INDIAN LEGAL SYSTEM

INTERNAL ASSESSMENT- 1

Submitted By- Maitrayai (22010323076)

Nida Hassan (22010323097)

Ahna Pal (22010323065)

Jhanvi (22010323073)

BA LLB, DIVISION B

Under the guidance of

Mr Ganesh Kumar Dendukuri

In India, the separation of powers is imitable for the administration of federative and
democratic states. Separation of powers divides the mechanism of governance into three
branches i.e., Legislature, the Executive and the Judiciary. Under this rule the state is divided
into three different branches- legislative, executive and judiciary each having different
independent power and responsibility on them so that one branch may not interfere with the
working of the other two branches. Basically, it is the rule which every state government
should follow in order to enact, implement the law, and apply it to specific cases
appropriately. If this principle is not followed then there will be more chances of misuse of
power and corruption If this doctrine is followed then there will be less chance of enacting a
tyrannical law as they will know that it will be checked by another branch. It aims at the strict
demarcation of power and tries to bring exclusiveness to the functioning of each organ. The
Constitution of India embraces the idea of separation of powers in an implied manner.
Despite there being no express provision recognizing the doctrine of separation of powers in
its absolute form, the Constitution does make provisions for a reasonable separation of
functions and powers between the three organs of Government. A Separation of functions
rather than of powers is followed. A system of checks and balances has been put in place in
such a manner that the judiciary has the power to strike down any unconstitutional laws
passed by the legislature. The judiciary has the power of judicial review over the actions of
the executive and the legislature. The judiciary has the power to strike down any law passed
by the legislature if it is unconstitutional or arbitrary as per Article 13. The doctrine of
Separation of Powers emphasises mutual exclusiveness of the three organs of the government
viz., legislature, executive and judiciary. The rationale behind the doctrine is that the
concentration of power, on one hand, leads to tyranny. The Indian Constitution, though not in
its entirety, does incorporate the principle of separation of power within its provisions. The
doctrine is a part of the basic structure of the Indian Constitution.

The Indian Constitution doesn't mention the separation of powers explicitly. A strict or literal
division of powers was never intended by the members of the Constituent Assembly. As a
result, Prof. K T Shah proposed adding Article 40-A to the Constitution which outlined a
total division of powers between the three departments during the Constituent Assembly.
Keeping in mind India's established parliamentary system and arguing in favour of a
harmonious approach over a three-way struggle, the Assembly rejected his proposal. Dr B.R.
Ambedkar, even after recognizing the distinction between the executive and judiciary,
emphasised that the executive and legislature are interdependent for the efficient execution of
their duties.

To better understand India's perspective on the separation of powers, the Constitution's

The following provisions favour a pure separation of powers:

(1) Unique institutions and fundamental powers:

According to the Indian system, there are three separate branches of government: the State
Legislature, Governor, and High Courts on the state level, and the President, the Supreme
Court, and the Parliament on the national level. The fact that Indian government has three
separate institutions for the legislative, executive, and judicial branches—the Supreme Court,
the President, and the Parliament at the national level—as well as the State Legislatures,
Governors, and High Courts at the state level—is beyond dispute. In accordance with Articles
53(1) and 154 of the Constitution, the President and the Governor, respectively, have been
given explicit authority to act on behalf of the Union and the States. In addition, Article 245
grants the State Legislatures and Parliament, respectively, the right to enact legislation for the
entire nation. Additionally, Article 50 of the Indian Constitution clearly mandates the
separation of the executive and judicial branches of government. As a result, it is discovered
that the Constitution broadly lays forth an apparent separation between the three branches and
their respective functions.

(2) Independence and self-reliance:

The Constitution appears to meet these requirements in terms of the independence and
autonomy of these organs. As an illustration, Articles 122 and 212 of the Constitution forbid
the courts from looking into the actions of the State and Parliamentary legislatures,
respectively. Additionally, MPs and MLAs are protected by the judicial immunity provisions
of Articles 105 and 194 from any remarks made during their sessions. Similar to this,
according to Article 361, the President and Governor are not held accountable by the Courts
for the use of their official authorities and responsibilities. In addition, judges of the Supreme
and High Courts are exempt from parliamentary or state legislative oversight of their actions
(Articles 121 and 211). The Indian structure thus appears to grant a certain level of autonomy
to its organs under certain conditions, free from incursion.

Limitations on a strict separation of powers:

There are many clauses in the Indian Constitution that go against the pure philosophy and
instead adhere to a system of dependency and overlap with the purpose of establishing checks
and balances. The legislative and the executive are determined to have the greatest degree of
overlap. Due to the Union Council of Ministers' membership in both the executive (Article
75) and the Parliament, there is a shared personnel pool between the two branches of the
Indian government (Article 74). Along with the Houses of Parliament, even the President is
considered to be a member of the Legislature (Article 79).

(2) Overlapping powers:

There is also a shared set of authority between the two branches, with the executive branch's
authority being defined as coextensive with the legislative branch (Article 74). When it
comes to the President's ability to enact ordinances, which are regarded as being comparable
to parliamentary acts when the Houses of Parliament are not in session, the executive
exercises legislative powers (Article 123). Legislative bills must receive the President's
approval in order to be passed (Article 111). Additionally, the President performs legislative
duties when the State of Emergency is declared (Article 356) when he has the power to
dissolve the State Legislature and enact legislation on behalf of the state. Furthermore, the
fundamental idea of delegated legislation is predicated on giving the executive branch
legislative authority. The Constitution tacitly approves of this delegation, which is conducted
in the name of administratively deciding on citizen rights (Articles 372 and 13). Another
overlap between the two bodies may be seen in the fact that the Council of Ministers is
jointly accountable to the Lok Sabha (Article 75). Thus, it has been claimed that the
executive and legislative branches in India have fused together without running afoul of one
another. Another overlap between the two bodies may be seen in the fact that the Council of
Ministers is collectively accountable to the Lok Sabha (Article 75). As a result, it has been
said that India's executive and legislative branches are merging without encountering any
conflict.

As a result, it is clear from the examination of the doctrine's constitutional provisions that
have been done above that the Indian Constitution has defined a large number of areas that
define the authority and responsibilities of the three branches. However, there is also a
departure from the theory's fundamental ideas by choosing a special system that is best suited
to the nation's political environment, without changing the doctrine's core tenet of denying
absolute control to one group of people.

In India, the theory is actually realised through practical application more in a symbolic than
literal sense. It adheres to the doctrine's core principles but alters some of its elements to
work with India's particular governmental system. The constitutional framework of India
adequately distinguishes the roles and branches of the government to prevent the takeover of
those of one organ by another, as demonstrated in the seminal case of Ram Jawaya Kapur v.
State of Punjab. One of the earliest cases to address this issue, In the Re Delhi Laws Act case,
emphasised how the British Parliamentary system that India adopted includes the executive's
accountability to the legislature as a key component and does not strictly follow the concept.
However, Chief Justice Kania said that although the Indian Constitution does not explicitly
recognise the separation of powers, as it does in the US or Australia, it nonetheless implies
that it does. In the case of Indira Gandhi Nehru v. Raj Narain, where a parliamentary
amendment was declared unconstitutional by the Supreme Court due to a violation of the
separation of powers since it had the effect of nullifying a court order, which is largely a
judicial function, a thorough analysis of this doctrine was conducted. The Court concluded
that by defining distinct spheres for judicial and legislative functions, India accepts the
principle of the separation of powers in a broad sense. As this principle forms the foundation
of the Constitution, neither sphere can infringe upon the other. The judges' interpretation
significantly clarifies India's position on the theory. It verifies the doctrine's adoption in India
by means of a customised version. According to this interpretation of the theory, an organ
might have two types of powers: incidental and essential. While one organ may legitimately
perform the incidental tasks of another, it cannot assert control over the performance of the
latter's essential duties. The contrasting dualism of these two types of powers also illustrates
the duality of this version, with the essential powers correlating to the pure form of the
concept and the incidental powers diverging from it to demonstrate the notion of checks and
balances.

Coordination and collaboration between all three governmental branches are crucial for any
government to run smoothly. According to this idea, each of the three branches of
government—the executive, legislative branch, and judicial branches—has distinct roles and
authorities, and none of them affects how the others run their affairs. Being a well-organized
institution, our government is exceedingly challenging to compartmentalize. However, this
notion is still relevant to contemporary. Separation of powers is exemplified, for instance, by
the President's unchecked ability to pardon, whereas Congress shares the authority to enact
laws with the executive (via approving and vetoing legislation) and federal judiciary (through
declaring laws unconstitutional). History has repeatedly demonstrated that when one
individual or group has unrestricted power, it typically results in the suppression of or
restriction of the power of others. In a democracy, the power distinction is intended to stop
the abuse of authority and protect everyone's right to freedom. In sophisticated countries such
as the United States, Nepal, France, etc., the theory of separation of powers cannot be
rigorously enforced. But up to a certain point, it applies to practically all nations. No
democratic system of government has a total separation of power or an utter lack of
independence of powers, even though it is essential to how American democracy functions.
Governmental duties and powers purposely overlap because they are too intricately
connected to be easily divided into separate categories. As a result, there exists a natural level
of rivalry and conflict between the several parts of government. Predominance among the
government branches has fluctuated over the course of American history. Such encounters
imply that the location of power is an evolutionary process. The three branches of
government must work together in harmony for liberty to exist, but as security and welfare
concerns have grown, more power has been given to the executive. In a utopian society, the
individual's liberty, well-being, and state security should all be prioritized on an equal basis.
This would certainly require a powerful government, but it would also require a structure of
checks and balances and the separation of authority. Since the approval of all three branches
is necessary for the making, carrying out, and administration of laws, it has been suggested
that such a separation minimises the likelihood of arbitrary government excesses. “This
doctrine is impracticable as a working principle of Government. It is difficult to divide the
functions of each organ on an accurate basis”, said professor garner. This concept, in my
opinion, is crucially significant since it guards against arbitrary authority and forbids organs
from seizing over the vital responsibilities of other organs. The federal government's integrity
would be protected by the separation of powers, which would guarantee that no one branch of
government would hold excessive power. Without this framework, the government's various
branches will not be able to cooperate to keep the government stable. government. This
would not be lawful for one arm of government to have complete power or more power than
another branch.

Keywords- Legislature, Executive, Judiciary, Constitution, Democratic System,