CHECKS AND BALANCES

Checks and Balances - Concept

 Checks and balances refer to a system of government in which power is divided
between different branches, or parts, of the government.
 The idea is that the branches will then be able to check and balance each other so that no
part of the government can become too powerful.
 These checks and balances help resist the power of others. They are of fundamental
importance in tripartite governments.
 The Indian Constitution has no explicit provision for separation of powers of
organs: Legislative, Executive, and Judiciary. However, separation of power exists
between these organs. Also, to avoid supremacy of any organ and prevent abuse of power
by it, there exists a scheme of checks and balances.

Checks and Balances - Constitutional Provisions

 The Constitution of India does not accept the principle of strict separation of powers,
rather it is based on the principle of ‘checks and balance’.
 Article 13(2): Judiciary can review any legislative law made by the Parliament.
 Article 32 and 226: The Supreme Court and the High Court’s issue writs to hold the
executive and legislature accountable.
 Article 61: Impeachment of President.
 Article 75 and 164: Council of Ministers responsible to Lok Sabha and State Legislative
Assembly respectively.
 Article 81: Disqualification of Members of Parliament.
 Article 124 and 218 of the Constitution of India lay down the procedure for
impeachment of judges of the Supreme Court and High Court.
 Article 148: Comptroller and Auditor General of India appointed by the President is
responsible for auditing the finances made by the executive to Parliament.

Checks and Balances on Different Organs

The constitution provides various checks and balances to prevent abuse of power by anyone
function:

Checks on the Executive

 Different instruments like No-Confidence Motion, Question Hour, Calling attention

motion, Censure Motion, etc. help hold the government accountable to the Parliament
and ultimately to the people of India.
 The constitution provides for Article 13, 32, and 226 which implicitly mention
the doctrine of judicial review allowing the Supreme court to strike any delegated
legislation by the executive for example, Stay of Cattle slaughter notification by Supreme
court
  The executive actions must remain within the framework of the constitution and the
Judiciary ensures that the rights of individuals are protected.
 Actions that violate norms and are corrupt practices are checked by the legislature
through the reframing of acts for example. Benami Transactions Act was revised in 2016
to overhaul the previous ineffective act

Checks on the Legislature

 Office of profit mentioned under Article 102 prevents the legislators from encroaching
on the executive role thus entering into a conflict of interest. For example, Striking down
of appointment of parliamentary secretaries by the Delhi High Court
 The Judiciary can strike down legislation which are ultra vires of the constitution using
the doctrine of judicial review For example, Section 66 A of the IT Act was struck down
to protect its misuse.
 The constitution bars legislators to discuss the conduct of the judges in parliament and
assembly

Checks on Judiciary

 The constitution provides that in case of misconduct of judges, they can be removed by
parliament by a special majority in both the houses after an investigation by a committee
For example, Attempt to remove Justice Soumitra Sen in Rajya Sabha
 Judicial appointments require the concurrence of the government after they have been
approved by collegiums of judges.

Concerns and Challenges to Checks and Balances

Judicial Overreach

Judiciary interferes in the functioning of the Executive and Legislature. Judicial overreach is not
to be confused with judicial activism where the Judiciary protects the rights of Citizens.

Weak opposition in Legislature to Executive

Lack of strong opposition has ruled out the utility of dissent.

Nature of functioning of Parliamentary Committee

The advisory role of such a committee does not give them adequate power to have influence over
the Executive.

Parliamentary procedure

such as no-confidence motion, adjournment motion, cut motions, etc if passed frequently can
affect the functioning and stability of the Executive and hence hinder long-term development.
Conclusion

 The Constitution has provided ample provisions to ensure checks and balances. Thus, it
can be seen that the domains of executive, judiciary, and legislature are bound by mutual
checks on their authority and have to work as per the principles and ideals laid down in
the constitution
 The checks and balances envisaged in our constitution have functioned quite well so far.
The provisions, though not watertight, give some flexibility in the system suited for
Indian requirements. Nevertheless, the misuse of such flexibility needs to be arrested to
strengthen the checks and balances and thus uphold the spirit of our democracy.