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DAILY
CLASS NOTES
Indian Polity

Lecture - 04
Separation of Powers in India l
Making of Indian Constitution
and Its Salient Features
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Separation of Powers in India l Making of Indian Constitution and Its Salient

Features
Indian Legislature:
❖ Indian legislature consists of Members of Parliament
(MPs), which can be the member of both the Houses i.e,
Lok Sabha and Rajya Sabha.
❖ The basic law-making, amend them or repealing them,
power in India is vested in Parliament.
➢ Lok Sabha is the Lower House or House of People
which is directly elected by the people.
➢ Rajya Sabha is the Upper House or House of
Elders which is indirectly elected by the people.
❖ The function of the legislature is to make laws (Legislation).

Executive:
❖ The head of the Executive is the President.
❖ Council of Ministers: The Executive performs the task of implementing the laws made by the Parliament.
➢ It consists of various ministers in the government.
➢ The Council of Ministers is assisted by the Bureaucrats.
➢ The Prime Minister is the head of the Council of Ministers. He is the principal channel of communication
between the President and the Council of Ministers.

Judiciary:
❖ Judiciary has the important role of checking the laws.
❖ It checks the implementation of laws.
❖ It keeps a check or adjudicates on the other two branches of government i.e. Executive and Legislature.

Constitutional Provisions Ensuring Separation of Power in India:

❖ Separation of Powers is nowhere mentioned in the Constitution.
❖ Article 50: The State shall take steps to separate the judiciary from the executive.
➢ During the British era, the Executive (District Magistrate) had judicial functions also.
❖ Article 121 and 211: Judicial conduct of judges of the Supreme Court and the High Courts cannot be discussed
in the Parliament and the State Legislature.
❖ Article 122 and 212: Validity of proceedings in Parliament and the Legislatures cannot be called into question
in any Court.
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❖ Union Executive (Article 52 to 78): The executive power of the Union shall be vested in the President and
shall be exercised by him either directly or through officers subordinate (Prime Minister and Council of
ministers) to him in accordance with this Constitution.
❖ Article 361: The President or the Governor shall not be answerable to any court for the exercise and
performance of the powers and duties of his office.
❖ Independent Judiciary.

Do We Completely Follow the Doctrine of Separation of Powers?

❖ No, India follows the doctrine of Checks and Balances.
❖ If we study the Constitution schemes carefully, it can be noticed that there is functional overlapping in the
three branches, i.e, Legislature, Executive and Judiciary.
❖ In India, not only there is functional overlapping but there is personnel overlapping also.

What are Checks and Balances?

❖ The Constitution makers had feared that without any checks and balances, the power can be misused by various
branches of the government.
❖ During British rule, India had a bad experience of misuse of powers without any checks and balances.
❖ The idea of checks and balances ensures that all three branches of the government are fulfilling their duties.
❖ In case any of the branches does not function properly, then the other branches will check it and balance the
situation.
❖ This idea is ahead of the separation of power.
❖ India follows the idea of personnel and functional overlapping during the checks and balances
mechanism.

What is Functional Overlapping?

❖ It means that if the legislature fails to make any laws, courts can pronounce it.
➢ Example: Delhi High Court pronounced the law of the use of CNG in public transport vehicles to
protect the environment which is a duty to the government.
❖ The President or Governor can also bring ordinances (temporary laws) when the legislature is not in session.
❖ In the USA, the judiciary cannot interfere in the work of the legislature.

Overlapping Functions of Different Branches of the Government:

Legislature Control:
❖ On Judiciary: (if judges misuse the power)
➢ Removal of the judges by the legislature.
➢ The Parliament, by law, can negate the judgment of courts if it is inconsistent with the Constitution.
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❖ On Executive:
➢ Through a no-confidence motion, the executive can dissolve the Government.
➢ Personnel (staff) overlapping: The Council of Ministers is drawn from the legislature.
✓ All ministers are members of the Parliament (Lok Sabha or Rajya Sabha).
✓ Only the Indian Constitution has personnel overlapping among the mature democracies in the
world.
✓ Whereas in the USA, Executives are not a part of the Legislature.
➢ The Executive has the power to assess the work of the executive through the Question hour and Zero
Hour.
➢ Impeachment of the President.

Executive Control:
❖ On Judiciary:
➢ Making appointments to the office of Chief Justice and other judges.
➢ Pardoning powers of the President and Governor. (Article 72 and Article 161)
❖ On Legislature:
➢ Powers under delegated legislation.
➢ Ordinance Promulgation: When the Parliament is not in session, the President can bring ordinances to
make laws.
➢ The Executive has the authority to make rules for regulating their respective procedure and conduct of
business, subject to the provisions of this Constitution.

Judicial Control:
❖ On Executive:
➢ Executes Justice (Article 142): The courts can direct the Executive or Legislature to do complete justice.
➢ Judicial review i.e. the power to review executive action to determine if it violates the Constitution.
❖ On Legislature:
➢ The Judiciary can make laws.
➢ There is also the judicial review of Parliamentary laws.
➢ Amendability of the Constitution is under the basic structure doctrine pronounced by the Supreme
Court in Kesavananda Bharati Case 1973.

Cases Related to Separation of Power:

1. Ram Jawaya Case (1955):
❖ Court held that the doctrine of separation of power is not fully accepted in India.
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2. Kesavananda Bharati Case (1973):

❖ Court held that separation of power is part of the basic structure of the constitution.
3. Indira Gandhi vs Raj Narain case (1975):
❖ In our Constitution, the doctrine of separation of power has been accepted in a broader sense.

Situation of Different Constitutions:

American Constitution British Constitution

Strict separation of Power No separation of power or loose separation of power.

Laws made by the President can be vetoed In Britain, the Parliament is supreme.
(stopped) by the Parliament.

No personnel overlapping. ❖ The vice chancellor of the House of Lords is also a

member of the Judiciary.
❖ The Crown (Queen) is part of the law-making process.

Britain's Parliament:
❖ The Crown is the Constitutional Monarch (Head of the State).
❖ The Parliament consists of the House of Lords (Aristocrats) and the House of Commons.
➢ The House of Commons is similar to Lok Sabha (Elected Members).
➢ The membership of the House of Lords is hereditary.
➢ Aristocrats are rich or wealthy people in the country.

Issues with Functional Overlapping:

❖ Unaccountability: One of the demerits of overlapping powers is that a particular organ cannot be held
accountable for its decisions.
➢ Example: Judicial verdicts in 2G and the Coal Block allocation case.
❖ Erosion of faith: It occurs when there is a delay in development work or for some actions.
➢ Repeated interventions of one organ or government into another’s functioning result in loss of faith of
people.
❖ Accumulation of powers: It undermines the spirit of democracy as too much accumulation of power in organs
of government undermines the principle of checks and balances.
➢ In this scenario, too much power is given to all branches which in turn creates too much confusion.
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➢ Example: Collegium dispute between Parliament and Judiciary.

Utility / Benefits of Functional Overlapping:

❖ Ensures Checks and Balances: Organs of government are empowered to prevent arbitrary actions by the
other two organs: Example: Power of Judicial review by the Supreme Court.
❖ Rule of Law: Power sharing laws among the executive, legislative, and judiciary enhances accountability and
equality in governance.
❖ Checks Arbitrariness of Organs: Constitutional demarcation of overriding powers decreases the scope of
conflict among the government organs.
➢ Arbitrariness is where the right order of the government is not followed.
❖ Promoting Cooperation between Various Organs: Overlapping function induces power sharing and power
decentralization.
➢ For a democratic polity and diverse society like India, a constitutional system with a strict separation of
powers is undesirable and impractical.
➢ However, judicious and calculated constitutional functional overlapping makes way for democratic
collaboration of the three organs of the government.
❖ Ensures effective government

Do you think that checks and balances in the Indian system are weakening these days?
❖ Yes

Arguments in Favor of Weakening of Checks and Balances:

❖ Weakened Opposition in India: Failure of opposition in the Parliament can hinder accountability.
➢ Opposition is very important in a democratic setup.
➢ Due to weak opposition, there is no check on the working of the government.
❖ Weakened Legislature Scrutiny: Lack of effective opposition also weakens the legislative functions- no
role of Department Related Committees (DRCs) in the Parliament. Example: Farm laws etc.
➢ Democracy is all about deliberation which helps in forming effective laws and DRCs are medium of
detailed discussion in the legislation process.
➢ In the past five years, the least number of DRCs have been formed in India.
❖ Judicial Overreach: Where the judiciary unnecessarily steps into the domains of the legislature. Example:
The firecracker ban by the judiciary during Diwali, Prohibition of Liquor shops on highways, etc.
❖ Executive centralization of various units of government by the central government. Example appointment of
the chairman of various bodies like RTI, UAPA, NIA, etc.
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Conclusion:
❖ For a democratic polity and diverse society like India, a Constitutional system with a strict separation of powers
is undesirable and impracticable.
However, judicious and calculated Constitutional functional overlapping makes way for democratic collaboration
of the three organs of the government.

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