Answer:

The principle of separation of powers deals with the mutual relations among the three organs of the government, namely legislature, executive and judiciary. It implies that each organ should be independent of the other and that no organ should perform functions that belong to the other. Thus, legislature cannot exercise executive or judicial power; the executive cannot exercise legislative or judicial roles and the judiciary cannot exercise legislative or executive power of the government.

According to Montesquieu, the main objective of the doctrine of separation of power is that ‘there should be government of law rather than having will and whims of the official’. It is based on the premise that concentration of power in one person or a group of persons generally results in tyranny and arbitrariness in decision making. Thus, it is considered as an indispensable part of a democratic polity.

In India, however, strict separation of powers is not followed. For instance:

♤ The executive (President) has the power to appoint Prime Minister, Council of Ministers judges etc. Further, he also exercises legislative powers by giving his assent to a bill.

♤ The judiciary also can hold any law as invalid if the law ultra-vires the Constitutional provisions. Moreover, judiciary sometimes ventures into the domain of law-making and implementation. For e.g.: Banning diesel vehicles older than 10 years plying in Delhi-NCR region, banning the sale of liquor at retail outlets along highways etc.

♤ The executive forms a part of legislature in the parliamentary system. It can exercise the power of subordinate legislation when delegated to it by legislature. It also performs judicial functions in the proceedings of tribunals.

Although, there are amorphous boundaries between the three organs of state, there is a significant differentiation which exists in the discharge of their functions. But still it cannot be said that the doctrine of separation of power does not exist. It exists in the form of the principle of checks and balances such as:

o Executive is accountable to the lower house. For e.g. executive needs the approval of legislature for the budget to be passed and payments to be authorized out of the consolidated fund by the legislature.

o Judiciary acts as the interpreter of the Constitution and custodian of the rights of people. It can hold the executive and legislature accountable through judicial review.

o Even judiciary is not supreme as Parliament can hold the judges accountable through the process of impeachment for such behaviour unworthy of their position.

The principle of ‘checks and balances’ got more prominent after Minerva Mills case where judiciary held that judicial review is a basic feature of the Constitution. Overall, it ensures that no organ of the state becomes too powerful which cannot be contained by other organs in the constitutional framework.