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The whole structure of the Constitution is predicated upon the foundation which is formed because of the doctrine of separation of power. This is a system of checks and balances that prevents any organ from becoming supreme or misusing its power.
The three organs of the government are the fundamentals of law that are maintained by the separation of power. In most of the Countries, we understand that separation of power consists of three branches. Within the working of a State, the doctrine of separation of power ensures fairness. The system of state under the Separation of Powers is such that the ability is split between the various branches so that no branch has more power than the other one. It gives separate and independent powers and areas of responsibility to each branch, which must be freely exercised with no interruption of each other. In the State, there are three organs of the government i.e., (i) Legislature (ii) Executive and (iii) Judiciary. These powers and functions must be properly segregated and exercised by a separate organ of the government, in a free democracy. Thus, the legislature cannot exercise the executive or the judicial power, the executive cannot exercise the legislative or judicial powers.
Trias Politica is referred to as the concept of separation of power. It was widely employed by the Roman Republic as a part of the uncodified Constitution of the Roman Republic and it was first developed in ancient Greece. The origin of the Doctrine of Separation of Power is traceable to the period of Aristotle. Aristotle (384-322) mentioned in his book that “there are three elements in each constitution in respect of which each serious lawgiver must search for what’s advantageous to it; of those are well arranged, and therefore the difference in constitutions are sure to correspond to the difference between each of those elements. The three are, first the deliberate; second, the official; and third the justicial element”.
According to Wade and Philips, separation of power means three things:-
- One person shouldn’t be made quite one among the three organs of the government.
- One organ of the government shouldn’t control or interfere with any other organ of the government.
- One organ of government shouldn’t exercise the function which is assigned to any other organ.
The Doctrine of Separation of Power was expounded by the French philosopher John Bodin and British politicians Locke respectively in the 16th and 17th centuries. Within the same year, in 1948, a French philosopher, Montesquieu published his book ‘Esprit Des Lois’ (The Spirit of the laws) and represented systematically and scientifically this doctrine. He said that there would be an end of everything, where the same men or the same body, whether of nobles or of the people, to exercise these three powers, that of enacting the laws, that of executing the public resolutions, and of trying the cause of individuals.
ELEMENTS OF SEPERATION OF POWER
- Legislature- The Legislature is also known as the rule-making body of government. Its function is to make law for the good governance of a state in the State list and Concurrent list. The legislative branch of government has the authority to amend the existing rules and regulations, in addition to the changes, which should be for the benefit of the public. Generally, Parliament holds the power for making rules and laws in the country.
- Executive– The Executive is the guideline of thumb utility of government departments and civil servants. The executive is responsible for governing the state. It is mainly responsible to implement and put into effect the legal guidelines made by the legislature.
- Judiciary– The Judiciary is the rule adjudication department. It interprets and applies the laws made by the legislature. It safeguards the rights of the individual. It also resolves the disputes within the states or between states and individuals.
The Constitution of India lays down a functional separation of the organs of the State in the following manner:
- Article 50: The state shall take steps to separate the judiciary from the executive in the public service of the State. This is often done in order to promote the rule of law which is very essential. So the executive would not play the role of the judiciary.
- Article 122 and Article 212: The validity of proceedings in the Parliament or legislature can’t be questioned by any court. This ensures the separation and immunity of the legislature from judicial intervention on the allegation of procedural irregularity.
- Article 121 and Article 211: Judicial Conduct of any Judge of the Supreme Court and High Court shall not be discussed in the Parliament or State Legislatures in regard to the discharge of their duty.
- Article 53(1) and Article 154: The executive power of the Union and the State shall be vested to the President and the Governor, respectively, and shall be exercised by him either directly or through his subordinates.
- Article 245: It gives authority to Parliament and State legislatures to form laws for the entire country or any part of the State respectively.
- 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 their office.
SEPARATION OF POWER AND JUDICIAL PRONOUNCEMENTS IN INDIA
The first major judgment by the judiciary in reference to the doctrine of separation of power was Ram Jawaya v. State of Punjab, wherein it was held that none of the three organs of the government can take over the functions assigned to the other organs. In Kesavananda Bharati v. State of Kerala, it has further been held that Judicial Review is the basic feature of the Indian Constitution and, therefore, it can’t be changed or destroyed by amending the Constitution.
It has been stated in Asif Hameed v. State of J&K, that to restrain the unconstitutional exercise of power by the legislative and executive bodies, the judicial review may prove to be a powerful weapon. The concept of social and economic justice takes place within the scope of the evaluation. While the legislature and executive bodies are subject to judicial restraint in the exercise of their powers, self-imposed discipline of judicial restraint is the sole check on the exercise of power by the judiciary.
In the State of Bihar v. Bihar Distillery Ltd., the Supreme Court has held that the judiciary must recognize the fundamental nature and importance of the legislative process and must accord due regard and politeness thereto.
In Indira Nehru Gandhi v. Raj Narain, Beg J. added that separation of power may be an essential feature of the Constitution. None of the three separate organs of the Republic can take over the functions assigned to the other. Hence this further confirmed the opinion of the Court in reference to the doctrine of separation of power.
RELEVANCE OF SEPARATION OF POWER IN MODERN ERA
The basic concept of the separation of powers is to build a modern democracy in order to safeguard freedom and to prevent abuse of power. For setting out the clear division of power among the organs of the state, separation of power is very important. But more importantly, it provides the mechanism to ensure that these organs do not misuse the power which is vested to them and prevent them from being abused. However, in today’s time, we see that in order to achieve a fully functional democratic system there has been an overlap and balance between the three organs of the government. Within the separation of power, there is a high degree of tension and the excess of power remains in the hand of the executive in comparison to judges or judiciary. The power of the legislature and the judiciary must be enhanced so that there remains a balance between the three organs and no one organ is more superior than others. Whenever these three functions don’t work together, the system gets dysfunctional. We can see that the executives are taking the power of the judiciary in their own hands. Police are doing encounters illegally for the sake of name and fame, the power which is given to them is exceeding that and using it in the wrong way. In politics also we can see that there is a division of power but politics exceeds that power, powers being used for a personal favor. If something happens between the party and its opposition, they target each other by going beyond their power. In order to save money, they donate funds to Non-Governmental Organizations and so, corruption grows. It cannot be ignored that in this process, public money is used for personal benefits, which inflicts substantial damage to the economy. Subsequently making the rich, richer and poor, poorer.
We have a contemporary welfare state in today’s time where we have many social, political, and economic issues relating to state affairs. It’s become impossible to stay with the present doctrine and work within its boundaries. In order to solve these issues, the legislature acts both as a law-making body and as an overseer of the executive, the executive acts for enforcing the law and the judiciary undertakes, not only lawmaking functions but also has a rule-making function. The functions of the organs of the government are overlapping between them because there is no watertight comparison is there as they are easily divisible from one another. It is presumed that all the departments of the government enjoy equal power but in reality, all the organs don’t enjoy equal importance. As the legislature is the supreme body they frame the laws upon which the entire government body has to operate.
The ones on the lower posts are always envious of the people above them, the ones with more power. People are power-hungry which leads to unwanted tensions among themselves hence pursue wrong ways in order to attain that.
The doctrine of separation of power, if applied in a strict sense, becomes impracticable and undesirable and thus, if applied in a strict sense, would be ineffective in any country. But that doesn’t mean that it does not have any relevance in the modern world. In every branch of the government, a certain amount of independence is essential for its effective functioning. The concept of equality between the three organs of the government is recognized and provided by the Constitution of India. In India, within the legislature, the executive is the component of it where the President acts on the recommendation of the council of ministers and becomes the head of the executive. Hence the doctrine of Separation of. Power is better appreciated as a doctrine of check and balance.
 Dr J. J. R. Upadhyay 46, “Administrative Law”, (Central Law Agency, Allahabad, 11th Edition, 2019).
AIR 1955 SC 549.
AIR 1973 SC 1461.
1989 AIR SC 1899.
AIR 1997 SC 1551.
AIR 1975 SC 2299.
BY- Shanti Gupta | Indian Institute of Legal studies