Separation of powers

I am glad to present the project on “The Separation of Powers in India”. This project would not have been completed without the support of my family and friends who encouraged and challenged me throughout. Who shared and exchanged ideas for the completion of the project. They never accepted less than my best effort. I would also like to acknowledge and extend my heartfelt gratitude to my teacher Mr. Subradipta Sarkar for his guidance throughout. Also most specially to my parents, what I owe them for their encouragement and whose patient love enabled me to collect and write the information. INDEX 1.

Introduction 2. Legislative The President The Rajya Sabha The Lok Sabha 3. Executive The President The Vice President The Council of Ministers The Governor The Attorney General of India 4. Judiciary The Supreme Court High Courts 5. Conclusion 6. Bibliography INTRODUCTION The separation of powers is a constitutional principle that deals with the mutual relations among the three organs of the government, namely, legislature, executive and judiciary. The legislative organ of the state makes laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the breach of law.

1 Each organ while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the general public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs. With the separation of powers, it is more accurate to speak of a system of checks and balances which ensures that powers are not abused. The fundamental purpose of the separation of powers is to avoid the abuse of power and thereby to protect the rights and liberties of citizens.

The concept itself is of great antiquity and can be attributed to Aristotle (384–322 BC); However, the clearest exposition of the doctrine can be found in the French writer Charles Louis de Montesquieu’s De l’esprit des Lois (1748). In essence, Montesquieu states that the three organs of government – the executive, legislature and judiciary – should each have a discrete and defined area of power and that there should be a clear demarcation of functions between them: this is true ‘separation of powers’. 2.

CHAPTER 1: LEGISLATURE Legislature is not merely a law making body. Lawmaking is but one of the functions of the legislature. It is the center of all democratic political process. A genuine democracy is inconceivable without a representative, efficient and effective legislature. The legislature also helps people in holding the representatives accountable. 3 The Indian Parliament is representative of the democratic set up of the country. The apex legislative body in India is the Parliament of the country.

4 The parliament of India is the magnificent manifestation of the democratic ethos of our country. As the national legislature and repository of the constituent powers of the Union, it occupies a central position in our democratic polity. The parliament of India has three constituents, namely, The President of India, The Rajya Sabha (The council of states) and the Lok Sabha(The house of the people). 5 The president of india is the constitutional head of the executive and can summon or dissolve either of the Houses of the Parliament.

The Parliament of the country also runs on the principles set by the Indian Constitution, which came into force on 26th January, 1950. A bicameral parliamentary system is followed in the country. A bicameral legislature makes it possible to have every decision reconsidered. Every decision taken by one house goes to the other house for its decision. This means that every bill and policy would be discussed twice. This ensures a double check on every matter. Even if one house takes a decision in haste, that decision will come for discussion in the other house and reconsideration will be possible.

6 Besides functioning as the highest law making body, Indian parliament has also functioned as the ‘grand inquest’ and ‘watch dog’ of the nation. It has been proved that for a peaceful and balanced development of India there is no better substitute to parliamentary democracy. .THE PRESIDENT President of india is elected by the members of and electorial college consisting of the elected members of both houses of parliament and the elected members of the legislative assemblies of the states and union territories for a term of five years commencing from the date on which he enters upon his office.

He is the head of the executive and also a constituent part of the parliament. He performs a number of important executive as well as legislative functions. The executive power of the union is vested in the president which is exercised by him either directly or through officers subordinate to him in accordance with the provisions of the constitution. The supreme command of the defence forces of the union is also vested in the president.

The president appoints the prime minister and other ministers on advice of the prime minister. He also appoints important constitutional functionaries such as governors, judges of the supreme court and high courts, attorney general of India, comptroller and auditor general of india, chairmen and members of the finance commission and of the union public service commission. In the sphere of law making a bill does not become an act unless it receives the assent of the president.

When the bill is passed by the two houses of parliament, it is presented to the president who declares either that he assents to the bill or that he withholds his assents therefrom. Article 123 of the constitution enables the president to promulgate the ordinances during the recess of the parliament. That is, when parliament is not in session, the President may, on being satisfied that circumstances exist which render it necessary for him to take immediate action, promulgate Ordinances.

An Ordinance promulgated by the President has the same force of law. It has to be laid before both Houses of Parliament. The Ordinance ceases to operate at the expiration of six weeks from the reassembly of Parliament or if before the expiration of that period resolutions disapproving it are passed by both houses, upon the passing of second of those resolutions. The president may at any time, withdraw an ordinance. 7 While no case has gone to the supreme court as was the case of D. C. Wadhwa v. State of Bihar.

8regarding re-promulgation of ordinance by the union, notice must be taken of the supreme court judgment holding that successive re-promulgation of ordinances with the same text by the governer of bihar, without any attempt to get the bills passed by the state assembly while it was in session, coupled with the habitual practice of proroguing the assembly merely in order to enable the governor to re-promulgate an ordinance in a routine manner would be a fraud under constitution, and the ordinance so re-promulgated is liable to be struck down.

9 Although, the constitution vests a whole range of executive, legislative and other powers in a president, in actual practice, he exercises these functions in accordance with the advice tendered by the council of ministers with the prime minister as its head. 10 THE RAJYA SABHA The Rajya Sabha, also known as the Upper House of the Indian Parliament, represents the States of India. It is an indirectly elected body. Residents of the State elect members to State Legislative Assembly. The Legislative Assemblies of the various Indian States play an important role in the elections of Rajya Sabha.

The elected members of State Legislative Assembly in turn elect the members of Rajya Sabha. It consists of not more than two hundred and fifty members, out of which to hundred and thirty eight members represent the states and the union territories and twelve members are nominated by the president. The Rajya Sabha is a permanent body and not a subject to dissolution. However, one-third of its members retire biennially. A member who is elected for the full term retains his membership for six years. He is eligible for re-election. There are certain criteria that have to be fulfilled for becoming a member of the Rajya Sabha.

The members have to be at least 30 years of age, while contesting the elections. The Vice-President of the country is the ex-officio Chairman of the Rajya Sabha. An Electoral College is formed for electing the Vice-President in India. The Electoral College has participation from both the Houses of the Parliament. The Deputy Chairman is also selected from the Rajya Sabha. 11 Rajya Sabha being a federal chamber enjoys certain special powers under the Constitution. All the subjects/areas regarding legislation have been divided into three Lists - Union List, State List and concurrent List.

Union and State Lists are mutually exclusive - one cannot legislate on a matter placed in the sphere of the other. Article 249 of the Constitution provides that Rajya Sabha may pass a resolution, by a majority of not less than two-thirds of the members present and voting, to the effect that it is necessary or expedient in the national interest that Parliament should make a law with respect to any matter enumerated in the State List. Then, parliament is empowered to make a law on the subject specified in the resolution for the whole or any part of the territory of India. 12 THE LOK SABHA

The house of the people ( lok sabha) is the House in the Parliament that is representative of the people of the country. The Lok Sabha and the State Legislative Assemblies are directly elected by the people. For the purpose of election, the entire country (State, in case of State Legislative Assembly) is divided into territorial constituencies of roughly equal population. One representative is elected from each constituency through universal, adult suffrage where the value of vote of every individual would be equal to another. At present there are 543 constituencies. This number has not changed since 1971.

13 It consists of 552 members out of which 530 are directly elected from territorial constituencies in the states and 20 from union territories. 2 members are nominated by the president from the Anglo- Indian community. Seats are also reserved in the lok sabha for the scheduled castes and the scheduled tribes who are elected from the constituencies specially earmarked for them all over the country. 14 The Lok Sabha is elected for a period of five years. The Lok Sabha can be dissolved if no party or coalition can form the government or if the Prime Minister advices the President to dissolve the Lok Sabha and hold fresh elections.

The actual strength of the lok sabha is 545 which includes the speaker and the two nominated members. The Speaker is the Presiding Officer of the Lok Sabha in the Parliament House. The Speaker takes care of the proceedings of the House, when the session of Lok Sabha is held. There are summer, monsoon and winter sessions that are held in Lok Sabha every year. The Speaker has the power of adjourning or stopping the proceedings of a session. 15 Lok Sabha enjoys special powers in regard to the 'collective responsibility' of the Government and in financial matters.

The Constitution provides that the Council of Ministers shall be collectively responsible to Lok Sabha. A Money Bill has to be introduced only in Lok Sabha. Similarly, Demands for Grants of the various Ministries are also made to, discussed and voted in Lok Sabha16 CHAPTER 2: EXECUTIVE The organ of government that primarily looks after the function of implementation and administration is called the executive. Executive is the branch of government responsible for the implementation of laws and policies adopted by the legislature.

The executive is often involved in framing of policy. The executive branch is not just about presidents, prime ministers and ministers. It also extends to the administrative machinery (civil servants). While the heads of government and their ministers, saddled with the overall responsibility of government policy, are together known as the political executive, those responsible for day to day administration are called the permanent executive. 17 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 play successful roles in the Executive Branch. 18 The makers of the Indian Constitution wanted to ensure that the government would be sensitive to public expectations and would be responsible and accountable. The other alternative to the parliamentary executive was the presidential form of government. But the presidential executive puts much emphasis on the president as the chief executive and as source of all executive power.

THE PRESIDENT

The President of India exercises his executive powers in an indirect way, yet he has been conferred with the highest rank in the Executive Branch of Indian Government. The President of India is the ultimate authority who signs the bills of Parliament prior to the passing of the same. Also, every year the first session of the Parliament is addressed by the President of the nation. In case of pending bills and other kinds of provisions the President of India convey messages to Lok Sabha and Rajya Sabha. Both the houses of Indian Parliament can be called upon by the President of India as and when required.

19 The Constitution of India vests the executive power of the Union formally in the President. In reality, the President exercises these powers through the Council of Ministers headed by the Prime Minister. The President is elected for a period of five years. Constitutionally, the President has a right to be informed of all important matters and deliberations of the Council of Ministers. The Prime Minister is obliged to furnish all the information that the President may call for. The President often writes to the Prime Minister and expresses his views on matters confronting the country.

20 President can send back the advice given by the Council of Ministers and ask the Council to reconsider the decision. The President also has veto power by which he can withhold or refuse to give assent to Bills (other than Money Bill) passed by the Parliament. Every bill passed by the Parliament goes to the President for his assent before it becomes a law. In a parliamentary system, the Council of Ministers is dependent on the support of the majority in the legislature. This also means that the Council of Ministers may be removed at any time and a new Council of Ministers will have to be put in place.

Such a situation requires a Head of the state who has a fixed term, who may be empowered to appoint the Prime Minister and who may symbolically represent the entire country. This is exactly the role of the President in ordinary circumstances. Besides, when no party has a clear majority, the President has the additional responsibility of making a choice and appointing the Prime Minister to run the government of the country. THE VICE PRESIDENT The Vice President acts as the ex-officio Chairman of the Rajya Sabha The Vice President of India, as per Article 63 of the Indian Constitution, is elected by both Rajya Sabha and Lok Sabha members.

His election method is similar to that of the President, the only difference is that members of State legislatures are not part of the electoral college. The vice president is elected for a period of five years, he is both the head of Rajya Sabha as well as a prime figure of the Indian Executive Branch. In cases of resignation, death or removal of the President, the Vice President acts as the head of the nation. In such circumstances the Vice President also exercises all the powers conferred upon the President of India. B. D.

Jatti acted as President on the death of Fakhruddin Ali Ahmed until a new President was elected. The proportional representation system is used to elect the Vice President of India through single transferable vote. Since secret ballot method is applied to elect the Vice President hence in case of any confusion or discrepancy Supreme Court of India has the ultimate power to take the decision. THE COUNCIL OF MINISTERS Article 74(1) of the Indian Constitution clearly defines the presence of a Council of Ministers in the Executive Branch of Government of India.

The Prime Minister heads the Council of Ministers and offers important piece of advice to the nation's President. The Council of Ministers, on the other hand, is selected by the Prime Minister and the formal sign of approval goes from the President. Ministers of state, Cabinet Ministers and Deputy Ministers are included in the Council of Ministers in India. The Council of Ministers is directly accountable to the Lok Sabha which is one of the houses of the Indian Parliament. 21 THE GOVERNOR India has 28 states within its territory.

The Constitution of India states that each and every state of the nation should have a Governor. The governor of every state enjoys the executive powers. The President of India appoints the Governor for each of the state of the country. The Prime Minister, along with other members of the Council of Minsters, provides assistance to the Governor. 22 THE ATTORNEY GENERAL OF INDIA The Constitution of India, under Article 76, states that the Attorney General should be appointed by the President of India. Elected by the ruling government of India, the Attorney General performs the function of a chief legal advisor.

For being nominated as the Attorney General of India the concerned candidate should possess all the qualifications to take seat of the judge of the Supreme Court. During the sessions of the Parliament, the Attorney General of India has the right to participate in the same. However, he or she does not have any right to vote in the Parliament. In order to take various legal decisions in a smooth and faster way, 1 Solicitor General and 4 Additional Solicitor Generals assist the Attorney General of India. The Attorney General is also required to perform all legal functions that are delegated to him by the President of India.

23 CHAPTER 3: JUDICIARY The Judiciary of India is an independent body and is separate from the Executive and Legislative bodies of the Indian Government. The Indian Constitution has ensured the independence of the judiciary, the legislature is not involved in the process of appointment of judges. The judiciary is not financially dependent on either the executive or legislature. The judiciary has the power to penalise those who are found guilty of contempt of court. This authority of the court is seen as an effective protection to the judges from unfair criticism.

Parliament cannot discuss the conduct of the judges except when the proceeding to remove a judge is being carried out. This gives the judiciary independence to adjudicate without fear of being criticized. 24 The judicial system of India is stratified into various levels. At the apex is the Supreme Court, which is followed by High Courts at the state level, District Courts at the district level and Lok Adalats at the Village and Panchayat Level. The judiciary of India takes care of maintenance of law and order in the country along with solving problems related to civil and criminal offences.

India has one of the oldest legal systems in the world. The judiciary system that is followed in India is based on the British Legal System that was prevalent in the country during pre-independence era. 25 THE SUPREME COURT The Supreme Court is the highest judicial body in India. Supreme Court of India came into existence on 26th January, 1950 and is located on Tilak Marg, New Delhi. On the 28th of January, 1950, two days after India became a Sovereign Democratic Republic, the Supreme Court came into being.

The Supreme Court of India comprises the Chief Justice and 25 other Judges appointed by the President of India. Supreme Court Judges retire upon attaining the age of 65 years. In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and must have been, for atleast five years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years or he must be, in the opinion of the President, a distinguished jurist.

26 The jurisdiction of the Supreme Court is divided into original jurisdiction, advisory jurisdiction and appellate jurisdiction. Original jurisdiction is required when there is a dispute between the Government and the states of India or any one state of India. In the appellate jurisdiction the decision of the High Court can be questioned in the Supreme Court of the country. One can appeal to the Supreme Court, if he or she is not satisfied with the decision of the High Court. Apart from the original and appellate jurisdiction of the Supreme Court, there is an advisory jurisdiction that needs special mention.

There are many cases that are directly referred by the President of India and the Supreme Court has to look into those matters. 27 HIGH COURTS High courts of India are at the top of the hierarchy in each state but are below the Supreme Court. These courts have a control over a state, a union territory, or a group of states and union territories. 28 The High Court stands at the head of a State's judicial administration. There are 18 High Courts in the country, three having jurisdiction over more than one State.

Among the Union Territories Delhi alone has a High Court of its own. Other six Union Territories come under the jurisdiction of different State High Courts. Each High Court comprises of a Chief Justice and such other Judges as the President may, from time to time, appoint. The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of India and the Governor of the State. 29 Below the high courts are secondary courts such as the civil court, family courts, criminal courts and various other district courts.

Each High Court has power to issue to any person within its jurisdiction directions, orders, or writs including writs which are in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of Fundamental Rights and for any other purpose. This power may also be exercised by any High Court exercising jurisdiction in relation to territories within which the cause of action, wholly or in part, arises for exercise of such power, notwithstanding that the seat of such Government or authority or residence of such person is not within those territories.

30 Article 214 of the constitution of India states that there shall be a high court for each of the states. In addition to that article 231 of the constitution empowers the parliament to set up one high court for two or more states. For example, Gauhati high court has jurisdiction over the states of Tripura and some other states of north- east India besides its jurisdiction over the state of Assam. However, works of most high courts consisits of appeals from lower courts and summons, petitions in terms of article 226 of the constitution of India.

The precise jurisdiction of each high court varies from each other. 31 CONCLUSION Legislature is the most representative of all organs of government. The sheer presence of members of diverse social backgrounds makes the legislatures more representative and potentially more responsive to people’s expectations. In a parliamentary democracy, legislature, as a body representing the wishes of the people occupies a high position of power and responsibility. Herein lies the democratic potential of the Parliament. 32 The modern executive is a very powerful institution of government.

The executive enjoys greater powers compared to other organs of the government. This generates a greater need to have democratic control over the executive. The makers of our Constitution thought with foresight that the executive must be put firmly under regular supervision and control. Thus, a parliamentary executive was chosen. Periodic elections, constitutional limits over the exercise of powers and democratic politics have ensured that executive organ cannot become unresponsive. 33 Judiciary in India is also known for its independence.

Through various decisions, the judiciary has given new interpretations to the Constitution and protected the rights of citizens. democracy hinges on the delicate balance of power between the judiciary and the Parliament and both institutions have to function within the limitations set by the Constitution BIBLIOGRAPHY 1. www. legalserviceindia. com 2. http://ncert. nic. in 3. http://rajyasabha. nic. in 4. P. M. Bakshi, The Constitution of India 5. www. mapsofindia. com 6. http://supremecourtofindia. nic. in 7. www. indianetzone. com.