This article has been written by Ms. Bhawna, a student studying B.A.LLB.(H.) from Teerthanker Mahaveer college of law and legal studies, Moradabad. The author is a 3rd year law student.
INTRODUCTION
Montesquieu Political Philosopher formulated this doctrine systematically in his book “The Spirit of the Laws, 1748.” Locke : Discontinuous legislative power, Continuous executive power and Federative power. Montesquieu’s division of power included a general legislative power and two kinds of executive powers: an executive power in the nature of Locke’s federative power and a ‘civil law executive power including executive and judicial power. According to him, to promote liberty in its true sense, the powers should be separated and function independently. His doctrine in essence signifies the fact that one person of body of persons should not exercise all the three powers of the government viz, legislative, executive and judiciary. In other words each organ should restrict itself to its own sphere and retrain from transgressing the Province of the other. When the legislative and executive powers are united in the same person, or in the same body, there can be no liberty. Again, there is no liberty if the judicial powers be not separated from the legislative and executive powers. Miserable would be the case were the same man or the same body exercises all the three powers. It can be understood into 2 sense i.e. Negative and positive.
NATURE AND MEANING OF SEPARATION OF POWERS
The separation of powers is based on the principle of trias politica which means separation between 3 independent powers of nation i.e., Legislature, Executive & Judiciary. There are three main organs of the Government i.e. legislative, executive and judiciary. According to the doctrine of separation of power, these 3 powers & functions of government must, in a free democracy, always be kept separate & be exercise by 3 separate organs of the government. Thus, Legislature cannot exercise executive or judicial powers, the executive cannot exercise legislative or judicial powers & Judiciary cannot exercise legislative or executive powers & each can exercise only one type of authority that is Legislative, Executive or Judicial.
SEPARATION OF POWERS IN USA
We can see the application of this doctrine in the US constitution. The doctrine of Separation of Powers forms the foundation on which the whole structure of the Constitution is based. In US legislative, executive and judicial powers are vested in separate entities.
- Article I Section 1: All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
- Article II Section 1: The executive power shall be vested in a President of the United States of America.
- Article III Section 1: The judicial power of the United States, shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.
US follows separation of powers but along with that they follow the concept of Checks and Balances.
Congress has the sole power to legislate for the United States. Under the non-delegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not delegate a “line-item veto” to the President, by which he was empowered to selectively nullify certain provisions of a bill before signing. In Wayman v. Southard (1825) the court said that Congress had delegated to the courts the power to prescribe judicial procedure.
Executive power is vested, with exceptions and qualifications, in the president by Article II, Section 1, of the Constitution. The Constitution does not require the president to personally enforce the law; rather, officers subordinate to the president may perform such duties. In INS v. Chadha (1983),the supreme court held that the prescription for legislative action in Article I, Section 1, requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives and section 7 requiring every bill passed by the House and Senate, before becoming law, to be presented to the president, and, if he disapproves, to be repassed by two-thirds of the Senate and House—represents the Framers’ decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers.
Judicial power — the power to decide cases and controversies — is vested in the Supreme Court and inferior courts established by Congress. In Murray’s Lessee v. Hoboken Land & Improvement Co.(1856), the Supreme Court held that a legislative court may not decide “a suit at the common law, or in equity, or admiralty,” as such a suit is inherently judicial. Legislative courts may only adjudicate “public rights.
SEPARATION OF POWERS IN INDIA
On a casual glance at the provision of the Constitution of India one may be inclined to say that the doctrine of separation of power is accepted in India. Under the Indian Constitution executive power of the Centre & the States in the President and Governor by means of Article 53(1) and Article 154(1) respectively. Under Article 50, the State is expected to make efforts to ensure the independence of the judiciary. That is judicial powers are vested with the Judiciary (Supreme Court, High Court & subordinate Court). The legislative powers are vested with the Parliament. Articles 122 & 212 provide validity to all kinds of proceedings in the Parliament & the same cannot be questioned before any Court within India. Similarly, judicial conduct of any of the judges of the Court cannot be discussed in the Parliament and the State Legislature under Article 121 and 211. Taking into account the above factor some jurists are of opinion that the doctrine of separation of powers has been accepted in Indian Constitution. But if we study the constitutional provision carefully it is clear that the doctrine of separation of power has not been expected in India in its true sense. In India not only there is functional overlapping but there is personal overlapping also. As the executive powers of the Union & of the State are vested in the President & the Governor respectively, but they do exercise their powers with the aid & advice of The council of ministers. Both the President & governor exercises power of Ordinance making under article 123 & 213 respectively, thus they perform legislative functions as well. President has the power to disqualify any Member of Parliament under article 103. President also enjoys the pardoning under Article 72 & Governor under Article 161 which is judicial nature. The judges of Supreme court & High Court are appointed by the President. Removal proceedings against the judges of Supreme court and high court can be initiated in any house of the parliament. In Keshvananda Bharti case the supreme court held that the Court can declare any amendment null & void if it changes the basic structure of the Constitution. In many cases, Court have power to issue directions for the Parliament to make policies. The doctrine was first expressly recognized as a part of Constitutional law in the case of Ram Jawaya Kapur v. the State of Punjab 1955. In the case of Indira Gandhi v. Raj Narain & the Keshavananda Bharti v. State of Kerala it was held that the separation of powers in India constitutes the basic structure of the Constitution.
CONCLUSION
Though the Constitutions of both the countries do not explicitly provide for separation of power in all the departments, it can very well be implied from the various provisions of the constitution. The modern concept of the doctrine means that discretion must be drawn between essential and incidental powers. Various judgments emphasized that separation of powers is an essential feature and is a part of basic structure of the Constitution. The doctrine is focusing on Division, interaction, checks and balances and cooperation.
REFERENCE
- https://blog.ipleaders.in/comparative-study-separation-power-india-usa/
- https://www.legalservicesindia.com/article/483/Separation-of-Power-in-India-&-USA.html
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