Constitution of India Accepts No Strict Separation of Powers Rather Promotes Principle of ‘Checks and Balance’

Updated August 7, 2022

The Principle of ‘Checks and Balance is the essence of constitution. Very much inherent it stares the possible fallouts of the strict separation of powers . The principle of separation of powers refers to the model of governance in which Executive, Legislative and Judiciary are not concentrated in one branch of the government but instead divided into three different organs of the government. Constitutionally, it is the Trias Politica model of democratic governance.

The core of this model refers to the division of responsibilities of distinct branches of government by various controls and limits on the functions of one organ and not to exercise the functions of others. Dr. B.R. Ambedkar, one of the framers of the constitution, emphasized the need for separation of power but he also called for reasonable checks and balance to enhance the transparency and accountability in the day to day functioning.

Why & How of Principle of ‘Checks and Balance

Montesquieu, William Blackstone and other philosophers’ ideas had greatly influenced in the framework of the constitution.  Baron de Montesquieu, a political philosopher noted of despotism as the primary threat in any government.

In his famous work “The Spirit of the Laws,” he argued that the best way to prevent this was through a separation of powers, in which different bodies of government exercised legislative, executive and judicial powers, with all these bodies subject to the rule of law.

In addition to this separation of powers, the framers of the constitution brought a system of checks and balances to guard against the tyranny by ensuring that no one branch of the government is unreasonably powerful.

We all know that India is a land of diversity and its unity and integrity should not be compromised through despotism. So, to protect and promote the unity and diversity of our country, the framers had designed a governance system in which the constitution is supreme.

And, the Supremacy of the constitution is maintained through checks and balances. The constitutional supremacy through checks and balances ensures that neither of organs of governance viz. the legislature, Judiciary or Executive becomes authoritative.

Accordingly. there is no strict separation of powers followed in India as in the U.S. It is rather, a system of checks and balance within the constitution for the proper functioning of all three organs of the government. There are some articles in the Indian Constitution which emphasized the separation of powers.

Articles Laying Separation of Powers

Following articles of Indian constitution lay down a mechanism for Separation of Powers between the organ of governance.

Article 50 of Constitution

This article declares that the State shall take steps to separate the judiciary from the executive in the public services of the State. It is a directive principle of state policy. It gives direction to the state to keep judiciary independent of the executive, particularly in judicial appointments. The State here refers to the government as well as the legislature in terms of the definition of State under article 12.

Articles 121 and 211

Article 121 of the Indian constitution clarifies that no discussions shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided.

Article 211 of the Indian Constitution provides that no discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.

Articles 122 and 212

Article 122 and 212 of the Indian Constitution restrains the courts from questioning parliamentary proceedings on the ground of ‘procedural irregularity’ (procedural irregularity refers to the violation of procedures in rules made by each House under Article 118 or in any law made by the Houses under Article 119).

Article 361

This article provides that the President and the Governors will enjoy immunity from the court proceedings.

Glimpse of Principle of Checks and Balance Instead Strict Separation of Powers (SSoP)     

The following arrangements within the constitution showcases that, the constitution doesn’t permit SSoP but, checks and balance in place.

Legislative- Executive

(a) The executive is drawn from the legislature and it is accountable to the legislature, according to article 74

(b) The executive can issue an ordinance to promulgate laws when parliament is not in session (Art. 123)

Executive- Judiciary

(a) Article 50 calls for the separation of executive and judiciary functions.

(c) The extra-constitutional measures of the executive can be quashed by the judiciary as ultra vires.

(b) Appointment of judges is done by the executive and the collegium system.

Judiciary- Legislative

(a) Art. 122- No court can enquire into the functioning of any legislative body. Of course, the laws promulgated by the legislature can be declared ultra vires to the constitution and made void by the judicial interpretation.

(b) To ensure the Judiciary doesn’t become authoritative, the parliament is bestowed with the power to remove judges on the grounds of proved mis-behaviour or incompetence.

Concluding The Principle of Check and Balance

As such there is no specific article inside Constitution that speaks about the principle of checks and balance between organs of governance, but the outlook of the different provisions within are indicative of this outlook. Makers of Constitution and B.R. Ambedkar in particular was well aware of the authoritative consequence of govt bodies.

Thus, separation of powers though is one of the feature of Indian Constitution, it has been made more useful through checks and balance articulations under many of the articles too. Absolute Separation of Powers can potentially lead to tyranny and the absence of essential checks & balances would create chaos in governance.

Beyond Constitutional Checks & Balance Under General Studies

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