Separation of Powers aims for a distinct division of authority and pursues exclusivity in how each organ functions. What is the History of the separation of powers? What is the Concept of the separation of powers? Read further to know more.
The operation of federal and democratic states requires the separation of powers. To ensure that one branch does not impede the functioning of the other two, the State is divided into three branches:
Each with its own set of authorities and responsibilities. It is essentially the standard that each state government must adhere to in order to successfully legislate, carry out, and apply the law to specific situations. If this idea is not implemented, corruption and the misuse of authority are more likely to occur. A totalitarian law will be less likely to be passed if this idea is upheld since people will know another branch will check it.
Let us discover the History of the separation of powers.
History of the separation of powers
The French philosopher Montesquieu advanced the Separation of Power doctrine.
- The fundamental tenet of the notion of separation of powers is that there should not be a concentration of governmental authority in one body. The French Revolution taught us that one individual with unchecked power may wreak devastation.
- In the 16th and 17th centuries, French philosopher Justice Bodin and British politician Locke both published their opinions on this topic.
- Separation of powers was first included in a national constitution by the United States.
- India’s case: The Constitution’s drafters thought it was too late to incorporate the Separation of Powers principle because it had already been written. India developed a parliamentary system of governance as well. They, therefore, determined it would be wise to steer clear of adopting the American model of complete division of powers.
Concept of the separation of powers
The concept of the separation of powers consists of :
- The trias politica theory serves as the foundation for the separation of powers. By requiring the consent of all three branches when creating, enforcing, and managing laws, it lessens the likelihood of arbitrary government actions.
- The doctrine of the separation of powers primarily refers to three formulations of governmental powers; one individual should not serve in more than one capacity within any one of the three branches of government.
- Any interference from one governmental organ with another is improper.
- One organ shouldn’t do the duties that belong to another organ.
Need For Separation Of Power
- There is a risk of poor management, corruption, nepotism, and the misuse of power when the government’s power is concentrated in a single hand.
- Therefore, the separation of powers is necessary to prevent authoritarian rule in the nation, foster efficient government, stop the legislature from passing arbitrary or unconstitutional legislation, and protect individual liberty.
Our Constitution does not contain any specific clauses addressing the doctrine of separation of powers. However, the constitution has a few guiding principles:
- There is no formal or established division of powers outside of what is stated in Article 50 of our constitution, which states that “the state shall take steps to separate the judiciary from the executive in the public services of the state.”
- The executive authority of the Union and the State shall be vested in the President and the Governor, who are exempt from civil and criminal liability under Articles 53 and 143.
- Articles 121 and 211 prohibit discussion of the judicial actions of Supreme Court and High Court judges in the Parliament and State Legislature.
- Articles 122 and 212 which say no court may challenge the legality of legislative or parliamentary proceedings.
- According to Article 361 of the Constitution, neither the President nor the Governor is subject to legal accountability for the way in which they carry out their official responsibilities.
Doctrine Of Separation Of Power
In a strict sense, the idea of separation of powers states that there should be a system of checks and balances as well as a clear demarcation between the three organs and their respective roles. When there is an improper blurring of the lines between the three organs’ roles, the doctrine of separation of powers is violated.
Seperation of Powers Between Various Organs
Powers are seperated as follows:
- The Lok Sabha is the ultimate authority for the Council, which also produces ministers.
- In cases of violation of its privileges, the impeachment of the President pursuant to Article 61, and the dismissal of judges, the legislature acts as a court.
- According to Article 105, the legislative body has the ability to punish (3).
- The President of India is the Union’s head of the Executive and a member of Parliament (Articles 53 and 74). He plays a legislative role in the Parliament (Article 111). Thus, the passage of the Bill required his approval.
- He has the authority to issue ordinances under Article 123, as well as the judicial authority under Articles 103(1) and 217(3), consultation authority with the Supreme Court of India under Article 143, and pardoning authority under Article 72 of the Constitution.
- By choosing judges for the Chief Justice of India and other offices, the executive has an impact on the judiciary as well.
- According to Articles 142 and 145 of our constitution, the Supreme Court has the authority to rule that law passed by the legislature and executive actions are unconstitutional and void if they violate any provisions of the constitution or, in the case of legislative actions, the law passed by the legislature.
- Even Parliament’s ability to modify the constitution is open to the Court’s review.
- If a constitutional amendment modifies the fundamental design of the document, the Court may declare it invalid. Courts have frequently given the Parliament instructions on how to formulate policies.
Checks and balances provisions in the Indian Constitution
The Indian Constitution is founded on the concept of “checks and balances” rather than the strict division of powers.
- To prevent any one organ from becoming overly dominant, there are checks and balances in place. The Constitution makes ensuring that any organ’s discretionary authority is used in a democratic manner.
- The judiciary has the authority to scrutinise executive and legislative actions.
- Parliament passed a bill in 1972 to implement Article 50, taking away the judicial authority previously held by the executive magistrate and transferring it to the judicial magistrate.
- The Indian Constitution’s Doctrine of Checks and Balance was introduced by the Supreme Court in the 1993 decision of P. Kannadasan v. Tamil Nadu State.
- In accordance with Article 13, if a statute is arbitrary or unconstitutional, the judiciary has the authority to invalidate it.
- Additionally, it has the authority to deem unconstitutional presidential actions void.
- The legislature also assesses the performance of the executive.
- Even though the judiciary is autonomous, the executive appoints the judges.
Judicial Decisions Regarding The Separation Of Powers
Because we follow a separation of functions rather than a separation of powers in India, we don’t adhere to the notion in its strictest form.
- Although the notion of the separation of powers is not expressly established in the Constitution, the court found that it is broken when one organ of government fulfils the duties of another in the case of Ram Jawaya v. The State of Punjab. Therefore, it is reasonable to conclude that our constitution does not contemplate the assumption of functions that essentially belong to another organ or part of the state by one organ or part of the state, despite the fact that the Indian Constitution did not recognise the doctrine of separation of powers in its absolute rigidity. This is because the functions of the various parts or branches of the government were sufficiently differentiated.
- In I.C. Golak Nath v. State of Punjab, the Supreme Court asserted that the Ninth Schedule breaches the Kesavananda Bharati notion of fundamental structure. As a result, the Ninth Schedule was made subject to judicial review, which is another aspect of the basic structure theory. If a statute is unconstitutional under the terms of the Constitution, the Supreme Court has the authority to declare it void.
- In the case of Indira Gandhi v. Raj Narain, the court came to the conclusion that our Constitution broadly embraces the doctrine of separation of powers. In contrast to the United States and Australia, India does not adhere to a strict definition of the separation of powers.
- The Supreme Court was asked to decide in the Kesavananda Bharti Case of 1973 how much the legislature might alter the Constitution in accordance with the Constitution’s provisions. It was claimed that Parliament was “better” and embodied the people’s free will. As a result, the court lacked the authority to determine whether or not a statute’s amendment to restrict individual freedom or the reach of judicial review was constitutional. The Court, however, rejected this claim and decided in favour of the appellant, citing the idea of the division of powers as a component of the “basic structure” of our Constitution. Because of this, the idea of “separation of powers” is acknowledged as a key component of our Constitution.
A democratic government and diverse people like India cannot function under a constitution with a strict separation of powers. However, the three pillars of government can cooperate democratically thanks to deliberate and moderate constitutional functional overlaps.
By bridging the gap between the legislative, executive, and judicial departments of government, mutual collaboration like this improves the efficiency of government. A democracy cannot function well without adhering to the doctrine of separation of powers.
Article Written By: Atheena Fathima Riyas