Separation of Power’

"Power tends to corrupt, and absolute power corrupts absolutely" - Lord Acton

Prime Minister Modi’s visit to the Chief Justice’s residence has set off debate on the separation of powers (a cornerstone of the judiciary and a key feature of the basic structure of the Constitution) and post-retirement sinecures for judges. It has raised several questions, including the lack of up-keeping of the principle of separating the judiciary from the executive.

What is Separation of Powers?

• Separation of powers is a fundamental principle of democratic governance that involves distributing the functions of government among different branches:
  • Legislative: Parliament ( Lok Sabha and Rajya Sabha), State legislative bodies
  • Executive: President (central level), Governor (state level)
  • Judicial: Supreme Court, High Court and all other subordinate courts
• This distribution aims to prevent the concentration of power in any single branch and to ensure that each branch operates independently yet cooperatively.
• Application in the Indian Constitution: While the Indian Constitution does not explicitly use the term "separation of powers," it implicitly incorporates the concept by allocating distinct functions and powers to the Legislature, Executive, and Judiciary.
  • In the case of Ram Jawaya Kapur v. State of Punjab, SC held that the doctrine of separation of powers is not explicitly mentioned in the Constitution but each branch of government should not encroach on the functions of the others. Each organ must exercise its powers within the limits set by the Constitution.
• This structure helps maintain a balanced system of governance and prevents any single branch from becoming too powerful.

Legislative, Executive, and Judicial Roles

Legislative Branch:

• It is responsible for creating laws and overseeing their implementation. The Parliament (Lok Sabha and Rajya Sabha) enacts laws within its jurisdiction as defined by the Union List, the Concurrent List, and the State List.
• Oversight: The Legislature checks the Executive through mechanisms such as legislative oversight, budgetary control, and the power to impeach officials. The Parliament also has the authority to question and censure the Executive.

Executive Branch:

• The branch enforces and administers laws. The Executive includes the President, the Prime Minister, and the Council of Ministers. It is tasked with implementing policies and laws enacted by the Legislature.
• Checks on Legislature: The Executive can influence the Legislature through the President’s power to withhold assent to bills, thereby requiring further deliberation. Additionally, the Executive can issue ordinances in urgent situations, subject to parliamentary approval.

Judicial Branch:

• Judiciary interprets laws and ensures their conformity with the Constitution. The Judiciary, headed by the Supreme Court, reviews laws and governmental actions through judicial review.

Checks and Balances Mechanisms

• Checks and balances are fundamental mechanisms within a democratic system that prevent any single branch of government from gaining too much power.
• In India, these mechanisms are essential for maintaining a balanced governance structure where the Legislature, Executive and Judiciary operate independently yet interdependently.
• The Indian Constitution’s Doctrine of Checks and Balance was introduced by the Supreme Court in the 1993 decision of Kannadasan v. Tamil Nadu State.