Separation of Powers

The separation of powers of the legislative, the executive and the judiciary as articulated by Montesquieu, effectively limits the possibility of arbitrary excesses by government. He considered the Legislature, the Executive and the Judiciary as the three branches of the Government. He thought that it was very important to create separate branches of government with equal but different powers in order to ensure the freedom of the people. According to him each branch of Government could limit the powers of the other two branches without encroaching upon them.

India does not have strict separation of power as executive is part of legislature however India has system of checks and balances where one branch can check the arbitrary action of other.

Each branch of the government has some influence over the actions of the others, but no branch can exercise its powers without cooperation from the others. Each branch has some say in the work of the others as a way to check and limit their powers, but no branch may encroach unconstitutionally upon the domains of the other branches. In this system of separation of powers, with its checks and balances, no branch of the government can accumulate too much power. But each Branch and the government generally, is supposed to have enough power to do what the people expect of it. So the government is supposed to be both limited and strong: strong enough to be effective in maintaining order, stability, and security for the people, but not strong enough to threaten their liberty.

Other institutions outside government also serve as checks and balances on the powers of the executive, the legislature, and the judiciary. These include a free press that can investigate and report on government actions, non-governmental organizations that advocate for different interests, and the power of the people in whom government authority ultimately rests.

The power to issue ordinances derives from Art. 123 and is normally to be exercised to bring in urgent legislative measures when Parliament is in recess. It is not one to be resorted to merely because the government of the day lacks a majority in the Upper House or is unable to break a deadlock in Parliament.

The recent government has promulgated nine ordinances in its eight months which has come under severe criticism for bypassing legislative scrutiny.

A similar criticism forwarded is the use of Joint Sessions under Art 108 when a bill is rejected by either house. Since bills are decided via simple majority, a government that enjoys the majority in the larger house usually prevails. This is considered improper as the Upper House is designed to be a check against the popular majority of the Lower House.

On the other hand, legislative productivity has been on the decline over successive parliaments with inefficient floor management, frequent house disruptions over minor issues and a general reluctance across parties to make pragmatic concessions. Recent examples are when legislative business was stalled over issues like reconversion, and comments by some members of Parliament outside it.

The government argues that stalled legislation has created a glut where defence, infrastructure and rural power projects were stalled due to the land acquisition process. Similar urgency has been cited when promulgating ordinances for Citizenship, Coal Mines, FDI in Insurance, etc.

Some checks and suggestions:

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A 213 – Ordinance power of governor