Indian Governance: Separation of Powers with Checks and Balances

G. L. Batra, Writer & formerly Addl. Secretary, Indian Parliament and Chairman, Public Service Commission of the Indian State of Haryana

indian-flag-1079100_1920Credit: pixabay.com – Public domain

“Any system of government which tends to become passive and static is bad. The parliamentary system of government, with all its failings, has the virtue that it can fit in with the changing pattern of life.”

Jawaharlal Nehru

 

India has adopted a parliamentary system of government. The founding fathers of our Constitution bestowed upon us a true and real democracy by way of a representative form of government where the will of the people is paramount. Our system is akin to the Westminster Model of Great Britain, with several significant differences. India has a written Constitution, with the undercurrent of all our ancient thought and philosophy right from the Vedic era running through it. On the other hand, Great Britain has an unwritten Constitution and their Courts rely upon conventions and precedent to interpret and enforce it. The crown is considered the head of state in the United Kingdom, and the King or Queen ascends the throne through hereditary succession. In India, on the other hand, the President has been designated the head of state, and is elected to office by the elected representatives of the people. The Indian Constitution and form of government may be said to be different to those of Great Britain in these respects.

Our Constitutional system is basically federal, but has certain striking unitary features. It is therefore often described as ‘Quasi-federal’. India has a dual system of government – the Union government at the centre, and the State governments in the various states. To ensure the smooth running of this dual machinery, the Constitution has adopted the policy of separation of powers, wherein the subjects on which the Union and State legislatures can make laws have been enumerated in three ‘Lists’ in the Seventh Schedule of the Constitution. These are: The List I or the Union list, which contains subjects in the exclusive legislative jurisdiction of the Union; List II or the State List, which contains subjects in the exclusive domain of the States; and List III – the Concurrent List, the contents of which are concurrent to the domains of the Union and State legislatures. The other prominent federal characteristics of our political system are that we have a written Constitution, which is considered supreme; and the institution of the Supreme Court, which is the sole interpreter of the provisions of the Constitution. The Supreme Court can step in to remedy the situations wherein either the Union or State governments have overstepped their Constitutional limitations.

Our Constitution, in addition, also contains some significant provisions which are characteristic of a unitary form of government. In spite of the distribution of powers between the Union and the States, there is a strong bias in favour of the Union, and the authority of the States is hemmed in by various limitations. The Union government has been given the power to issue directions to the State governments in order to ensure compliance with the legislative and administrative action of the Union[1]. In addition, the Union may impose its own rule in a State which refuses to comply with such directions, or where in its opinion, the Constitutional machinery has broken down[2]. There are a few other provisions as well which impart a unitary hue to an otherwise federal model of government.

Our Constitution provides for three principal organs of the State, at both the levels of government: The Legislature, The Executive and The Judiciary.

THE LEGISLATURE

The Union Legislature consists of a Parliament for the Union, which comprises the Rashtrapati (President), the Lok Sabha (the House of the People) and the Rajya Sabha (the Council of States). House of Lords.

The President

The President of India is elected indirectly by an electoral college consisting of the elected members of both houses of Parliament and of the Union Territories of Delhi and Pondicherry; and the elected members of the Legislative Assemblies of the States. The system of election of the President as envisaged by the Constitution[3], is one of proportional representation by means of the single transferable vote.

The President holds office for a term of five years from the date on which he enters office. The qualifications of a candidate for election to this highest Constitutional office are Constitutionally prescribed[4], as is the procedure for his removal by Parliament, by impeachment[5]. Any bill passed by either house of Parliament becomes a law only after the President grants his assent to it. In case of money bills, the President is bound to give his assent. The President may return an ordinary bill to Parliament for reconsideration, with a message to both houses, and is bound to give his assent to a bill so reconsidered.

The Houses of Parliament – Lok Sabha and Rajya Sabha

The Lok Sabha or the House of the People consists of a maximum of 550 members chosen by direct election from the territorial constituencies in the States and Union Territories, and not more than 2 members to be nominated by the President from the Anglo-Indian Community. The Lok Sabha is presided over by the Speaker, who is elected by a simple majority by the house by the members present therein.

The Rajya Sabha, on the other hand consists of not more than 250 members, of which 238 are representatives of the States and Union Territories elected indirectly, and 12 are nominated by the President from among those who have special knowledge or experience in the fields of literature, science, arts or social service. The Vice President of India, who, like the President, is elected by an electoral college, is the ex-officio chairman of the Rajya Sabha.

The State Legislatures – Vidhan Sabha and Vidhan Parishad

Each State Legislature consists of the Governor and the Vidhan Sabha (Legislative Assembly). In addition, some states like Bihar, Maharashtra, Karnataka and Uttar Pradesh have a bicameral legislative system, with an additional second house called the Vidhan Parishad (Legislative Council).

The Vidhan Sabha of every state may consist of between 60 and 500 members[6]. The members of the Vidhan Sabha are elected directly by the people from territorial constituencies within the state, while the members of the Vidhan Parishad are elected indirectly by the members of local authorities, graduates, teachers and the members of the Legislative Assemblies, and a few members are nominated by the Governor[7].

The Governor

The Governor is appointed by the President of India, and holds office during the pleasure of the President. The Constitution prescribes the qualifications for election of a person as Governor, and also his functions and duties. The Governor is bound by duty to summon the Vidhan Sabha (and wherever applicable, the Vidhan Parishad) to meet, and not more than six months may elapse between two consecutive sessions of the house. He may also address each house either individually, or in a joint session, and may send messages to the houses regarding bills pending in the house, or any other matter, which the houses are required to consider with ‘all convenient dispatch’. The Governor’s assent is required before any bill passed by the State Legislature becomes a law, and, he may either grant or withhold his assent, or return the bill to the house for reconsideration. The Governor may also reserve a bill for the consideration of the President, in which case, the final decision regarding it rests with the President. These powers of the Governor are in sharp contrast with those of the President, who has restricted powers regarding bills passed by Parliament.

THE EXECUTIVE

In the Westminster model of government, the executive consists of the Head of State and the Cabinet or Council of Ministers. In India, the executive in the Union consists of the President and the Council of ministers, and in the states, of the Governor and the council of ministers. Art. 74 states that the council of ministers headed by the Prime Minister shall aid and advise the President, and the President is bound to act on such aid and advice. The executive power of the Union is vested in the President is exercised by him either directly or through officers subordinate to him, in accordance with the Constitution. The Privy Council in Emperor v. Sibnath Bannerjee[8] has clarified that “Ministers are officers subordinate to the President…”. All executive functions of the Union are carried out in the name of the President. The President is also the supreme commander of the defence forces. The President is the titular head of state, and in most situations, has to act on the aid and advice of the Prime Minister and the Council of Ministers[9]. This ‘aid and advice’ is confidential and is not subject to the scrutiny of the courts. The President has been given the powers to pardon or reprieve convicts.

The Prime Minister is the link between the President and the Council of Ministers. He is expected to meet the President at regular intervals to inform him on the affairs of State.

The executive, meaning the cabinet, is in fact a sub-committee of parliament and the executive is accountable to parliament as per the provisions of our Constitution. The survival of the council of ministers depends upon whether the Lok Sabha has confidence in it. There are many procedures like no-confidence motion etc. to oust the government in accordance with the wishes and desires or according to the benefit of the public at large.

The executive in the States follows a similar pattern with the Governor instead of the President at the head, and the Chief Minister, instead of the Prime Minister, heading the Council of Ministers of the State.

THE JUDICIARY

Under the Constitution, a single and integrated judicial system for the entire country has been provided with the Supreme Court at the apex, the High Courts in every state, and the lower courts situated below the High Courts in the hierarchy. The High Courts as well as the Supreme Courts are competent to interpret and enforce all laws passed within the country, whether by Parliament or the State Legislatures.

The Supreme Court alone has been given the power to interpret the provisions of the Constitution of India. Its decisions are binding on all the courts below it.

It is evident that though our Constitution does not  adopt the doctrine of separation of powers, no organ of the State can either trespass the domain of another organ, and nor can it delegate its essential functions to any other organ of the State. Dr. Durgadas Basu, quoting judicial authorities says, “A written Constitution by its very nature, involves a distribution of powers, though the legislative and executive powers are not vested by the Constitution in the legislature and judiciary expressly, it is clear from the different provisions of the Constitution that, barring specified exceptions, the power of making laws shall be exercised by Parliament and the legislatures of states, and power of adjudication and interpretation of the Constitution shall be exercised by the Courts. This is a Constitutional trust imposed by the Constitution upon the legislature and the courts which they cannot themselves delegate to others[10].”

In conclusion, it can be broadly and safely said that the Parliament is to legislate, the Executive is to administer and implement the law so made, with exception of powers to frame rules therein and for administrative purposes and legislate – ordinances in emergencies, and the Supreme Court has the power of interpretation of the Constitution and the laws framed thereunder, and its application lies with High Courts / Supreme Court. Therefore the Parliament is supreme in its own sphere, and the executive and Supreme Court (judiciary), in their own respective spheres. The Supreme Court, in various decisions, has construed and interpreted the letter and intent of the Constitution and has laid down that the basic structure of the Constitution cannot be altered, thereby implying that ultimately, it is the Constitution which is supreme.

 

 The content is copyrighted to the Author. He can be contacted for republication of his work at batragl@gmail.com

 


[1] Constitution of India, Articles 256 & 257

[2] Ibid Article 356

[3] Ibid Article 54

[4] Ibid Article 58

[5] Ibid Articles 56 & 61

[6] Ibid Article 170

[7] Ibid Article 171

[8] AIR 1945 PC 156

[9] Constitution of India, Article 74

[10] Basu, Shorter Constitution of India,  (13th ed 2001, pg 471)