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Is India adhering to the strict rule of "separation of powers "? Support your argument.

Answer» In India, separation of functions is followed and not of powers and hence, the principle is not abided in its rigidity. In India, strict separation of powers is not followed as it is followed in the U.S. Apart from the directive principle laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers. But a system of checks and balance has been embedded so much so that the courts are competent to strike down the unconstitutional amendments made by the legislature.\xa0Nature of Separation of Power in India:\tThe doctrine of separation of powers is a part of the basic structure of the Indian Constitution even though it is not specifically mentioned in it. Hence, no law and amendment can be passed violating it.\xa0\tThe logic behind the doctrine is of polarity rather than strict classification, meaning thereby that the center of authority must be dispersed to avoid absolutism.\xa0\tHence the doctrine can be better appreciated as a doctrine of ‘check and balance’.\tThe system of checks and balances is essential for the proper functioning of three organs of the government.\xa0\tDifferent organs of the state impose checks and balances on the other.\xa0\tChecks and balances act in such a way that no organ of the state becomes too powerful. \tThe constitution of India makes sure that the discretionary power bestowed upon any organ of the state does not breach the principles of democracy. For instance, the legislature can impeach judges but as per the condition i.e. two-third majority.Working of separation of power in India:\tIf we study the constitutional provisions carefully, it is clear that the doctrine of separation of powers has not been accepted in India in its strict sense.\xa0\tIn India, not only there is functional overlapping but there is personnel overlapping also.\xa0\tThe Supreme Court has declared void the laws passed by the legislature on many occasions and the actions taken by the executive if they have violated any provision of the Constitution or the law passed by the legislature in case of executive actions.\xa0\tThe executives have affected the functioning of the judiciary by making appointments to the office of Chief Justice and other judges in many instances.\tThe executive resorting to pass ordinance’s, legislature passing NJAC law, keeping some laws under the 9th schedule earlier to keep it away from Judicial review have upset the balance among them.\tIn Ram Jawaya v. Punjab (1955) case, the Supreme Court held up the observation that the executive is derived from the legislature and is dependent on it for its legitimacy.\tIn Kesavananda Bharati case (1973), the Supreme Court held that the amending power of the Parliament is subject to the basic features of the constitution.\xa0\tIn Indira Gandhi v. Raj Narain (1975) case, the Supreme Court held that adjudication of a dispute is a judicial function and parliament cannot even under constitutional amending power is competent to exercise this function.\tIn Swaran Singh’s case (1998) the Supreme Court declared the Governor’s pardon of a convict unconstitutional.As the doctrine of separation of powers is not codified in the constitution, there is a necessity that each pillar of the State to evolve a healthy trend that respects the powers and responsibilities of other organs of the government. A democracy can thrive only when all the organs cooperate together. It’s time to resolve the differences and move forward with a common goal to take India on great heights.


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