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India is one of the few countries where capital punishment is legal and is justified under the rarest of the rare doctrine. However, it is not just the execution in principle but the process of execution which matters. Discuss (10 Marks) ATTORNEY GENERAL OF INDIA-DUTIES AND FUNCTIONS

Model answer

The doctrine of Separation of Power refers to the model of governance where the executive, legislative and judicial powers are not concentrated in one body but instead divided into different branches. The degree of separation varies. ‘Strict separation’ implies branches are independent of each other. On the other hand, ‘checks and balances’ implies that reasonable checks and balances are in place to check misuse of power.

Articles in the Consitution facilitating Separation of Powers are as follows-

Article 50: State shall take steps to separate the judiciary from the executive.
Article 122 and 212: validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court.
Article 121 and 211 of the Constitution: Judicial conduct of a Judge of the Supreme Court and the High Courts cannot be discussed in the Parliament and the State Legislature.
Articles 53 and 154: executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.
Article 361: the President or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office.

How SOP in India is based on the principles of Checks and Balances:

Although prima facie it appears that the Constitution has based itself upon the doctrine of strict separation of powers. But, if studied carefully, it is clear that it is more inclined towards proper checks and balances.

The doctrine has not been awarded Constitutional status.
Secondly, the constitution divides power between the different branches of government – these are the ‘balances’. Balance aims to ensure that no individual or group of people in government is ‘all-powerful’. Power is shared and not concentrated in one branch.
It’s quite evident that the Constitution of India does not accept the principle of strict separation of powers. Though it appears dilatory of the doctrine of separation of powers, it is essential in order to enable a just and equitable functioning and close coordination.

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