The Indian Constitution, in the practical sense, does not follow the rigid system of separation of power or the degree of separation of power that is there in the U.S. Neither does the Indian follow the compromised model of separation of power that is parliamentary supremacy that is there in Britain. However the Indian Constitution, on the other hand, follows a unique model of separation of power that comes with checks and balance. In short we can say that separation of power in India is somewhere in between America and Britain.
History of Separation of Power
The Constitution does not explicitly mention the concept of separation of power. The concept of separation of power, as a theme discussed in the Constitutional Constituent Assembly, was clear unanimously that the Constituent never intended to have separation of power in a pure and rigid form. This was because of a kind of democracy being exhibited based upon harmonious not the conflict between the organs. However it was Professor K.T. Shah who advocated for inserting a separate separation of power under Article 40A. Later Ambedkar replied and emphasized that, rather than a pure form of separation of power, our Constitution has been systematically arranged to facilitate interdependence and harmony, especially between the legislator and the executive.
The closest we have is Article 50. However we can still say that separation of power practically exists and does not exist.
How does separation of power exist?
Whenever they are performing autonomic and by the way the separation of power exits, which can be visibly seen in
- Article 53 and 154 respectively: This means the President would be the Executive Head of the Union whereas the Governor is the Executive Head of the State. That shows that all the decisions are respectively performed in their name.
- Article 361: Immunity to the president and governor with regard to exercising their functions while they are at their worst and immunity from appearances in criminal and civil matters respectively.
- Article 105 and 194: Member of Parliament and state legislature have been provided immunities in order to ensure that they are able to render their services without fear and discharge their obligations and duties, immunities like freedom of speech.
- Article 121 and 211: Provides immunity to the judiciary so that their conduct cannot be discussed on the floor of the house except in the motion of removal. This prevents judges from unwanted criticism of their work and prevents any pressure inflicted upon the judiciary.
- Article 122 and 212: Supreme Court and High Court, respectively, can't interfere in the proceedings of Parliament and the state legislature
From the above examples, we may conclude that autonomy is secured in the Constitution, protecting the spirit of separation of power.
How separation of power does not exist?
Whenever a function of an organ is performed by another organ that is legislative, executive, or judiciary, then it is considered to be an overlap and therefore we can conclude that it is against the separation of power. There are possible three kinds of overlap:
- legislative-executive
- executive-judiciary
- judiciary-legislative
Legislative-Executive Overlap
- Through Article 79 and 168 (Diagram)
- The above example shows that we can say that the executive is an integral part of the legislature as the president signs the bill as per Article 111 and the governor as per Article 201/200 and completes the legislature.
- Also Council of Ministers are part of the Legislature. It shows that there is no friction rather than there is fusion.
- Article 123 and 213
- Ordinance which the President and Governor respectively promulgate, it is a legislature in the absence of Parliament and State Legislature.
Executive-Judiciary Overlap
- Article 72 and 161 respectively. This is the pardoning power of the President and the Governor. It is a type of judicial function which they perform therefore overlap.
- Article 217: In the age of conflict regarding the service tenure/retirement of judges, the decision could be taken by the President.
- As per Article 124 the President appoints the judges of the Supreme Court.
Judiciary-Legislature Overlap
- Article 145: The Supreme Court of India can make its own rules regarding the functioning of the Supreme Court.
- The Presiding Officers, Speakers, Deputy Speakers, Chairmen, and Deputy Chairmen in the Houses administer the proceedings and can take action on certain decisions regarding the conduct of the Houses, e.g. suspension of MPs and MLAs from the House.
- Also judiciary checks the constitutional spirit of legislature and execution through power of judicial review. It is also a way of check and balance.
Checks and Balance
Checks and balances are phenomena that apply so that each organ of the Constitution exercises sufficient control over other organs in order to prevent the existing organ from usurpation to power.
(Diagram)
The President of India can be removed through Article 61 of the Court impeachment by the Parliament. Similarly the Head of Government like PM and CM can also be removed when they lose the confidence of the house, that is, the Lok Sabha and legislative assembly.
The judiciary keeps a check upon the legislature and executive and checks the constitutionality of any action and legislation through the power of judicial review, which can be traced from Article 13, 32 and 226 respectively.
Similarly the judges of Supreme Court and High Court can also be removed by the parliament on the grounds of misbehaviour and incapacity.
The above examples show the unique symbiosis of separation of power and checks and balances can be seen in the Constitution.
Power Structure of Government
diagram
diagram
In this type of systematic arrangement we have a strong centre which gives power to the units. In other words we can say centre controls the way the power is dedicated to the field, for example France, China and Britain. This type of system is unique, highly stable, highly centralizing, and indestructible.
Confederation
diagram
This type of system: the power between the centre and the state is not shared. Ideally it is the unit which gives power to the centre by forming the association, alliances, or group that come together for a noble vision and association.
This type of system is highly unstable and destructible as the state disintegration will lead to the disintegration of the centre for example USSR.
Federation
diagram
Federation is a systematic arrangement where there is a harmonious sharing of power between the centre and the state. It is a form of government where power is shared between two units. America is a close classical example of ideal federalism although states came together united (coming together federation type) to form the USA and technically it was believed to be a confederation type but when the southern states of America, after the civil war, wanted to secede from the USA. The American Supreme Court, in the landmark case Texas vs. White (1869), clarified the difference between federation and confederation. American Supreme Court said Infatuation Union is indestructible.
Classification of Federation Based upon Nature
diagram
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Symmetrical Federation
It is a type of federation where the states share equal status with their respective states. America is in this type called a symmetrical federation. even a dual federation type where not only equal status but equal power. Example: USA has 50 states. The seat in the Senate, the most powerful upper house in the world, is fixed at 2 in each state and the geographical expansion and population by different but seats are fixed.
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Asymmetrical Federation
In this type the state does not share its status with each other. This type of arrangement is done on the basis of the requirement needed, sometimes convenience, culture, diversity, for upliftment of weaker sections, etc. e.g. India, where various diversities, diverse cultures, linguistic, vividity, social, society, geographical challenge, uniqueness, culture, massacre of identity, based upon challenges, required special treatment of few states. Examples: we have given special test to states like Article 371A, 371B, 371C, etc.
Can India be called Federation as America?
India can not be called an idealistic federation. In America it is an indestructible union of industrial states. However, ideally India is a federation but the power is vested more within the Union. Although there is a harmonious sharing of power, we are an indestructible union of destructible states. The power in India is shared between the Union and states. However the state existence can be redrawn as the power balance is largely shifted towards the Union at sometimes, normal circumstances the power is shared.
Reasons of this?
India is a land of diversity with the history of partition premised on the name of religion. The non-state actors still operate and pursue their vitriolic agenda of separatism, radicalization and orchestrating challenges for national security and police establishment.
During the making of the Constitution the Constituent Assembly's popular view was giving more power to the state. However such circumstances and situation prevailed where we adopted Canadian model of federation.
Federal features of Indian Constitution
- Dual Polity
- Written Constitution
- Division of powers
- Supremacy of the constitution
- Rigid constitution
- Independent judiciary
- Bicameralism
Unitary features of Indian Constitution
- Strong Centre
- States not indestructible
- Flexibility of the constitution
- No equality of state representation
- Emergency provisions
- Single citizenship
- Integrated judiciary
- All-India Services
- Integrated audit machinery
- Parliament's authority over state list
- Appointment of governor
- Integrated election machinery
- Veto over state bills
With the above theme, with power and features, we can conclude that the Union has more power as compared to the state. Therefore we can say that the Indian Constitution is quasi-federal in nature, as famously said by K.C. Wheare.
