Question:-Discuss the doctrine of Separation of Powers of India.

Answer:- Doctrine of Separation of powers in India. – In India, the doctrine cannot claim any historical background. The doctrine in its absolute rigidity is not inferable from the provisions of the Constitution. However, Article 50 provides for the separation of the judiciary from the executive. As a general practice, the executive has been entrusted with the legislative and judicial powers.

We have adopted Parliament form of Government based on the pattern of the British system. The President exercises all executive powers but under Article 74 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. But like the American President he is the Supreme Commander of the Armed Forces, Airforce  and the Navy; he can declare war himself, send armies abroad without consulting the Legislature. This has been contained in Article 53 of the Constitution but clause (2) of the said Article provides that the exercise of such powers shall be regulated by law. Furthermore, the Parliament can confer the power on any other authority.

Article 53 of the Constitution vests all executive powers in the President. The Constitution does not vest the powers with the Indian President in the same manner as the Constitution of the U.S. vests the powers in the President thereof. Our President is only nominal head of the States. India adopted a parliamentary system of the Government, it was practically not possible to adhere to the doctrine of separation of powers as interpreted by Montesquieu. Mukherjee, J. has observed in Re Delhi Laws Act, [1951 S.C.J. 527], the President has to act on the advice of his Ministers.

The Constitution has recognised the need for the separation of the Judiciary from the Executive, as a Directive to State Policy in Part IV. In certain States this step has been taken on experimental basis. Besides a series of checks and balances are patent in Constitution and they can be summarized thus;

1. The Indian Legislative bodies are not sovereign. Their rights of legislation are regulated;
2. The various Lists (I, II and III) of the Constitution;
3. The provision of Part III;
4. The possibility of judicial veto on legislation; and
5. The requirement that the President and the Council of Ministers have to act in accordance with the provisions of the Constitution.

Furthermore, under Article 256 of the Constitution the executive powers in any State are to be exercised in such a way as to ensure compliance with the Constitution. So far as the judiciary is concerned, the Constitution provides for the dismissal of a judge, on a motion in that behalf passéd under Article 174. So it will be noticed that these are checks and balances on various agencies of the State, which operate under the various provisions of the Constitution. Therefore, it can be said that the Indian Constitution believes in checks and balances and not on any rigid separation of powers. It was rightly laid down by Mukherji, J., in Ram Jawaya v. State of Punjab, [A.I.R. 1955 S.C. 549] that the Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity. Justice Das, in the case of Ram Krishna Dalmia v. Justice Tendolker, [1959 SCR 229], has said “The Constitution does not express the existence of the separation of powers and the doctrine does not form an essential basis or foundation stone of the constitutional framework as it does in the USA”. In Chandra Mohan v. State of U.P. [A.I.R. 1966 S.C. 1897], it was held that though our Constitution does not accept the strict doctrine of separation of powers but provides for an independent judiciary in the States. The controversy was finally settled by the Supreme Court in the leading case of Keshvanand Bharti v. State of Punjab, [A.I.R. 1973 S.C. 146], which changed its outlook and held that both the separation of powers and the supremacy of the Constitution are the part of the basic structure of the Indian Constitution Supreme Court further confirmed it in the leading case of Smt. Indira Nehru Gandhi v. Raj Narain [A.I.R. 1975 S.C. 2299], and said that the three separate organs of the Republic cannot take over the functions assigned to the other as it forms the basic structure or scheme of the Government of the Republic laid down in this Constitution.

In conclusion it may be said that in India the doctrine of separation of powers has not been accorded a constitutional status. Apart from the directive principles laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme  does not embody any formalistic and dogamitic division of powers.

Conclusion.- There is no separation of powers in the strict sense between Executive and Legislature. Parliamentary supremacy involves the ultimate control of the Executive. Practical necessity demands a large measure of delegation of the executive power to legislate by rules, regulations and orders. The independence of the judiciary has been strictly preserved, but many justiciable issues are referred not to the ordinary Courts but to administrative authorities. Sir Carlton Allen has pointed out that Montesquieu does not himself use the term separation, nor suggest that the powers of Government should not touch at any point but rather that they should be subject to mutual restrains and checks and balances have been recognised as fully developed in our eighteenth century Constitution since then.

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