Separation of Power in India – An Overview
Separation of Power:
To efficiently govern a pluricultural region like India (or, the Indian subcontinent), the notion of transparent and equitable distribution of power has been prevalent since the archaic times.
Concept of forming separate bodies for a particular domain of work, vested with appropriate powers has always proved to be practicable and is still practiced on large levels. Today, the Indian administration divides powers in three major heads, namely the Executive, the Legislature and the Judiciary, working within their own precincts, installed with separate powers and understandably, with unique responsibilities as well on the union and the state level.
The Doctrine of Separation of Power is a concept, non-existent when it comes to constitution. Although the principles underlying the doctrine have been followed while allocating powers and responsibilities, it was refused to be given a constitutional status, the apparent reason cited for which was the functional overlapping in the three domains.
It was unanimously decided that a rigid application of the Doctrine of Separation was not practicable and hence not viable and attainable in a functional democracy like India. To understand the separation of power in the Indian context in its entirety, we need to dwell into the three major domains respectively.
Of the three organs of the government (namely the Legislature, the Executive and the Judiciary), legislature is considered the primary one as it involves making laws and the function of a government begins by making laws followed by implementing them and the adjudication functions.
The term ‘Legislature’ is made from the terms ‘Legg’, which means law and ‘Lature’, which means law, conjugating Law-house or the Legislature. Another term used in the Indian plexus for legislature is ‘Parliament’, which again is derived from the term ‘Parley’ which means ‘to discuss, talk or to deliberate’. Jointly, the terms mean a house, where talks and deliberations are done to make, amend and repel laws in unison.
By enacting a law, the State expresses its volition as to what the premises for the Executive and the Judiciary are going to be. As said before, the Legislature is the primary organ of the government as further deeds can be done only if there’s a law.
India follows a bicameral parliament system at the union level and selectively bicameral legislature at the State level. The term Bicameral means ‘Two Housed, or containing two houses’ (Bi- two; cameral- house) in the Indian system. Bicameral legislature was adopted from the Government of India Act 1935, later given a constitutional status originally in Art. 74 and Art. 75 at the union level.
The Indian parliament is called Bhartiya Sansad composed of Lok Sabha (House of the people) and Rajya Sabha (Council of States) headed by the speaker Om Birla and the vice president of India, Venkaiah Naidu respectively. The bicameral legislative system is followed by not all but some when it comes to the state level. As of now, there are six states with a Vidhan Parishad (legislative council) namely, Andhra Pradesh, Bihar, Karnataka, Maharashtra, Telangana and Uttar Pradesh as per the provisions of Art. 163 and Art. 164.
The second function in the sequence of functioning is the execution of the laws made by the Legislative pillar. Executive is the body of government, vested with the powers to ensure rigid application of the laws, hence a major part of the separated power structure.
The Indian Executive is composed of the President; Prime Minister & Council of Ministers (for different domains of work) and the Attorney General of India at the union level, delegated a constitutional status as under:
President: Art 52-62
Prime Minister: Art 74,75
Council of Ministers: Art 78
Attorney General: Art. 76
The executive bodies at the state level are constituted by the Governor of the respective state; the Chief Minister & Council of Ministers; and the Advocate General of the state, given a recognition in the constitution as
Governor of the State: Art 153-161
Chief Minister and Council of Ministers: Art 164-167
Advocate General of the State: Art 165, 177
The Indian executive at the union level is headed by the President of India who is also the constitutional head, i.e. he ensures proper implementation of the constitution in its practical form. The President is also vested with some overlapping powers like judicial powers etc, which are discussed in depth later.
After making the laws and having a well-defined mechanism for their implementation, what duty state is left to get over with is to certify the application of the laws in specific cases. The principles of natural justice, fairness and common good (summum bonum).
The Indian Judiciary is rooted deep down to the district (session/ civil) courts from the apex (Supreme) court. A hierarchal separation of power ensures proper justice delivery at each level, depending upon the gravity of the individual case.
Deriving its current form from the Federal Court set up by the British, the Supreme Court of India was set up in 1950 (28th January) with a sanctioned strength of 7 (+1) judges, efficient enough for the need of the time. The Supreme Court today has a sanctioned strength of 33 (+1) judges with 30 judges working currently. Under the Supreme Courts work the High courts set up for justice delivery within their jurisdictions in their respective states. Being 25 in number, the High Courts have separate powers delegated to ensure efficient justice delivery within their jurisdiction.
The Supreme Court and the High Court are vested with the potency to give remedies for enforcement of the rights conferred to the citizens In Part3 of the Constitution of India under articles 32 and 226 respectively.
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WHY DOCTRINE OF SEPARATION IS NOT RIGIDLY FOLLOWED IN INDIA?
India is a functional democracy, which promises a government working for the people. In case the Doctrine of Separation is to be followed rigidly or, in simpler terms, ‘Case-Sensitively’, the domains of work, authority, responsibility would’ve been highly limited to their specific domains only and hence, the scope for synchronization and co-operation in the internal functionality of the State would’ve been ostensible.
In order to avoid Autocracy, or a single person rule/ one-point authoritarian government, it was a commonly held view that the doctrine of Separation will not be followed in its rigid, case sensitive form.
The rules governing the appointment, tenure, removal (or impeachment) of the President, the Prime Minister, Governor of a state, Chief Justice of India or any other judge and several cross-pillar functions of all the organs of the government like judicial review etc., are locus classicus of the kind of implementation of the afore mentioned doctrine in India.
Eventually, it turns out to be that the pertinent separation of power in India is an interconnected, web like structure where the power has been distributed within separate domains but with functional and practical interventions by other organs in order to ensure a smoothly running functional democracy, as India has continued to be one.
(Writer, The Legal State)
Separation of Power in India