This article has been written by Ms. Shruti Medhekar, a 4th year BA.LLB student of Keshav Memorial College of Law.
The term separation of powers signifies the division of powers of the government. The governmental organs are divided into three broad categories namely Legislative, Executive, Judiciary which independently hold their functions and privileges. The concept of separation of powers is based on the “trias politica” model which means division in three separate branches.
The doctrine of separation of powers had its presence in several forms in different periods. But it was first propounded and articulated by Montesquieu in his book named “Espirit des Lois” (The Spirit of Laws). Montesquieu precisely stated in his own words as: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty, because apprehensions may arise, let the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judicial power be not separated from the legislative and the executive powers. Were it joined with the legislative, the life and the liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined with the executive power, the judge might behave with violence and oppression. Miserable indeed would be the case, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions and that of judging the crimes or differences of individuals.”
Even though there is a difference of sense in the application of the doctrine of separation powers in different states it generally means that:
A member of one organ should not be a member of the other organ.
Either of the one organ should not perform the functions of other organs and,
Either of the one organ should not interfere with the functioning of the other organs.
Specifically legislative should perform the action of enacting the laws, executive should perform the action of execution and the judiciary should perform the action of interpreting the laws.
THREE ORGANS OF THE GOVERNMENT:
- Legislative: This organ of the government performs the function of making or enacting laws, rules, regulations, by laws, orders, bills etc. It usually codifies the law and puts it forward in a systematized manner for the execution or implementation and interpreting of the law by the executive and judiciary respectively.
The Union and the State legislatures fall under this organ.
- Executive: Executive is generally known as the second organ, which is vested with the power to perform administrative actions.
The Executive heads of the state come under this organ.
- Judiciary: Judiciary performs the function of interpreting the laws enacted by the legislature and giving them a clear and reasonable meaning. The main concern of this organ is to understand the language and intent of the legislature enacted in the statute. The judiciary is not expected to interpret the law arbitrarily.
The Supreme Court and the High Court and all the subordinate courts fall under this head.
The doctrine of separation of powers is very well known, accepted and practiced in US, England and India. On a clear glance one may get to know that only in the US constitution this doctrine has been clearly mentioned and it is considered as the heart of their constitution. In England and India this doctrine is not strictly followed and there is no proper demarcation between the powers distributed in the three organs of the government.
POSITION IN INDIA:
The provision of the separation of powers is found in the Indian Constitution. Under the Indian Constitution the legislative, executive and judiciary powers have been vested with three different bodies of government. The powers are vested in the following manner:
- Legislative powers are vested with the Parliament and the State legislatures
- Executive powers are vested with the President
- Judicial powers are vested with the Supreme Courts, High Courts and Subordinate Courts.
The legislature is given the competence to make new laws and amend the existing laws, subject to condition that it shouldn’t be contrary to the Constitution which is considered as the law of the land. The executive is given the administrative function which is to execute and implement the laws. And the judiciary is expected to interpret and give out the true meaning of the legislature enacted law and also has the power of judicial review. All these powers and functions are clearly mentioned in the Constitution. Considering the above factors one can casually assert that the doctrine of separation of powers has been implemented in the Indian Constitution.
The only general intent with which every country which applies the doctrine of separation of powers is that creates individual liberty, absence of arbitrariness, effective administration and independent judiciary which is also one of the salient features of the Indian Constitution.
Now when analyzed on a comprehensive note it can be seen that the powers which have been vested with different organs are not strictly followed by the respective organs. In some situations the legislative transfers some of its powers to the executive in the form of delegated legislation and it also performs judicial functions in process of impeachment of the President. The executive also in few cases performs the act of passing laws in form of ordinances and also perform judicial function while deciding the matters of age and qualification of Judges and the Judiciary also further performs the executive acts while having control over the subordinate courts. Considering the above acts it can be seen through that how much effective is the system of separation of powers in the Indian Constitution. In some or the other way there is functional overlap and interference of one organ on the other. Neither of the organ of the government is independent but in few cases acts as a supportive mechanism to the other two organs.
In Dr. Ashwini Kumar vs Union of India on 5 September, 2019 it was observed that the constitutional limitation is one of the important aspect of the separation of powers. It was further held that there cannot be any straightjacket approach in the application of separation of powers when the matters involve democracy and essential morality which flows from the constitution.
Further in Supreme Court Advocates-on-Records Assn. vs Union of India it was held that the separation of powers concept is one of the essential feature of Indian Constitution but is not strictly followed as in US Constitution. It was stated that when one organ of the government encroaches upon the functions of the other organ it does amount to violation but when an essential function is overlapped then it does raise a constitutional issue. The term essential clearly states that the vital and specifically mentioned functions of each organ should be performed by the respective organ and not by any other.
Similar opinion was held in the case of Indira Nehru Gandhi vs Shri Raj Narain & Anr on 7 November, 1975 that the way in which the separation of powers is effectively followed in US and Australia it is not followed in India and specifically when the question arises with regards to the constituent powers.
And the landmark case of Keshavananda Bharathi vs State of Kerala, 1973 clearly stated that any amendment by the Parliament not unconstitutional until it violates the basic structure of the constitution.
The Indian Constitution even if applied the doctrine of separation of powers in a broad sense has not followed it in a strict sense during its application. It has not indeed recognized its rigidity and demarcation of powers. But regardless the strict application, which is non desirable and technically not applicable the only intent behind the jurists to formulate this doctrine was to avoid the stagnation of powers in one hands creating arbitrariness and divide the powers creating effective mechanism. As it has been wisely said by Lord Action, “Power corrupts and absolute power tends to corrupt absolutely” the doctrine of separation of powers acts as solution to this wise saying.
- Dr. Ashwini Kumar vs Union of India, 2019
- Supreme Court Advocates-on-Records Assn. vs Union of India
- Indira Nehru Gandhi vs Shri Raj Narain & Anr,1975
- Keshavananda Bharathi vs State of Kerala,1973
- Ram Jawaya Kapur vs State of Punjab
- I.R Coelho vs State of Tamil Nadu
- Lectures on Administrative Law – C.K. Takwani
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