SHIKHAR MAINS 2022- DAY 37 Model Answer English
Q1 शक्ति के पृथक्करण सिद्धांत की अवधारणा को स्पष्ट कीजिए। यह सिद्धांत भारतीय संवैधानिक व्यवस्था में अपना विशिष्ट स्थान रखता है। चर्चा कीजिए।
Explain the concept of separation of power. This principle occupies a special place in the Indian constitutional system. Discuss.
Approach:
• Briefly explain the concept of separation of powers.
• Mention the constitutional provisions showing the separation of powers principle.
• Is complete separation of powers followed in the Indian context? Explain.
• Describe the judicial decisions relating to separation of powers.
Answer:
Generally, two general models prevail regarding the separation of powers between the organs of the state. The first is the principle of separation of powers as propounded by Montesquieu. The second is the West Westminster model, which provides for a flexible separation of powers principle based on the principle of the supremacy of Parliament.
However, the Indian Constitution has provided for a unique form of separation of power. Thus, it presents the third model of power separation.
In India, the following provisions have been made in the constitution for separation of powers:
• Article 50 states that in order to ensure the independence of the judiciary, the state shall take steps to separate the judiciary from the executive.
• According to Articles 122 and 212, the validity of the proceedings of Parliament and State Legislative Assemblies respectively cannot be called in question in any court. Thus, the immunity of the members from judicial interference has been ensured.
• According to Articles 121 and 211, the judicial conduct of the judges of the Supreme Court and the High Court cannot be discussed in the Parliament and the State Legislature respectively.
• According to Article 361, the President or the Governor is not liable to any court for the exercise of the powers and performance of the duties of his office.
• Here, three organs of the state have been recognized by the constitution, but the types of powers in these organs have not been clearly divided. This is a functional overlap, which is reflected through the following:
• Under the parliamentary system of India, the political executive is also a part of the legislature.
• Its judicial powers are exercised by the legislature in cases of violation of its privileges, impeachment of the President and removal of judges.
• The executive exercises its legislative powers to make laws through the passage of delegated legislation and ordinances.
• Tribunals and other quasi-judicial bodies that are part of the executive discharge judicial functions and most of their members are from the judiciary.
• The President has been given the power to determine the number of judges as well as appoint them.
• Judiciary under the power of judicial review can give directions to the executive in the form of constitutional and statutory measures.
Thus, the system of checks and balances also exists in the Indian system to prevent arbitrary use of powers by any one organ. In addition, the Supreme Court has reiterated the importance of separation of powers in several judicial decisions. The Kesavananda Bharati case (1973) states that the principle of separation of powers is an integral part of the basic structure of our Constitution. In this regard, the Supreme Court had struck down the National Judicial Appointments Commission Bill (2014) considering it unconstitutional and a threat to the independence of the judiciary.
Thus, the system of separation of powers in India has taken enough checks and balances to ensure that no part of the government can exercise its powers arbitrarily.
Q2. भारतीय संविधान में उल्लिखित राज्यपाल की विवेकाधीन शक्तियों की गणना कीजिये। ऐसा क्यों कहा जाता है कि राज्यपाल का पद अत्यधिक राजनीतिक हो गया है?
Enumerate the discretionary powers of the Governor mentioned in the Indian Constitution. Why is it said that the post of governor has become overly political?
Approach:
• Describe the discretionary powers of the Governor.
• Analyze the factors of politicization of the office of Governor.
Answer-
The State Executive consists of the Governor, Chief Minister, Council of Ministers and the Advocate General of the State. The governor is the executive head (constitutional head) of the state. The Governor also acts as the representative of the Central Government. The governor, thus, plays a dual role.
Discretionary powers of governor
The Governor can exercise his power/function only on the advice of the Council of Ministers headed by the Chief Minister except in cases in which he can exercise his discretion (without the advice of Ministers).
The Governor has constitutional discretion in the following matters.
• To reserve a Bill for the consideration of the President.
• To recommend President's rule in the state.
• While acting as Administrator (in case of additional charge) of neighbouring Union Territories.
• Fixation of amount payable by the Governor of Assam, Meghalaya, Tripura and Mizoram to the Tribal District Council as royalty for mining.
• To obtain information from the Chief Minister in the Legislative Council and administrative matters of the State.
Apart from this, the Governor can take circumstantial decisions like the President.
• In the case of the appointment of the Chief Minister in the event of no party getting an absolute majority in the assembly elections or the death of the Chief Minister during the tenure and there is no definite successor.
• In case of dismissal of the Council of Ministers in the absence of a trust vote in the State Legislative Assembly.
• In case of dissolution of the State Legislative Assembly when the Council of Ministers is reduced to a minority.
In fact, the office of the Governor was created to act as a link between the Centre and the State, but at present, the Governor has become an instrument of interference by the Centre in the working of the State Governments. Presently the post of Governor has become highly politicised. Some of the major factors responsible for this situation are as follows-
• Due to the absence of a fixed term of office of the Governor, a major reshuffle is usually done by the central government after each election.
• The wide discretionary powers of the Governor give him ample opportunity to act independently of the elected state government. For example: Article 356.
• Although it was expected that the Governor would be a person of experience, but in reality, this post has also been plagued by irregularities at present.
• The Governor shall hold office during the pleasure of the President. The Governor shall hold office for a term of five years from the date on which he enters upon his office.
In conclusion, the implementation of the recommendations of Sarkaria Commission, Punchhi Commission etc. in relation to the Governor's tenure, powers, discharge etc. would be a positive step. Along with this, the Governor should discharge his constitutional duties instead of engaging in partisan politics. The sooner these corrective steps are taken, the better it will be because otherwise the demand for abolishing the post of Governor will become stronger.
