The Doctrine of Separation of Power

Author: Utkarsh Singh; Amity University, Lucknow

I. INTRODUCTION

India follows a separation of functions rather than a separation of powers. The doctrine of separation of powers is an important aspect of the Indian Constitution since it oversees and supervises the powers granted to various parts of government, including the legislature, executive, and judiciary. Montesquieu, a French academic, originally introduced the doctrine of separation of powers in his book “Espirit des Louis” (The Spirit of the Laws) in 1747. He advocated for a division of authority among the many departments of the state, according to his idea. The separation of powers between the several branches of the government creates a system of checks and balances that keeps the various entities in check and prevents one branch from becoming too dominant.

II. WHAT DOES THE TERM “SEPARATION OF POWERS” MEAN?

• The concept’s backstory

• This idea initially appeared in Aristotle’s works in the 4th century BCE, when he identified the three branches of government as the General Assembly, Public Officials, and Judiciary.
• A comparable approach was used in the Ancient Roman Republic.
• In his book De l’esprit des Lois, the 18th-century French philosopher Montesquieu made the idea a highly systematic and scientific one in modern times (The Spirit of Laws).
• His work is founded on an understanding of the English system, which tended to emphasize the separation of the three branches of government.
• John Locke expanded the concept further.

• The Separation’s Purpose

The goal of separation of powers is to prevent a single person or a group of people from abusing their power. It will protect society from the state’s arbitrary, illogical, and dictatorial powers, ensure everyone’s freedom, and assign each role to the appropriate state organs for the successful performance of their tasks.

• What Does Separation of Powers Mean?

Separation of powers separates the government into three branches: legislature, executive branch, and the judiciary branch.

Although different authors provide different definitions, three characteristics of this theory can be framed in general.

• A single person should not be a member of more than one of the government’s three organs.
• No one government organ shall interfere with any other government organ.
• The functions of one government organ should not be exercised by any other government entity.[1]

These broad areas are thus defined, yet in a complicated society like India, conflict, and transgression by one branch against the other is common.

• The doctrine’s importance

Why is it necessary to have a division of powers between the various State organs? When power is concentrated in one place, there is a higher risk of mismanagement, corruption, nepotism, and power abuse. This principle prevents authoritarianism from infiltrating a democratic system. It safeguards citizens from arbitrary rule. As a result, the significance of the idea of separation of powers can be summarised as follows:

1. Keeps autocracy at bay
2. Individual liberty is protected.
3. Assists in the creation of a more efficient administration
4. The independence of the judiciary is preserved.
5. Prevents lawmakers from passing arbitrary or unconstitutional legislation.

III. SEPARATION OF POWERS BETWEEN THE THREE GOVERNMENT BODIES

• Legislative Authority

The legislature enacts general norms of legislation that are primarily concerned with how its citizens and institutions behave themselves. The Lok Sabha and the Rajya Sabha are the two houses of India’s Union Legislature, which help to enact laws, approve borrowing, levy taxes, and write debates, and pass bills that are then sent to the President for approval. Only after the President signs and approves a bill does it become law. As a result, the system of checks and balances is emphasized. Article 123 of the Indian Constitution gives the President this authority.

• Executive Powers

The executive branch of government is responsible for enforcing the laws passed by the legislature. According to Article 53 (1) of the Indian Constitution, the President and the Governor of India have executive powers. They have the power to veto laws, play a key role in appointing judges, and give pardons to criminals. As a result, the system of checks and balances over the government’s judiciary body is preserved.

• Powers of the Judiciary

The principal role of the judiciary is to prevent laws from being broken and to defend citizens’ fundamental rights. The Supreme Court of India is the highest in the country, with complete judicial power. The judiciary’s job is to interpret the laws enacted by the legislature but they are unable to enact new legislation. In this way, they are reliant on the government’s legislative body. By establishing the Supreme Court of India, Article 124 (1) of the Indian Constitution affords the court various rights. The Supreme Court judge is appointed by the President, who is the executive, according to Article 124 (2), creating a system of checks and balances on the judiciary.

IV. INDIA’S CONSTITUTIONAL STATUS OF POWER SEPARATION

Although not explicitly stated, the notion of separation of powers is a part of the Constitution’s essential framework. A bill that violates this principle cannot be passed by the legislature. The Constitution expressly mentions the functions of the three organs.

Take a look at some of the Constitution’s articles that propose the separation of powers.

Article 50: This article imposes a duty on the state to keep the judiciary and the executive distinct. It is not enforceable, however, because it falls under the Directive Principles of State Policy.

Article 123: The President, as the country’s executive leader, has the authority to exercise legislative powers (promulgate ordinances) under certain circumstances.

Articles 121 and 211 state that legislators are prohibited from debating the conduct of a Supreme Court or High Court judge. They can only do so if the president is impeached.

Article 361: The President and Governors of the United States are immune from legal action.

There is a system of checks and balances in place, with certain rules imposing checks on one another.

• The executive and legislative activities are subject to judicial review by the judiciary.
• According to Article 13, the judiciary can overturn any law approved by the legislature if it is unconstitutional or arbitrary (if it violates Fundamental Rights).
• It also has the power to declare unconstitutional executive actions null and void.
• The legislature also examines the executive’s performance.
• The judges are appointed by the executive, even though the judiciary is independent.
• While keeping to the constitutional restriction, the legislature can also change the foundation of the ruling.

There are checks and balances in place to ensure that no single organ becomes too dominant. The Constitution ensures that any organ’s discretionary power is exercised following democratic principles.

V. SEPARATION OF POWER IN INDIAN CASE LAWS

1.  Kesavananda Bharati Vs. State of Kerala[2]

Article 368 of the Constitution was challenged in this case. Article 368 gives Parliament the authority to modify the Constitution and the procedures for doing so. In this case, it was decided that, while Parliament is given the capacity to alter the Constitution, they do not have an absolute right to do so, and that if an issue arises to amend the constitution’s core elements, it would be declared unconstitutional.

2. Ram Jawaya v. the State of Punjab[3]

The Hon’ble Supreme Court ruled in this judgment that there is no rigorous division of powers in India. The Supreme Court ruled that the executive branch derives its legitimacy from the legislature and is reliant on it.[4]

3. Indira Gandhi Nehru v. Raj Narain[5] 

This case is a Supreme Court lawsuit involving a dispute about Prime Minister election results. It was decided that the function of the judiciary in resolving a specific issue is that of the judiciary and that the legislature cannot exercise its modifying power under Article 368. It was decided that the Prime Minister elections would not be nullified, but that they would be held in violation of the separation of powers concept.

4. M/S UEE Electricals Engg. Pvt. Ltd. vs. Delhi Development Authority[6]

It was said in this case that judicial review should only be utilized for protection, not for undue interference in executive activities.

VI. THE LEGISLATURE’S AND THE JUDICIARY’S RELATIONSHIP

Even though the executive and judiciary’s roles are specified in the Constitution, the checks and balances system assure that each can impose checks on the other.

• The judiciary has the power to overturn laws that are deemed unconstitutional or unreasonable.
• The legislature, for its part, has denounced judicial activity and attempted to enact legislation to overturn key rulings.
• The principle of separation of powers is considered to be violated by judicial activism.
• In some cases, the courts have issued laws and rules as a result of their decisions. The Vishakha Norms, for example, are a set of sexual harassment guidelines published by the Supreme Court.
• The Supreme Court ordered the government to distribute food grains in 2010.
• Judicial overreach occurs when the judiciary exceeds its authority and enters the legislative or executive branches of government.

VII. THE LEGISLATURE’S AND THE EXECUTIVE’S RELATIONSHIP

The Executive Branch of the State (Council of Ministers) is collectively responsible to the Legislature, according to the Constitution (Lok Sabha). This indicates that Parliament should monitor the government’s activities and hold it accountable for its decisions.

• The executive and legislature are not divided in a parliamentary form of government since members of the council of ministers are also members of the legislature.
• When the legislature loses faith in the executive, it loses authority. If the executive/council of ministers loses the confidence of the legislature before the end of its term, it is removed. In a parliamentary system of government, the executive and legislature are not separated because members of the council of ministers are also members of the legislature.
• The legislative loses authority when it loses faith in the executive. If the legislature loses confidence in the executive/council of ministers before the end of its term, it is ousted.
• The legislature enacts legislation in broad terms and delegated authority to the administration to develop and implement detailed policies.
• The executive is not accountable to the legislature in a presidential system of government. Both the State and the government are led by the same individual. A minister does not have to be a member of the legislature.

VIII. THE EXECUTIVE AND JUDICIAL BRANCH’S RELATIONSHIP

The Constitution contains many clauses that ensure the independence of the judiciary. This is because it is considered that the judiciary must be independent for a democracy to be efficient and successful. The constitution is said to be guarded by the judiciary. If the executive also has judicial powers, the government is more likely to be corrupt.

The executive, on the other hand, performs some judicial tasks as well. They are as follows:

• The executive makes the appointments for the judges.
• The President and Governors have the authority to pardon, reprieve, and so on. These are judicial functions that are carried out directly.
• The executive agencies have the authority to hear and decide issues involving certain domains of administrative activity under the administrative adjudication system.

IX. CONCLUSION

The principle of power separation is enshrined in India’s Constitution. The checks and balances system ensures that the power wielded by various government agencies, such as the Legislature, the Executive, and the Judicial, is not abused and that the law is followed in its entirety. In India, the separation of powers is not strictly enforced because multiple government organizations perform similar responsibilities. In India, courts are prohibited from investigating Parliamentary proceedings under Articles 122 and 212 of the Constitution. The powers of the judiciary and the executive are separated by Article 50 of the Indian Constitution. The President of India has executive powers under Articles 52 and 53. After the legislative has prepared a law, it must be approved by the executive, which is the President. The bill can subsequently be accepted or rejected by the President. There is a system of checks and balances between the legislative and the administration in this regard. Multiple times, Article 368 of the Indian Constitution, which provides Parliament the ability to change the Constitution, has been challenged.

Thus, in India, the powers of the three bodies of government, namely the judiciary, executive, and legislative, are divided according to the doctrine of separation of powers to prevent the creation of a totalitarian type of government.

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[1] Administration Law, IP Massey (Eastern Publishing (P) Ltd; Lucknow)

[2] Kesavananda Bharti Sripadagalvaru & Ors. V. State of Kerala & Anr. AIR 1973 SC 1461

[3] Rai Sahib Ram Jawaya Kapur and Ors. vs The State of Punjab AIR 1955 SC 549

[4] ‘Separation of Powers’ and The Indian Constitution, SHODHGANGA, http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/9/10_chapter%204.pdf

[5] Indira Nehru Gandhi vs Shri Raj Narain & Anr 1975 AIR 2299

[6] Delhi Development Authority Vs. M/S UEE Electricals Engg. Pvt. Ltd. 2004(3) SCR 286