Separation Of Powers In India

INTRODUCTION: India, a Union of States, is a Sovereign Socialist Secular Democratic Republic with a parliamentary system of government. The Republic is governed in terms of the Constitution, which was adopted by Constituent assembly on 26th November,1949 and came into force on 26 January 1950. The Constitution which envisages parliamentary form of government is federal in structure with unitary features. The president of India is the constitutional head of executive of the Union. The real executive power thus vests in the Council of Ministers with the Prime Minister as its head.

Similarly, in states, the Governor is the head of the executive, but it is the Council of Ministers with the Chief Minister as its head in whom real executive

They have their own legislations, statutes, precedents, doctrines etc. One such doctrine of Separation of Powers was established in various countries. This doctrine emphasizes the mutual exclusiveness of the three organs of the government. According to this doctrine, the legislature cannot exercise executive or judicial power; the executive cannot exercise legislative or judicial power; and the judiciary cannot exercise the other two powers. This theory is U.S.A. based as they believe that there should be separation between the executive and the legislature. This is different from the system prevailing in Britain or India where the parliamentary form of government operates and which is based on co-ordination of the executive and the legislature. The doctrine of separation of powers is not recognised in rigid sense in

But the functions of different organs of the Government have been clearly earmarked, so that one organ of the government does not usurp the functions of another. In re Delhi Laws Act case, Hon’ble Chief Justice, Kania observed that although in the Constitution of India there is no express separation of power, it is clear that a legislature is created by the constitution and detailed provisions are made for making that legislature pass laws.

The Indian Constitution has not indeed recognised the doctrine of separation of powers in the absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive is a part of the legislature and is responsible to it. Functionally, the President’s or the Governor’s assent is required for all legislations. The President or the Governor has the power of making ordinances when both Houses of the legislature are not in session. This is legislative power, and an ordinance has the same status as that of a law of the legislature. The President or the Governor has the power to grant pardon. The legislature performs judicial functions while committing, for contempt, those who defy its orders