INTRODUCTION or body of person. As stated by Madison-

INTRODUCTION

There is an underlying connection between
the principles of rule of law and separation of power. In a system governed by
rule of law there should not be any absolute power being run at the whims of
the ones having the source of the same.515 Therefore if there is no source of
power in the first place; then chances of the power being exercised whimsically
by a body become even less and distant. The concept of Separation of Power has
been derived to reduce the likelihood of government violating the rights of
individuals. The basic assumption behind this concept is that when a single
person or group has a large amount of power, they can become dangerous to
citizens. The Separation of Power is a way of removing the amount of power in
any group’s hands, making it more difficult to abuse.

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It has been known that Separation of power
had been founded by the Montesquieu and Locke but its  roots are found in the Vedas. If we study the
Smritis which are ancient source of law i.e. Dharma, we find such type of
separation. In Narad Smriti we trace the very principle of separation of power.
At that time Deewan was head of the Executive wing of any legacy, Senapati did
a job to maintain law and order and Kaji was the judicial head. At the same
time we have to bear in mind that they all are subordinate to the King and King
was the supreme authority who makes the law and therefore he was similar to
present form of legislature. In short, what comes out is that in ancient time
also there was a separation of power in one province or legacy. After all, King
is known as the supreme authority of all but the functions and powers has been
separated.

The value of this doctrine lies in that it
attempts to preserve human liberty by avoiding the concentration of powers in
any one person or body of person. As stated by Madison- “The accumulation of
all powers, legislative, executive and judicial, in the same hands whether of
one, a few, or many and whether hereditary, self-appointed or elective, may
justly be pronounced the very definition of tyranny.” And for the prevention of
this tyranny, the doctrine of separation of power holds its greatest importance.

 

 

 

 

 

DOCTRINE OF SEPARATION OF POWER IN INDIA-

In India, there are three distinct
activities in the Government through which the will of the people are
expressed. The legislative organ of the state makes laws, the executive forces
them and the judiciary applies them to the specific cases arising out of the
breach of law. Each organ while performing its activities tends to interfere in
the sphere of working of another functionary because a strict demarcation of
functions is not possible in their dealings with the general public. Thus, even
when acting in ambit of their own power, overlapping functions tend to appear
amongst these organs. The question which is important here is that what should
be the relation among these three organs of the state, i.e. whether there
should be complete separation of powers or there should be co-ordination among
them.

The application of doctrine of separation
of power has a proposition that none of the three organs of Government,
Legislative Executive and Judicial, can exercise any power which properly
belongs to either of the other two.

 

 

 

 

 

 

 

 

 

 

LEGISLATURE-

Legislature is that
institution which consist of the representative of the people i.e., politician.
Its main objective is to discuss and debate on the issues concerning the people
and the Country. It is the law and policy making body.
Generally, new laws or policies are introduced in the Parliament/ State
Legislature in the form of Bills. These Bills once passed by the Legislature
are sent to the President for assent. Once the passed bill gets the assent of
the President, it becomes the law, or the policy comes into effect. Parliament
or the State Legislature are the forms of “Legislature”. It is here where the Govt. is bound to answer the
questions which are raised by another representative of the house.

 

EXECUTIVE-

Executive is that branch of
the Govt. which enables and implement the actions and decisions of the Govt.
may it be implementation of the laws passed by the legislature or preparing the
blueprint of various other initiatives which are taken up by the Govt like
Jan-Dhan Yojana, Start-up India Stand Up India etc., the rules and regulation
as well as their framework is prepared by the Executive only. This body consist
of the bureaucrats from All India Services like IAS, IFS, IRS, IPS.

Like the other two important parts of
system or country where leaders are chosen by votes, the Executive is equally
expected to be free of invasions from the other two. It is always said that
Executive is independent of the two, but the unexpected weirdness continues to
exist and do hard or annoying things. It is completely wearing away in actual
practice. The reason is that the executive is questioned for its actions by the
judges, the court and the Government. This waters down the independence of the
Executive to the highest possible value. It’s not that the question of
answerability pops up only in the case of executive. The judiciary and the legislature
are equally answerable but in their cases, a built-in system from within would
be available for discharging those functions. This is the real situation, which
exists in practice.

 

JUDICIARY-

Judiciary is another
‘independent’ branch of the Govt whose main task is to be uphold the
Constitution and the rule of law. It acts as a watchdog over the actions of the
legislature and executive and curtails the same when it violates the rights of
the individuals. Judiciary has to enforce the law and penalise those who are
found to be breaching the same. It consists of the Judges who preside over the
court. It is the most important feature of democracy. It is responsible
for safeguarding the interests and the fundamental rights of the people.
Judiciary consists of the Hon’ble Supreme Court, Hon’ble High Court and other
lower courts. Judiciary keeps a tab on the activities of the government and
plays an important role in the event of violation of Fundamental Rights of the
people of the country. Judiciary also has the authority to examine the validity
of the Laws enacted by the Parliament on the constitutional parameters.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LANDMARK CASES-

1.      1.
In the re Delhi Laws Act case, it was for the first time followed by the
Supreme Court that except where the constitution has vested power in a body,
the way of thinking that one organ should not complete functions which
basically belong to others is followed in India. By a majority of 5:2, the
Court held that the explanation of separation of powers though not an important
part of our Constitution, in rare circumstances is obvious in the legal rules
of the Constitution itself. As observed by Kania, C.J.-

“Although in the constitution of India
there is no express separation of powers, it is clear that a legislature is
created by the constitution and detailed provisions are made for making that
legislature pass laws. Does it not imply that unless it can be gathered from
other provisions of the constitution, other bodies-executive or judicial-are
not intended to discharge legislative functions?”

This judgment suggested that all the three
organs of the State which are the Legislature, the Judiciary and the Executive
are bound by and subject to the legal rules of the Constitution, which limits
their powers, legal controls, responsibilities and relationship with one
another. Also, that it can be assumed that none of the organs of the State, the
Legislature, the Judiciary, and the Executive would go beyond its powers as
laid down in the Constitution.

 

2.      KESHAVANANDA
BHARTI CASE-

The question placed before the Supreme
Court in this case was connected to the extent of the power of the government
to update the Constitution as given under the Constitution itself. It was
argued that Parliament was “better than anyone or anything else” and
represented the sovereign will of the people. So, if the people’s
representatives in Parliament decided to change a particular law to control
individual freedom or limit the extent of the range of the judiciary, the
executive and the legislature had no right to question whether it was related
to the Constitution or not. However, the Court did not allow this argument and
instead found in favor of the person who’s arguing against a legal decision on
the grounds that the belief of separation of powers was a part of the
“basic structure” of our Constitution.

As per this ruling, there was no longer
any need for confusing double-meaning as the idea for a single purpose
recognized as a part of the Indian Constitution, permanent even by an Act of
Parliament. So, the idea of separation of powers has been included into the
Indian laws.

 

3.      INDIRA
NEHRU GANDHI V. RAJ NARAIN

However, it was after the landmark case of
Indira Nehru Gandhi v. Raj Narain that the place of this doctrine in the Indian
context was made clearer. It was observed: “That in the Indian Constitution,
there is separation of powers in a broad sense only. A rigid separation of
powers as under the American Constitution or under the Australian Constitution
does not apply to India.”Chandrachud J. also observed that the political usefulness
of the doctrine of Separation of Power is not widely recognized. No
Constitution can survive without a conscious adherence to its fine check and
balance.

4.      OTHER
CASES

The doctrine of separation of powers was
further expressly recognized to be a part of the Constitution in the case of
Ram JawayaKapur v. State of Punjab, where the Court held that though the
doctrine of separation of powers is not expressly mentioned in the Constitution
it stands to be violated when the functions of one organ of Government are
performed by another. This means the Indian constitution had not indeed
recognized the doctrine of separation of powers in its absolute rigidity but
the functions of different parts or branches of the Govt. have been
sufficiently differentiated and consequently it can very well be said that our
constitution does not contemplate assumption, by one organ or part of the
state, of functions that essentially belongs to another.

In I.C. GolakNath v. State of Punjab,
Supreme Court took the help of doctrine of basic structure as propounded in
KesvanandaBharati case and said that Ninth Schedule is violative of this
doctrine and hence the Ninth Schedule was made amenable to judicial review
which also forms part of the basic structure theory. It was observed: “The
Constitution brings into existence different constitutional entities, namely,
the Union, the States and the Union Territories. It creates three major
instruments of power, namely, the Legislature, the Executive and the Judiciary.
It demarcates their jurisdiction minutely and expects them to exercise their
respective powers without overstepping their limits. They should function
within the spheres allotted to them.”

 

 

Different models around the
world:

Constitutions with a high
degree of separation of powers are found all over the world. Even though there
is the existence of the safeguards it gives against very bad treatment, the modern-day
communities of people find it very hard to apply it stiffly and strictly. In
way of basic truth/rule they go for separation of powers and dilution of powers
at the same time.

 

United States:

In the United States
Constitution, Article I Section I gives Congress only those “law-based
powers within this are granted” and move forwards to list those allowed
actions in Article I Section 8, while Section 9 lists actions that are
prohibited for Congress. The clause in Article II places no limits on the
Executive branch, simply stating that, “The Executive Power will be vested
in a President of the United States of America.”

The Supreme Court holds
“The Judicial Power” according to Article III, and it established the
effect of Judicial review in Mar bury v. Madison. The federal government refers
to the branches as “branches of government”, while some systems use
“government” to describe the executive. The Executive branch has
tried to forcefully take power from Congress arguing for Separation of powers
to include being the Commander in Chief of a standing army since the war
between groups that all live in one country, executive orders, emergency powers
and security classifications since WWII, national security, signing statements,
and now the idea of a unitary executive.

To prevent one branch from
becoming most powerful or better than anyone or anything else, and to cause the
branches to cooperate, authority and control systems that employ a separation
of powers need a way to balance each of the branches. Usually this was very skilful
through a system of “checks and balances”, the origin of which, like
separation of powers itself, is specifically credited to Montesquieu. Checks
and balances allows for a system based regulation that allows one branch to
limit another, such as the power of Congress to change the composition and area
of legal control of the federal courts.