The theory of separation of powers is used by democratic countries to avoid conflict between government institutions. Following Montesquieu’s dictum, one of the two generally accepted models of separation provides for a strict separation of powers between these three organs, i.e. legislature, executive, and judiciary, e.g. the United States.
The second model is a looser separation, sometimes known as the Westminster model, which is founded on the notion of Parliamentary supremacy, as in the United Kingdom.
The Indian Constitution offers a third type of power separation. While the existence of legislative, executive, and judicial bodies is acknowledged, the Constitution does not expressly vest the various types of authority in the various State organs, nor does it establish any exclusivity in the nature of the functions to be performed by them.
The functional overlap of several government organs is demonstrated by the following clauses of the Constitution:
The Supreme Court’s number of judges is determined by Parliament, and judges of the Supreme Court and High Courts can be impeached and removed.
Judges’ salaries, as well as their terms and conditions of employment, are regulated by legislation.
Despite the fact that Parliament has legislative power, the executive (ministers) controls the legislative process, as bills are mainly introduced by the executive in Parliament or state legislatures.
Where parliament is unable to make laws, the administration is empowered to do so through ‘delegated legislation.’
Several provisions provide the executive branch judicial powers. It can, for example, decide (in the name of the President) whether a member of a House of Parliament is no longer qualified to serve in that capacity.
The executive also appoints judges to administrative tribunals established under Article 323A and other tribunals established under Article 323B to carry out responsibilities previously performed by courts.
In Kesavananda Bharati, the Supreme Court concluded that the power to alter the Constitution under Article 368 did not extend to changing the Constitution’s “fundamental structure.” The Court is able to prevent ‘legislative extremism’ in this fashion.
The courts can issue a writ of mandamus to a public official, public body, corporation, subordinate courts, tribunals, or government, directing them to carry out their responsibilities.
The constitutional organisation of powers in multiple organs of government in an overlapping manner was done to build a structure of checks and balances to prevent any organ from wielding excessive power.
The delicate balancing of powers among the legislative, administration, and judiciary was a result of India’s unique social, economic, and political circumstances, and the system established in this way continues to serve our aims effectively to this day.