16 December 2024 : Daily Answer Writing
Q1) Discuss the rationales behind India not adopting a strict model of separation of power? In what ways has it led to blurring of the boundary of separation?
(150 Words/10 Marks)
ANS:
Separation of power refers to the division of government responsibilities into distinct branches to limit any one branch from concentrating powers. Each organ of the state should have exclusive and clearly defined roles and responsibilities which are independent of other two organs.
Reasons for adopting a flexible model of separation of power:
- India adopted a parliamentary form of government: (a) executive is drawn from and is a part of the legislature, thus strict separation of power not feasible; (b) Flexibility was crucial for a nascent nation-state.
- Increased accountability: (a) system of oversight to prevent the arbitrary use of power [e.g., Judicial review on laws passed by parliament; Approval of ordinances by parliament etc.]; (b) parliamentary control over executive through instruments like no-confidence motion, budget approval etc.
- Provide better governance: (a) cooperation required among various organs of the State to solve complex political and socio-economic challenges; (b) modern governance requires increasing specialization and coordination, which cannot be done in silos of SoP; (c) Avoid friction and ensure smooth cooperation between the executive, legislative, and judicial organs.
- In a democracy, power is given to discharge responsibility, i.e. power is a means to an end, not a property of the organs. Hence, if the end is better served by some other organ, there is no harm in exceptions if the principle stays intact.
An example of a non-rigid separation of power is India’s blend of the British system of parliamentary sovereignty and the American system of judicial supremacy. Thereby, the Indian judiciary can strike down any law or executive action if it violates the Constitution, but the Indian Parliament can also amend any part of the Constitution as long as it does not alter the basic structure. This created an interesting and unique blend of power synthesis between the organs of the State.
However, the flexible nature of separation of powers has led to some issues:
- Delegated legislation: increased scope and use of delegation of legislative powers (such as rulemaking) to the executive blurs the separation boundary.
- Administrative adjudication: (a) increasing dependency on revenue courts and administrative tribunals (such as IT Appellate Tribunal, Central Administrative Tribunal) blurs the separation boundary; (b) independent regulators (such as SEBI, TRAI, etc.) combine the functions of rulemaking, implementation, and adjudication, which violates the doctrine.
- Judicial activism or judicial legislation: due to lacunae in governance, the judiciary is actively taking on the role of the executive and legislature. This blurs the separation boundary and creates a skewed structure.
- Ordinances: increased dependency on ordinances leads to the executive appropriating the core and principal function of the legislature.
