Sample Material of Our IAS Mains GS Online Coaching Programme
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