The Constitution of India merely subscribes to three-fold division of gubernatorial functions and not to the doctrine of separation of powers in its absolute rigidity." Comment.

Understanding the Concepts

The doctrine of separation of powers, popularized by Montesquieu in *The Spirit of the Laws* (1748), advocates for a distinct allocation of governmental functions to three branches – legislature (law-making), executive (law execution), and judiciary (law interpretation) – to prevent tyranny and ensure accountability. The three-fold division of functions in the Indian Constitution, as envisioned by the Constituent Assembly, broadly aligns with this principle. However, the Indian model is not a rigid separation but a 'functional' separation, allowing for overlap and interaction.

The Three-Fold Division and its Limitations

The Constitution envisages the following distribution:

• Legislature (Parliament & State Legislatures): Makes laws.
• Executive (President, Prime Minister, Council of Ministers): Implements laws and administers the country.
• Judiciary (Supreme Court, High Courts): Interprets laws and resolves disputes.

However, a rigid application of this division presents challenges. For example, Article 75(3) mandates the executive to be accountable to the legislature. Furthermore, the President, though the head of the executive, is elected by an electoral college comprising members of Parliament and State Legislatures, blurring the lines.

Departures from Rigidity: Overlapping Powers

The Indian Constitution intentionally avoids a strict separation of powers, incorporating mechanisms for integration and checks and balances:

• Legislative Powers of the Executive: The executive can issue ordinances (Article 123), which have the force of law, bypassing the legislature in certain situations. This is subject to legislative scrutiny and can be annulled.
• Judicial Powers of the Executive: The executive can appoint judges (Article 124) and has the power of pardon (Article 72), influencing the judicial process.
• Legislative Powers of the Judiciary: Judicial review (Article 13, 32) allows the judiciary to declare laws passed by the legislature unconstitutional, effectively exercising a legislative function. The power to initiate contempt proceedings against legislature and executive members is also a judicial power used to ensure accountability.
• Parliamentary Committees: Committees like the Public Accounts Committee (PAC) scrutinize executive actions, blurring the lines between legislative oversight and executive accountability.

Constitutional Provisions and Judicial Interpretation

Several articles and judicial pronouncements underscore this flexible approach:

• Article 245: Deals with the power of the legislature to make laws, including the executive’s delegated legislation.
• Article 372: Provides for continuity of existing laws, demonstrating a pragmatic approach to transition.
• Kesavananda Bharati v. State of Kerala (1973): Established the “basic structure” doctrine, limiting the power of the legislature to amend the Constitution, demonstrating judicial assertion.
• S.R. Bommai v. Union of India (1994): Reinforced the importance of judicial review in safeguarding fundamental rights and upholding constitutionalism.

Rationale for a Flexible Approach

The Constitution's departure from a rigid separation of powers is rooted in several factors:

• Cooperative Federalism: India's federal structure necessitates cooperation and coordination between the Centre and the States. A rigid separation would hinder this process.
• Practical Considerations: A strict separation would lead to inefficiency and gridlock, particularly in a complex and diverse nation like India.
• Judicial Activism: The judiciary’s role in protecting fundamental rights and ensuring constitutionalism necessitates a degree of intervention and oversight.
• Parliamentary Sovereignty (Modified): While India does not fully embrace parliamentary sovereignty, the legislature retains significant power, necessitating checks and balances.

Comparison with Other Models

Comparing the Indian model with others highlights its unique approach:

Country	Separation of Powers Model	Key Characteristics
United States	Rigid Separation	Strong checks and balances, distinct roles for each branch.
United Kingdom	Parliamentary Sovereignty	Legislature is supreme; executive drawn from legislature.
India	Functional Separation	Balance between separation and integration, emphasis on cooperation and judicial review.

Contemporary Challenges

The evolving landscape presents new challenges. The rise of populism and executive overreach requires constant vigilance to ensure that the principles of separation of powers are upheld, even within the framework of functional separation.

The Indian Constitution's approach to the separation of powers is a pragmatic compromise, recognizing the need for both distinct functions and cooperative governance. While it acknowledges the three-fold division of powers, it actively avoids a rigid separation, embedding mechanisms for integration and judicial oversight. This flexible model, shaped by India’s unique context and evolving constitutional jurisprudence, remains vital for safeguarding democracy and ensuring accountability, necessitating continuous scrutiny and adaptation in the face of contemporary challenges.