Doctrine of Separation of Powers
- 14 Jan 2023
- 9 min read
Why in News?
Recently, Vice-President of India has rekindled the debate over the doctrine of separation of powers by citing the Supreme Court's landmark 1973 Kesavananda Bharati case, which ruled that Parliament has the authority to amend the Constitution but not its basic structure.
What is the Doctrine of Separation of Powers?
- Separation of powers is the division of the legislative, executive, and judicial functions of government.
- Article 50 says that states shall take steps to separate the Judiciary from the Executive.
- The constitutional demarcation precludes the concentration of excessive power by any branch of the government.
- The Indian Constitution lays down the structure and defines and determines the role and functions of every organ of the State and establishes norms for their inter-relationships and checks and balances.
What are the Instruments of Checks & Balances?
- Legislature Control:
- On Judiciary: Impeachment and the removal of the judges. Power to amend laws declared ultra vires by the Court and revalidating it.
- On Executive: Through a no-confidence vote it can dissolve the Government. Power to assess works of the executive through the question hour and zero hour.
- Executive Control:
- Judicial Control:
- On Executive: Judicial review i.e., the power to review executive action to determine if it violates the Constitution.
- On Legislature: Unamendability of the constitution under the basic structure doctrine pronounced by the Supreme Court in Kesavananda Bharati Case 1973.
What are the Issues with the Separation of Powers?
- Weakened Opposition in India: Democracy works on the principle of checks and balances. It is these checks and balances that prevent democracy from turning into majoritarianism.
- In a Parliamentary system, these checks and balances are provided by the opposition party.
- However, the majority of a single party in the Lok Sabha has diminished the role of an effective opposition in the Parliament.
- Judiciary Being Averse to Checks & Balances: The Supreme Court has held the 99th constitutional amendment, which provided for the establishment of the National Judicial Appointments Commission as ultra-vires.
- The NJAC could guarantee the independence of the system from inappropriate politicization, strengthen the quality of appointments, enhance the fairness of the selection process, promote diversity in the composition of the judiciary, and rebuild public confidence in the system.
- Judicial Activism: In many recent judgments, the SC has become hyper-activist in making judgements that are deemed as laws and rules. This transgresses the domain of legislature and executive.
- Executive Excesses: Executive in India is alleged of over-centralisation of power, weakening of public institutions and passing laws to strengthen law, order & security of the state but curbs freedom of expression as well.
What is the Basic Structure of the Constitution?
- The Constitution of India is an organic or living document and needs to be amended with the changing time and needs of the society.
- The framers of the Indian Constitution recognized that no generation possesses a monopoly on wisdom and cannot dictate what government should look like to future generations.
- However, such power of amendment must be used judiciously.