The doctrine of Separation of Power

This article is written by Shambhavi Shree, a student of KIIT School of Law, Bhubaneswar (4th year).

INTRODUCTION: DOCTRINE OF SEPERATION OF POWER

Earlier the power was with one single individual ruler because of which the people’s voices were not heard. The process of this undivided rule was referred to as the Monarch system. It was difficult to look after the rights of the individuals or citizens by a single person therefore the powers were separated by the three jurists. The separation of powers was originated by Aristotle, principles were developed and designed by Locke and were propounded by Montesquieu based on the British constitution. The USA was the first country to adopt the separation of power. Article 50 of the Constitution of India states that the state should take necessary steps to separate the judiciary from the executive in all the states of the union.

Separation of power by Wade and Philips states that:

One person cannot be a member of more than one organ of the government.
One organ of the government cannot interfere with the functions of the other.
One organ of the government cannot perform the functions of the other.

Concept laid down by Baron-de-Montesquieu

Montesquieu, a French scholar introduced this concept in his book ‘Espirit des Louis’ (The Spirit of Laws) published in 1748 to ensure the liberty and freedom of an individual. And for this, there must be a rule of law and an impartial and independent judiciary.
The objective of separation of power was not to interfere in the working of each other.
French jurist, Montesquieu further stated that the separation of powers also includes checks and balances.
If one organ intervenes the function of the other organ is known as checks and balances.
There are three main organs of government:

The legislature or primary legislation are entitled to make laws in our country. It is headed by the parliament (Lok Sabha and Rajya Sabha) and the house of representatives.
The executive enforces the law headed by the President, Vice President, and the Cabinet. They act on the advice of the Council of Ministers. The executive is the administrative head of the government.
Judiciary is there to interpret the laws and they are handled by the Supreme Court, High Court, and all other Subordinate Courts.

ADVANTAGES

This system was appreciated by English and American jurists and accepted by politicians.
According to Blackstone if the authority was given to one organ then there was an end of personal liberty.
Separation of power plays a vital role in the creation of a fair government.
Justice and fairness.

DISADVANTAGES

Historical incongruity implies that King can do no wrong.
Division of functions or division of responsibilities into the legislature, executive, and judiciary to lessen the burden on one single branch.
This system is not acceptable by a large number of countries in the world.
Organic separation of powers.

CASE ANALYSIS

Indira Nehru Gandhi V. Raj Narain AIR 1975

In this case, the difference was drawn between the separation of powers in India, the US, and the Australian Constitution. In the Constitution of India separation of powers is not followed strictly whereas in the US and Australian Constitution it is in a strict sense. India has adopted a parliamentary form of government therefore there is no strict separation of powers in India.

In Re The Delhi Laws Act, 1951 AIR 332, 1951 SCR 747

In this case, it has been held that it has nowhere expressly mentioned in our Constitution of India to set up the organs separately as American Constitution. Supreme Court held that separation of powers is the basic structure of our Indian Constitution.

Kesvanand Bharti V. State of Kerala and Anr on 24^th April, 1973

The Supreme Court stated that both the supremacy of the constitution and separation of powers is part of the basic structure of our Indian Constitution. None of the three separate organs of the republic can take over the functions assigned to the other. This scheme of the constitution cannot be changed even by resorting to Article 368 of the Constitution of India.

Ram Jawaya Kapur V. State of Punjab AIR 1955 SC 549

The legislature has to make the law, the executive to implement the law, and the judiciary to interpret the law. Supreme Court held that one organ of the state does not perform the duty of the other.

Asif Hameed V. State of J & K AIR 1989 SC 1899

The court stated that legislature, executive, and judiciary is entitled to function in their respective spheres. No organ can perform the function carried out by the other.

CONCLUSION

The development of separation of powers made a tremendous impact on the development of the functioning of the government. Separation of power aimed to grant freedom and not to insert strict separation. The doctrine of separation is accepted in India in its strict sense but complete separation is not possible in our constitution.

REFERENCE

https://indiankanoon.org/doc/1814791/
http://www.legalserviceindia.com/legal/article-35-doctrine-of-separation-of-powers.html
https://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx
https://indiankanoon.org/doc/257876/
http://www.legalservicesindia.com/article/1617/Separation-of-Powers-and-Its-Development-with-Special-Reference-to-India.html

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