Polity & Governance Lecture 11 Notes
Polity & Governance Lecture 11 Notes
BACKGROUND
● Secrecy.
o Ministers follow the principle of secrecy about
their proceedings, policies & decisions.
o Ministers take oaths of secrecy administered by
the President.
● Fusion of Power between legislative, executive and ● The doctrine of separation of powers is the
judicial organs of the Government. basis of the American presidential system.
● The legislative, executive and judicial
powers of the government are separated
and vested in the three independent organs
of the government.
● Division of powers between the ● No division of powers. All powers are vested in the national
national and regional government government
● Supremacy of the Constitution ● Constitution may be supreme (Japan) or may not be supreme
(Britain)
States Not
● States in India have no right to territorial integrity.
Indestructible
● The Parliament can by unilateral action change the area, boundaries or name of any
state
● The American Federation is described as “an indestructible Union of indestructible states”.
Single
● Usually, in a federation, the states have the right to frame their own Constitution separate
Constitution
from that of the Centre
● The Constitution of India embodies not only the Constitution of the Centre but also those
of the states
Flexibility of
● The bulk of the Constitution can be amended by the unilateral action of the Parliament,
the
either by simple majority or by special majority
Constitution
● In US, the states can also propose an amendment to the Constitution
No Equality of
● The states are given representation in the Rajya Sabha on the basis of population
State
● In US the principle of equality of representation of states in the Upper House is fully
Representation
recognised
Emergency
● The Constitution stipulates three types of emergencies–national, state and financial.
Provisions
● During an emergency, the Central government becomes all powerful and the states go
into the total control of the Centre.
● It converts the federal structure into a unitary one without a formal amendment of the
Constitution
Single
● There is only Indian Citizenship and no separate state citizenship
Citizenship
● In US, Switzerland and Australia have dual citizenship, that is, national citizenship as well
as state citizenship.
Integrated
● The Indian Constitution has established an integrated judicial system with the Supreme
Judiciary
Court at the top and the state high courts below it.
● This single system of courts enforces both the Central laws as well as the state laws
● In US, there is a double system of courts whereby the federal laws are enforced by the
federal judiciary and the state laws by the state judiciary
All-India
● In US, the Federal government and the state governments have their separate public
Services
services
● India - there are all-India services (IAS, IPS, and IFS) which are common to both the Centre
and the states
Integrated
● The Comptroller and Auditor-General of India audits the accounts of not only the Central
Audit
government but also those of the states.
Machinery
● But, his appointment and removal is done by the president without consulting the states
Parliament’s
● The Parliament is empowered to legislate on any subject of the State List if Rajya Sabha
Authority Over
passes a resolution to that effect in the national interest
State List
Appointment
● The governor, who is the head of the state, is appointed by the President.
of Governor
● He also acts as an agent of the Centre.
● The American Constitution provided for an elected head in the states
Integrated
● The Election Commission conducts elections not only to the Central legislature but also to
Election
the state legislatures.
Machinery
● But, this body is constituted by the President and the states have no say in this matter
● US has separate machineries for the conduct of elections at the federal and state levels.
Veto Over
● The governor is empowered to reserve certain types of bills passed by the state legislature
State Bills
for the consideration of the President.
● The President can withhold his assent to such bills not only in the first instance but also in
the second instance
● In US and Australia, the states are autonomous within their fields and there is no provision
for any such reservation.
10.10 CRITICAL EVALUATION OF THE FEDERAL ● KC Wheare described the Constitution of India as
SYSTEM “quasi-federal”.
● He remarked that “Indian Union is a unitary state o Promotes accountability and oversight
with subsidiary federal features rather than a ● The intent of this doctrine is to prevent abuses of
federal state with subsidiary unitary features. power and avoid autocracy which is a system of
● Ivor Jennings has described it as a “federation government by one person/group with absolute
with a strong centralising tendency”. power.
● Alexandrowicz stated that “India is a case sui ● Origin of this theory:
generis (i.e., unique in character). o This theory can be traced back in the
● Granville Austin called the Indian federalism as a writings of classical and medieval thinkers
“cooperative federalism”. such as Aristotle (384–322 BC).
● Paul Appleby: characterizes the Indian system as o Montesquieu, an 18th century French
extremely federal. social and political philosopher, coined
● Morris Jones: termed it as a bargaining the term "trias politica" or "separation of
federalism. powers" in his book, “De l’Esprit des Lois”
● Dr. B.R. Ambedkar made the following (i.e. the Spirit of Laws), 1748.
observation in the Constituent Assembly: “The
Constitution is a Federal Constitution in as much 10.12 APPROACH
as it establishes a dual polity. ● Two approaches i.e. traditional (classical) and
● Both the Union and the states are created by the modern (contemporary).
Constitution, both derive their respective
authority from the Constitution.
10.12.1 TRADITIONAL (CLASSICAL) APPROACH
● Constitution avoids the tight mold of federalism
● Presented by Montesquieu
and could be both unitary as well as federal
● “Strict or pure or total or complete or absolute”
according to the requirements.
separation of powers and personnel between
● In Bommai case (1994), the Supreme Court laid
three organs of the state i.e. the Executive,
down that the Constitution is federal and
Legislature and Judiciary
characterised federalism as its ‘basic feature’.
● The Doctrine of Separation of powers includes
● The federalism in India represents a compromise
the following distinct but overlapping aspects;
between the following two conflicting
o Institutional separation of powers: the
considerations.
need to have three major institutions or
(i) normal division of powers under which
organs in a state i.e. Legislature,
states enjoy autonomy within their own
Executive and Judiciary.
spheres; and
o Functional separation of powers: state
(ii) need for national integrity and a strong
power/functions must be vested and
Union government under exceptional
exercised by three separate institutions or
circumstances.
organs i.e. law making, enforcement and
10.11 SEPARATION OF POWER (SOP) interpretation.
o Separation of personnel: (each organ
● Separation of powers refers to the division of
with own personnel) – no person should
government responsibilities into distinct
be a member of more than one organ.
branches.
o Limitation of appointing powers: state
● The doctrine is rooted in a political philosophy
organs should not appoint or elect
that too much power concentrated in the hands
members for each other.
of few, without adequate checks and balances,
increases the likelihood of misuse of that power.
● The Purpose of SOP: 10.12.2 MODERN (CONTEMPORARY)
o Prevents tyranny or abuse of power APPROACH
o Ensures no single branch becomes too ● Modern state is diverse and has the complex
powerful nature where the process of law making,
administration and adjudication cannot be
clearly demarcated or assigned to separate the rigid system followed by the USA and the
institutions. Hence, the practical application of weak system of separation of powers or
this doctrine in a strict sense is very difficult. Westminster Model.
● So, this approach advocates for a ‘mixed ● Our model represents a contemporary approach
government’ or ‘weak separation of powers’ with in constitutionalising the doctrine of separation of
‘checks and balances’ to prevent abuses. powers.
● ‘Mixed government’ insists that the primary ● Essentially, there is no strict separation of powers
functions of the state should be allocated clearly under the Indian Constitution, both in principle
and that there should be checks to ensure that and practice. (Fusion of Power)
no institution encroaches significantly upon the o Implied division of power/functions:
function of the other. Indian Constitution does not expressly
vest different kinds of power in different
10.13 SEPARATION OF POWER IN USA organs of the state and does not provide
● The United States Constitution has a more rigid for exclusivity in the nature of functions to
separation of powers along with system of Check be performed by these organs.
and Balances. o Supremacy of the Constitution: Unlike the
● The United States Constitution provides a list of British model, Parliament in India is not
permissible and prohibited actions for Congress. supreme. It does not possess a sovereign
● The Executive Power is vested in the President of character like the Westminster and is
the USA. limited by a written constitution. In India,
● Supreme Court also holds the power of judicial the Constitution is supreme and any
review. legislation contrary to constitutional
● The lawmaking power of the Congress is provisions is void.
checked by the President through its veto power, o No real separation of power: Like the
which in turn maybe overturn by the legislature. Westminster model, there is no ‘real’
● The President may nullify a conviction in a separation per se, between the
criminal case by pardoning the offender. legislature and the executive authorities
● The Congress may limit the jurisdiction of the under our Constitution.
Supreme Court and that of inferior courts and o Functional overlap: In fact, the Indian
even abolish the latter tribunals. Constitution goes far as to provide for a
● The Judiciary in general has the power to declare functional overlap between the
invalid an act done by the Congress, the legislative, executive and the judicial
President and his subordinates, or the wings of the government.
Constitutional Commissions.
10.16 CONSTITUTIONAL POSITION –
10.14 SEPARATION OF POWER IN UK SEPARATION OF POWER
● The United Kingdom (UK) constitution is often ● Despite there being no express provision
described as having "a weak separation of recognizing the doctrine of separation of powers
powers" doctrine. in its absolute form, the Constitution does make
● The executive forms a subset of the legislature. the provisions for a reasonable separation of
● The UK follows the principle of Parliamentary functions and powers between the three organs
sovereignty which limits the scope for judicial of government
review by the courts. o Article 50 - State shall take steps to
separate the judiciary from the
10.15 DOCTRINE OF SEPARATION OF POWERS executive. This is for the purpose of
IN INDIA ensuring the independence of the
● India departs from the two conventional models judiciary.
of separation of power commonly followed i.e.
o Article 122 and 212 - Validity of ● The heads of each governmental ministry is a
proceedings in Parliament and the State member of the legislature, thus making the
Legislatures cannot be called into executive an integral part of the legislature.
question in any court ensuring the ● The council of ministers on whose advice the
separation and immunity of the President and the Governor acts are elected
legislatures from judicial intervention. members of the legislature.
o Article 121 and 211 - Judicial conduct of ● The executive also exercises law making power
a judge of the Supreme Court and the under delegated legislation.
High Courts’ cannot be discussed in the
Parliament and the State Legislatures. 10.19 FUNCTIONAL OVERLAP BETWEEN
o Articles 53 and 154 - Executive power of EXECUTIVE AND JUDICIARY
the Union and the State shall be vested ● The tribunals and other quasi-judicial bodies
with the President and the Governor and which are a part of the executive also discharge
they enjoy immunity from civil and judicial functions. Administrative tribunals which
criminal liability. are a part of the executive also discharge
o Article 361 - The President or the judicial functions.
Governor shall not be answerable to any ● The executive may further affect the functioning
court for the exercise and performance of the judiciary by making appointments to the
of the powers and duties of his office. office of Chief Justice and other judges.
● Higher administrative tribunals always have a
10.17 FUNCTIONAL OVERLAP BETWEEN member of the judiciary.
LEGISLATURE AND JUDICIARY
● The legislature besides exercising law-making 10.20 JUDICIAL PRONOUNCEMENTS ON THE
powers exercises judicial powers in cases of DOCTRINE IN INDIA
breach of its privilege, impeachment of the ● Kesavananda Bharati case, 1973: The doctrine of
President and the removal of the judges. “separation of powers” is acknowledged as an
● Legislature exercising judicial powers in the case integral part of the basic features of our
of amending a law declared ultra vires by the Constitution.
Court and revalidating it. ● Indira Nehru Gandhi v. Raj Narain, 1975: “That in
● While discharging the function of disqualifying its the Indian Constitution, there is separation of
members and impeachment of the judges, the powers in a broad sense only.
legislature discharges the functions of the
judiciary. 10.21 CHECKS AND BALANCES
● Legislature can impose punishment for ● It is a system that allows each branch of a
exceeding freedom of speech in the Parliament; government to amend or veto acts of another
this comes under the powers and privileges of branch so as to prevent any one branch from
the parliament. exerting too much power.
● Judiciary also acts as a legislature while making ● The purpose of this was to ensure that
laws regulating its conduct and rules regarding governmental power would not be used in an
disposal of cases. abusive manner.
● Under the system of checks and balances, one
10.18 FUNCTIONAL OVERLAP BETWEEN
department is given certain powers by which it
EXECUTIVE AND LEGISLATURE
may definitely restrain the others from exceeding
● The President or the Governor may promulgate constitutional authority
ordinance which has the same force of the Act
made by the Parliament or the State legislature. Check on
● The judges of the SC and the HC
Judiciary
are appointed by the executive
i.e. the President acting on the
advice of the Prime Minister and Q.02 Which one of the following in Indian polity is an
the Chief Justice of the Supreme essential feature that indicates that it is federal in
Court. character? [2021]
● They may be removed from a) The independence of judiciary is safeguarded.
office only if they are impeached b) The Union Legislature has elected representatives
by Parliament. from constituent units.
c) The Union Cabinet can have elected
Checks on representatives from regional parties.
● The executive is responsible to
Executive d) The Fundamental Rights are enforceable by
Parliament in its day to day
functioning. Courts of Law.
● While the President appoints the Answer: A
leader of the majority party or a Q.03 In India, separation of judiciary from the
person who s/he believes executive is enjoined by [2020]
commands a majority in the Lok a) The Preamble of the Constitution
Sabha a government is duty b) A Directive Principle of state policy
bound to lay down power if the c) The Seventh schedule
House adopts a motion d) The conventional practice
expressing no confidence in the Answer : B
government Q.04 A parliamentary system of government is one in
which [2020]
Checks by a) All political parties in the parliament are
● The judiciary keeps a check on
Judiciary represented in the government
the laws made by Parliament
on
and actions taken by Executives, b) The government is responsible to the parliament
Legislature
whether they conform to the and can be removed by it
and
Executive Constitution or not, using the tool c) The government is elected by the people and can
of Judicial Review. be removed by them
d) The government is chosen by the parliament but
cannot be removed by it before completion of a
PREVIOUS YEAR QUESTIONS
fixed term
Q.01 We adopted parliamentary democracy based Answer: B
on the British model, but how does our model differ Q.05 The main advantage of the parliamentary form
from that model? of government is that [2017]
1. As regards legislation, the British Parliament is (a) the executive and legislature work
supreme or sovereign but in India, the power of the independently.
Parliament to legislate is limited. (b) it provides continuity of policy and is more
2. In India, matters related to the constitutionality of efficient.
the Amendment of an Act of the Parliament are (c) the executive remains responsible to the
referred to the Constitution Bench by the Supreme legislature.
Court (d) the head of the government cannot be
Select the correct answer using the codes given changed without election.
below. [2021] Answer: C
a) 1 Only Q.06 Out of the following statements, choose the one
b) 2 Only that brings out the principle underlying the Cabinet
c) Both 1 and 2 form of Government: [2017]
d) Neither 1 nor 2 (a) An arrangement for minimizing the criticism
Answer: C against the Government whose responsibilities are