Day 10 – Q 1.A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India. Illustrate.

1. A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India. Illustrate. 

अमेरिकी या ऑस्ट्रेलियाई संविधान के तहत शक्तियों का सख्त अलगाव भारत पर लागू नहीं होता है। उदाहरण देकर स्पष्ट करें।

Introduction:

Separation of power is a doctrine where the power is diffused into different organs of the state to avoid concentration of power/conflict of interest. Unlike in USA/Australia where a rigid separation of powers is followed, in India, separation of functions is followed and hence less rigidity.

Body

Background:

The doctrine of separation of power in a rigid sense means that when there is a proper distinction between three organs and their functions and also there should be a system of check and balance.

Not a rigid separation of powers:

• Though the executive power in India is defined as in American constitution is vested in President under Article 53(1) and in Governor under Article 154(1) but there is no provision which talks about the vesting of legislative and judiciary power in any organ. Thus, SOP is not rigid.
• Westminster form of government: where the minister is from among the legislators. In USA/ Australia, a legislative member cannot hold any executive post until he/she resign from legislature. 
• There is no voting power to the president USA/Australian president in laws passed by the legislature. However, in India, head of the government (PM) and council of ministers forms major part of legislature voting.
• House of common people and senate is least influenced by US president compared with Indian PM who acts as leader of the house.  
• Judicial members: post retirement, many judges are appointed for executive posts. Also, some posts like NHRC Chairman and so on is exclusively judicial members. 
• Judicial activism: special powers conferred on supreme court under Article 136 and 142 dilute the rigidity in separation of powers. E.g. supreme court’s judgement on highway liquor ban.
• Tribunals with some of them having the effect of supreme/High court. Tribunals being appointed by executive dilutes the SOP with executive encroaching upon judicial area with conflict of interest.
• Extra- ordinary situations and instruments: like the emergency provisions and ordinance route is not as a rigid to use as in USA or Australia.
• Legislature punitive powers: parliamentary privileges give the judicial power to them and thus diluting rigid SOP. USA strictly adhere to SOP and there is no punitive powers to legislature.

Conclusion

In the case-Indira Gandhi vs Raj Narain, the court held that  In our Constitution the doctrine of separation of power has been accepted in a broader sense(not too rigid). Though not as rigid as in USA, the doctrine is broad enough to protect the liberty of the individual from the arbitrary rule and prevents the organs from usurping the essential functions of other organs.