THEORITICAL OVERVIEW
Separation of power supports justice, impartiality, and integrity in how a government operates. Most democratic nations have incorporated its own version into their separate constitutions, even though it is not yet adhered to in its strictest sense. The term “separation of powers” describes a form of government in which the executive, judicial, legislative, all have discrete areas of authority. The three branches of government—the legislative, the executive branch, and the judiciary—are widely acknowledged in most democracies.
In order to prevent any sort of conflict, these organs i.e. the executive, judicial, legislative, and judicial departments operate and carry out their tasks without interfering with one another. This means that neither the executive nor the legislative branch of government nor the judicial branch of government may exercise either legislative or executive power.
Separation of power was founded by Montesquieu in his book “THE SPIRITS OF LAW”. Separation of power is also known as trias politicia which means three tier of government.
The principle of separation of powers, according to Wade and Phillips, meant three things:
- One person should not be appointed to more than one branch of the government;
- There should be no interference with or control over any organ of the government by another; and
- No organ of the government should have the authority to perform the duties and exercise the powers of another organ.
As far as India is concerned, there is a system of checks and balances which states that the doctrine of separation of power is not accepted in India in its strict sense. It does not include only functional overlapping but also personnel overlapping. This system of checks and balances allows different organs of government to keep a check on each other so that their function will be non- arbitrary and reasonable. In the United kingdom, there is a loose separation or no separation as the executive and the legislative organ are the same. Moreover, the judiciary also consisted of the legislature as well.
Exception to separation of power
- Delegated executive legislation
- Quasi-judicial bodies
- Administrative adjudication
- Common law or judge made law
- Judicial activism
RELEVANT SECTIONS/ARTICLES
Article 53(1) expressly states that “Executive power of the Union shall be vested in the President”.
Article 50 of the Constitution of India states that the Judiciary to be separated from the executive. There are certain provisions in the constitution of India by which it can be seen that there is no separation of power in the strictest sense and so there is overlapping in terms of the power.
Article 123 and 213 of the Constitution of India empowers the President and the Governor to issue ordinance. According to article 13 of the Constitution, ordinance comes under the category of a law. Thus, by article 123 and 213, the executive can be seen to be given the power of law making which causes an intervention in the power scope of the legislature. Executives can be seen to be empowered to make laws.
Article 361 of the Indian constitution states that president and governors are not answerable to courts.
Article 357, As per the article the President has been empowered to exercise the power of law making in case of a National Emergency. As per section 144 of Cr.P.C, a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf holds the power to issue order in urgent cases of nuisance or apprehended danger.
IMPORTANT CASE LAWS
1. The Supreme Court in Ram Jawaya Kapur v. State of Punjab, held: “Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution does not contemplate assumption by one organ or part of the State of functions that essentially belong to another.”
2.In Indira Nehru Gandhi v. Raj Narain, it was also 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. However, the Court held that though the constituent power is independent of the doctrine of separation of powers to implant
3. Doctrine of basic structure as developed in the case of Kesavananda Bharati v. State of Kerela on the ordinary legislative powers will be an encroachment on the theory of separation of powers. Nevertheless, Beg, J. added that separation of powers is a part of the basic structure of the Constitution. None of the three separate organs of the Republic can take over the functions assigned to the other. This scheme of the Constitution cannot be changed even by resorting to Article 368 of the Constitution.
OTHER IMPORTANT CONCEPT
Doctrine of check and balance
- Legislature: The ability to amend and revalidate laws that have been declared “beyond the authority” or “ultra vires” of the Court, as well as the power to impeach and remove judges, all with reference to the court. With regard to the executive: By passing a vote of no confidence and following the established process, the legislature has the power to dissolve the government. Through Question Hour and Zero Hour, the government has the authority to assess the executive’s performance. The government also has the authority to remove the president from office through impeachment.
- Executive: The responsibility of choosing the Chief Justice and other judges falls within the framework of the judiciary. The legislative branch’s authority comes from delegated legislation. The power to implement the rules that are required for the Constitution’s provisions to be successfully carried out in relation to the relevant laws and provisions of the constitution.
- Judiciary: Regarding the executive: Judicial review refers to the power to examine the executive’s actions in order to make sure that the Constitution is not breached during executive action. Regarding the legislative branch: In the Keshvananda Bharati case, the Supreme Court limited the right to amend the Constitution under the “Basic Structure of the Constitution.” (1973).
POINTS TO REMEMBER
- The doctrine of separation of power, however well its intentions may make sense in the democracy, cannot be seen to be applicable in the strict sense in modern democracies.
- It acts as a guiding principle so that no concentration of power is there in the hands of one authority or one body, but there cannot be a water tight compartmentalization in the exercise of powers and functions of one body by another body.
- The doctrine of checks and balances prevents the arbitrariness of one organ with respect to the powers vested in them and so there is a bridle in exercise of such powers.
- The separation of powers and responsibilities among the three departments of government—executive, legislative, and judicial—ensures that the authority of one does not conflict with that of the others. This is an important principle of constitutional law.
- The concept of checks and balances, on the other hand, outlines the resources that each department has at its command to “examine” the others and maintain the proper distribution of power.
