Law and You > Administrative Law > The doctrine of Separation of Powers in India
According to the doctrine of separation of powers, there are three main organs of the Government in State i.e. legislature, executive, and the judiciary. Legislature performs the function of legislation, the executive performs the function of execution and administration, while the judiciary performs the function of adjudication. According to the doctrine of separation of powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and exercised by separate organs of the Government. Thus, the legislature cannot exercise executive or judicial power; the executive cannot exercise the legislative or judicial power of the Government. In this article, we shall study the status of the doctrine of separation of powers in India.
The main elements of this theory are:
- There is a division of the agencies of government into three categories: the legislature, executive and the judiciary;
- There are three specific “functions” of the government. The functions must be separated if freedom is to be assured;
- The three branches of government shall be composed of quite separate and distinct groups of people, with no overlapping membership; and
- Each branch of government will act as a check on the exercise of arbitrary powers by the others.
Separation of Powers in India:
The constitution provides the doctrine of separation of powers in India in an implied manner. Despite there being no express provision recognizing the doctrine of separation of powers under the constitution of India, in its absolute form, the constitution provides the provisions for a reasonable separation of functions and powers between the three organs of government. Chapters Part V and Part VI of the Constitution of India gives the provisions relating to the executive, legislature and the judiciary dealt with separately.
In Re Delhi Laws Act AIR 1951 SC 332 case, the Court held that despite there being no express provision recognizing the doctrine of separation of powers in its absolute form, the Constitution does make the provisions for a reasonable separation of functions and powers between the three organs of Government.
In Indira Gandhi v Raj Narayan, 1975 SCC (2) 159, the Court held that the separation of powers is an integral part of the basic features of the Indian Constitution. The executive power of central and a state government is vested in the president and the governor respectively. The apex court while defining ‘executive powers’
In Rama Jawaya Kapoor v State of Punjab, AIR 1955 SC 549 case, the Court observed “though it is not possible to give an exact definition of ‘executive power’,……..it means a function which did not strictly fall within the legislative or judicial field. Thus while defining executive power the court has taken into consideration the element of the separation of power. The Court further observed that the Indian Constitution has indeed 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 and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another.
In Kartar Singh v. State of Punjab, AIR 1967 SC 1643 case, where Ramaswamy J. stated that “It is 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.”
Constitutional Provisions:
- The executive power of the Union and of the States is vested by the constitution in the President and Governor by Articles 53(1) and 154(1) respectively, there is no corresponding provision vesting legislative and judiciary provisions in any particular organ.
- Under Article 122, internal autonomy has been conferred on the House of Parliament. The validity of any proceedings in Parliament cannot be called in question on the ground of any alleged irregularity of procedure. A House has absolute jurisdiction over its own internal proceedings.
- Article 50 provides that the State shall take steps to separate the judiciary from the executive. One of the essential characteristics of the Federal Constitution is the independence of its judicial organ. The constitution of India being essentially federal contains certain provisions for securing an independent judiciary.
- Article 121 prohibits the discussion in the Parliament with respect to the conduct of any judges of the Supreme Court or a High Court is essential to protect the integrity of the judiciary so that it can function without being subjected to political pressures and criticism. Article 121 amounts to an absolute constitutional prohibition against any discussion in Parliament in respect of the judicial conduct of a judge of the Supreme Court or of a High Court.
- Articles 123, 213 and 357, provides that the powers of legislation shall be exercised exclusively by the legislature.
Overlapping of Functions:
However, a more careful study of the Indian Constitution would show that the Constitution does not demarcate the functions of three organs of the government in separate watertight compartments, and to that extent, it cannot be said that the doctrine of separation of powers has been accepted in the strict sense by the framers of the Constitution, This becomes clear from the following provisions contained in the Constitution:
The President (Executive):
- Under Article 79, like the British Crown, the President of India is a part of the legislature though he is not a member of any house of the Parliament.
- Art. 123 provides that the president can promulgate an ordinance when the parliament is not in session and when the circumstances exist. In such a case the President performs a legislative function. Apart from ordinance making, he is also vested with powers to frame rules and regulations relating to the service matters.
- Promulgation of emergency in emergent situations is yet another sphere of legislative power that the President is closed with under Article 356. While exercising the power after the promulgation of emergency, under Articles 372 and 372-A. he can make laws for a state after the dissolution of state legislature following the declaration of emergency in a particular state, on the failure of the constitutional machinery.
- The President has been assigned judicial functions to the extent of deciding cases of disqualification of the members of the House of parliament.
- He is performing a judicial function when granting pardons, reprieves respites or remissions of punishment or to suspend, remit or commute; the sentence of any person convicted any offence which is of judicial nature under Article 72.
- Under Arts.124 (2A) and 217 (3), the president also performs judicial functions in deciding a dispute relating to the age of the judges of the constitutional courts for the purpose of their retirement from their judicial office (Union of India v. Jyoti Prakash Mitter AIR 1972 SC 1093).
The Parliament (The Legislature):
- The member of the council of ministers (executives) must be a member of the legislature and responsible to it. It is an inevitable part of a parliamentary system of government, this can be seen under Article 75(5) of the constitution which states that a person in order to be a member of the council of ministers must necessarily be a member of either house of parliament.
- Under Article 105, the parliament has been granted judicial functions in which it can consider the questions of breach of any parliamentary privileges, and where the breach is established they have the power to punish for contempt.
- The parliament is performing judicial function during the process of an impeachment of the President or the Chief Justice of India. One of the Houses acts as the prosecutor and the other as an investigator in order to determine whether the charges are sustainable or not as under Article 61 of the constitution.
The Judiciary:
- The High Courts within a certain marginal sphere perform functions that are administrative in nature. Their power of supervision over subordinate courts as provided under Article 227 demonstrates a function that is administrative rather than judicial.
- Under Article 227, High courts have supervisory powers over all subordinate courts and tribunals and also the power to transfer cases.
- Under Arts. 145 & 225, the High Courts as well as the Supreme Court also have legislative powers by virtue of which they can frame rules regulating their own procedure for the conduct and disposal of cases.
In Asif Hameed v. State of J & K, AIR 1989 SC 1899case, the Court held that although the doctrine of separation of powers has not been recognized under the constitution in its absolute rigidity but the constitution-makers have meticulously defined the functions of various organs of the state. Legislative, Executive, and Judiciary have to function within their respective spheres demarcated under the constitution. No organ can usurp the functions assigned to another. Legislative and executive organs, the two facets of the people‘s will, have all the powers including that of finance. Judiciary has no power over the sword or the purse. Nonetheless, it has the power to ensure that the aforesaid two main organs of the state function within the constitutional limits. It is the sentinel of democracy.
Hence the status of the doctrine of separation of powers in India can be summarized that the doctrine of separation of powers has not been recognized under the constitution in its absolute rigidity but the constitution-makers have meticulously defined the functions of various organs of the state.