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Introduction

Separation
of powers is a widely accepted principle, but sparingly applied. The extent of
separation differs between countries. The Indian Federation was formed mainly
by the division of a centralized unitary state. It operates under a
parliamentary-federal constitution which establishes both the union and the
states and makes provisions detailing their respective functions, powers, and
institutions within the federal system. In Constitutions like these, which
provide for a parliamentary form of government strict separation of the
Legislature and the Executive is not possible as the Cabinet is comprised of
persons who are Members of Parliament. This fusion is considered necessary for
the harmonious working of democracy. Walter Bagehot spoke of the Cabinet as;

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“(The Cabinet) is a combining committee—a
hyphen which joins, a buckle which fastens, the legislative part of the State
to the executive part of the State. In its origin it belongs to the one, in its
functions it belongs to the other.”1

A
defining role in developing Indian Federalism is played by the constitutional
courts of India which are, the Supreme Court and the High Courts. Their power
of judicial review is based on protecting the fundamental rights of citizens,
the limited separation of powers consistent with the union and state
parliamentary form of government and the federal division of powers in the
Constitution. Developments and extra constitutional factors like the creation
of new states, new regional parties and intergovernmental jurisdictional
conflicts are matters which require adjudication.

However,
the first aspect one notices when they begin studying the Indian Constitution
is that nowhere does it make an express declaration of the doctrine of
separation of power. No particular article uses words which specifically affirm
or formulate the doctrine.

For
instance, the articles that relate to the legislature do not expressly state
that the legislative power will exclusively belong to the Parliament. The
articles in question being, Article 79 and 245. There is Article 246(1) which
states;

“Parliament
has exclusive power to make laws with respect to any of the matters enumerated
in List I”

But
here the words ‘exclusive power’ are intended to demarcate the powers of State
and Union Government. It isn’t intended to exclude the executive.

Similarly,
Article 131 and the succeeding articles do not expressly exclude the
legislature or executive from exercising judicial power. They do not state that
the Supreme Court is exclusively vested with the judicial power of the Union.
Similar to Article 246(1), Article 131 contains the words “to the
exclusion of any other court” which are intended to exclude other courts;
they don’t embody any mandate of the Constitution-makers that no judicial powers
or functions shall be conferred upon the executive or the legislature.

Coming
to the article relating to the executive power (Article 53), one does meet the
words “the executive power of the Union shall be vested in the President
and shall be exercised by him either directly or through officer’s subordinate
to him in accordance with this Constitution”. But even here, one does not
find words like “exclusively”. It appears, therefore, that the
constitution-makers did not consciously approve of the philosophy of separation
of powers. However before separately analysing the role each power plays it is
important to understand the concept of separation of power and Hayek’s
principle of rule of law.

Separation
of Power

The
doctrine of separation of power is a model for state governance. It
contemplates the idea that governmental functions are based on a ‘tripartite
division’ of the judiciary, legislature and executive. A state government’s
organs are divided into separate entities with specific roles and powers, to
ensure that the powers of one entity are not in conflict with another.

Aristotle
first developed this doctrine after he perceived a specialization of function
in each Constitution. John Locke, James Harrington and Montesquieu described
these functions further as executive, judicial and legislative. These theories
were forwarded by various political thinkers on the basic presumption that the
freedom of individuals should be protected from despotic and tyrannical rulers.
This doctrine prevents all the power being vested within one person or group of
people.

There are three fundamental concepts in
this doctrine;

1.     
One organ of the government
shall not exercise the powers and functions of another

2.     
One organ of the government
shall not interfere or control the work of another

3.     
The same persons shall not be a
member of more than one organ of the government

Rule
of Law

As
reiterated above, the Constitution is silent on the doctrine of separation of
powers. However the Constitution is clearly based on the fundamental principle
of ‘Rule of Law’. This principle is its own literal interpretation; Law must
dictate the rules of a society and therefore, must be followed. In its broadest
sense 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, the
government should be ruled by the law and must be subject to it. Law should
guide government and not men. However, government must be both by men and by
the law. Rule of law also dictates that all actions of the government must be
authorized by law. But this is a tautological statement. A government’s actions
without the authority of law are not capable of being actions of the government
as a government. They would be unlawful and without legal effect. Thus rule of
law here amounts to an empty tautology, not an ideal form of governance.

Rule
of law is best understood in contrast to arbitrary justice. Law must have no
self-serving purpose to legitimise or justify arbitrary whims and act on the
part of the ruler. This doctrine essentially fulfils two purposes. Conformity
to the rule makes it a good instrument for achieving certain goals of civilized
society. However, its name must not be invoked to disqualify the legal pursuit
of important social goals. Rule of Law must be followed solely for the purpose
of conformity in justice, justice being the aim.

Federalism
under the Indian Constitution

India
is a quasi-federal state, unlike the United States. Formed in 1949, it is the
longest constitution comprising of over 395 articles then and eight schedules
all running just under 90,000 words. It states that India shall be a Union of
States. 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 ‘cooperative
federalism’. Cooperative federalism produces a strong central government which doesn’t
necessarily result in weak provincial governments. It is a practice of
administrative cooperation, between general and regional governments with
partial dependence of the regional government on payments from the centre and
the centre promoting development in constitutionally assigned matters through
conditional grants.                                                                                                                    
                                   

Legislature

This organ is primarily concerned with the
enactment of general rules of law to govern all aspects of the conduct of
citizens and institutions. Its powers include the power to enact laws, impose
taxes and authorize state borrowing and budget, start investigations, declare
war, appoint the executive heads and judges, and ratify treaties. As the nation’s
purse holder, absolute power in the legislature would pose an imminent threat
to democracy.  

However, unlike the executive, there is no
provision in the Constitution vesting legislative power in any particular
organ. The legislature however, does exercise certain functions under the
constitution which are essentially executive or judicial in nature;

1.     
Judicial Functions

1.1.  
Article 61 provides for the
impeachment of the President

1.2.  
Article 105 confers certain
judicial functions in connection with parliamentary privilege, which includes
committal for contempt

1.3.  
Article 110 gives power to the
Speaker to certify Money Bills

2.     
Executive Functions

2.1.  
Article 55 provides for voting
by Parliament in the election of the President

2.2.  
Article 66 and 67 provide for
voting and removal of the Vice President by election

2.3.  
Article 75 gives the Council
control of the House of the People

2.4.  
Article 124 and 217 grants
power to the Parliament to remove judges of the Supreme Court and High Court

Executive

This organ is primarily concerned with the execution
of general rules of law. It has the power to veto laws, command the military,
make decrees, and promulgate executive orders and lawful regulations, appoint
judges, and has the power to grant pardons to convicted criminals.  

The
executive power of the union and state is expressly vested in the President of
India and the Governor of State respectively under Article 53 and 154 of the
Indian Constitution. However, as mentioned above impeachment of the President
lies in the hands of the Legislature.

1.     
Legislative Functions

1.1.  
Article 123 grants the
President the right to promulgate ordinances

1.2.  
Article 243 allows the
President to make regulations for the peace and good governance of all
territories specified in Part D of the First Schedule and any other territory
of India

1.3.  
Article 111 allows the
President to veto any Bill

1.4.  
Article 352 grants the
President the right to proclaim an emergency

1.5.  
Article 359 gives the President
the right to suspend remedies for the enforcement of fundamental rights

1.6.  
 Article 356 has provisions for President’s
rule in a state

1.7.  
Articles 117 and 304 give the
President the power to recommend money bills and give previous sanction

1.8.  
Article 31 and 288 grants power
to the President to certify state laws and validate taxes for inter-state river
development authorities

1.9.  
Article 370 and 372 allow the
President to make temporary provisions for Jammu and Kashmir

2.     
Judicial Functions

2.1.  
Article 72 allows the President
to grant pardons and suspend, remit or commute sentences

2.2.  
Article 103 allows the
President to decide questions as to whether a member of either House of
Parliament has become subject to any disqualification for membership

However, in its strictest sense, separation
of powers has not been accepted in this scenario. The executive is constantly
questioned by the legislature and judiciary, and subsequently is subservient to
the legislature. The President is mandated to give his assent to a Legislative
Bill after the 42nd Amendment. The executive is responsible to the
legislature for its actions. The president does have certain legislative powers
but the executive as a whole has largely lost its independence in the Indian
context.

Judiciary

This organ of the state is primarily
concerned with interpretation and execution of the laws laid down by the
legislature. It is a custodian of the rights of the people through its power of
judicial review. However, this mandate also limits the power of the judiciary
to interpret the laws and not to make them.

Unlike the executive, there is no provision
in the Constitution vesting judicial power in any particular organ. There is no
rigid separation of power and the judiciary is Independent in its field and the
legislature cannot interfere with its judicial functions. The Constitutions
places restrictions on parliament with respect to discussion of the conduct of
judicial officers. The Courts of record moreover have the power of judicial
review which allows the declaration of any law passed by the Parliament as
unconstitutional. Like the others, the judiciary does exercise certain
legislative and executive functions;

1.     
Legislative Functions

1.1.  
Article 145 grants judiciary
the power to make rules regulating its practise and procedure

2.     
Executive Functions

2.1.  
Article 46 confers on the
judiciary the power to appoint officers and servants of the High Court

1The English Constitution (Fontana/Collins, Thirteenth Impression,
August 1977), page 6

2 Cf., on this sense of the phrase, Jennings, The Law and the
Constitution (London, 1933), pp. 42–5

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