Write a short note on the concept of separation of powers in the Constitution of India.

Question: Write a short note on the concept of separation of powers in the Constitution of India. [RJS 2014]

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Answer:

The three branches of the Indian Government are:

The Executive;

The Legislature, and

The Judiciary

that coexisting together facilitates the smooth governance of the country. Although the three branches have distinct functions to perform, their scope sometimes meets. The doctrine of separation of powers in its strictest sense is very rigid; however, in India, the concept of separation of powers is not adhered to strictly but a system of checks and balances have been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature.

The three essential features of the doctrine of separation of powers are:

• Each organ should have a different person incapacity, i.e., a person with a function in one organ should not be a part of another organ.
• One organ should not interfere in the functioning of the other organs.
• One organ should not exercise a function of another organ

The doctrine of separation of powers is a part of the basic structure of the Constitution, although not specifically mentioned. The legislature cannot pass a law violating this principle. Some of the articles which suggest separation of powers among the three organs of government are:

• Article 50: This article puts an obligation over the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable.
• Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.
• Article 123: The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions.
• Article 361: The President and Governors enjoy immunity from court proceedings.

There is a system of checks and balances wherein the various organs impose checks on one another by certain provisions. For example, as per Article 13, the judiciary has the power of judicial review over the actions of the executive and the legislature. It is vested with the power to strike down any law passed by the legislature unconstitutional or arbitrary if it is contrary to fundamental rights. It can also declare unconstitutional executive actions as void.

Moreover, the legislature has the power to review the functioning of the executive. It can also alter the basis of the judgment while adhering to the constitutional limitation. In-State of Bihar v. Bihar Distillery Ltd., (AIR 1997 SC 1511) the Supreme Court has held that the judiciary must recognize the fundamental nature and importance of the legislative process and must accord due regard and deference to it. The Legislative and Executive are also expected to show due regard and deference to the judiciary. The Constitution of India recognizes and gives effect to the concept of equality between the three organs of the Government. The concept of checks and balances is inherent in this doctrine.

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