The three organs of the government which we know as the executive, the judiciary and legislature represent the people and their will in our country and are responsible for the smooth running of a democratic government in our society. The legislature is the law-making body, the executive is responsible for the enforcement of all such laws and the judiciary deals with the cases that arise from a breach of law. Thus they are all interlinked organs of the government and their roles and functions tend to overlap with each other, as it isn’t possible to separate the three from each other completely.
This has been the cause for not only serious political debate in our country but has raised many philosophical and jurisprudential debates among legal scholars and the law fraternity. Whether there should be a complete separation of powers or a well co-ordinated system of distribution of powers thus becomes the focal point of contemplation.
- Directive Principle of State Policies: Article 50 requires State to keep the judiciary and executive separate
- Judiciary is independent and its judgments, conduct of judges and matters cannot be discussed in the Parliament by the legislature
- Power of judicial review
- Power of impeachment of the judges is again a check on the judicial powers
- Powers, privileges and immunities to members of parliament
- Immunities from judicial scrutiny in the functioning of the houses
- Power of the legislature to impeach the President, the executive head.
Not strict separation of powers:
- Executive is part of the legislature itself
- It is responsible to the legislature
- Westminster type of parliamentary government requires close coordination of Indian executive and the legislature
- The President has to act as per the directives of the council of ministers as per the Article 74
Supreme Court Kesavanand Bharati Case is an important case in this regard as it says that while the parliament has the power to amend the constitution under Article 368, it cannot change the “basic features” of the constitution. These basic features entail limit on amending power of the legislature in terms of separation of powers as well.
In Indira Gandhi v. Raj Narain, the SC upheld that adjudication is a judicial function and cannot be exercised by the parliament even under amending power.