Simone Lawson
The Indian Constitution does not strictly follow the doctrine of separation of powers, but it does differentiate the functions of the different branches of government. The doctrine of separation of powers, commonly ascribed to the French Enlightenment political philosopher Montesquieu, divides government into legislative, executive, and judicial branches, ensuring checks and balances to prevent the abuse of authority and a concentration of power by a single branch. In India, while the judiciary, executive, and parliament are specified as separate functions, they are not separate powers. The Indian Constitution instead embeds a system of checks and balances, with the courts holding the power to strike down unconstitutional amendments made by the legislature.
| Characteristics | Values |
|---|---|
| Separation of powers | Followed in principle but not in rigidity |
| No one branch is superior to the other | |
| All three branches need to work in harmony | |
| Checks and balances | Embedded in the constitution |
| The judiciary can strike down unconstitutional amendments made by the legislature | |
| The judiciary can invalidate clauses inserted to immunize the executive from judicial review | |
| The judiciary can declare the Governor's pardon of a convict unconstitutional | |
| Separation of functions | Followed |
| Separation of Organs | Executive, Parliament, and Judiciary |
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What You'll Learn
The Indian Constitution and the US Constitution
The US Constitution has a presidential system, with the President being the Head of State and Government. The President is elected directly by the people and holds office for a fixed term of four years, with a limit of two terms. In contrast, the Indian President is elected indirectly and can hold office for five years with no limit on the number of terms. The Indian President also has less power than the US President and works with the Prime Minister and Council of Ministers to govern the country.
The process of amending the two constitutions also differs significantly. The US Constitution requires a complex process for amendments and has only been amended a few times, making it very stable but inflexible. On the other hand, the Indian Constitution has been amended over 100 times, making it more flexible but potentially politically unstable. The Indian Constitution can be amended by a simple majority in both houses of Parliament, while the US Constitution requires a two-thirds majority in both houses of Congress and ratification by three-quarters of the states.
The two constitutions also differ in their approach to rights. The US Constitution has incorporated the "Bill of Rights", which includes explicit protections for freedom of the press and the right to keep arms. The Indian Constitution, meanwhile, has incorporated "Fundamental Rights", which include freedom of speech and expression, but some of these rights are implicitly protected rather than explicitly stated.
Both constitutions were influenced by each other and share some similarities. The Indian Constitution, drafted between 1947 and 1950, was inspired by the US Constitution, and both countries have a strong tradition of revering their "constitutional rights". Both constitutions also provide for judicial review, with their respective Supreme Courts having the power to declare acts of other branches of government illegitimate, giving them a measure of 'supremacy' over the legislative branches.
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The role of the judiciary
The Indian Constitution does not strictly follow the doctrine of separation of powers. However, the functions of the three organs of the state—the executive, the legislature, and the judiciary—are differentiated. The judiciary's primary function is to interpret the laws and ensure that the other two organs do not overstep their constitutional powers.
The judiciary in India is a separate and independent entity, with the power to review and strike down unconstitutional amendments made by the legislature. The Supreme Court, for instance, has invalidated clauses inserted by the legislature to immunize certain disputes from judicial review. In the Indira Nehru Gandhi v. Raj Narain (1975) case, the Supreme Court held that adjudication of a dispute is a judicial function, and the parliament cannot exercise this function even under constitutional amending power. The judiciary also has the power to declare executive actions unconstitutional, as seen in the Swaran Singh case (1998) where the Supreme Court declared the Governor's pardon of a convict unconstitutional.
The Indian Constitution, therefore, provides for a system of checks and balances, where each organ of the state has the power to limit or check the other two, creating a balance of power. This system ensures that no one organ becomes superior or controls the others, and they all work in harmony.
It is important to note that the Indian Constitution does not explicitly mention the separation of powers, but it does specify the functions and responsibilities of each organ of the state. This has led to a certain amount of flexibility, where the judiciary can engage in judicial legislation in certain situations. For instance, judges can make laws when there is a legal vacuum or no express principles of law. However, this can also create uncertainty and strife between the organs of the state.
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Separation of functions
The Indian Constitution does not strictly adhere to the doctrine of separation of powers. Instead, it follows a system of checks and balances, with the separate functions of the three organs of the state—the executive, the legislature, and the judiciary—clearly defined and differentiated. This system aims to prevent any one branch from holding excessive power and to maintain a balance of power among the three organs.
The executive power of the Union is vested in the President, who can exercise this power directly or through subordinate officers. The President, as the executive head, can also exercise legislative powers under specific conditions. The legislature, or Parliament, has the power to make laws and exercise the rights, authority, and jurisdiction of the Government of India. The judiciary, which includes the Supreme Court, High Courts, and lower courts, interprets and applies the law, ensuring that the other branches do not exceed their constitutional powers.
The separation of functions in India is evident in the differentiation of roles and responsibilities of each organ. The executive branch executes the laws and administers the government, while the legislative branch creates the laws and statutes. The judiciary interprets the laws and ensures that the other branches adhere to their designated functions. This separation of functions is crucial to maintaining the balance of power and preventing any one branch from dominating the others.
While the Indian Constitution does not explicitly mention the separation of powers, it does include checks and balances to maintain this separation. For example, in the Indira Nehru Gandhi v. Raj Narain (1975) case, the Supreme Court invalidated a clause inserted by the legislature, demonstrating the judiciary's power to check the actions of the other branches. This case also highlighted the non-amendability of the basic features of the Constitution, including the separation of powers.
The Indian Constitution's approach to separation of functions, rather than a strict separation of powers, allows for a more flexible and collaborative system of governance. While each organ has its own distinct roles and responsibilities, they are expected to work in harmony, with no one branch superior to the other. This system aims to prevent the concentration of power in a single branch and promote a balanced and stable governance structure.
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Checks and balances
The Indian Constitution does not strictly follow the doctrine of separation of powers. Instead, it adheres to a system of checks and balances, with the functions of the different parts of the government being differentiated. The three organs of the Indian government—the executive, Parliament, and judiciary—are expected to exercise their functions within their limits, as outlined by the Constitution.
The executive power of the Union is vested in the President, who can exercise this power directly or through subordinate officers. The President is also empowered to exercise legislative powers in certain conditions. The Parliament, on the other hand, has the power to make laws and exercise the rights, authority, and jurisdiction of the Government of India. The judiciary's role is to interpret the laws and ensure that the other branches of government do not exceed their powers.
The system of checks and balances in the Indian Constitution is designed to prevent any one branch of the government from becoming too powerful and to protect the rights and freedoms of the people. Each branch of the government has the power to limit or check the other two, creating a balance of power. This system allows for a healthy trend that respects the powers and responsibilities of the other organs of the government.
The Indian Constitution's approach to checks and balances is similar to the concept of "separation of powers" proposed by political philosophers such as John Locke and Montesquieu. Locke advocated for a division of political power between the legislative, executive, and federative powers. Montesquieu, on the other hand, described the distribution of power among a legislature, an executive, and a judiciary, aiming to prevent the concentration of power in a single ruler.
In conclusion, while India does not have a strict separation of powers, its system of checks and balances ensures that the different branches of the government work in harmony and that the powers of each branch are respected and protected. This system has been embedded to such an extent that the courts can strike down unconstitutional amendments made by the legislature.
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Historical context
The principle of separation of powers is a concept in constitutional law that divides government into three distinct branches: the legislative, executive, and judicial. Each branch has its own powers and responsibilities, and they work together to balance and limit each other's power, preventing any one branch from gaining too much control. This system is often referred to as a "tripartite system", a term popularised by the French Enlightenment political philosopher Montesquieu, who described it in his work "The Spirit of Law" (1748). Montesquieu based his ideas on the Constitution of the Roman Republic and the British constitutional system, where he observed a separation of powers between the monarch, Parliament, and the courts of law.
The concept of separation of powers has a long historical background, with one of its earliest proponents being John Locke, who, in his "Two Treatises of Government" (1690), distinguished between legislative, executive, and federative power. Locke's ideas were further developed by English parliamentarians during the English Civil War, who viewed the English system of government as composed of three branches: the King, the House of Lords, and the House of Commons. They believed that the King should have executive powers only, while the latter two should hold legislative powers. This view was reflected in the "Instrument of Government", written by English general John Lambert in 1653, which served as the constitution of England for a few years during the Protectorate.
The first constitutional document to establish the principle of separation of powers was the "Pacts and Constitutions of Rights and Freedoms of the Zaporizhian Host", written in 1710 by Ukrainian Hetman Pylyp Orlyk. The concept gained further traction in the American colonies, where it was heavily influenced by Montesquieu's work. Alexander Hamilton, in Federalist No. 78, redefined the judiciary as a separate branch of government alongside the legislative and executive branches. James Madison, in Federalist No. 51, emphasised the importance of checks and balances within the separation of powers, stating that the government must be able to control both the governed and itself.
In India, the Constitution does not strictly follow the doctrine of separation of powers, but instead focuses on the separation of functions. The three organs of the Indian government—the Executive, Parliament, and Judiciary—are specified in the Constitution, with each having distinct roles and powers. While no one organ is superior to another, they are designed to work in harmony and maintain a balance of power. This is achieved through a system of checks and balances, where each organ has the power to limit or check the others, preventing any one branch from becoming supreme.
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Frequently asked questions
Separation of powers is a doctrine of constitutional law that divides the government into legislative, executive, and judicial branches, each with its own powers and duties. This system of checks and balances prevents any one branch from becoming too powerful and ensures no abuse of authority.
The Indian Constitution does not strictly follow the doctrine of separation of powers, but it does differentiate the functions of the three organs of government: the Executive, Parliament, and Judiciary. These three branches are considered equal and must work in harmony, with no one branch controlling the other.
The Indian Constitution has several checks and balances in place to maintain the balance of power. For example, the Supreme Court has invalidated clauses inserted by the legislature, such as in the Indira Gandhi vs Raj Narain case in 1975, where the court upheld the separation of powers as a part of the Basic Structure of the Constitution.
