This article has been written by Ms.Geethika Yamalapalli, a 2nd year student of Narsee Monjee Institute of Management Studies, Navi Mumbai

Many different ethnic groups have ingrained the idea of “The Separation of Powers” in their minds. Over the course of many centuries, the convention has been on the minds of political theorists, constitution designers, judges, and academic journalists. This basically means how the legislative, executive, and judicial branches of the government divide up different powers. The division of forces hypothesis primarily proposes three strategies for the exercise of government power:

• A comparable individual should not participate in more than one of the state’s three organs.
• There should be no interference from one government agency with another.
• It is wrong for one organ to perform tasks that belong to another.

It is impossible to pinpoint this principle’s precise meaning or defining statement because everyone interprets it differently. Nevertheless, we can see that in his book Politics [1], 

Aristotle made the following initial statements regarding the principle of the division of powers:

“When deciding what is in the public’s best interest, every legitimate legislator ought to take into account the following three main aspects of the constitution: The differences between constitutions and these three elements will almost certainly be compared if they are all properly arranged.

The deliberative is the first of the three, and it discusses everything that is fundamentally important; The authorities come in second, followed by the legal aspect.

John Locke, an English political theorist, also proposed a three-layer categorization of forces in his 1689 work The Second Treatise of Government: [2]

“Maybe too incredible an impulse for human frailty for a single person to have the fervour to pass laws and the power to carry them out. This would allow them to release themselves from responsibility for the laws they pass and suit the law in its creation and implementation to create their own private bit of leeway.”

It is possible to draw the following conclusion from the statements made above by numerous jurists: A free democracy should have three primary branches: the legislative, executive, and judicial branches, each with its own distinct role. Fair distribution of power and responsibilities is essential. If we adhere to this concept of the separation of powers, Montesquieu claims that the degree of arbitrary behaviour on the part of the government will significantly decrease. In addition, in contrast to the constitutions of Australia and the United States, where the separation of powers is strictly enforced, India’s approach to the issue is more expansive. Additionally, the concept of separation authority can be demonstrated through several articles, including Article 50 of the Indian Constitution [3].

As a result, there are a few scenarios in which breaking away from the strict separation of powers is acceptable. Parliament might also act to remove the president, for example. As a result, it can be argued that the theory of separation of powers is crucial to the functioning of a state and its recognition of its citizens’ rights.

Locke and Montesquieu were inspired to collect the essential components of the separation of powers principle by the development of British constitutional history in the middle of the eighteenth century. The bill of rights was enacted in Britain as a result of a lengthy dispute between the King and Parliament. This gave the latter administrative power. The King eventually acknowledged the lawmakers and constituents of parliament as well as the court’s legal authority as a result of this. The King exercised his executive power at that time; The legislature used its legislative power; and the courts utilized its judicial power. In any case, this type of separation is not practiced in England, which currently has parliamentary government [4].

A guide for how vote-based states should be run is the trials political, also known as the Separation of Powers. The model had to be adopted by the Roman Republic as part of its uncodified Constitution, which had its roots in ancient Greece. According to this model, the state is broken up into branches or domains, each of which has its own free powers and areas of responsibility. A household typically has two branches: an executive legislature and a judicial branch [5].

Contrary to the separation of powers, parliamentary majority rule regimes frequently incorporate the combining of powers. The Executive, which typically consists of a chief administrator and bureau (government) (parliament), is chosen by the Legislature. This is the foundation of a government that people can trust. In parliamentary systems, the Executive and Legislative branches of government are linked, but there is frequently a separate legal executive. In addition, the participation of the public authority in the parliament does not grant them unrestricted jurisdiction.

“There cannot be freedom when the Executive and Legislative powers are combined in one person or in a similar group of judges, because concerns may arise in the event that a similar Monarch or Senate should correct oppressive laws, to carry them out in an oppressive manner,” are his points of view. Again, separating the judicial branch from the executive and legislative branches prevents freedom. Where it combined with the legislative, self-assertive control would affect the subject’s life and freedom; A legislator would then be the designated authority. The adjudicator may continue to be cruel and abusive wherever it joins the main force. Everything would come to an end when a similar man or body, whether from the people or the Nobles, would exercise these three powers: the power to demand laws, the ability to carry out public goals, and the ability to advocate on behalf of individuals [6].

As a result, the Montesquieu accommodation and division of forces are referred to as the resulting hypothesis and division of forces, respectively. The revolutionary idea of sharing power played a significant role in the political philosophy of the 18th century.

Because India does not strictly adhere to the principle of separation, functions rather than powers are separated. To better comprehend this, we might consider the roles played by Cabinet ministers, who have both legislative and executive responsibilities. According to Article 74(1), the legislative has an advantage over the executive, as the Hon. In the case of Ram Jawaya, the Supreme Court noted.

The Supreme Court ruled in Keshava Nand Bharti v. State of Kerala [7] that the constitution’s fundamental principles now govern the amending power. This decision addressed the question of whether Article 368 grants Parliament an unlimited amending power and where the Parliament’s amending power lies. As a result, any change that reduces these fundamental components will be invalidated.

In the subsequent case of Indira Nehru Gandhi vs. Raj Narain [8], the Supreme Court had the opportunity to apply the Keshava Nand decision regarding the non-amenability of the fundamental elements of the Constitution and the strict adherence to the theory of separation of powers. In the case of the P.M. election dispute, which was still before the Supreme Court, it was decided that parliament cannot carry out its judicial duty of deciding a particular dispute, even within its authority to amend the constitution.

As a result, the main argument against the amendment was that the constituent body fulfilled a judicial duty that it was not supposed to fulfil in accordance with the principle of separation of powers when it declared that the election of the prime minister would not be null and void. After this decision, it became a little clearer where this doctrine fits in the Indian context.

A component of the efficient operation of the three branches of government is the arrangement of governing laws. It ensures that the public authority does not appear overly unbelievable in any way. For example, laws are made by the legislative branch, signed by the executive branch, and unconstitutionally declared by the judiciary branch can make them anything but laws. Judges who aren’t performing their duties properly can be removed by the legislative branch. The executive branch delegated judges, and the authoritative branch backed the presidential branch’s decision. The branches once more balance and check each other to make sure that no branch is too strong. The checking hypothesis is demonstrated by this item. When viewed solely within the context of India, the three government offices each receive distinct authority without a formal framework. Each of the three has unique skills and abilities, but if one of them behaves in a way that isn’t typical, it might make it harder for the others to do their jobs.

The doctrine of the separation of powers cannot be implemented in its traditional sense; rather, it is implemented with checks and balances in accordance with the constitutions of each nation. According to Chandrachud J., “the political value of the idea of separation of powers is now well recognized.” In the current setting, this philosophy ought to be applied in a manner that best serves the interests of the citizens. Repeated attempts by one organ to interfere with the operation of another organ may undermine people’s trust in their honesty, excellence, and effectiveness. Additionally, the spirit of democracy is harmed by an excessive concentration of power in government institutions, which undermines the check and balance principle. The exact description of this principle is not its justification; rather, it refers to the assignment of a set of responsibilities to a specific individual or organization. Even though this theory is not practical in the broadest sense, correlative application actually makes it work well. Therefore, a regular reduction in the activity of forces by the three organs of the state is the essence of the separation of powers concept, not impassable borders, or unchangeable peripheries.

Rules governing the separation of powers should be interpreted in accordance with the context. The division of intensity requires a broader interpretation in this era of progress, privatization, and globalization. Because it is a gathering power that is being used for participation, coordination, and because there is a genuine need for assistance from the state government, it should not be checked against the law of limits or exacting order just yet. Even though this tenet is impractical due to its unyielding insight, it is viable due to the unmistakable quality of balanced governance, which is necessary to ward off awkward government and prevent force mistreatment by the various public authority organs.

REFERECNCES:

1. Bhansali SR (2015) Textbook on the constitution of India 1st Edn India 1.971.
2. Anup Chand Kapur (2006) Principles of Political Science.20th Edn Reprint India.751.
3. Vile MJ (2012) Constitutionalism and the Separation of Powers. Liberty Fund 2nd Edn India. 468.
4. Merrill TW (2004) Rethinking Article I, Section I: From Non delegation to Exclusive Delegation. Colum L Rev United States 2097
5. Mortenson JD (2019) Article II Vests the Executive Power, Not the Royal Prerogative. Colum L Rev Michigan 119 1169-1272.
6. Harrison J (1997) The Power of Congress to Limit the Jurisdiction of Federal Courts and the Text of Article III. U Chi L Rev Virginia 95: 203-256.
7. AIR 1973 SC 1461.
8. AIR 1975 SC 2299.

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