Write a brief note on the separation of Legislative powers made by the constitution of India.
Answers
Separation of Powers
In India, a separation of functions rather than of powers is followed. Unlike in the US, in India, the concept of a separation of powers is not adhered to strictly. However, a system of checks and balances have been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature.
Today, most of the constitutional systems do not have a strict separation of powers between the various organs in the classical sense because it is impractical. In the following sections, we will see the prevailing system in India, what the relationship between each organ is, and the constitutional provisions thereof.
Before proceeding with the relationships, let us examine in brief what the functions of each organ of the government are.
What is the Legislature?
The chief function of the legislature is to enact laws.
It is the basis for the functioning of the other two organs, the executive and the judiciary.
It is also sometimes accorded the first place among the three organs because until and unless laws are enacted, there can be no implementation and application of laws.
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The Indian Constitution provides for a new kind of federalism to meet India's specific needs. In the matter of power distribution, the Framers follow the pattern of the "Government of India Act, 1935".
Explanation:
The main aspect of a "federal Constitution" is the "distribution of powers" between the "Center/Union & the States
The "Indian Constitution" has distributed the "legislative powers" in between the "Union & State": (i) "Territorial Jurisdiction" (ii) "Distribution of Legislative powers". Art 246 of Indian Constitution gives a 3-fold distribution of legislative powers: The "Union List", The "State list", & the "Concurrent list".
- The "Union List" also known as " (List I)" gives Union the legislative power on specific items within India comprising foreign affairs, coinage banking, taxes, currency etc.
- The "State list", also known as List II, gives "exclusive legislative powers" to the State on items which are mainly of "local interest" such as Police, Public Order, agriculture, health, etc
- The concurrent list, also known as List III", gives power to both the Union & State on certain items comprising forests, education, civil & criminal procedure code, insolvency & bankruptcy, divorce & marriage etc. The Concurrent List was to serve as an instrument to avoid "excessive rigidity" to a "two-fold" "distribution".
Besides, additional laws can be adopted by the States to amplify" the laws of the Union parliament. The subjects involve common law & social services-civil and criminal law, marriage, partnerships, education planning, etc. Nevertheless, the Union Parliament was given the primacy over the State Legislatures despite the distribution of legislative powers in accordance with the 3 Lists..
The Constitution makes a two-fold distribution of legislative powers: (a) Concerning territory & (b)Concerning subject matter of legislation, (i.e. three Lists).
Territorial Legislative Jurisdiction [Article 245]
Article 245 determines the legislative powers' scope or geographical boundaries: according to the provisions of the constitution, the "Parliament" can make laws in all or in part of the "Indian territory, and a State legislature in respect of the State territory". There will be no legislation made by the Parliament void because of the point to which it is operated extra-territorially, i.e. outside India.
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