Mentors Comment:
- Introduce the concept of separation of power and separation of functions in India. How it is distinctive than other constitutions in the world. What is the constitutional backing of this doctrine.
- The main answer will be in two parts. First, discuss the salient features of the doctrine in Indian sense and what are its themes. You have to discuss that rather than strict classification of the doctrine, its more of a check and balance thing in India. How three organs are intermingled rather than watertight divisions between them.
- In the second part, you have to mention the working of the doctrine and how How each wing affects others. Quote various judgments that have changed the scope and meaning of separation of power like Kesavananda case and Indira Gandhi v Raj Narain case. Judicial activism is a major bone of contention for the other two organs.
- Conclude the answer by discussing why this doctrine is necessary and how it can be improved upon.
Answer:
In India, separation of functions is followed and not of powers and hence, the principle is not abided in its rigidity. In India, strict separation of powers is not followed as it is followed in the U.S. Apart from the directive principle laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers. But a system of checks and balance has been embedded so much so that the courts are competent to strike down the unconstitutional amendments made by the legislature.
Nature of Separation of Power in India:
- The doctrine of separation of powers is a part of the basic structure of the Indian Constitution even though it is not specifically mentioned in it. Hence, no law and amendment can be passed violating it.
- The logic behind the doctrine is of polarity rather than strict classification, meaning thereby that the center of authority must be dispersed to avoid absolutism.
- Hence the doctrine can be better appreciated as a doctrine of ‘check and balance’.
- The system of checks and balances is essential for the proper functioning of three organs of the government.
- Different organs of the state impose checks and balances on the other.
- Checks and balances act in such a way that no organ of the state becomes too powerful.
- The constitution of India makes sure that the discretionary power bestowed upon any organ of the state does not breach the principles of democracy. For instance, the legislature can impeach judges but as per the condition i.e. two-third majority.
Working of separation of power in India:
- If we study the constitutional provisions carefully, it is clear that the doctrine of separation of powers has not been accepted in India in its strict sense.
- In India, not only there is functional overlapping but there is personnel overlapping also.
- The Supreme Court has declared void the laws passed by the legislature on many occasions and the actions taken by the executive if they have violated any provision of the Constitution or the law passed by the legislature in case of executive actions.
- The executives have affected the functioning of the judiciary by making appointments to the office of Chief Justice and other judges in many instances.
- The executive resorting to pass ordinance’s, legislature passing NJAC law, keeping some laws under the 9th schedule earlier to keep it away from Judicial review have upset the balance among them.
- In Ram Jawaya v. Punjab (1955) case, the Supreme Court held up the observation that the executive is derived from the legislature and is dependent on it for its legitimacy.
- In Kesavananda Bharati case (1973), the Supreme Court held that the amending power of the Parliament is subject to the basic features of the constitution.
- In Indira Gandhi v. Raj Narain (1975) case, the Supreme Court held that adjudication of a dispute is a judicial function and parliament cannot even under constitutional amending power is competent to exercise this function.
- In Swaran Singh’s case (1998) the Supreme Court declared the Governor’s pardon of a convict unconstitutional.
As the doctrine of separation of powers is not codified in the constitution, there is a necessity that each pillar of the State to evolve a healthy trend that respects the powers and responsibilities of other organs of the government. A democracy can thrive only when all the organs cooperate together. It’s time to resolve the differences and move forward with a common goal to take India on great heights.
Comments
28 responses to “Comment on the nature of the separation of powers envisaged by the constitution of India. How successful has been the constitutional scheme in the Indian context? Discuss. (15 Marks)”
MOJO9b01O00A90834017
Hi Prantika Kale
Welcome to the Daily AWE program.
Your answer is overall good but it breaches the adhered word limit.
Introduction is appreciable and holistic.
The body part which mentions system is checks and balances should be shortened further.
The cases you mentioned are good enough but there is no need to mention judicial activism and overreach.
Conclusion is satisfactory.
MOJO9b12700D89833372
Hi Rushikesh K
Welcome to the Daily AWE program.
Introduction is to the point.
The body part makes mistakes like head of executive signs bill to provide assent before bill is presented in Parliament is wrong.
Mention of Articles like Article 50 could have enriched the answer further.
The point mentioning checks and balances is in line with question asked.
Conclusion is satisfactory.
please review…
payment id:MOJO9a29300A61774733
Hi Dipanshu Sharma
Welcome to the Daily AWE program.
Introduction is good and to the point.
The mention of checks and balances and US comparison is appreciable.
The cases mentioned are also in line with the question asked.
Conclusion is satisfactory.
MOJO9b10Y00D60723868
Hi Vishnu Bhimarjun,
Welcome to the Daily AWE program.
Good introductory approach and to the point.
The Separation of powers in the body part are holistic but limit the wordings per line.
You have also critically analysed well the doctrine.
Conclusion is satisfactory.
MOJO9b04X00D25275001
Hi Amit Ojha
Welcome to the Daily AWE program.
In introduction please see the definition of Separation of powers as its not division of institutions and every institution doesn’t have same work.
Flow chart is good but content can be improved further.
Examples given to illustrate SOP are good .
The SC cases mentioned make answer holistic.
Satisfactory conclusion.
MOJO9b11000A63126792
Hi Aakriti Kumari
Welcome to the Daily AWE program.
Introduction is aligned on the lines of question asked.
The mention of Articles specifying the SOP are appreciable.
The linkage of the three organs is also elaborated well along with the cases.
Satisfactory conclusion.
ID
MOJO9b01C00A90817216
Please review.
Hi Paran Pabbi
Welcome to the Daily AWE program.
Introduction is to the point and well written.
The body part is also presented well and has good content.
However try to adhere to the word limit.
The court cases mentioned are appreciable.
You can also shorten the performance of SOP.
Satisfactory conclusion.
MOJO9930Q00N64198657
Hi Swetha K
Welcome to the Daily AWE program.
Satisfactory introduction.
The body part has covered the concept holistically.
The success of SOP mentions more about its challenges more.
Conclusion focuses more on judiciary. Try to make it more broad based.
MOJO9a31K00N58111047
MOJO9a31K00N58111047
Hi Balakumaran Kand
Welcome to the Daily AWE program.
Introduction is to the point and satisfactory.
The features of SOP are covered well in the body part.
Paradox is reflected in the way you have mentioned the success of Separation of powers in heading and later mentioned them as drawbacks.
Conclusion has a foreseeing approach.
MOJO9b03K00A07920521
Hi Divya Murugesan
Welcome to the Daily AWE program.
Introduction is well defined.
The nature of Separation of powers and checks and balances are also mentioned well.
However, you need to further link it to the SC judgments and the challenges posed to SOP.
Satisfactory conclusion.
MOJO9a02U00D28381180
Hi Deepanshu Gulyani,
Welcome to the Daily AWE program.
Introduction should have been started by mentioning the definition of SOP.
Article 50 is only between executive and judiciary.
But various other Articles also mentions SOP like appointments, powers and responsibilities etc.
More cases related to SOP judgements can be covered.
Satisfactory conclusion.
is there Prelims Daily Compilation I can download ?
for that, contact hello@civilsdaily.com
Payment ID:MOJO9b01O00A90839766
Please review
*not checked*
The balance of the answer is little off.
Reason being, the second part of the answer has not been explored with the required depth.
The intro and the 1st part of the main body are well attempted.
The content is decent.
The structurization of the 1st part is fantastic.
It is good that you discussed all the organs separately linking each other.
But in the 2nd part, give more points as in how each wing affects others these days and briefly give the reasons for it.
Decent conclusion. Could ave given a proper way forward but with the question being wide, you have that benefit here.
The language overall is again decent.