident from the constitutional provisions themselves that India, being a parliamentary democracy, does not follow an absolute separation and is, rather based upon fusion of powers, where a close co-ordination amongst the principal organs is unavoidable and the constitutional scheme itself mentions it.

 • The doctrine has, thus, not been awarded a Constitutional status. Thus, every organ of the government is required to perform all the three types of functions. Also, each organ is, in some form or the other, dependant on the other organ which checks and balances it.

 • This system of checks and balances undoubtedly prevents the centralization of powers and monopoly of one branch of the government and contributes to effective functioning of democratic parliamentary form of polity and makes sure that the power is balanced between the three organs of government but on the other hand it also makes the decision making more complex and time consuming

 Examples justifying the above concept

 • For example, The legislative branch has the power to make laws, but the executive branch has the power to check the legislative branch by interdicting the laws, the judiciary on the other hand can declare the presidential orders and other laws and acts made as unconstitutional and the executive has a say in appointment of judges and the power to pardon.

 • There have been many such examples, firstly the second ARC has recommended the abolition of the Member of Parliament Local Area development schemes MPLADS & MLALADS on the

 grounds that these schemes seriously erode the notion of separation of powers, as the legislator directly becomes the executive.

 • We also have got to see how Judiciary oversteps the powers given to it and interferes with the proper functioning of legislative or executive organs of the government and results into what is being called as judicial activism or judicial overreach. For e.g.: striking the NJAC bill and the 99th constitutional amendment bill and order passed by Allahabad court for the bureaucrats to send their children to government school.

  Constitution of India :Trends related to separation of power in India

 • Our Constitution thus places the supremacy at the hands of the Legislature as much as that is possible within the bounds of a written Constitution. But, the balance between Parliamentary Sovereignty and Judicial Review was seriously disturbed, and a drift towards the former was made, by the Constitution (42nd Amendment) Act, 1976, by inserting some new provisions, e.g., Arts. 31D, 32A, 131A, 144A, 226A, 228A, 323A-B, 329A.

 • The Janata Government, coming to powers in 1977, restored the pre1976 position, to a substantial extent, through the 43rd and 44th Amendments, 1977-78, by repealing the following Articles which had been inserted by the 42nd Amendment— 31D, 32A, l3lA, 144A, 226A,

 228A, 329A; and by restoring Art. 226 to its original form (substantially).

 • On the other hand, the Judiciary has gained ground by itself declaring that ‘judicial review’ is a ‘basic feature’ of our Constitution, so that so long as the Supreme Court itself does not revise its opinion in this behalf, any amendment of the Constitution to take away judicial review of legislation on the ground of contravention of any provision of the Constitution shall itself be liable to be invalidated by the Court.

 • Justice Mahajan took note of this point and stated in the famous case of Re Delhi Laws Act, That: “It does not admit of serious dispute that the doctrine of separation of powers has, strictly speaking, no place in the system of government that India has, at present under our Constitution.

 Unlike the American and Australian Constitution the Indian Constitution does not expressly vest the different sets of powers in different organs of the State. Our Constitution though federal in form is modeled on the British Parliamentary system, the essential feature of which is the responsibility of the executive of the Legislature……”

Constitution of India :Further reading

Separation of power was devised by Montesquieu during the times of French revolution.

a) It means each organ should perform its own functions.

b) No organ should exercise or interfere in the functioning of other organs.

c) No person should be part of more than one organ.

It is true that our constitution does not accept strict separation of power.

a) Members of executive should be part of legislature

b) Civil services are involved in delegated legislation (legislative function) as well as its

implementation (executive function) and adjudication (through tribunals)

c) Similarly judiciary through judicial activism gets into the domain of legislature and

executive through framing policies and guidelines like Vishaka guidelines,suggesting

changes in policies.

d) Ordinance making power of Executive is its legislative power

Principle of checks and balances form the core principle of our constitution, which is also integral

part of basic structure of constitution.

a) U/A 75 executive is collectively responsible to lok Sabha in particular, parliament in

general.

b) Legislature allows checks the functioning of executive through various tools like question

hour, zero hour, parliamentary standing committees etc.

c) Legislature is also empowered to impeach judges of supreme court and high court.

d) Judiciary puts a check on functioning of legislature and executive through judicial review

(article 13 and 226).

Hence it is certainly the principle of checks and balances which is the base of our constitution and

not strict separation of powers like in USA.

 Conclusion

 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. Except where the constitution has vested power in a body, the principle that one organ should not perform functions which essentially belong to others is followed however, no constitution can survive without a conscious adherence to its fine check and balance. 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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