IntroductionSeparationof powers is a widely accepted principle, but sparingly applied. The extent ofseparation differs between countries. The Indian Federation was formed mainlyby the division of a centralized unitary state.
It operates under aparliamentary-federal constitution which establishes both the union and thestates and makes provisions detailing their respective functions, powers, andinstitutions within the federal system. In Constitutions like these, whichprovide for a parliamentary form of government strict separation of theLegislature and the Executive is not possible as the Cabinet is comprised ofpersons who are Members of Parliament. This fusion is considered necessary forthe harmonious working of democracy. Walter Bagehot spoke of the Cabinet as;”(The Cabinet) is a combining committee—ahyphen which joins, a buckle which fastens, the legislative part of the Stateto the executive part of the State. In its origin it belongs to the one, in itsfunctions it belongs to the other.”1 Adefining role in developing Indian Federalism is played by the constitutionalcourts of India which are, the Supreme Court and the High Courts. Their powerof judicial review is based on protecting the fundamental rights of citizens,the limited separation of powers consistent with the union and stateparliamentary form of government and the federal division of powers in theConstitution.
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Developments and extra constitutional factors like the creationof new states, new regional parties and intergovernmental jurisdictionalconflicts are matters which require adjudication.However,the first aspect one notices when they begin studying the Indian Constitutionis that nowhere does it make an express declaration of the doctrine ofseparation of power. No particular article uses words which specifically affirmor formulate the doctrine. Forinstance, the articles that relate to the legislature do not expressly statethat the legislative power will exclusively belong to the Parliament. Thearticles in question being, Article 79 and 245. There is Article 246(1) whichstates;”Parliamenthas exclusive power to make laws with respect to any of the matters enumeratedin List I”Buthere the words ‘exclusive power’ are intended to demarcate the powers of Stateand Union Government. It isn’t intended to exclude the executive.
Similarly,Article 131 and the succeeding articles do not expressly exclude thelegislature or executive from exercising judicial power. They do not state thatthe Supreme Court is exclusively vested with the judicial power of the Union.Similar to Article 246(1), Article 131 contains the words “to theexclusion of any other court” which are intended to exclude other courts;they don’t embody any mandate of the Constitution-makers that no judicial powersor functions shall be conferred upon the executive or the legislature. Comingto the article relating to the executive power (Article 53), one does meet thewords “the executive power of the Union shall be vested in the Presidentand shall be exercised by him either directly or through officer’s subordinateto him in accordance with this Constitution”.
But even here, one does notfind words like “exclusively”. It appears, therefore, that theconstitution-makers did not consciously approve of the philosophy of separationof powers. However before separately analysing the role each power plays it isimportant to understand the concept of separation of power and Hayek’sprinciple of rule of law.Separationof PowerThedoctrine of separation of power is a model for state governance. Itcontemplates the idea that governmental functions are based on a ‘tripartitedivision’ of the judiciary, legislature and executive. A state government’sorgans are divided into separate entities with specific roles and powers, toensure that the powers of one entity are not in conflict with another.Aristotlefirst developed this doctrine after he perceived a specialization of functionin each Constitution.
John Locke, James Harrington and Montesquieu describedthese functions further as executive, judicial and legislative. These theorieswere forwarded by various political thinkers on the basic presumption that thefreedom of individuals should be protected from despotic and tyrannical rulers.This doctrine prevents all the power being vested within one person or group ofpeople.There are three fundamental concepts inthis doctrine;1. One organ of the governmentshall not exercise the powers and functions of another2. One organ of the governmentshall not interfere or control the work of another3. The same persons shall not be amember of more than one organ of the governmentRuleof LawAsreiterated above, the Constitution is silent on the doctrine of separation ofpowers. However the Constitution is clearly based on the fundamental principleof ‘Rule of Law’.
This principle is its own literal interpretation; Law mustdictate the rules of a society and therefore, must be followed. In its broadestsense it means that people must obey the law and must be ruled by it.2 However,in legal and political theory it must be read in a narrower sense, thegovernment should be ruled by the law and must be subject to it. Law shouldguide government and not men. However, government must be both by men and bythe law. Rule of law also dictates that all actions of the government must beauthorized by law.
But this is a tautological statement. A government’s actionswithout the authority of law are not capable of being actions of the governmentas a government. They would be unlawful and without legal effect. Thus rule oflaw here amounts to an empty tautology, not an ideal form of governance.Ruleof law is best understood in contrast to arbitrary justice. Law must have noself-serving purpose to legitimise or justify arbitrary whims and act on thepart of the ruler.
This doctrine essentially fulfils two purposes. Conformityto the rule makes it a good instrument for achieving certain goals of civilizedsociety. However, its name must not be invoked to disqualify the legal pursuitof important social goals. Rule of Law must be followed solely for the purposeof conformity in justice, justice being the aim. Federalismunder the Indian ConstitutionIndiais a quasi-federal state, unlike the United States. Formed in 1949, it is thelongest constitution comprising of over 395 articles then and eight schedulesall running just under 90,000 words.
It states that India shall be a Union ofStates. The Assembly refused to adhere to any theory or dogma about federalism.Rather, they might have been the first to embrace A.H.
Birch’s concept of ‘cooperativefederalism’. Cooperative federalism produces a strong central government which doesn’tnecessarily result in weak provincial governments. It is a practice ofadministrative cooperation, between general and regional governments withpartial dependence of the regional government on payments from the centre andthe centre promoting development in constitutionally assigned matters throughconditional grants. LegislatureThis organ is primarily concerned with theenactment of general rules of law to govern all aspects of the conduct ofcitizens and institutions. Its powers include the power to enact laws, imposetaxes and authorize state borrowing and budget, start investigations, declarewar, appoint the executive heads and judges, and ratify treaties. As the nation’spurse holder, absolute power in the legislature would pose an imminent threatto democracy.
However, unlike the executive, there is noprovision in the Constitution vesting legislative power in any particularorgan. The legislature however, does exercise certain functions under theconstitution which are essentially executive or judicial in nature;1. Judicial Functions1.1.
Article 61 provides for theimpeachment of the President1.2. Article 105 confers certainjudicial functions in connection with parliamentary privilege, which includescommittal for contempt1.3. Article 110 gives power to theSpeaker to certify Money Bills2.
Executive Functions2.1. Article 55 provides for votingby Parliament in the election of the President2.2. Article 66 and 67 provide forvoting and removal of the Vice President by election2.3.
Article 75 gives the Councilcontrol of the House of the People2.4. Article 124 and 217 grantspower to the Parliament to remove judges of the Supreme Court and High CourtExecutiveThis organ is primarily concerned with the executionof general rules of law. It has the power to veto laws, command the military,make decrees, and promulgate executive orders and lawful regulations, appointjudges, and has the power to grant pardons to convicted criminals. Theexecutive power of the union and state is expressly vested in the President ofIndia and the Governor of State respectively under Article 53 and 154 of theIndian Constitution. However, as mentioned above impeachment of the Presidentlies in the hands of the Legislature.
1. Legislative Functions1.1. Article 123 grants thePresident the right to promulgate ordinances1.2. Article 243 allows thePresident to make regulations for the peace and good governance of allterritories specified in Part D of the First Schedule and any other territoryof India1.3.
Article 111 allows thePresident to veto any Bill1.4. Article 352 grants thePresident the right to proclaim an emergency1.
5. Article 359 gives the Presidentthe right to suspend remedies for the enforcement of fundamental rights1.6.
Article 356 has provisions for President’srule in a state1.7. Articles 117 and 304 give thePresident the power to recommend money bills and give previous sanction1.8. Article 31 and 288 grants powerto the President to certify state laws and validate taxes for inter-state riverdevelopment authorities1.
9. Article 370 and 372 allow thePresident to make temporary provisions for Jammu and Kashmir2. Judicial Functions2.
1. Article 72 allows the Presidentto grant pardons and suspend, remit or commute sentences2.2. Article 103 allows thePresident to decide questions as to whether a member of either House ofParliament has become subject to any disqualification for membershipHowever, in its strictest sense, separationof powers has not been accepted in this scenario. The executive is constantlyquestioned by the legislature and judiciary, and subsequently is subservient tothe legislature. The President is mandated to give his assent to a LegislativeBill after the 42nd Amendment. The executive is responsible to thelegislature for its actions. The president does have certain legislative powersbut the executive as a whole has largely lost its independence in the Indiancontext.
JudiciaryThis organ of the state is primarilyconcerned with interpretation and execution of the laws laid down by thelegislature. It is a custodian of the rights of the people through its power ofjudicial review. However, this mandate also limits the power of the judiciaryto interpret the laws and not to make them.
Unlike the executive, there is no provisionin the Constitution vesting judicial power in any particular organ. There is norigid separation of power and the judiciary is Independent in its field and thelegislature cannot interfere with its judicial functions. The Constitutionsplaces restrictions on parliament with respect to discussion of the conduct ofjudicial officers. The Courts of record moreover have the power of judicialreview which allows the declaration of any law passed by the Parliament asunconstitutional.
Like the others, the judiciary does exercise certainlegislative and executive functions;1. Legislative Functions1.1. Article 145 grants judiciarythe power to make rules regulating its practise and procedure2. Executive Functions2.1.
Article 46 confers on thejudiciary the power to appoint officers and servants of the High Court1The English Constitution (Fontana/Collins, Thirteenth Impression,August 1977), page 62 Cf., on this sense of the phrase, Jennings, The Law and theConstitution (London, 1933), pp. 42–5