Answer:

♤ In Indian constitution, there are no express provisions recognizing the doctrine of separation of powers in its absolute form. As observed by H.J. Kania ( 1st CJI) - “Although in the constitution of India there is no express separation of powers, it is clear that a legislature is created by the constitution and detailed provisions are made for making that legislature pass laws. Does it not imply that unless it can be gathered from other provisions of the constitution, other bodies-executive or judicial-are not intended to discharge legislative functions?” There are few provisions (articles) which reasonably provide the idea of separation of powers which are discussed below:

♤ Constitution vested the executive power in the President and Governor by Articles 53(1) and 154(1) respectively. Similarly, through provisions like Articles 123, 213

and 357, the Constitution intends that the powers of legislation shall be exercised by the legislature. Similarly, the judicial powers can be said to be vested with the judiciary.

♤ Article 50 lays down that the state shall take steps to separate the judiciary from the executive.

♤ Though Indian constitution has reasonable provisions of separation of powers, but there exists functional overlapping between the organs. E.g. The President being the head of the Union exercises his powers constitutionally on the aid and advice of the Council of Ministers. On the other hand, he is given exclusive legislative powers for the making and promulgation of ordinances even during the course of recess of Parliament.

♤ Besides the functional overlapping, the Indian system also lacks the separation of personnel amongst the three departments. An inevitable part of a Parliamentary system of government, this can be seen under Article 75(5) of the Constitution which states that a person in order to be a member of the Council of Ministers must necessarily be a member of either House of Parliament.

♤ Further, the Constitution of India expressly provides for a system of checks and balances in order to prevent the arbitrary or capricious use of power

♤ The above mentioned provisions clearly indicate that the Indian Constitution in its plan does not provide for a strict separation of powers. Instead, it creates a system consisting of the three organs of Government and confers upon them both exclusive and overlapping powers and functions combined with checks and balances.