Q. What do you understand by ‘The doctrine of separation of powers’? Do you think this doctrine is absolutely rigid as per our constitution?
Ans. Separation of powers is a doctrine of constitutional law under which the three branches of government (executive, legislative, and judicial) are kept separate. This is also known as the system of checks and balances, because each branch has separate powers and functions and generally each branch is not allowed to exercise the powers of the other branches. The main objective as per Montesquieu, is that there should be a government of law rather than the whims of the official.
Concept of Separation of Powers explained by Wade and Phillips, it means three different attributes:-
| Attribute | Indian Practice |
| That the same persons should not form part of more than one of the three organs of Government, e.g. the Ministers should not sit in Parliament. | Not followed. But yes, only a portion of MPs are part of Executive and hence Executive is a subset of the legislature, in terms of personnel overlap. No member of Judiciary is part of either Executive or Legislature. |
| That one organ of the Government should not control or interfere with the exercise of function by another organ, e.g. the Judiciary should be independent of the Executive or that Ministers should not be responsible to Parliament. | Not followed. Responsibility of CoM to LS is at the cornerstone of parliamentary democracy. |
| That one organ of the Government should not exercise the functions of another, e.g. the Ministers should not have legislative powers. | Not followed. There is practice of delegated legislation or subordinate legislation in India. |
NATURE OF THIS DOCTRINE AS PER CONSTITUTION
- Indian constitution does not envisage strict separation of powers between organs of the state. Instead there is functional as well as personnel overlapping between the organs.
- Article 50 puts an obligation over the state to separate the judiciary from the executive. However, it is part of Directive Principles of State Policy (DPSP) and hence is not enforceable.
- Articles 121 and 211 The legislatures cannot discuss the conduct of a judge of the High Court or Supreme Court except during the process of their impeachment.
- Articles 122 and 212 The courts cannot inquire the validity of the proceedings of the legislature.
- Article 361 The President and Governors enjoy immunity from Judicial proceedings.
- Supreme Court in Ram Jawaya Kapur v. State of Punjab (1955) opined that the Constitution has not recognized the doctrine of separation of powers in its absolute rigidity, but the functions of different parts or branches of the government have been sufficiently differentiated.
- In Kartar Singh v. State of Punjab (1994), the court clarified the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the legislature to make the law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution.
- Executive in India is a subset of legislature and virtually there is a fusion between them, thus generally no friction arises between them.
- Indian Constitution does not contemplate separation as embodied in the pure doctrine, it rather perceives and accords to it in its central sense, that is to say, not in its literal sense, rather in its purposive sense, i.e. non conferment of unfettered powers in a single body of men and to motivate checks and balances.
- Parliament is provided with law making powers under various Articles, in the recess of which President promulgates ordinance, which is a law-making function. Similarly, the President has been given with executive powers under Article 72 to grant pardons, reprieves, respite or remissions, which is discharged upon judicial pronouncement. Likely, the Judiciary has been given with the powers of passing a decree for doing complete justice under Article 142, which is an exceptional provision enabling the judiciary to act in public interest when the executive & legislature fails in performing its duty.