DOCTRINE OF SEPERATION OF POWER: AN INDIAN EXPERIENCE – BY- JYOTIKA SHARMA

ABSTRACT

The doctrine of the separation of power was first introduced in the Montesquieu writing, in the spirit of the law, in order to ensure that none of the divisions interferes into the domain of another. Montesquieu relates to separate the Government responsibilities into three distinct branches of government. The real goal of implementing principles was to prevent power accumulation and to ensure check and balance. In India, separation of power is practised, but not rigidly. Somehow, the tree’s main areas of government do the task of others. The article evaluates the separation of powers as envisioned by the Indian Constitution, as well as the functional overlaps in practice by the government’s three branches while implementing the constitutional provisions in letter and spirit.

INTRODUCTION

In our Indian Constitution, the doctrine of separation of powers is incorporated a somewhat modern approach. In simpler terms, the powers enshrined in our constitution are not explicitly divided, both in principle and in exercise. There are three different governmental divisions in India that govern the country.

The legislative of the state has the law-making authority, the executive has the authority to enforce these laws, and the judiciary has the authority to apply these laws to particular incidents resulting from breaches of these enacted and enforced laws. Since an explicit separation of powers is not practicable while dealing with the general public, the activities of each branch when performing its duty tend to overlap. As a result, any action taken by a functionary within its sphere tends to be interfering with the powers of other functionaries.

The interesting question that arises in this situation is what should be the ideal relationship between all three branches of government, i.e., should the boundaries of each branch’s powers be clearly drawn or should there be some sort of coordination between them all?

In terms of the courts, the doctrine (the doctrine of separation of powers) can imply two propositions:

1. a) That none of the three organs of government i.e, the Legislative, the Executive, and the Judicial, may exercise any authority that belongs to the other two; and
2. b) That the legislature cannot delegate its powers.- D.D. Basu[1]

SEPARATION OF POWER

Since ancient, the doctrine of separation of powers has been a topic of discussion. In their respective accounts, the Greek philosopher Aristotle and the English philosopher John Locke described a utopian society that understood the separation of power. Sir Montesquieu provided the real spirit and significance of the concept in “The Spirit of Laws.”

The separation of powers is described differently by different authors. However, in general, the concept of separation of powers can be divided into three aspects:

1. A person who is a part of one organ should not be a part of another.
2. One organ does not interfere with the operation of the other organs.

• One organ does not perform the function of another organ.

Separation of power is based on the trials political concept. This principle depicts a tripartite system in which powers are delegated and divided into three organs, each with its own jurisdiction.

A closer study of various provisions of the constitution confirms that the makers of the Constitution intended for the legislature to have exclusive power over the making of laws (legislating). The executive will be in charge of enforcing the laws that have been passed. Similarly, judicial powers can be said to be given to the judiciary.

The judiciary is sovereign in its jurisdiction, and neither the Executive nor the Legislature can interfere with its judicial functions. In addition, the President and the Governor are each given different executive authority over the Union and the State.

 

The Constitution of India lays down a practical separation of the organs of the State in the following manner:

• Article 50:

It is one of the Directive Principles of State Policy. It states “The state shall take steps to separate the judiciary from the executive branch,” This is done in order to protect the judiciary’s independence.[2]

• Articles 122 and 212

The legitimacy of Parliamentary and legislative processes cannot be challenged in a court of law. The aim is to divide the legislators and exclude them from judicial intervention on charges of procedural irregularity.[3]

• Articles 121 and 211:

Judicial behaviour of Supreme Court and High Court judges is not subject to discussion in Parliament or state legislatures.[4]

• Articles 53 and 154:

Provide that the President and the Governor shall be granted the executive power of the Union and of the State and that they are protected from civil and criminal liability. [5]

• Article 361:

The President or Governor is not liable to any court for the exercise and execution of his office’s powers and duties.[6]

FUNCTIONAL OVERLAP

• The legislature exercises judicial powers in case of violation of its privilege, the legislature exercise legislative powers as well as the removal of judges and the impeachment of the President.
• The executive interferes with the workings of the judiciary by appointing Chief Justices and other judges and approving the Collegium’s recommendations. The legislature exercises judicial powers as it amends and revalidates a law declared unconstitutional by the Court. While performing the role of impeachment and disqualification of judges, the legislature also performs the functions of the judiciary.
• The legislature may also impose punishment on those who violate their right of free speech and expression on the floor of the Parliament; this falls under the privileges and powers of the legislature. However, as the legislature uses that power, it must still do so in accordance with due process. Any government ministry’s heads are participating members of the legislature, rendering the executive an inseparable part of the legislature.
• The President and Governor work with the aid and recommendation of the council of ministers, which is made up of elected legislators. The executive may exercise the legislature’s law-making powers under some circumstances. When the legislature is not in session and the President or governor believes that an urgent formulation of law is required, the President or governor may promulgate ordinances that have the same legal effect as if the act had been enacted by the legislature.
• The Constitution grants the States’ and the Centre’s legislatures the authority to make rules for regulating their respective practice and manner of business, according to the terms of the Constitution, by Articles 208 and 118, respectively. Under deputized legislation, the executive also has legislative power.
• Tribunals and other quasi-judicial bodies that are part of the state’s second organ, the executive also perform judicial roles. Administrative tribunals also perform judicial roles and are a part of the executive. A member of the judiciary should still have higher administrative tribunals. The power to supervise the function of lower courts has been given to the higher judiciary. It also serves as a legislature by enacting laws that govern its operations and the disposal of proceedings.[7]
• Apart from the overlap of powers between themselves, the Indian structure still lacks personnel separation between the three organs. For example, certain M.Ps who serve in the legislature also work as ministers in the executive.
• Using the principles of trust and constitutional restraint in the Indian system, a system is established under which no division can take the powers or functions that are attributed to another branch through an express or required provision, nor can they distinguish themselves from the essential functions that belong to them under the Constitution.
• Furthermore, the Indian Constitution expressly provides for a system of checks and balances to prevent the use of the power granted by the supreme document in an oppressive or capricious manner. Though this method tends to dilute the concept of separation of powers, it is necessary in order for such a constitutional system to function fairly and impartially in practice.
• By granting those powers to each other, the respective organ establishes a check and balance device for the exercise of constitutional powers. This simply demonstrates that the Constitution does not call for a strict separation of powers in its document. Instead, it proposes a structure based on the three-state divisions, each having special and overlapping functions and powers. As a result, within the three divisions of government, there is no absolute, discrete separation of powers.

 

ISSUES WITH FUNCTIONAL OVERLAPPING

Unaccountability: One of the drawbacks of overlapping powers is that a specific organ cannot be kept responsible for its decisions. for Example judicial decisions in the 2G and Coal Block Allocation cases.

Faith erosion: repeated interferences with the functioning of one organ will diminish people’s faith in the integrity, consistency and efficiency of the others.

Accumulation of power: it undermines the spirit of democracy as too much power accumulation in government bodies undermines the check and balance theory.

Adverse effects on development: excessive infringements on each other can obstruct the smooth operation of public service and development.

 

CONCLUSION

The Constitution is the supreme law. No organ should be allowed to go beyond the position that the constitution has assigned to it. One of the most basic provisions of the Separation of Powers Constitution is that the judiciary, president, and legislature must all strictly adhere to it. There is no question that a more robust understanding is needed, as well as sufficient space to accommodate it. It is important to protect the constitutional system’s lofty vision, which can only be maintained if it is put into effect. There is a significant difference between the Constitutional plan and the practice of separation of powers. The role and powers of the state’s three organs were also established by the constitution’s founding fathers. They discovered that government, as an organic body, would never be able to obtain full separation of powers. As a result, aiming for full separation of powers is equivalent to speaking in a vacuum. That does not mean that each branch has exclusive authority, but it does mean that they must stay within their constitutional boundaries. The Executive has been increasingly powerful in recent years, which has undoubtedly resulted in widespread misuse of authority. A Constitutional system of the rigid separation of powers is undesirable and impracticable for a representative polity and complex society like India. However, judicious and measured constitutional functional overlapping allows for democratic collaboration between the three branches of government. Mutual cooperation like this helps to close the gap between the executive, legislative, and judicial branches of government, making the government-run more smoothly.

[1] D D Basu Memorial Lecture – Speech Delivered by Shri K K Venugopal | United States Constitution | Separation Of Powers, n.d. Retrieved December 19, 2020, from https://www.scribd.com/doc/128694745/

[2] Concept Behind Securing The Independence Of Judiciary Vis-à-vis Article 50 Of Constitution Of India, n.d.

[3] https://www.drishtiias.com/mains-practice-question/question 673#:~:text=Article%20122%20and%20212%3A%20Validity,and%20duties%20of%20his%20office.

[4] AK Subbiah And Another, v. The Chairman, Karnataka Legislative Council, Bangalore And Another. Karnataka High Court (18 Aug, 1978)

[5] S.R. Bommai vs Union of India on 11 March 1994 AIR 1918, 1994 SCC (3) 1

[6] 361, 361a Constitution| Protection of President and Governors and Rajpramukhs Protection of Publication of Proceedings of Parliament and State Legislature, n.d.

[7] Application Of Theory Of Separation Of Powers In India, n.d. Retrieved December 19,2020, from http://www.legalserviceindia.com/legal/article-3631-application-of-theory-of-separation-of-powers-inindia.html