Answer:

Separation of powers is the foundational basis of a democratic, limited state. It is the principle that all sovereign powers of the state should not reside in one individual or institution in order to prevent abuse of exercise of those powers. Investing all powers in one institution will lead to violation of natural justice as, for example, the executive cannot be made to judge whether its actions are violative of a law that it itself created.

In India, the separation of powers has been laid down in the Constitution under the following provisions:

♤ Article 50 states that the state shall take steps to separate Judiciary from the Executive, to ensure the independence of the Judiciary.

♤ As per Articles 122 and 212, validity of proceedings of the Parliament and State Legislatures cannot be called into question in any court.

♤ According to Articles 121 and 211, judicial conduct of the judges of the Supreme Court and High Courts cannot be discussed in the Parliament and State Legislatures respectively.

♤ As per Article 361, the President or Governors are not answerable to any court for the exercise and performance of their official duties.

However, strict separation of powers does not exist in India. The three organs of the state carry out various functions, which would generally be considered within the purview of the other due to functional overlap. However, this also institutes a system of checks and balances to prevent arbitrary use of power by one organ. This is reflected through the following:

♤ Under the Indian Parliamentary system, members of the political executive are also a part of the Legislature as well as responsible to it.

♤ The Judiciary exercises legislative power as there are number of judge made laws and rules. For e.g. Vishakha guidelines.

♤ The Legislature exercises judicial powers in case of breaches of its privilege, impeachment of the President and removal of the judges.

♤ The Executive exercises Legislature’s law-making power under delegated legislation and also while passing ordinances under Articles 123 and 213 of the Constitution.

♤ Tribunals and other quasi-judicial bodies that are a part of the Executive discharge judicial functions and mostly have a member of the Judiciary. Further, the Supreme Court under Article 136 of the Constitution, can grant special leave to appeal against any judgement or order passed by any court or tribunal in India.

♤ Judiciary exercises some executive powers in form of court monitored probes or in the form of writ of continuing mandamus.

♤ The power of deciding the number of judges as well as appointing them is given to the President.

♤ The Judiciary uses the tool of judicial review under Articles 13, 32, 226 etc. of the Constitution to ensure that the laws made by the Parliament and actions taken by the Executive are constitutional.

Also, in India, the Supreme Court (SC) has discussed separation of powers in several judicial pronouncements. In the Kesavananda Bharati case (1973), it stated that the doctrine of separation of powers is an integral part of the basic feature of the Constitution. In Indira Gandhi v. Raj Narain (1975), the SC observed that separation of powers was limited in India. Further, the SC rejected the National Judicial Appointments Commission Bill, 2014, as it threatened the independence of the Judiciary.

Thus, in India, separation of powers has acquired its own uniqueness with sufficient checks and balances to ensure that no organ of the state exercises arbitrary power.