SEPARATION OF EXECUTIVE AND LEGISLATURE- FULL OR PARTIAL
INTRODUCTION:-
The Constitution of India is the supreme law of India. It was passed by the Constituent Assembly on November 26, 1949 and came into existence on January 26, 1950. It declared the Union Of India to be a sovereign, democratic, republic, assuring its citizens of justice, equality and liberty and to promote among them all fraternity; the words “socialist”, “secular” and “integrity” and to promote among them all “fraternity” ; were added to the definition in 1976 of Constitutional amendment. After coming into effect, the Constitution replaced the Government of India Act, 1935 as the governing document of India. Being supreme law of the country, every law enacted by the government must conform to the constitution. Dr. Bhimrao Ambedkar, as Chairman of the Constitution Drafting Committee, was the Chief Architect of Indian Constitution. The first president of the Constituent Assembly was Sachidanand Sinha later, Rajendra Prasad was elected president of the Constituent Assembly. The member of the Constituent Assembly met for the first time in the year 1946 on December 9.
AN OVERVIEW
The Constitution of India states that the Indian Executive is a major branch of the Parliamentary form of Government. The President, Vice-President, Council of Ministers, governor and Attorney General of India are some of the prominent heads who plays successful roles in executive branch.
The parliament of India is the federal and supreme legislative body of India. It consists of the office of President of India and two houses, the lower house, known as the Lok Sabha and the upper house, known as the Rajya Sabha. Any bill can become an act only after it is passed by both the houses of the parliament and assented by the President. Lok Sabha is also known as the “House of People”. It is more powerful of the two houses and can precede or overrule the Rajya Sabha in certain matters.
The Separation of Powers, also known as trias politica, is a model for a governance of democratic states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic. Under this model, the state is divided into branches or estate, each with separate and independent powers and areas of responsibility. In Indian Constitution there is express mention that the executive power of the Union and of a State is vested by the constitution in the President and the Governor, respectively, by Art. 53(1) and 154(1). Constitutions with a high degree of separation of powers are found worldwide. The UK system is distinguished by a particular entwining of powers. India democratic system also offers a clear separation of power under LOk Sabha, Rajya Sabha, and the President of India, who overlooks independent governing branches such as the Election Commission and the Judiciary.
This article is wriiten by Mr. Chaitanya M. Kulkarni. The author is a Law Student pursuing from Dr. Babasaheb Ambedkar College of Law (M.B), Nagpur. He ca ne reached at +91-9028493260.
In the Indian system it is found that the civil servants who are part of the administration i.e., the executive organ of the state carry forward the ministerial orders which are generally formulated as a result of the lengthy legislative discussions. In such cases we find a nexus of executive and legislative powers and this is a very key feature at the central and as the federal state levels.
It has been well said by Lord Action: -
“Power corrupts and absolute Powers tends to corrupt absolutely”.
Conferment of power in a single body leads to absolutism. But, event after distinguishing the functions, when an authority wields public power, then providing absolute and sole discretion to the body in the matters regarding its sphere of influence may also cause abuse of such power. Therefore, the doctrine of separation of powers is a theoretical concept and is impracticable to follow it absolutely.
The status of modern state is a lot more different than what is used to be. It has evolved a great deal from a minimal, non-interventionist state to an welfare state, wherein, it has multifarious roles to play, like that of a protector, controller and provider. This omnipresence of the state has rendered its function becoming diverse and problems, interdependent and any serious attempt to define and separate those functions would cause inefficiency in government. Hence, a distinction is made between ‘essential’ and ‘incidental’ powers. According to this differentiation one organ can’t claim the powers essentially belonging to other organ because that would be a violation of the principle of separation of powers. It has just happened that the other two organs, namely, judiciary and legislature, became unsuitable for undertaking the functions of this welfare state and as a consequence the functions of the executive increased. As controller and provider, the judicial processes were very time consuming and the legislature was overburden with work. Therefore, it was in natural scheme of things which made the administrators end up performing a variety of roles in the modern state including those of legislature and judiciary too, to an extent.
CONCLUSION:-
In a democratic country goals are enshrined in the constitution and the state machinery is then setup accordingly. And here it can be seen that constitutional provisions are made as such to support a parliamentary form of government where the principle can’t be followed rigidly. Constitutionalism, the philosophical concept of the constitution also insists on limitations being placed upon governmental power to secure basic freedoms of the individual. Hence, the conclusion drawn out of the study is that there is no strict separation of powers but the functions of the different branches of the government have been sufficiently differentiated. There should be cooperation and not unnecessary interference between the organs.