DOCTRINE OF SEPERATION OF POWERS

Indian state represents a recent approach in constitutionalising of separation of powers. Essentially, there’s no strict separation of powers beneath constitution, each in theory and practice. In India, there are 3 distinct activities within the Government through that the need of the individuals are expressed. The legislative organ of the state makes laws, the manager forces them and also the judiciary applies them to the precise cases arising out of the breach of law. Every organ whereas acting its activities tends to interfere in the sphere of operating of another trained worker as a result of a strict demarcation of functions isn’t doable in their dealings with the overall public. Thus, even once acting in range of their own power, overlapping functions tend to seem amongst these organs. The question that is very important here is that what ought to be the relation among these 3 organs of the state, i.e. whether or not there should be complete separation of powers or there should be coordination among them.

Constitutional Position

Separation of Powers

The Constitution of India embraces the concept of separation of powers in an tacit manner. Despite there being no specific provision recognizing the ism of separation of powers in its absolute form, the Constitution will build the provisions for an inexpensive separation of functions associated powers between the 3 organs of Government. By wanting into the assorted provisions of the Constitution, it’s evident that the Constitution intends that the powers of legislation shall be exercised completely by the legislature. Similarly, the judicial powers will be same to vest with the judiciary. The judiciary is freelance in its field and there can be no interference with its judicial functions either by the manager or by the Legislature. Also, the executive powers of the Union and also the State are unconditional within the President and the Governor respectively.

The Constitution o India lays down a useful separation of the organs of the State in the following manner:

Article 50: State shall take steps to separate the judiciary from the executive. this is often for the aim of guaranteeing the independence of judiciary.

Article 122 and 212: validity of proceedings in Parliament and the Legislatures cannot be referred to as into question in any Court. This ensures the separation and immunity of the legislatures from judicial intervention on the allegation of procedural irregularity. Judicial conduct of a choose of the Supreme Court and also the High Courts’ can not be mentioned within the Parliament and the State Legislature, in line with

Article 121 and 211 of the Constitution. Articles fifty three and 154 respectively, give that the manager power of the Union and the State shall be unconditional with the President and the Governor and that they relish immunity from civil and criminal liability.

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 workplace. useful overlap The legislative assembly besides exertion law-making powers exercises judicial powers in cases of breach of its privilege, legal document of the President and also the removal of the judges. the manager could additional have an effect on the functioning of the judiciary by creating appointments to the office of magistrate and different judges. legislative assembly exertion judicial powers within the case of amending a law declared ultra vires by the Court and revalidating it. whereas discharging the operate of disabling its members and legal document of the judges, the legislature discharges the functions of the judiciary. legislative assembly will impose social control for prodigious freedom of speech in the Parliament; this comes beneath the powers and privileges of the parliament. however while exercising such power it’s forever necessary that it ought to be in conformity with due process. The heads of every governmental ministry could be a member of the legislative assembly, therefore creating the manager associate integral a part of the legislature. The council of ministers on whose recommendation the President and also the Governor acts are elective members of the legislature. Legislative power that’s being unconditional with the legislature in bound circumstances will be exercised by the executive. If the President or the Governor, once the legislature or isn’t in session and is glad that circumstances exist that necessitate immediate action could promulgate ordinance that has a similar force of the Act created by the Parliament or the State legislature.

The Constitution permits, through Article 118 and Article 208, the legislative assembly at the Centre and within the States severally, the authority to create rules for regulation their respective procedure and conduct of business subject to the provisions of this Constitution. the manager conjointly exercises law creating power beneath delegated legislation. The tribunals and different quasi-judicial bodies that are a vicinity of the executive also discharge judicial functions. body tribunals which are a part of the executive also discharge judicial functions. Higher body tribunals should have a member of the judiciary.

The upper judiciary is bestowed with the facility of management the functioning of subordinate courts. It conjointly acts as a legislative assembly whereas creating laws regulation its conduct and rules concerning disposal of cases. Besides the useful overlapping, the Indian system also lacks the separation of personnel amongst the 3 departments. Applying the doctrines of constitutional limitation and trust within the Indian scenario, a system is formed wherever none of the organs will usurp the functions or powers that are appointed to a different organ by specific or necessary provision, neither will they divest themselves of essential functions which belong to them as beneath the Constitution.

Further, the Constitution of Asian nation expressly provides for a system of checks and balances so as to forestall the arbitrary or capricious use of power derived from the same supreme document. tho’ such a system seems dilatory of the ism of separation of powers, it’s essential in order to change the simply and evenhanded functioning of such a constitutional system. By giving such powers, a mechanism for the management over the exercise of constitutional powers by the several organs is established. This clearly indicates that the Indian Constitution in its set up doesn’t give for a strict separation of powers. Instead, it creates a system consisting of the 3 organs of state and confers upon them each exclusive and overlapping powers and functions.

Thus, there’s no absolute separation of functions between the three organs of Government.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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