QUES . Do you think that the constitution of India does not accept the principle of strict separation of powers rather it is based on the principle of ‘checks and balance’? Explain. UPSC 2019 GS MAINS PAPER II

HINTS:

The principle of separation of powers is a fundamental principle in a democratic government, which entails dividing the powers of the state into three separate branches: the legislative, executive, and judicial. Checks and balances are designed to maintain the system of separation of powers, keeping each branch in its place.

Examples of principle of separation of powers in Indian Constitution

֍ Article 50: The State shall take steps to separate the judiciary from the executive in the public services of the State.

֍ Article 121 and Article 211 of the Constitution provide provisions for the separation of legislature from the judiciary. It states that legislature cannot discuss the conduct of judges of the Supreme Court and high courts.

֍ Article 122 and Article 212 of the Constitution say that the courts can not inquire about the proceedings of the legislature.

֍ Article 361(4) of the Constitution separates the judiciary from the executive. It states that no court may hold the President or any governor of any state responsible for actions or misconduct committed while carrying out or exercising their official duties.

However, in India, the doctrine of separation of powers is not applied strictly.

Why Constitution of India does not accept the principle of strict separation of powers?

Constitution didn’t adopt for strict separation of power because:

֍ Strict separation of power can create constitutional logjam in a new democracy. It should be developed through convention.

֍ Empowerment of citizens require harmonious relations between different organs.

֍ Parliamentary democracy by its nature doesn’t require strict separation of powers. All organ play critical part in development and good governance.

Examples of principle of ‘checks and balance’ in Indian constitution

Control of Legislature on Executive

֍ Article 61: Provision for the Impeachment of the President by the Parliament.

֍ Article 75: Calls for a responsible government where the council of ministers shall be collectively responsible to the House of people.

֍ Through the use of legislative devices: like Question Hour , No-confidence Motion, Vote of Thanks on the President’s address, Approval of Budget, etc.

֍ Parliamentary committees: They study and deliberate on a range of subject matters, bills, and budgets of all the ministries and ensure checks to the Executive.

Control of Executive on Legislature

֍ Article 85: The President can summon, prorogue both Houses of Parliament and dissolve the House of People from time to time.

֍ Article 86: The President may send messages to either House of Parliament with respect to a Bill then pending in Parliament or otherwise.

֍ Article 103: President finally decides on the disqualification of the members of Parliament based on the opinion of the Election Commission.

֍ Article 108: The President can summon a joint sitting for both houses of the Parliament.

֍ Article 111: Veto Power of the President of India where he/she can exercise an absolute veto, suspensive veto or pocket veto with regard to legislative bills.

֍ Article 118: President makes rules for the procedure with respect to the joint sitting of the Parliament after consultation with the Chairman and the Speaker.

֍ Article 123: The President may promulgate ordinances when the Parliament is not in session.
Delegated legislation: Where the executive makes rules and passes orders to give effect to the laws.

Control of Legislature on Judiciary

֍ Article 124: Judges of Higher Judiciary can be removed by order of the President only after the address by each house of the Parliament.

֍ Article 124: Parliament prescribes the total strength of the Supreme Court.

֍ Article 138: The Supreme Court shall have such jurisdiction and further powers with respect to any of the matters in the union list as the Parliament may by law confer.

֍ Article 140: The Parliament has the power to confer upon the Supreme Court such supplemental powers as necessary.

֍ The legislature has the power to amend laws declared ultra vires by the Court and revalidate them.

Control of Judiciary on Legislature

֍ Article 13: Power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void if it finds them to conflict with the Part III of the Constitution.

֍ Doctrine of Basic Structure: In Kesavananda Bharati (1973), the Supreme Court held that Parliament can amend the Constitution only to the extent that it does not alter its “basic structure”.

֍ Article 142: The Supreme Court in the exercise of its jurisdiction, may pass such decree or order as is necessary for doing complete justice.

֍ Article 32 and Article 226: The Higher judiciary can issue writs, orders or directions.

Control of Executive on Judiciary

֍ Article 124 and Article 217: The President appoints all the judges of the higher judiciary.

֍ Article 124: Also, a Judge of the Supreme Court shall be removed by an order of the President passed after an address by each House of Parliament.

֍ Article 145: The Supreme Court can make rules for regulating the procedure of the court with the approval of the President.

֍ Article 72: The Constitution provides the President with clemency powers as a check against judicial errors.

Control of Judiciary on Executive

֍ Article 13: Power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void if it finds them to conflict with the Part III of the Constitution of India.

֍ Article 32 and Article 226: The Higher judiciary can issue writs, orders or directions against the executive action.

֍ Article 142: The Supreme Court, in the exercise of its jurisdiction, may pass such decree or order as is necessary for doing complete justice.

Factors which undermine the principle of checks and balances

The system of checks and balances is designed to prevent any one branch of government from becoming too powerful and abusing its authority. However, there are several limitations to this system:

֍ Lack of clear demarcation and separation of powers between the different branches of government, leading to overlaps and conflicts.

֍ Concentration of power in the Executive branch, particularly the Prime Minister’s Office, which can lead to a lack of accountability.

֍ The Judiciary has been criticised for judicial overreach, which implies excessive interference of the judiciary with the legislature and the executive.

֍ One party dominance in the house of people, instances of bypassing parliamentary accountability mechanisms such as standing committees, is eroding the checks of the Legislative over the Executive.

The constitution makers didn’t adopt for the strict separation of power but built Indian democracy based
on checks and balances. Check and balance allow supremacy of the constitution, check on the despotic tendency of other powers , ensuring accountability of other organ and regular interaction between all three organs.