The Constitution of India is designed in such a way that Some, branches are overlapping without causing Significant problems but others have been exclusively separated to maintain its sanctity.
Articles in the Constitution facilitating Separation of Powers are as follows:
Article 50: state shall take steps to separate the judiciary from the executive. this is for the purpose of ensuring the independence of the judiciary.
Article 122 and 212: validity of proceeding in parliament and the legislature can not be called into question in any court. judicial conduct of a judge in supreme court and high court can not be discussed in parliament and the state legislature according to article 121 and 211 of the constitution.
Article 53 and 154: Respectively provide that the executive power of the state shall be vested with the president and the government and they enjoy immunity from civil and criminal liability.
Article 361: the president on the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office.
Although prima facie it appears that the constitution has based itself upon the doctrine of strict separation of powers. But, if studied carefully, it is clear that it is more inclined towards paper proper checks and balances.
Separation of functions
- The executive, is to the part of legislature. It is responsible legislature for its actions and also It derives its authority from the legislature.
- A system of checks and balances has been embedded so much so that the courts are Competent to strike down the unconstitutional amendments made by the legislature.
- In India, the separation function is followed and not a powers and hence, the principle is not abided in its rigidity.
Checks and Balances
- The Indian constitution ensures that the different branches control each other. This is intended to make them accountable to each other- these are checks.
- The Constitution divides power between the different branches of govt- these are the balances. Balances aims to ensure that no individual or group of people in gout is all-powerful. (Power is shared and not concentrated in one branch)
So, it is quite evident from the Constitutional provisions themselves that India, being a parliamentary democracy does not follow an absolute separation. it is rather based upon a fusion of powers, where close coordination amongst the principal organs is unavoidable and the Constitutional scheme itself mention it.
Though such a system appears dilatory of the doctrine of Separation of powers, it is essential in order to enable the just and equitable functioning of such a constitutional System.
Author: VAMSI KRISHNA GANGINENI,
IFIM LAW SCHOOL