Separation of Powers

What is Separation of Powers?

Meaning of Separation of Powers: – The separation of power is based on the concept of trias politica. This principle visualizes a tripartite system where the powers are delegated and distributed among three organs outlining their jurisdiction each. Separation of powers is a doctrine of constitutional law under which the three branches of government are kept separate so that the powers of one branch are not in conflict with those of the other branches. However, a system of checks and balances have been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature. 

This is also known as the system of checks and balances, because each branch is given certain powers so as to check and balance the other branches.

Under this rule, the state is divided into three separate branches: – legislative, executive and judiciary, each of which has different independent powers and responsibilities no branch can interfere in the work of other branch. Basically, it is the rule that every state government must follow to implement, enforce the law, appropriately in a specific case.

Different writers have given the definition of separation of powers. But in general, the meaning of separation of powers can be classified into three characteristics: –

1. Each organ should have different persons in capacity, i.e., a person with a function in one organ should not be a part of another organ.
2. One organ should not interfere in the functioning of the other organs.
3. One organ should not exercise a function of another organ (they should stick to their mandate only).

‘Separation of powers’ is based on the concept of the ‘Trias Politica’. This theory envisions a tripartite system where powers are delegated and distributed among the three organs outlining each jurisdiction.

Background of the concept of Separation of Powers

• This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he described the three agencies of the government as General Assembly, Public Officials and Judiciary.
• In the Ancient Roman Republic too, a similar concept was followed.
• In modern times, it was 18th-century French philosopher Montesquieu who made the doctrine a highly systematic and scientific one, in his book De l’esprit des lois (The Spirit of Laws).
• His work is based on an understanding of the English system which was showing a propensity towards a greater distinction between the three organs of government.
• The idea was developed further by John Locke.

Purpose of Separation of Powers

The purpose of separation of powers is to prevent abuse of power by a single person or a group of individuals. It will guard the society against the arbitrary, irrational and tyrannical powers of the state, safeguard freedom for all and allocate each function to the suitable organs of the state for effective discharge of their respective duties.

Importance of doctrine of Separation of Powers

This principle ensures that autocracy does not creep into a democratic system. It protects citizens from arbitrary rule. Hence, the importance of the Separation of Powers doctrine can be summed up as follows: –

1. Keeps away autocracy;
2. Safeguards individual liberty;
3. Helps create an efficient administration;
4. Judiciary’s independence is maintained; and
5. Prevents the legislature from enacting arbitrary or unconstitutional laws

Three-Tier Machinery of Government

It is impossible for any of the organs to perform all the tasks in a systematic and proper manner. Therefore, for the proper functioning of powers, the distribution of powers is done between the legislature, the executive and the judiciary. Now pay attention to further details of the functioning of each organ.

1. Legislative: – The main function of the legislature is to enact laws. It is the basis for the functioning of the other two organs, the executive and the judiciary. It is also sometimes accorded the first place among the three organs because until and unless laws are enacted, there can be no implementation and application of laws.
   1. The main function of the legislature is to enact a law. Implementing a law expresses the will of the state and it works in vain for the autonomy of the state. It is the basis of the functioning of the executive and judiciary.
   2. The legislation comes at first place because the laws are being made by the legislation.
   3. The judiciary acts as an advisory body which means that it can make suggestions to the legislature regarding the determination of new laws and the amendment of certain laws.

2. Executive: – The executive is the organ that implements the laws enacted by the legislature and enforces the will of the state. It is the administrative head of the government.Ministers including the Prime/Chief Ministers and President/Governors form part of the executive.
   1. The executive (short for executive branch or executive power) is the part of government that enforces law, and has responsibility for the governance of a state.
   2. The rise of welfare state has tremendously increased the functions of the state, and in reality of the executive. In common usage people tend to identify the executive with the government. In contemporary times, there has taken place a big increase in the power and role of the executive in every state.

3. Judiciary: – The judiciary is that branch of the government which interprets the law, settles disputes and administers justice to all citizens. The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution. It comprises of the Supreme Court, the High Courts, District and other subordinate courts.
   1. It refers to public officials whose responsibility is to apply the law made by the legislature to individual cases keeping in mind the principle of natural justice, fairness.

Significance of Separation of Powers in India

As it is a well-known fact that whenever a big power is given in the hands of an administrative authority, it is more prone to mismanagement, corruption and misuse of power. This principle helps prevent the misuse of power. This principle protects the person from arbitrary rules. The government is the violator and also protects personal liberty.

In short, the importance can be explained in the following points: –

1. It protects the liberty of the individual, eliminating autocracy.
2. This not only protects the freedom of the individual, but also maintains the efficiency of administration.
3. Note the need for independence of the judiciary
4. Prevent the legislature from making an arbitrary rule.

Constitutional Status of Separation of Power in India

The doctrine of separation of powers is a part of the basic structure of the Constitution, although not specifically mentioned. The legislature cannot pass a law violating this principle. The functions of the three organs are specifically mentioned in the Constitution.

Going through such provisions many jurists believe that the principle of separation of powers is accepted in India. By going through the provisions of the Constitution of India one may be prepared to say that it has been accepted in India. Let us take a look at some of the articles of the Constitution which suggest separation of powers.

Under the Indian Constitution: –

1. Article 50: – This article puts an obligation over the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable.

2. Articles 62 to Article 72: – Parliament is sufficiently competent to make any law subject to the terms of the Constitution and there is no restriction on its law making powers. Presidential powers and functions are given in the Constitution itself.

3. Articles 121 and 211: – These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.

4. Article 13, Article 226, Article 227, Article 32 and Article 136: – The judiciary is self-sufficient in its field and there is no hindrance to its judicial functions by the legislature or the executive. The High Court under Article 226 and Article 227 and the Supreme Court under Article 32 and Article 136 of the Constitution are given the power of judicial review and any law passed by the legislature can be declared void by the judiciary if it is contrary with fundamental rights (Article 13).

5. Article 123: – The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions. Article 123 makes rules when Parliament is not in session, when there is an emergency. Sometimes the President can also exercise judiciary power. When a President is impeached, both Houses take active participation and finalize the charges.

6. Article 74 (1): – Article 74 (1) states that it is mandatory for the executive head to follow the advice of cabinet ministers. In Ram Jevaya vs. State of Punjab, it was believed that the executive is a part of the legislature and is accountable.

7. The amending power of Parliament under Article 368, is subject to the concept of basic structure held in the case of Kesavananda Bharati v. State of Kerala.

Checks and Balances

The strict separation of powers that was envisaged in the classical sense is not practicable anymore, but the logic behind this doctrine is still valid. The logic behind this doctrine is of polarity rather than strict classification meaning thereby that the centre of authority must be dispersed to avoid absolutism. Hence, the doctrine can be better appreciated as a doctrine of checks and balances.

1. In Indira Nehru Gandhi’s case, Chandrachud J. observed – No Constitution can survive without a conscious adherence to its fine checks and balances. Just as courts ought not to enter into problems intertwined in the political thicket, Parliament must also respect the preserve of the courts. The principle of separation of powers is a principle of restraint which “has in it the precept, inmate in the prudence of self-preservation; that discretion is the better part of valour”.

2. The doctrine of separation of powers in today’s context of liberalization, privatization and globalization cannot be interpreted to mean either “separation of powers” or “checks and balance” or “principles of restraint”, but “community of powers” exercised in the spirit of cooperation by various organs of the state in the best interest of the people.

Case Laws of Separation of Powers

1. I.C  Golakhnath vs. State of Punjab
   • The constitution brings reality into the real constitutional institutions i.e. Union Territories, Union and State. It has three major instruments, the judiciary, the executive and the legislature. It subtly demarcates their jurisdiction and expects them to practice their work without interfering with other tasks. They should work within their scope.
   • If we go through the constitutional provision, we can find that the doctrine of separation of power has not been accepted in a rigid sense in India. There is personnel overlapping along with the functional overlapping. The Supreme Court can declare any law framed by the legislature and executive void if they violate the provisions of the Constitution.

2. In Ram Jawaya vs. The  State of Punjab, Justice Mukherjee observed: –
   • In India, this doctrine has been not be accepted in its rigid sense but the functions of all three organs have been differentiated and it can be said that our constitution has not been a deliberate assumption that functions of one organ belong to the another. It can be said through this that this practice is accepted in India but not in a strict sense. There is no provision in Constitution which talks about the separation of powers except Article 50 which talks about the separation of the executive from the judiciary but this doctrine is in practice in India. All three organs interfere with each other functions whenever necessary.

3. Indira Gandhi vs. Raj Narain
   • The court recognized that the principle of separation of powers in our constitution was accepted in a broader sense. Just like in the Constitution of American and Australia, where the harsh feeling of power separation is not applicable in India.