This article has been written by Reet Babbar, a second year student of University of Petroleum and Energy Studies, Dehradun.
The concept of Separation of Powers
Separation of powers is a very essential feature as in a democracy like India, which is also regarded as the largest democracy of the world, the functions of each instrumentality of the political system also become extensive enough and sometimes they even overlap each other due to the interconnectedness of all the organs. These organs generally do not work in isolation to each other but are interdependent to ensure proper and systematic functioning of the government. Thus, after some point, it becomes possible for any one of the three branches of the government to acquire absolute authority, begin using it arbitrarily, and carry out duties that were originally under the purview of the other organ of the government.
Therefore, it is absolutely important to enshrine this doctrine in the constitution of a nation in order to avoid the arbitrary use of power by any one organ and to lay emphasis on a quote by Lord Acton which states that, “Power corrupts and absolute power corrupts absolutely.” Separation of Power guarantees that the three branches, i.e. the Legislature, the Executive and the Judiciary, each has a definite extent of power and are each responsible for only carrying out their own processes without interfering with the primary functions of the other branch, which include drafting laws, executing them out, and interpreting them, respectively.
History of the doctrine
The idea of separation of powers was first put forth as an alternative over the monarchical system that had previously been in place but had become oppressive owing to the concentration of limitless power in the hands of a single individual. Aristotle, who formulated the theory, John Locke, who expanded the idea by integrating Aristotle’s viewpoint, and Montesquieu are the three main proponents or jurists of the doctrine.
The French political philosopher Montesquieu is attributed with propounding the idea of separation of powers and while formulating this theory, Montesquieu stated in his book- The Spirit of Laws, that a free democracy must have the three principal governmental branches known as- the Legislature, the Executive branch, and the Judiciary, with an equal allocation of duties and authority, free from any interference. He also argued that the implementation of such a framework is the only means of reducing the arbitrary nature, with the fundamental notion that all of these units need to perform only one kind of duty, reflecting the mutual exclusivity of the three branches of governmental system.
Three guiding principles for the separation of powers are identified by the Montesquieu theory. The first rule is that no government organ should interfere with another’s ability to function. The second rule is that no government organ should undertake duties that are originally delegated to another body, and lastly, no individual should serve in more than one government organ simultaneously.
Separation of Powers in India
In order to safeguard an individual’s personal liberty and the democratic essence of our nation, it becomes an utmost necessity that no particular organ should perform all the duties, otherwise, that body could behave suspiciously and it may pass repressive regulations, carry it through in an undemocratic manner, and interpret it arbitrarily without external scrutiny. Consequently, the concept, although it isn’t explicitly mentioned in any legislation, still can be found in the underlying principles of constitutionalism. While acknowledging the doctrine, the constitution designates the President as the head, the governor as the executive, and the entire nationwide court system as the judicial organ, together with both houses of Parliament (Lok Sabha and Rajya Sabha), as well as state legislative bodies under the purview of legislative organ.
Article 50, which is built on the cornerstone of the concept of separation of powers and entails independence of the judiciary, is one of the Directive Principles of State Policy (DPSPs). It emphasizes on the state to take measures to keep its judicial system independent of its public services. The implication is the establishment of a separate, independent judiciary. The effective delivery of justice in the nation is seen to depend heavily on the separation of the executive and judicial branches of government.
Articles 121, 211 and 122 are following three relevant provisions that indicate the separation of powers between the legislative and judicial branches of government. Article 121 and Article 211 of the constitution imposes restriction on discussion in the Legislature and lays down the provision that no discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties, except in cases of the process of impeachment. The courts, on the other hand, are not permitted to inquire into the proceedings of either of the two houses of the parliament, according to Article 122 of the Indian Constitution.
Lastly, Article 361 shields the President and Governor, who are both executive officials, from judicial interference in their exercise because they are not answerable to courts for the exercise and performance of their official duties or for any act they may have committed or purported to have committed while performing those duties.
When we analyze the aforementioned constitutional provisions, we can observe that India has not adopted the doctrine in its rigorous or stringent definition. Therefore, it can be recognized that the Indian Constitution does not explicitly specify or reflect the separation of powers doctrine as it is commonly assumed to exist, if we look at it in a broader sense while taking in consideration various judgements by the court and constitutional provisions. There is a significant overlap of power between the three organs, with divisions separating them in specific sectors. Each organ must ensure this balance of power structures under the supervision of the other two, which is known as the principle of Checks and Balances.
Checks and Balances
In India, the doctrine of separation of powers does not exist in the strictest sense. In the landmark case of Indira Nehru Gandhi v. Shri Raj Narain (AIR 1975 SC 2299) the Supreme Court ruled that, unlike the US and Australian Constitutions, the Indian Constitution does not specifically bestow the three types of power in three independent organs of the State. Since our Constitution recognizes the separation of powers in a broad sense, there are numerous instances when deviations are permissible, and the principle of checks and balances exist where the government exists based upon co-ordination of the three organs.
The Indian Constitution’s Article 72, which provides the President’s pardoning power, is an instance of the executive carrying out judicial duties. The president in this scenario has the option to pardon (totally revoke the sentence), commute (alter the nature of the sentence), respite (grant a lesser sentence due to the accused’s disability), reprieve (postpone the imposition of a sentence), or give remission (reduce the time period of sentence). When neither house of parliament is in session, the executive sometimes exercises legislative duties by formulating ordinances. The President’s authority to pass ordinances is stated in Article 123, and the Governor’s power to initiate ordinances is specified in Article 213.
Article 145 gives the Supreme Court the authority to create regulations, including laws governing the conditions for appearing before the Supreme Court, while Article 225 addresses the High Courts’ authority to create laws governing proceedings. There have been numerous instances where courts have acted as lawmakers and issued laws and policies through judgments while acting in judicial activism, such as the Vishakha Guidelines. In addition, according to Article 13 of the Constitution, laws passed by the legislature may be reviewed and declared unconstitutional if they contravene with the provisions of the constitution. A charge of impeachment against the president for violating the constitution can be initiated by either house of Parliament, according to Article 61, which confers the legislature the authority to carry out judicial duties.
Conclusion
Since many years, the democratic blueprint and administrative structure in our nation have been well-established and have been able to function efficiently. One compelling cause for this effectiveness is the mechanism of checks and balances, which has facilitated the three organs to act in in line with the constitutional provisions along with the crystal-clear separation of powers between them. This doctrine has been a crucial feature in maintaining democratic institutions to this extent and barring the arbitrary use of power and transformation of the country’s political system into a dictatorial regime.
REFERENCES
-
- Indian Constitutional Law, M.P. Jain, 6th Edition (2011), LexisNexis Publication.
-
- Introduction to the Constitution of India, Dr. Durga Das Basu, 20th Edition Reprint 2011, LexisNexis Butterworths Wadhwa Nagpur Publication.
-
- Principles of Administrative Law, M.P. Jain & S.N. Jain, LexisNexis Publication.
Aishwarya Says:
Law students often face problems, which they cannot share with their friends and families. We have started a column on our website Student’s Corner. In this column we are talking to several law students about the challenges that they face. Students who are interested in participating in the same, can fill this Google Form.
IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems to aishwarya@aishwaryasandeep.com
Join our Whatsapp Group for latest Job Openings