Mains Practice Questions

Approach

• Mentioning the three organs of government briefly explain the meaning of separation of powers.
• Highlight some of the Articles in the constitution of India that ascertain the separation of powers between the executive, legislative and judiciary.
• Discuss how the functional overlap between each organ of the government undermines the separation of powers.
• Substantiate your arguments with examples.
• Conclude by summarising your answer and suggesting some measures to overcome these limitations.

Introduction

Separation of powers is the division of the legislative, executive, and judicial functions of government. It minimises the possibility of arbitrary excesses by the government, since the sanction of all three branches is required for the making, executing, and administering of laws.

The constitutional demarcation precludes the concentration of excessive power by any branch of the Government.

Body

Constitutional Provisions Ensuring Separation Of Power

• Article 50: State shall take steps to separate the judiciary from the executive.
• Article 121 and 211: Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be discussed in the Parliament and the State Legislature.
• Article 122 and 212: Validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court.
• Article 361: the President or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office.

Functional Overlap Among Organs Of the Government

• Overlapping Powers Of Legislature

• Overlapping Powers Of The Executive

• Overlapping Powers Of The Judiciary

Issues with Functional Overlapping

• Unaccountability: One of the demerits of overlapping powers, is that a particular organ cannot be held accountable for its decisions. Eg. Judicial verdicts in 2G and Coal Block allocation case.
• Erosion of faith: Repeated interventions of one organ into another's functioning can diminish the faith of the people in the integrity, quality, and efficiency of the other organs.
• Accumulation of power: It undermines the spirit of democracy as too much accumulation of powers in organs of government undermines the principle of check and balance.
• Adverse effect on development: Excessive infringement on each other jurisdiction may impede smooth functioning of government and hinder public service and overall development.

Utility of Functional Overlapping

• Check and balance: Organs of government are empowered to prevent arbitrary actions by other two organs. Eg. Power of judicial review by the Supreme Court.
• Rule of law: Power sharing laws among the executive, legislative and judiciary enhances accountability and equality in governance.
• Checks arbitrariness: Constitutional demarcation of overriding powers decreases the scope of conflict among the government organs.
• Cooperation: Overlapping function induces power sharing and power decentralisation.

Conclusion

For a democratic polity and diverse society like India, a Constitutional system with strict separation of powers is undesirable and impracticable. However judicious and calculated constitutional functional overlapping makes way for democratic collaboration of the three organs of the government. Such mutual cooperation bridges the executive, legislative and judicial gap facilitating smooth functioning of government.