Thursday, August 1, 2013

60. Separation of Powers in India

Separation of Powers

In college we were taught the separation of powers, a model for the governance of a state propounded mainly by Montesquieu and Locke. Briefly stated, the system is that that the state is divided into branches, each with separate and independent powers and areas of responsibility so that no branch becomes more powerful than the other branches. Typically the government has three wings: legislature, executive, and judiciary. It may be noted that although Montesquieu specified that the independence of judiciary should be real and not only apparently,  but at the same time  he said that the judiciary was generally seen as the most important of powers independent and unchecked, and was  also considered very dangerous.

In the British India there was some overlap of judicial and executive functions at the bottom in that in several minor criminal acts, powers were given to   executive magistrates to try and punish the offenders. Preventive actions under the CrPC were with the executive. However, the amendments brought in Cr.P.C. in the early seventies clearly separated the executive magistrates from the judicial magistrates, and the judicial powers were mostly taken away from the executive. Over the years one observes that very slowly the judiciary has acquired more powers than was probably intended by the framers of our constitution.  True it is the right of the judiciary to examine whether a certain law is valid  in accordance with the constitution, but sometimes it has even  made laws, as with the order that those politicians who have been convicted cannot fight an election, and more, those in jail also cannot.

Then India is probably the only democracy where the Supreme Court appoints itself. And this has been done by a judgment of the Apex Court.


Sometimes the courts have gone to the extent of monitoring  day to day progress in a project as in the construction of a road. Sometimes they have given direction to expedite rescue operations as in Uttakhand.  To be fair, the judiciary has stepped in when the executive failed to do its duty, and to that extent is responsible for seeing their power of implementation and superintendene  interfered with. My own feeling is that the watershed in the relationship between executive and judiciary came with the Babri case where the executive dropped everything in the lap of the judiciary and  washed their hands of deciding the issue. True that there was some merit in taking such a decision but such abdication brought a distinct change in the governance in the country. Anyway this is my interpretation which may or may not be agreed to by many.