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9th May 2023

Separation of Powers, Parliamentary vs Presidential System

What is the Doctrine of Separation of Powers?

Separation of powers is the division of the legislative, executive, and judicial functions of government.
- Article 50 says that states shall take steps to separate the Judiciary from the Executive.
The constitutional demarcation precludes the concentration of excessive power by any branch of the government.
The Indian Constitution lays down the structure and defines and determines the role and functions of every organ of the State and establishes norms for their inter-relationships and checks and balances.

What are the Instruments of Checks & Balances?

Legislature Control:
- On Judiciary: Impeachment and the removal of the judges. Power to amend laws declared ultra vires by the Court and revalidating it.
- 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:
- On Judiciary: Making appointments to the office of Chief Justice and other judges.
- 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:
- On Executive: Judicial review i.e., the power to review executive action to determine if it violates the Constitution.
- On Legislature: Unamendability of the constitution under the basic structure doctrine pronounced by the Supreme Court in Kesavananda Bharati Case 1973.

What are the 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.
- In a Parliamentary system, these checks and balances are provided by the opposition party.
- 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 99^th constitutional amendment, which provided for the establishment of the National Judicial Appointments Commission as ultra-vires.
- 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.

Presidential System of Government

In a presidential system, the head of the government leads an executive, that is distinct from the legislature. Here, the head of the government and the head of the state are one and the same. Also, a key feature is that the executive is not responsible to the legislature.

Features of the Presidential System

The executive (President) can veto acts by the legislature.
The President has a fixed tenure and cannot be removed by a vote of no-confidence in the legislature.
Generally, the President has the power to pardon or commute judicial sentences awarded to criminals.
The President is elected directly by the people or by an electoral college.

Merits of Presidential System

The advantages of the presidential system are given below:

Separation of powers: Efficiency of administration is greatly enhanced since the three arms of the government are independent of each other.
Expert government: Since the executive need not be legislators, the President can choose experts in various fields to head relevant departments or ministries. This will make sure that people who are capable and knowledgeable form part of the government.
Stability: This type of government is stable. Since the term of the president is fixed and not subject to majority support in the legislative, he need not worry about losing the government. There is no danger of a sudden fall of the government. There is no political pressure on the president to make decisions.
Less influence of the party system: Political parties do not attempt to dislodge the government since the tenure is fixed.

Demerits of Presidential System

The disadvantages of the presidential system are given below:

Less responsible executive: Since the legislature has no hold over the executive and the president, the head of the government can turn authoritarian.
Deadlocks between executive and legislature: Since there is a more strict separation of powers here, there can be frequent tussles between both arms of the government, especially if the legislature is not dominated by the president’s political party. This can lead to an erosion in efficiency because of wastage of time.
Rigid government: Presidential systems are often accused of being rigid. It lacks flexibility.
Spoils system: The system gives the president sweeping powers of patronage. Here, he can choose executives as per his will. This gives rise to the spoils system where people close to the president (relatives, business associates, etc.) get roles in the government.

Parliamentary System of Government

India chose a parliamentary form of government primarily because the constitution-makers were greatly influenced by the system in England. Another reason the founding fathers saw was that the parliamentary model would only work to accommodate the varied and diverse groups within our population. Also, the strict separation of powers in the presidential system would cause conflicts between the two branches, the executive and the legislature, which our newly-independent country could ill-afford.

There are more parliamentary forms of government in the world than there are presidencies. In this system, the parliament is generally supreme and the executive is responsible to the legislature. It is also known as the Cabinet form of government, and also ‘Responsible Government’.

Features of the parliamentary system

Close relationship between the legislature and the executive: Here, the Prime Minister along with the Council of Ministers form the executive and the Parliament is the legislature. The PM and the ministers are elected from the members of parliament, implying that the executive emerges out of the legislature.
Executive responsible to the legislature: The executive is responsible to the legislature. There is a collective responsibility, that is, each minister’s responsibility is the responsibility of the whole Council.
Dual executive: There are two executives – the real executive and the titular executive. The nominal executive is the head of state (president or monarch) while the real executive is the Prime Minister, who is the head of government.
Secrecy of procedure: A prerequisite of this form of government is that cabinet proceedings are secret and not meant to be divulged to the public.
Leadership of the Prime Minister: The leader of this form of government is the Prime Minister. Generally, the leader of the party that wins a majority in the lower house is appointed as the PM.
Bicameral Legislature: Most parliamentary democracies follow bicameral legislature.
No fixed tenure: The term of the government depends on its majority support in the lower house. If the government does not win a vote of no confidence, the council of ministers has to resign. Elections will be held and a new government is formed.

Although India follows this system chiefly influenced by the British model, there are a few differences between the Indian and British systems. They are:

In India, the PM can be from either the Rajya Sabha or the Lok Sabha. In Britain, the PM will always be from the lower house, the House of Commons.
In Britain, the speaker once appointed, formally resigns from his/her political party. In India, the speaker continues to be a member of his/her party though he/she is expected to be impartial in the proceedings.
The concept of a shadow cabinet is absent in India. In Britain, the opposition forms a shadow cabinet that scrutinises the actions and policies of the government. It also offers alternative programmes.

Merits of Parliamentary System

The advantages of the parliamentary system are as follows:

Better coordination between the executive and the legislature: Since the executive is a part of the legislature, and generally the majority of the legislature support the government, it is easier to pass laws and implement them.
Prevents authoritarianism: Since the executive is responsible to the legislature, and can vote it out in a motion of no confidence, there is no authoritarianism. Also, unlike the presidential system, power is not concentrated in one hand.
Responsible government: The members of the legislature can ask questions and discuss matters of public interest and put pressure on the government. The parliament can check the activities of the executive.
Representing diverse groups: In this system, the parliament offers representation to diverse groups of the country. This is especially important for a country like India.
Flexibility: There is flexibility in the system as the PM can be changed easily if needed. During the Second World War, the British PM Neville Chamberlain was replaced by Winston Churchill. This is unlike the presidential system where he/she can be replaced only after the entire term or in case of impeachment/incapacity.

Demerits of Parliamentary System

The disadvantages of the parliamentary system are as follows:

No separation of powers: Since there is no genuine separation of powers, the legislature cannot always hold the executive responsible. This is especially true if the government has a good majority in the house. Also, because of anti-defection rules, legislators cannot exercise their free will and vote as per their understanding and opinions. They have to follow the party whip.
Unqualified legislators: The system creates legislators whose intention is to enter the executive only. They are largely unqualified to legislate.
Instability: Since the governments sustain only as long as they can prove a majority in the house, there is instability if there is no single-largest party after the elections. Coalition governments are generally quite unstable and short-lived. Because of this, the executive has to focus on how to stay in power rather than worry about the state of affairs/welfare of the people.
Ministers: The executive should belong to the ruling party. This rules out the hiring of industry experts for the job.
Failure to take a prompt decision: Since there is no fixed tenure enjoyed by the Council of Ministers, it often hesitates from taking bold and long-term policy decisions.
Party politics: Party politics is more evident in the parliamentary system where partisan interests drive politicians more than national interests.
Control by the bureaucracy: Civil servants exercise a lot of power. They advise the ministers on various matters and are also not responsible to the legislature.