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Subject: General Studies (Paper 2 - Governance, Constitution, Polity, Social Justice and International relations)

Topic: Separation of powers between various organs

Separation of powers between various organs

In India, the central and state legislatures are responsible for law making, the central and state executives are responsible for the implementation of laws and the judiciary (Supreme Court, High Courts and lower courts) interprets and enforces these laws.

Check and Balance

To prevent one branch from becoming supreme, protect the "opulent minority" from the majority, and to induce the branches to cooperate, government systems that employ a separation of powers need a way to balance each of the branches. Typically this was accomplished through a system of "checks and balances", the origin of which, like separation of powers itself, is specifically credited to Montesquieu. Checks and balances allow for a system-based regulation that allows one branch to limit another.

The doctrine of separation of powers has no place in strict sense in Indian Constitution, but the functions of different organs of the Government have been sufficiently differentiated, so that one organ of the Government could not usurp the function of another. However, there are several overlaps in the functions and powers of the three institutions. For example, the President has certain legislative and judicial functions and the legislature can delegate some of its functions to the executive in the form of subordinate legislation.

In Indian Constitution there is express provision that “Executive power of the Union shall be vested in the President,and the executive power of the State shall be vested in Governor.” (Article 154(1) of Indian Constitution). But there is no express provision that legislative and judicial powers shall be vested in any person or organ.

President being the executive head is also empowered to exercise legislative powers.

In his legislative capacity President may promulgate Ordinances in order to meet the situation as Article 123(1) says “If at any time, except when both Houses of Parliament are in Session, President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require”.

A power has also been conferred on the President of India under Article 372 and 372-A to adapt any Law in country by making such adaptations and modifications, whether by way of repeal or amendment as may be necessary or expedient for the purpose or bringing the provisions of such Law into accord with the provisions of the Constitution.

When Proclamation of emergency has been declared by the President due to failure of Constitutional machinery the President has been given legislative power under Article 357 of our Constitution to make any Law in order to meet the situations.

The President of India also exercises judicial function. Article 103(1) of the Constitution is notable in this connection. According to this Article “If any question arises as to whether a member or either of House of Parliament has become subject to disqualification mentioned in clause (1) of Article 102, the questions hall be referred for the decision of the President and his decision shall be final”.

Article 50 lays emphasis to separate judiciary from executive. But in practice we find that the executive also exercises the powers of judiciary as in appointment of judges. Judiciary also exercises legislative power, High Court and Supreme Court are empowered to make certain rules legislative in character. The legislative exercises Judicial function in removal of President (Article 56) in the prescribed manner. Whenever High Court or the Supreme Court finds a certain provision of law against the Constitution or public policy it declares the same null and void, and then amendments may be incorporated in the Legal System.

Some time High Court and Supreme Court formulate the principles on the point where law is silent. This power is also legislative in character.

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