DOCTRINE OF SEPARATION OF POWER

INTRODUCTION
Understand that a governments role is to protect individual rights, but acknowledging that
government have historically been the major violators of these rights, a number of measures
have been devised to reduce this likelihood. The concept of Separation of powers is one such
measure. The premise behind the Separation of Power is that when a single person or group
has a large amount of power, they can become dangerous to citizens. The separation of
Power is a method of removing the amount of power in any groups hands, making it more
difficult to abuse. It is generally accepted that there are three main categories of
governmental functions: (i) the legislative, (ii) the Executive, and (iii) the Judicial. At the
same time, there are three main organs of the Government in state i.e. legislature, executive
and judiciary. According to the theory of separation of powers, these three powers and
functions of the Government must, in a free democracy, always be kept separate and
exercised by separate organs of the Government. Thus, the legislature cannot exercise
executive or judicial power; the executive exercise legislative or judicial power of the
Government.

The three branches of the government are the executive, the legislature and the judiciary.
Although the three have distinct functions to perform, their scope sometimes meets. The doctrine
of separation is the distribution of the various functions among the legislative, executive, and
judicial branches of the government. The Doctrine of Separation of Powers addresses the
relationships among the three branches of government – legislature, executive, and judiciary.

What is ‘Separation of Powers’?

In the strictest sense, the doctrine of separation of powers is very rigid.

Background of the concept

 This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he
described the three agencies of the government as General Assembly, Public Officials
and Judiciary.

 In the Ancient Roman Republic too, a similar concept was followed.

  In modern times, it was 18th-century French philosopher Montesquieu who made the
doctrine a highly systematic and scientific one, in his book De l’esprit des lois (The Spirit
of Laws).

 His work is based on an understanding of the English system which was showing a
propensity towards a greater distinction between the three organs of government.

 The idea was developed further by John Locke.

Purpose of the Separation

The purpose of separation of powers is to prevent abuse of power by a single person or a group
of individuals. It will guard the society against the arbitrary, irrational and tyrannical powers of
the state, safeguard freedom for all and allocate each function to the suitable organs of the state
for effective discharge of their respective duties.

Meaning of Separation of Powers

Separation of powers divides the mechanism of governance into three branches i.e. Legislature,
Executive and the Judiciary. Although Wade and Phillips definitions, in general, we can
frame three features of this doctrine.

1. Each organ should have different persons in capacity, i.e., a person with a function in one
organ should not be a part of another organ.

2. One organ should not interfere in the functioning of the other organs.

3. One organ should not exercise a function of another organ (they should stick to their
mandate only).

Thus, these broad spheres are determined, but in a complex country like India there often arises
conflict and transgression by one branch over the other.

Significance of the doctrine

Whenever there is a concentration of power in one centre/authority, there is bound to be greater

chances of maladministration, corruption, nepotism and abuse of power. This principle ensures
that autocracy does not creep into a democratic system. It protects citizens from arbitrary rule.
Hence, the importance of the Separation of Powers doctrine can be summed up as follows:

1. Keeps away autocracy

2. Safeguards individual liberty

3. Helps create an efficient administration

4. Judiciary’s independence is maintained

5. Prevents the legislature from enacting arbitrary or unconstitutional laws

Constitutional Status of Separation of Power in India

The doctrine of separation of powers is a part of the basic structure of the Constitution, although
not specifically mentioned. The legislature cannot pass a law violating this principle. The
functions of the three organs are specifically mentioned in the Constitution.

Let us take a look at some of the articles of the Constitution which suggest separation of powers.

Article 50: This article puts an obligation over the State to separate the judiciary from the
executive. But, since this falls under the Directive Principles of State Policy, it is not
enforceable.

Article 123: The President, being the executive head of the country, is empowered to exercise
legislative powers (Promulgate ordinances) in certain conditions.

Articles 121: No discussions shall take place in Parliament with respect to the conduct of any
Judge of the Supreme Court or a High Court in the discharge of his duties except in certain
conditions.

Articles 211: No discussion shall take place in the Legislature of a State with respect to the
conduct of any Judge of the Supreme Court or a High Court in the discharge of his duties.

Article 122: The validity of proceedings in Parliament cannot be called into question in any
Court.
Article 212: Validity of proceedings in state legislatures cannot be called into question in any
Court.

Article 246: It deals with the division of power between the Union and the States. It demarcates
the powers of the Union and the State by classifying their powers into three separate lists. They
are the Union List, the State List, and the Concurrent List.

Article 361: The President and Governors enjoy immunity from court proceedings.

INSTRUMENTS OF CHECKS & BALANCES?

 Legislature Control:

o On Judiciary: Impeachment and the removal of the judges. Power to

amend laws declared ultra vires by the Court and revalidating it.

o On Executive: Through a no-confidence vote it can dissolve the

Government. Power to assess works of the executive through
the question hour and zero hour.

 Executive Control:

o On Judiciary: Making appointments to the office of Chief Justice and

other judges.

o On Legislature: Powers under delegated legislation. Authority to

make rules for regulating their respective procedure and conduct of
business subject to the provisions of this Constitution.

 Judicial Control:

o On Executive: Judicial review i.e., the power to review executive

action to determine if it violates the Constitution.

o On Legislature: Unamendability of the constitution under the basic

structure doctrine pronounced by the Supreme Court in Kesavananda
Bharati Case 1973.
ISSUES WITH THE SEPARATION OF POWERS?

 Weakened Opposition in India: Democracy works on the principle of checks and

balances. It is these checks and balances that prevent democracy from turning into
majoritarianism.

o In a Parliamentary system, these checks and balances are provided by

the opposition party.

o However, the majority of a single party in the Lok Sabha has

diminished the role of an effective opposition in the Parliament.

 Judiciary Being Averse to Checks & Balances: The Supreme Court has held
the 99th constitutional amendment, which provided for the establishment of
the National Judicial Appointments Commission as ultra-vires.

o The NJAC could guarantee the independence of the system from

inappropriate politicization, strengthen the quality of appointments,
enhance the fairness of the selection process, promote diversity in the
composition of the judiciary, and rebuild public confidence in the
system.

 Judicial Activism: In many recent judgments, the SC has become hyper-activist in

making judgements that are deemed as laws and rules. This transgresses the domain
of legislature and executive.

 Executive Excesses: Executive in India is alleged of over-centralisation of power,

weakening of public institutions and passing laws to strengthen law, order &
security of the state but curbs freedom of expression as well.

BASIC STRUCTURE DOCTRINE

Original Idea:German Constitution

Landmark Judgement:
Kesavananda Bharati case 1973 (the phrase 'basic structure of the Consti-tution' was used for
the first time)

Constituents of Basic Structure:

Supremacy of the Constitution

Parliamentary system

Free and fair elections,

Independence of Judiciary,

Limited power of Parliament to amend the Constitution,

Powers of the Supreme Court under Articles 32, 136, 141 and 142,

Powers of the High Courts under Articles 226 and 227.

STATE ELECTION COMMISSION

INTRODUCTION

A state election commission is an autonomous and constitutional body that is responsible for
conducting elections for urban local bodies and panchayats in a state. The state election
commissioner is appointed by the governor of the state and cannot be removed from office
except on the grounds and manner specified for a judge of a high court. A state election
commission ensures that elections are conducted in a free, fair and unbiased way and also
updates the electoral rolls and implements the model code of conduct.

Under Article 243K and 243ZA of the Constitution of India, superintendence, direction and
control of preparation of electoral rolls for conduct of all elections to Panchayat Raj bodies and
Municipal bodies in the State shall be vested in a State Election Commission consisting of a
State Election Commissioner to be appointed by the Governor. • The powers and functions of the
State Election Commission under Article 243K and 243ZA of the Constitution of India are
identical to those vested in the Election Commission of India constituted under Article 324 of the
Constitution of India in their respective domains. The Election Commission of India is vested
with the responsibility of conducting elections to House of People and State Legislative
Assemblies whereas the State Election Commission with the conduct of elections to Rural and
Urban Local Bodies in the State.

CONSTITUTIONAL PROVISIONS WITH RESPECT TO STATE ELECTION

COMMISSIONS:

1. Article 243K(1): This provision mentions two important following things.

 a. The superintendence, direction, and control of the preparation of electoral
rolls for, and the conduct of all elections to the Panchayats (and the
Municipalities under Article 243ZA) will be vested in the State Election
Commission.

b. The Governor will appoint the State Election Commissioner.

2. Article 243K(2): This article mentions that the Governor will decide the tenure and
appointment of the State Election Commissioner. But there are few restrictions as well.
Such as:
a. His conditions of service shall not be varied to his disadvantage after his
appointment.

b. Only by following the grounds and procedures to remove the judge of a High
Court, the State Election Commissioner can get removed from his office.
c. The President based on the recommendation of the Parliament can remove the
judge of a high court. So, the governor cannot remove the State Election
Commissioner. Even though, they he/she have appointed him.

STATE ELECTION COMMISSION: COMPOSITION

i) Election Commissioner

The Governor by notification in the Official Gazette, appoints, a) an officer of the State

Government not below the age of fifty-five years, and of the rank of Financial

Commissioner, or the Principal Secretary to the State Government having service as

such for a minimum period of two years or b) a serving or retired Judge of the High

Court as State Election Commissioner.

Provided that no officer, who has attained such age of superannuation, as may from

time to time be fixed by the State Government, shall be appointed as Election

Commissioner. On ceasing to hold office of Election Commissioner, s/he becomes

ineligible for any further appointment under the State Government.

ii) Deputy Election Commissioner

The State Government appoints one or more than one Deputy Election Commissioners

to assist the State Election Commissioner in the discharge of her/his duties under this

Act and the rules made there under, and also appoints Secretary to the SEC.

iii) Other Election Officers

a) District Electoral Officer: There is a District Electoral Officer for each district, subject to the
superintendence, direction and control of the SEC. At the district level, District Electoral Officer
mainly supervises the preparation, revision and correction of electoral rolls. The officer also
performs such other functions, as entrusted to her/him by the SEC.

b) Electoral Registration Officer: The electoral rolls for each Panchayat or Municipality are
prepared, and revised by an Electoral Registration Officer. An Electoral Registration officer
employs persons for the preparation and revision of the electoral rolls for the Panchayats or
Municipalities.

c) Returning Officer: For every constituency, for every election to fill a seat or seats in a
Panchayat or Municipality, the SEC in consultation with the State Government, designates or
nominates an officer of the State Government or of a local authority as a Returning Officer, and
one or more Assistant Returning Officers.

d) Polling Stations and Presiding Officers: District Electoral Officer, provides a sufficient
number of polling stations for every constituency, within her/his jurisdiction, and publishes a list
showing the polling stations and the polling areas or groups of voters.

STATE ELECTION COMMISSION: FUNCTIONS

 Preparation of Electoral Rolls: For every Panchayat and Municipality there is an

electoral roll, which is prepared under the superintendence, direction and control of the
SEC. The electoral roll for each constituency is prepared in the prescribed manner and
 comes into force in accordance with the rules made under the Act. The Electoral Rolls for
every Constituency is revised:

a) before every general election; and

b) before every bye-election to fill a casual vacancy.

 Appointment of Dates for Nominations, etc.: As soon as the notification calling upon a
constituency to elect a member is issued, the SEC appoints:

a) last date for making nominations, which is the seventh day after the date of publication of the
first mentioned notification; and in case of public holiday, the next succeeding day, that is, not a
public holiday;

b) date for the scrutiny of nominations for election;

c) last date for the withdrawal of candidature by the candidate;

d) date when a poll has to be taken; and

e) last date, before which the election is to be completed.

 iii) Public Notice of Election: On issuance of a notification, the Returning Officer gives
public notice of the intended election, inviting nominations of candidates for election;
and specifying the place at which the nomination papers will be delivered.
 iv) Nomination of Candidates for Election: Any citizen may be nominated as a
candidate for election to fill a seat, if s/he is qualified.
 v) Publication of List of Contesting Candidates: After the expiry of period within
which candidatures are withdrawn, the Returning Officer prepares and publishes a list of
contesting candidates, that is, the list of validly nominated candidates; who have not
withdrawn their candidatures within the laid period. The list contains the names in
alphabetical order and the addresses of the contesting candidates as given in the
nomination papers, which were together with other particulars.
 vi) Fixing Time for Poll: The SEC fixes the hours during which the poll will be
conducted, and the fixed hours are published. The period allotted for polling at an
election cannot be less than eight hours a day.
  vii) Adjournment of Poll in Emergencies: If the proceedings at any polling station are
interrupted or obstructed, the Presiding Officer may announce an adjournment of the poll
under her/his jurisdiction.
 viii) Counting of Votes: After every election of Panchayat or Municipality, votes are
counted under the supervision and direction of the Returning Officer.

Challenges with Functioning of SEC

 Lack of Autonomy:

o Although the state election commission on many occasions tried to

exercise its duties enshrined in the constitution of India, they struggled
to assert their independence. For example:

 In Maharashtra, SEC had asserted that he should have

the power to hold elections to the offices of mayor,
deputy mayor, sarpanch and deputy sarpanch.

 On the contrary, he was arrested and sent to jail for two

days in March 2008 after the Legislative Assembly found
him guilty of breach of privilege in an alleged conflict
over his jurisdiction and powers.

 Lack of Safeguard for SEC:

o Though the State Election Commissioner shall not be removed from

his/her office except in like manner and on the like grounds as a Judge
of a High Court (Art 243K(2)), yet it has been diluted on many
instances.

o In the Aparmita Prasad Singh vs. State of U.P. (2007) the Allahabad
High Court held that if the Governor has power to fix or prescribe
tenure by rule, he also enjoys the power to amend the rule, either
for extending the term of the tenure or reducing the same.
 o Once the prescribed tenure comes to end, the incumbent SEC must
cease to hold office, and this shall not amount to removal from
office.

 Non-Uniform Service Conditions for SECs:

o Article 243K(2) states that the tenure and appointment will be

directed as per the law made by the state legislature and thus each SEC
is governed by a separate state Act.

o This gives power to states to amend rules unilaterally and even

sometimes take ordinance routes to bypass legislative scrutiny like the
recent example of Andhra Pradesh SEC.

What are the Measures to Strengthen the SEC?

Strengthening state election commission can help in improving the quality and credibility of
local elections, as well as preventing or reducing political violence. Some of the possible ways to
strengthen state election commission are:

 Ensuring Adequate Resources and Staff:

o State election commission should have sufficient funds, personnel,

equipment, and infrastructure to carry out its functions effectively
and efficiently.

o The governor should make available to the state election commission

such staff as may be necessary for the discharge of its functions.

 Enhancing Independence and Accountability:

o State election commission should be free from any political

interference, pressure, or influence from any source.

o State election commissioner should not be removed from office except

on the grounds and manner specified for judge of high court. State
 election commission should also be accountable to the public and the
law for its actions and decisions.

 Improving Electoral Management and Dispute Resolution:

o State election commission should adopt best practices and

standards for electoral management, such as voter registration,
voter education, polling arrangements, counting, and declaration of
results.

o State election commission should also have effective mechanisms for

resolving electoral disputes, complaints, and grievances in a timely
and impartial manner.

Local Body Election Process in India

Like Parliamentary and Assembly polls, the elections to Municipal Corporations, Municipalities,
District Panchayats, Gram Panchayats and other local bodies follow a distinct process.

It’s to be noted that the power of conducting elections to the Corporations, Municipalities, Zilla
Parishads, District Panchayats, Panchayat Samitis, Gram Panchayats and other local bodies
is vested with the State Election Commissions (SECs).

Besides prohibiting ministers and other authorities from announcing any financial grants, new
schemes or development projects ahead of the elections, the model code of conduct also
prevents them from making any ad-hoc appointments in the government, which may influence
voters in favour of the ruling party.

 Elections to Municipal Corporations:

o Municipal Corporation is a state government department established in a

city that has a population of more than one million.

o Its elections are held once in five years and the people directly choose the
office bearers.

o They are conducted under the supervision of state election commissions.

 o In some states, it’s the state government that arranges the elections, while
in other states the authority lies with the Executive Officers.

o Every political party recognised by the Election Commission of India is

eligible to contest the election of the Corporation.
 Municipality Elections:

o Municipality or Nagar Palika is an urban local body that is in charge of

administering smaller district cities and bigger towns with a population
of 100,000 or more.

o The members of the Municipality are elected for a term of five years.

o During the Municipality elections, the town is split into wards according
to its population and people directly elect their representatives from each
ward.

o Post elections, the elected members select a president among themselves to

preside over the meetings of the municipality.
 Elections to Nagar Panchayat:

o Also known as Notified Area Council, such local government bodies exist
in urban centres with more than 11,000 and less than 25,000 inhabitants.

o The members of the Nagar Panchayat are elected for a term of five years.

o The electorates from several wards of the Nagar Panchayat exercise their
franchise.

o Besides women, seats are reserved for scheduled castes, scheduled tribes
and backward classes.
 Zila Parishad Elections:

o The District Council or Zila Parishad is an elected body whose members

are elected on the basis of an adult franchise for a term of five years.

o It needs to have a minimum of 50 members with a maximum limit being

75.
 o Besides the elected councillors from electoral divisions in the district, the
members of the state legislature and the members of the Parliament are also
members of the Zila Parishad.

o Seats are also reserved for scheduled castes, scheduled tribes, backward
classes and women.
 Village Panchayat Elections:

o It’s mandatory for a village having a population of 500 to have a Gram

Panchayat. Its members are elected by the villagers for a period of five
years.

o The number of members of a Gram Panchayat depends on the size of the

population. It generally varies from 7 to 17.

o The elections of the Gram Panchayat are conducted by the state election
commissioner in alliance with the District Collector and Tehsildar.

o It is the Tehsildar who announces the date of the election. One-third of

seats in Gram Panchayat are reserved for female candidates.

o The day when the elected members of the panchayat meet for the first time
is considered the date of starting the functioning of that Gram Panchayat.
 Panchayat Samiti Elections:
o This local government body at the tehsil (taluka) level is an important
link between the Gram Panchayat and the Zila Parishad.

o The samiti is composed of elected members of the area including the heads
of the Gram Panchayats within the block area, the elected members of the
Lok Sabha, Rajya Sabha and the state legislature who belong to the block.

o Along with them, the Block Development Officer, representatives of

scheduled castes, scheduled tribes and women and the representatives of
the farmer community also become members of Panchayat Samiti.

o The Samiti is elected for five years.