Separation of Power Notes for UPSC

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Separation of Power Notes upsc

Separation of Power

Introduction

  • It means exe, legislative & judicial powers of Govt shd be divided into diff branches & not concentrated in one. 
  • 1st propounded by Montesquieu in “The spirit of laws”
  • Part of Basic structure—KBC (1973)
  • Functional separation—Art 50, 121 & 211, 122 & 212, 361

India vs USA

  • US–Watertight SoP (Due to Presidential system)
  • Indian constitution embraces idea of SoP in an implied manner—Reasonable & flexible SoP—Principle of “Checks & balances”
      • Bcz of Parliamentary Govt– India does not follow an Absolute separation– Exe is part of legislature & also is responsible to legislature + courts can strike down unconstitutional amendments made by legislature.

Objectives

  • To ensure that diff branches of Govt shd work autonomously with minimal interference from others.
  • Reduces over-centralisation of power in any branch + ensure checks & balance

Importance of SoP

  • Imperative for smooth functioning of vibrant democracy–checks & balances prevent abuse of power
    • GRM through Independent judiciary.
    • Executive remains A/C to Leg for implementation of policies
  • Rule of law + Checks arbitrariness

Functional Overlap

  • Overlapping Powers Of Legislature

With Judiciary

With Executive

  • Impeach of Prez
  • Removal of judges.
  • Punish for breach of its privilege
  • Ministers are members of leg.
  • Prez Impeachment
  • Overlapping Powers Of  Executive

With Judiciary

With Legislative

  • Judicial app
  • Art 72 
  • Tribunals & QJBs— discharge judicial functions.
  • Ministers r members of Leg.
  • Ordinance
  • Delegated legislation.

Judicial pronouncements

  • KBC — SoP is part of basic structure
  • Indira Gandhi vs Raj Narain– In Indian Const, there is SoP in a broad sense only—A rigid SoP as in America does not apply to India
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Venkaih Naidu—All 3 organs should respect “jurisdictional sanctity enshrined in Const instead of arrogating to themselves a sense of supremacy”.