discuss the powers,institutional functioning and structural arrangements of indian prime minister,parliament and judiciary.
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The Constitution of India has many special features that distinguish it from other constitutions of the world. It is the longest Constitution; it is comprehensive and detailed since it deals with the complex and diverse situation that prevailed (and still prevails) at the time of its writing and adoption after the British granted independence to India. It also establishes a federal parliamentary form of Government in which the roles of the executive, the legislature and the judiciary are clearly defined and delineated.
The essence of parliamentary Government is that it has a head of state who is also the constitutional head. However, the real executive powers are vested in the Council of Ministers with the Prime Minister, who take executive action on behalf of the head of state (the President of India) and is the first organ of India. The legislature consisting of the President, the Parliament (the Lok Sabha & the Rajya Sabha) and the state legislatures, form the second organ of India. The third organ is the judiciary, whose provisions are contained in Chapters IV and VI of the Constitution. Unlike England, the Parliament is not supreme in India- it is the Constitution, which is supreme. The Indian Parliament draws all its powers from the Constitution, and in that sense, it is not a sovereign body.
The Constitution of India delineates a certain separation of the three organs of India. The separation of powers means the distribution of the Government’s political, administrative and judicial duties. It minimises the risk of unconstitutional government excesses since the implementation, compliance and execution of laws is needed to be sanctioned by all the three branches.
In this article, the author talks in brief about the separation of power in practice in India. Then, the article concerns itself mainly with the overlap of powers between the three organs and how a specific limit of overlapping helps the federal structure.
Separation of Power amongst the organs of Government
The term “trias politica” or “separation of powers” was coined by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an 18th century French social and political philosopher. His publication, Spirit of the Laws, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United States. Under his model, the political authority of the state is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently.
Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.
Although the Constitution of India does not provide strictly for the separation of powers, these articles provide a general guideline:
Article 50[i]: This states that the State or the Government concerned will take appropriate steps to ensure that the judicial branch is separated from the functioning and working of the executive branch.
Article 121[ii] & 211[iii]: It, in a way, provides for the separation of the legislature and the judiciary. This article states that the conduct of justice or the way a judge discharges his duties of any Court cannot be discussed in the legislature (state or union).
Article 122[iv] & 212[v]: This article is aimed at keeping the judiciary (the law interpreting body) and the legislature (the law-making body) separated. It does so by stripping the judiciary of any power to review and question the validity of proceedings that take in a legislature or the Parliament.
Article 361[vi]: This article separates the judiciary and the executive. It states that the President or any governor of any state is not answerable to any court in the country for actions and activities are taken in performance/exercise of the powers and duties of their office.
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