Separation of powers means to divide the functions of the government to keep a check on the powers and to help the government to function smoothly, in a just manner and keeping in mind the ideals of law and justice for the citizens.

The advent of this doctrine helped many Constitution makers to include this concept into the Constitutions to the maximum extent possible. Let us take a look into some of the countries and their status regarding separation of powers in their Constitution and governments respectively.

1. UNITED STATES OF AMERICA (USA)

Regarded as one of the superpowers of the world and earliest countries to have a written Constitution in the world, the doctrine of separation has been accepted and strictly adopted by the Constitution while it was being drafted in 1787.

The powers are vested in three organs- the legislative powers in the Congress (Article I), the executive powers in the President (Article II) and the judicial power in the Supreme Court (Article III).

The organs cannot overstep the boundaries of work and must adhere to the guidelines provided in the Constitution. One organ cannot assume and exercise the functions of the other organ.

But as time progressed there has been some relaxation in this doctrine.

Now the President is involved in the legislative functions by sending messages to the Congress and having the power to veto. The Congress has the judicial powers by the medium of power to impeach and the Senate has executive powers by having the power to make certain important appointments. The congress has appointed various regulatory authorities by the means of administrative bodies, but this has never been adjudges unconstitutional by the Supreme court.

• ENGLAND

England can be seen as a country that has seen and experienced absolute monarchy and now constitutional monarchy as well. It has been a colonizing power for many years and have certain development and changes in administration of the own country and countries that were previously their colonies and some still their colony partially.

 Although Montesquieu credited the British to have been his inspiration behind this doctrine, the British never had any such strict doctrine in its rule. It is said that there is only mere integration of many rules that seem to like they have clearly specified boundaries between them.

The Lord Chancellor, who is the head of the judiciary is also the Chairman of the House of Lords and the executive member of the House of Commons.

The judges act under the supervision and make the rules as well that is basically a legislative function. The members of Cabinet are also involved in the legislative functions. Likewise the House of Commons can make their own rules to decide upon the breach of privileges.

• INDIA

If we generally overlook the Constitution in brief, one can notice that there is separation of powers between the organs of the government in India. The Constitution states that the Executive powers are vested in the hands of the President, The legislative powers are in the hands of the Parliament and the judicial powers are with the Judiciary (Supreme Court, High Court and the other Subordinate courts).

The Parliament makes laws on various subjects and there is unlimited legislative powers vested in it. The President holds office and relies on powers mentioned in the Constitution. The judiciary is an independent organ that has the power to make judicial decision without interference and has the power of judicial review for the judgement passed by lower courts.

But if we investigate the provisions of the Constitution carefully, it can be noted that the doctrine has not be accepted and applied in India in a strict sense. Thought the executive powers are strictly given to the President and the Governors and no judicial and legislative powers have been given to the other organ respectively. The President and Governor themselves enjoy various legislative power like making ordinances for a State, assuming legislative powers of the State once the assembly is dissolved, adopt necessary modifications to laws etc. He also decides upon the ages of the judges for purposes of retirement and matters regarding to the disqualification of members from the Houses of Parliament.

Similarly, the Parliament can declare any law void that is inconsistent with the law of land. It can decide upon a question of breach of privilege by any member and can punish him after inquiry. In case of the impeachment of the President, one House puts forward the charge and the other House investigates the charge. This is purely a judicial function.

The Judiciary also has some administrative functions like overlooking the functioning of subordinate courts and tribunals, the transfer of cases from one court to another etc. They also act in the legislative sphere by making procedures and code of conduct and on how a case must be disposed.

Hence, we can say that there is no violation of the separation of powers, in contrary the powers have been distributed in such a way that there is independence as well as overlaps. No organ can overstep boundaries nor can get away with leniency. All three main organs keep a check on the working of each other. There is also mention of the supporting and subordinate organs to the main organs of the government in the Constitution.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on Facebook, Twitter  Youtube and Instagram.

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 at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge