Doctrine of Separation of Power

    0
    1622

    In News

    The President and the Vice-President of India have weighed in on the surpassing significance of the separation of powers in the Indian Constitution

    About  Doctrine of separation of power

    • A  constitution, being the fundamental or basic law of the land, not just lists the functions of the government but also distributes these three core functions amongst the three organs of a government — the legislature (to enact laws), the executive (to enforce the laws and to manage day-to-day administration), and the judiciary (to adjudicate on disputes). 
      • This distribution is based on the doctrine of separation of powers proposed by the 18th Century French philosopher Montesquieu. 
    • The emphasis is on the mutual exclusiveness of the three organs of the government. 

    Aims and objectives 

    • The doctrine aim to prevent a concentration of power or misuse or abuse of power by an individual or a group and guards citizens against arbitrary and tyrannical powers of the State.
      • There is an equal emphasis on ensuring an effective balance of powers between the organs of the government. 

    Constitutional Provisions 

    • The provisions of the  Constitution that provide for the separation of functions and powers between the three organs of Government are:
      • Article 50 directs the State to take steps to separate the judiciary from the executive.
      • Articles 74 and 163 restrict the courts from inquiring into the advice tendered by the Council of Ministers to the President and the Governor.
      • Articles 122 and 212 restrict the courts from questioning the validity of proceedings in the Parliament and the Legislatures.
      • Articles 121 and 211 restrict the Parliament and the State Legislature from discussing the Judicial conduct of a judge of the Supreme Court and the High Courts unless the resolution of removal of the judge is under consideration.
      • Article 361 provides immunity to the President or the Governor from being answerable to any court for the exercise and performance of the powers and duties of his office.

    Checks and balances between the three organs are ensured through

    • The power of the Judiciary to exercise judicial review over legislative and executive actions.
    • The Judiciary is bound by the procedure established by law in adjudication on question of law.
    • Appointment of Judges by the Executive head and removal of judges on the basis of a resolution passed by the Parliament.
    • Parliamentary form of Government where the executive is responsible to the legislature.
    • Thus the  Constitution of India prevents the possibility of arbitrariness and tyranny by providing for functional separation of powers between the three organs of Government along with effective checks and balances between the three organs wherein one organ exercises control over the other.

    Challenges 

    • There is a criticism of the judiciary crossing its boundaries.
      • Supreme Court’s decision to strike down the 99th Constitutional Amendment setting up the National Judicial Appointment Commission (NJAC). 
        • Parliament had not focussed on this matter for the past seven years.
    • There are also concerns about the independence of the judiciary being in peril.

    Conclusion and Way Forward

    • The doctrine of separation of powers must be respected and It is an institutional seamless connection marked with mutual trust and respect that generates an ecosystem best suited for serving the nation.
    • Democracy blossoms when its three facets scrupulously adhere to their respective domains. 
    • The Supreme Court, being a custodian of the Fundamental Rights of the citizens, needs to be given complete independence. However, as suggested, there is need to refine the collegium system, making it more transparent and accountable.

    Mains Practice Question 

    [Q] The Executive and the Legislature need to work in conjunction with the Judiciary to ensure complete justice as envisaged under the Constitution. Comment