04. Separation of Powers in India l Making of Indian Constitution and Its Salient Features

Question 1

What is the Indian Legislature composed of?

Answer 1

The Indian Legislature consists of Members of Parliament (MPs). MPs can be members of:

Lok Sabha: Lower House/House of People (directly elected)
Rajya Sabha: Upper House/House of Elders (indirectly elected)

Question 2

What is the primary function of the Indian Legislature?

Answer 2

The primary function of the legislature is legislation, which means:

Making new laws
Amending existing laws
Repealing outdated laws

Question 3

Who is the head of the Executive branch in India?

Answer 3

The President is the head of the Executive branch.

Question 4

What are the two main components of the Indian Executive, and what is their role?

Answer 4

Council of Ministers: Consists of various government ministers who implement the laws made by Parliament.
Bureaucrats: Assist the Council of Ministers in their duties.

Question 5

Who leads the Council of Ministers and acts as a communication bridge to the President?

Answer 5

The Prime Minister.

Question 6

List three primary roles of the Judiciary in India.

Answer 6

Checking the laws: Ensures that legislation aligns with the Indian Constitution.
Checking the Implementation of Laws: Verifies if the Executive branch is implementing laws correctly.
Adjudicating on the other two branches: Reviews or provides judgment on the actions and decisions of the Executive and Legislative branches.

Question 7

Does the Indian Constitution explicitly mention the Separation of Powers?

Answer 7

No, the concept of the Separation of Powers is not directly stated in the Constitution. However, several provisions exist to ensure a balance of power between the branches of government.

Question 8

Explain the significance of Article 50 in relation to the Separation of Powers.

Answer 8

Article 50 directs states to separate the judiciary from the executive. Historically, during the British era, the executive held judicial powers. This article aims to establish judicial independence.

Question 9

What protection do Articles 121 and 211 provide, and why is this relevant to the Separation of Powers?

Answer 9

Articles 121 and 211 prevent Parliament and State Legislatures from discussing the judicial conduct of judges serving in the Supreme Court and High Courts. This protects judicial independence by limiting legislative interference in the judiciary.

Question 10

How do Articles 122 and 212 uphold the Separation of Powers?

Answer 10

Articles 122 and 212 safeguard the legislature by preventing courts from questioning the validity of proceedings within Parliament and State Legislatures. This maintains the autonomy of the legislative branch.

Question 11

According to the Indian Constitution, where are executive powers vested, and how are they exercised?

Answer 11

The Constitution (Articles 52 to 78) vests executive powers in the President. The President can exercise these powers directly or delegate them to subordinates like the Prime Minister and Council of Ministers.

Question 12

What does Article 361 establish, and how does it contribute to the Separation of Powers?

Answer 12

Article 361 grants immunity to the President and Governors from being answerable to any court for exercising their official powers and duties. This protects the executive from undue judicial interference.

Question 13

Does India adhere to a strict doctrine of Separation of Powers?

Answer 13

No, India follows a system of Checks and Balances. This allows for some overlap between the functions and personnel of the Legislature, Executive, and Judiciary.

Question 14

Define “functional overlapping” in the context of the Indian government.

Answer 14

Functional overlapping means the branches of government can sometimes perform each other’s core duties:

Courts stepping in: Courts can make pronouncements if the legislature fails to create necessary laws (e.g., Delhi High Court and CNG mandate).
Executive making temporary laws: The President/Governor can issue ordinances when the legislature is not in session.

Question 15

Why did India’s Constitution makers establish a system of Checks and Balances?

Answer 15

Prevent abuse of power: India’s experience under British rule highlighted the dangers of unchecked power.
Ensure accountability: Checks and balances ensure each branch fulfills its responsibilities.
Maintain balance: If one branch falters, the others can intervene.

Question 16

How does India’s system of Checks and Balances differ from a strict Separation of Powers like the one used in the USA?

Answer 16

India’s system allows for functional overlapping, meaning branches can sometimes step into each other’s roles. This contrasts with the USA, where the judiciary largely avoids interfering with the legislature’s work.

Question 17

How does the Legislature control the Judiciary?

Answer 17

Impeachment: Judges can be removed for misconduct or incapacity.
Overturning Judgments: Parliament can pass laws negating court judgments deemed inconsistent with the Constitution.

Question 18

List ways the Legislature exercises control over the Executive.

Answer 18

No-Confidence Motion: Can dissolve the government.
Personnel Overlap: Ministers must be drawn from Parliament.
Question Hour/Zero Hour: Scrutinizes executive actions.
Impeachment of the President

Question 19

How does the Executive control the Judiciary?

Answer 19

Appointments: Executive appoints Chief Justice and other judges.
Pardons: President and Governors can grant pardons, overriding judicial sentences (Articles 72 & 161).

Question 20

How does the Executive exert control over the Legislature?

Answer 20

Delegated Legislation: Executive can frame rules and regulations within the scope of laws passed by the legislature.
Ordinances: President can issue temporary laws when Parliament is not in session.
Rules of Procedure: Executive can establish some rules for the conduct of its own business.

Question 21

How does the Judiciary exercise control over the Executive and Legislature?

Answer 21

Judicial Review: Judiciary can assess if actions of the Executive or Legislature violate the Constitution.
Enforcing Justice (Article 142): Courts can direct the other branches to fulfill their constitutional duties.
Lawmaking: In some instances, courts can fill in where the legislature fails to act.

Question 22

Name 3 landmark cases related to the Separation of Powers in India.

Answer 22

Ram Jawaya Case (1955): Upheld that India does not have a strict separation of powers.
Kesavananda Bharati Case (1973): Established the Basic Structure Doctrine, limiting Parliament’s ability to amend the Constitution.
Indira Gandhi vs Raj Narain (1975): Reaffirmed a broad interpretation of the separation of powers in the Indian system.

Question 23

Describe the two houses that make up Britain’s Parliament.

Answer 23

House of Commons: The lower house, consisting of elected members similar to the Lok Sabha.
House of Lords: The upper house, consisting of members whose seats are hereditary (passed down within their families) and often represent the aristocracy (wealthy, upper class).

Question 24

What is the role of the Crown in Britain’s Parliament?

Answer 24

The Crown (the reigning monarch) is the constitutional monarch, meaning they are the Head of State but with limited power.
While technically part of Parliament, their role in modern times is largely ceremonial.

Question 25

What is a key difference in the separation of powers between the American and British Constitutions?

Answer 25

American Constitution: Enforces a strict separation of powers between the Executive (President), Legislative (Congress), and Judiciary (Courts). British Constitution: Has a looser separation of powers, and in some cases, allows overlapping roles.

Question 26

How does veto power differ between the US and the UK?

Answer 26

American Constitution: The President can veto bills passed by Congress. Congress can override a veto with a 2/3 majority. British Constitution: Parliament is supreme. While the Queen technically can veto laws, this power is rarely (if ever) used in modern times.

Question 27

Can members of one branch of government serve in another branch in the US or the UK?

Answer 27

American Constitution: No. Strict separation of powers prevents individuals from being in multiple branches simultaneously. British Constitution: Yes. Some overlap is permitted. For example, the Lord Chancellor is a member of the judiciary but also holds a role in the House of Lords (legislature).

Question 28

Describe the role of the Crown (monarch) in the lawmaking process of the US and the UK.

Answer 28

American Constitution: The Crown (monarch) plays no role. The US broke away from Britain and established an independent system. British Constitution: The Crown is technically a part of Parliament and must give Royal Assent for a bill to become law. However, this has become a formality.

Question 29

What is one major issue with functional overlapping in government systems?

Answer 29

Unaccountability. When powers overlap, it becomes difficult to hold any one organ responsible for specific decisions. Example: The controversies surrounding judicial verdicts in the 2G and Coal Block allocation cases in India.

Question 30

How can functional overlapping erode public faith in the government?

Answer 30

When organs of government repeatedly interfere in each other's domains, it leads to delays and confusion. This undermines the public's trust in the government's ability to function effectively. Example: Disputes between the judiciary and the parliament over appointments (e.g., the Collegium system).

Question 31

Why is the accumulation of powers within organs of government a problem?

Answer 31

It disrupts the principle of checks and balances, a fundamental aspect of democracy. Too much power in one branch can lead to abuse and a lack of accountability. Example: When any one branch – executive, legislative, or judicial – assumes too much authority, creating confusion and potential imbalances.

Question 32

What is a key benefit of functional overlapping in government?

Answer 32

It strengthens checks and balances. Overlaps empower each organ to prevent arbitrary actions by another, upholding the rule of law. Example: The Supreme Court's power of judicial review, which allows it to examine the constitutionality of laws.

Question 33

How does functional overlapping promote cooperation between organs of government?

Answer 33

By forcing power-sharing and decentralization. This approach discourages a strict separation of powers, which is often impractical in diverse societies. Instead, calculated overlaps encourage collaboration and more effective governance.

Question 34

How does a weakened opposition in India affect checks and balances?

Answer 34

It reduces accountability. A weak opposition cannot effectively challenge the ruling government, leaving its actions less scrutinized. Importance: A strong opposition is essential for keeping the government in check within a democracy.

Question 35

What is the relationship between a weakened opposition and weakened legislative scrutiny?

Answer 35

A weakened opposition hinders the work of Department Related Committees (DRCs), which are essential for detailed discussion and analysis of proposed laws. Reduced DRC activity leads to less thorough legislation processes. Example: The controversial passage of the Farm Laws with limited committee review.

Question 36

What is judicial overreach, and how does it relate to the argument for weakened checks and balances?

Answer 36

Judicial overreach occurs when the judiciary makes decisions that are seen as encroaching on the responsibilities of the legislature. Examples: Judiciary decisions on issues such as banning firecrackers during Diwali or prohibiting liquor shops on highways. These can be argued as legislative matters rather than purely judicial ones.

Question 37

How does the executive's power to centralize control impact checks and balances?

Answer 37

Centralization, such as the central government appointing heads of bodies like the RTI, UAPA, and NIA, takes decision-making power away from independent institutions designed to balance power. Importance: This reduces the ability of those institutions to provide genuine oversight and accountability.

Question 38

Why is a completely strict separation of powers considered unsuitable for India?

Answer 38

India's democratic system is complex and diverse. A strict separation of powers could make it difficult to address the needs of its people as it would hinder collaboration between the legislature, executive, and judiciary.

Question 39

What is the proposed alternative to a strict separation of powers in India?

Answer 39

A system with "judicious and calculated functional overlapping." This means allowing some overlap between the powers and responsibilities of the three branches of government to encourage cooperation and maintain checks and balances.