SEPARATION OF POWERS

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This article is written by Sharat gopal, studying BA-LLB at Delhi Metropolitan Education, GGSIPU. In this article, he has discussed the concept of ‘Separation of power in India’ and its presence in Indian constitution in form of various provisions.

Introduction

By hearing the term “separation of power” the first name that comes to our mind is of Montesquieu. He propounded the theory of Separation of Power in the year 1748 in his book “Spirit of Law”. He believed that if all the powers are vested within one person or a group of persons, then it will lead to a tyrannical form of rule over the people and any government or authority with such nature will be a disaster for the people. There will be complete anarchy in such form of government. In order to prevent such kind of anarchy, he believed that there should be a separation of powers between the organs of the state.

Organs of Government

There are 3 main organs of the government, they are-

  1. Executive
  2. Legislature
  3. Judiciary

Executive- executive is the organ of state, which is responsible for the proper implementation of the rules and regulations in the country. Their primary function is to implementation of rules and regulations made by the legislature. The executives are often involved in the making of these policies as they have a better view of the existing conditions of the state as compared to the legislature. Examples of executives are, Prime Minister, President, Ministers, and Civil Servants etc.

Legislature- the legislature is the organ of state, which is responsible for making of rules and regulations for the country. It is an organ which is responsible for making policies for the country, by which the state will be governed. In simple terms, it can be said that the legislature is the organ which is responsible for making laws for the whole state. Legislature is the assembly which consists of people elected, to represent public opinion and power of the public. Legislature has the responsibility of making laws and statues, which are necessary for the smooth functioning of the country.

Judiciary- the judiciary is the organ of state, which settles all disputes and applies the laws and check their constitutionality of these laws made by the judiciary. The real meaning of the law is decided when the judges give their judgements on various cases. The applicability of the law, its flaws, loopholes, all are discussed and understood during the judgement of cases. The primary function of the judiciary is to protect the constitution and fundamental rights of the people. Interpreting law and applying them inappropriate stances is one of the functions of the judiciary. This organ decides the scope, nature and meaning of the laws passed by the legislature.

These are the 3 organs of the state. The legislature is responsible for making of laws, the executive is responsible for implementing these laws and judiciary is responsible for interpreting these laws and solving disputes which arise due to the laws which are made by the legislature and imposed by the executive.

SEPARATION OF POWERS

According to Montesquieu, there should be a clear-cut division of power between the 3 organs of state i.e., legislature, executive and judiciary, to avoid arbitrariness. He suggested that these organs should have separate departments and they should not interfere in each other’s department. They should be independent in nature.

Separation of powers, genesis came from the constitution of America, where this concept of separation of powers is followed strictly. It came into effect to avoid a government which will tyrannical and arbitrary in nature.

Features of Separation of Power

  1. Each organ of state is restricted to its own field, and is not allowed encroach in other fields.
  2. Due to Separation of power, the concept of unlimited power in one hand is eliminated.
  3. There is saying, “Power corrupts and absolute power corrupts absolutely”. Separation of power introduces to the system of “checks and balances”.
  4. Separation of power is desired for having an effective form of governance.

Basic concepts of Separation of Power

  1. No person should be a part of more than one organ of the state.
  2. One organ of state should not interfere or control another organ.
  3. One organ should not perform the functions of another organ.

Separation of Power in India

 Separation of power is followed in India but not in a way as it is followed in America. India follows the separation of powers in a not very strict manner but its separation is ensured in the constitution as mentioned below –

Separation of Power between Judiciary and Executive

India follows the rule of law, which states that the law will supreme and nothing is above law. If there is no separation of power followed and, judiciary and executive powers are with one person or a group of person, it will lead to anarchy. The primary function of the judiciary is to provide justice and it cannot be provided if, one is the judge in his own cause. If there is no separation between judiciary and executive, then justice cannot be delivered effectively.

In order to avoid this situation, the constitution of India in Article 50 clearly states that the state should take all necessary steps to separate the judiciary from the executive.

Separation of Power between Judiciary and Legislature

The constitution of India in article-122 states that the court cannot inquire into the proceedings of the parliament. The court cannot question the parliament on any grounds or irregularities in parliament. And Article 121 states that the parliament cannot discuss about the conduct of any Judge of the Supreme Court or High Court.  Also under Article-105 of the constitution, it provides parliamentary privileges to the members of parliament. In this way constitution has ensured separation of power between judiciary and legislative.

Separation of Power between Executive and Legislature    

There is no specific separation of power mentioned in constitution between executive and legislature. But as the executive is a part of the legislature. President who is the part of the executive has the power to summon both houses of parliament and also have the power to prorogue the both houses and dissolve the house of people. Also, has the power to appoint various officers, but this all is done through the advisory committee of the president i.e., the council of ministers and this way legislature is not in control of the executive, as also legislature has the power to execute impeachment process against the president.

The concept of separation is of power is not rigidly practised in India that is why India uses the system of checks and balances for separating organs of the states. India does not follow the SOP in a strict form as-

  1. Article-53 of the constitution states that the President is vested with executive powers but he will act on the advice of the Council of Ministers.
  2. President can pass an ordinance which is the law, and making law is the role of the legislature.
  3. Judges of Supreme Court are appointed by President and they are impeached by the parliament.

CASE LAWS

In the case of Ram Jawaya Kapoor V/S State Of Punjab(AIR 1955 SC 549), it was held that executive action is derived from the legislature and it is dependent on it for its legitimacy and. And in Indian constitution separation of power is not in absolute terms but has sufficiently distinguished the functions of all three organs.

 In the case of Indira Nehru Gandhi V/S Raj Narian(AIR 1975 SC 2299), the Supreme Court held that in the constitution, there is a functional overlapping within the organs of the government, as there is no rigid separation of power in India, unlike the USA.

CONCLUSION

In India, we follow the separation of function and not the separation of power. And hence are not abided by the rigid principles of separation of power like in USA, Nepal, France etc. But still, somewhere in its nature, it preserves principle of separation of power in its doctrine of check and balances.  As for the smooth functioning of the government, all the three organs must be in coordination and cooperation.

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