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Question – Explain the importance of the concept of ‘separation of powers’ in Indian democracy. What could be the reasons for India not having strong adherence to this principle? – 6 April
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 is given certain powers so as to check and balance the other branches.
On a casual glance at the provisions of the Constitution of India, one may be inclined to say that that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution, executive powers are with the President, legislative powers with Parliament and judicial powers with judiciary.
The degree of separation varies. ‘Strict separation’ implies branches are independent of each other. On the other hand, ‘checks and balances’ implies that reasonable checks and balances are in place to check misuse of power.
How SOP in India is based on the principles of Checks and Balances (Importance):
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 proper checks and balances.
- The doctrine has not been awarded Constitutional status. The Constitution doesn’t explicitly back any doctrine.
- Article 75 implies the executive is collectively responsible to the Lok Sabha.
- Articles 13, 32, 131-136, 143, 226 and 246 imply the doctrine of Judicial Review. Judiciary can strike down any legislation that violates the Constitution.
Judgment of SC in Ram Jawaya Case:-
- Supreme Court of India (SC) had to deal with the question of the extent of executive power and executive function in a situation where the executive was alleged to have violated the fundamental rights of the citizens vested in them by the Constitution of India without a legislative sanction.
- This landmark judgment delivered by our apex court in the wake of our independence is now acting as a touchstone for understanding the federal feature of the Indian Constitution through the separation of powers.
- Even years after this judgment, it becomes an important case not only in understanding the separation of powers in the Indian context but also worldwide as it discusses the basis for the new understanding of the doctrine of separation of powers in present times.
Reasons for not having strong compliance:
- Weak Opposition: A democratic system works on the principle of checks and balance. It is this control and equilibrium system that prevents a democratic system from being converted into a majoritarian system.
- In a parliamentary system the control and balance work is done by the opposition party.
- But the majority received by a single party in the Lok Sabha has reduced the role of an effective opposition in Parliament.
- Weak legislative review: According to PRS Legislative Research data, 60% of the bills in the 14thLok Sabha and 71% in the 15thLok Sabha were referred to the Department-related Standing Committees-DRSCs.
- Significantly, this amendment provides for the establishment of a new body “National Judicial Appointments Commission” (NJAC) in place of the collegium system for appointment of judges in the Supreme Court and High Courts.
- The National Judicial Appointments Commission can provide a guarantee of freedom of selection system away from unfair politicization, which will improve the quality of appointments, ensure fairness of the selection process, promote diversity in the structure of the judiciary and it can be helpful in strengthening public confidence in the selection system.
- Judicial activism: Recently there has been hyperactivity in many decisions of the Supreme Court and in many cases the court has given decisions which seem like interference in the jurisdiction of legislature and executive.
- Executive infringement:Over-centralization of power over India’s executive, weakening public institutions such as the Central Information Commission and the Right to Information (RTI), strengthening the law and order and security of the state but passing laws to curb freedom of expression, etc. There have been allegations.
Instead, it creates a system consisting of the three organs of Government and confers upon them both exclusive and overlapping powers and functions. Thus, there is no absolute separation of functions between the three organs of Government.