Post-independence, India had formed a constituent assembly to make its constitution. The makers of the constitution had to adopt mixed features to suit the circumstances of the country. And to suit this, the assembly had adopted various aspects from Constitutions of many countries. For instance, directive principle of state policy from the Irish Constitution, parliamentary form of government from the British, procedure for constitutional amendment, bill of rights and judicial review from America and so on.
The concept of separation of powers was also debated upon in the Constituent Assembly of 1948. During the amendment procedure of constitution in 1948, a proposition to amend Article 40 and amendment that complete separation of power should be inserted in the constitution of India as Article 40-A was made by Prof. K.T. Shah, a member of constituent assembly.
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Under this, absolute separation of power was sought. But due to majority of members then, rejecting it, this doctrine was not accepted in absolute and found a place under Article 50 as directive principle of state policy. Dr. B R Ambedkar was of the view that it was too late to amend this type of principle as constitution had already been drafted and by such amendment the whole structure of the constitution shall be changed.
Secondly, India adopted the British System thereby choosing the parliamentary form of government which in turn gave more responsibility. Keeping in view the history of British practice of separation of powers, it would be better not to adopt complete separation like America.”
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India follows constitutional democracy, which offers a view of the doctrine of separation of powers. While recognising this doctrine of separation of powers, the constitution enumerates that in India, the government shall have three main organs – namely, Legislature, Executive and Judiciary. The Parliament shall handle the legislature, the President shall be the head of the Executive and the Judiciary shall be dealt with by the Supreme Court, the High Courts and the subordinate Courts. The Parliaments’s functions are enumerated in the constitution and the Parliament is competent to make any law which is subject to the provisions of the constitution. The Judiciary is independent in its functioning and there can be no interference in its functioning by the executive and the legislative. With this independence, the Supreme Court and the High Courts are vested with the power to review any law made by the legislature and can also declare it unconstitutional and void. All these three branches have their own checks and balances so as to maintain the constitutional limits.
If we go through the constitutional provision, we can find that the doctrine of separation of power has not been accepted in a rigid sense in India. There is personnel overlapping along with the functional overlapping. This has, however been supplemented and reiterated by the Indian Supreme Court in ‘Ram Jawaya Kapur v. State of Punjab’, the Court through Mukherjee J. held that “In India, this doctrine has been not be accepted in its rigid sense but the functions of all three organs have been differentiated and it can be said that our constitution has not been a deliberate assumption that functions of one organ belong to the another. It can be said through this that this practice is accepted in India but not in a strict sense.
There is no provision in Constitution which talks about the separation of powers except Article 50 which talks about the separation of the executive from the judiciary but this doctrine is in practice in India. All three organs interfere with each other functions whenever necessary.”
In Indian constitution, the inference of separation of powers has been found in various articles. For instance :
Article 50 lays down Separation of Judiciary from Executive.
Article 121 and 211 further lays down that the legislatures cannot discuss the conduct of the judges of High Court or Supreme Court, except only when in matters of impeachment.
Article 122 and 212 states that the courts cannot inquire into the matters of validity of proceedings of the Parliament and Legislature.
In India, we do not abide by the doctrine with rigidity. One can say that in India, separation of function is stronger than separation of power. For instance, the Cabinet Ministers exercise the functions of both the legislature and the executive. However, Judiciary still remains independent. The essence of the Constitution is that it produces a system which is the result of amalgamation of the principles of Separation of Powers with the Doctrine of Parliamentary Sovereignty in a manner to give effect to both, yet without the rigidity of the two systems.
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