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Comparative Study on Separation of Powers

Introductory Part
  • Rule of the nature says power should not be in the hand of single person. On the other hand it is not wrong to say's that where there is power there must be limitation. Separation is that limitation.
     
  • It is universally accepted that for the stable political system, there should be balance between the holders of the power against each other. The theory of separation of powers deals with the relations among the three organs of the government, namely legislature, executive and judiciary.[1]
     
  • This doctrine focuses on strict demarcation of power. This doctrine signifies the fact that one person or body of persons should not exercise or hold all the three powers of the government.
     
  • The three organs of the government are executive, the judiciary and legislature represents the people and their will in our country. They are also responsible for the smooth functioning of a democratic government in our country.
     
  • The legislature is the law-making body, the executive is accountable for the enforcement of all such laws and the judiciary deals with the cases that arise from a breach of law. Thus all they are interlinked organs of the government and their roles and functions tend to overlap with each other. To remove these overlaps that's why the theory of separation of power comes under the role.
     
  • In India, separation of functions is followed and not of powers not theoretically but even practically and hence, the principle is not followed in rigidity. In India separation of powers is not followed as it is followed in the U.S. But a system of checks and balance has been followed so much so that the courts are competent to strike down the unconstitutional amendments made by the legislature. The constitution makers have also carefully defined the functions of various organs of the state. Legislative and executive, which works on two aspects of people's, will have all the powers including that of finance.[2]
     
  • In India, there are three distinct activities of the Government through which the will of the people are expressed. The legislative organ of the nation has power to makes laws, the executive implemented them and the judiciary applies them whenever any disputes/cases arising out of the breach of law.
     
  • Each organ while performing its function leads to interfere in the area of working of another functionary because a rigid demarcation of functions is not possible in their dealings with the public. Thus, even when they acting in jurisdiction of their own power, overlapping functions may be seen amongst these organs.
     
  • The most important question is here that which type of relation should exist among these three organs of the state, i.e. whether there should be complete separation of powers among these organs or there should be coordination between all of them.
Historical Background of Theory
The doctrine of separation of power was propounded by great French philosopher Montesquieqin 1748 in his book The Spirit of Law[3]. Though the history of the doctrine of separation of powers is traceable to the ancient times of Aristotle, and subsequently 16th and 17th centaury philosophers such as John Bodin and Locke.

It was the French jurist, Montesquieu who gave it a systematic and scientific formulation. In his book 'Esprit de Lois', Montesquieu, for the first time, extensively discussed the doctrine and its form.

According to Montesquieu's theory it means that no person or body should be vested with all three types of powers.

The separation of power is like a model for the governance of the nation and nation has to work with in this model so the goals of nation will be achieved. The separation of power between legislature, executive and judiciary is also known as trias politica model.[4]

In every state there are three kinds of powers, the legislative power, the power executing the matters falling with the law of nations, and the power executing the matters which fall within the civil law.

Differentiation of function
  1. The legislature should make laws but not administer or enforce them
  2. The executive must administer the made laws but neither influence the legislature in the making of the laws nor stand in judgment of the same.
  3. The judiciary must determine rights and upholds justice without taking over the functions of law-making or administrator.
He furthermore stated that such separation of power is mandatory in order to ensure that justice does not become unreasonable, arbitrary and impulsive.

Montesquieu said that 'where the legislature and executive powers are combined in the same persons or in the same body of magistrates there can be no liberty, because apprehensions may arise, lest an equivalent monarch or separate ought to enact tyrannical laws.

There is no liberty if the judicial power is not separated from the legislative form the legislative and executive.

Separation of power under the purview of different Constitutions
The doctrine of separation strictly followed in U.S. It laid down the basis of the American constitutional structure.[5]
  • Article I, section 1 says all legislative power shall be vested in the Congress
  • Article II, Section 1 says all executive power shall be vested in the President of the United States, and
  • Article III, Section 1 says all judicial power shall be vested in the Supreme Court.

The framers of the American Constitution supposed that the principle of separation of powers would help to prevent the autocratic functions of the government by making it impossible for a single group of persons to exercise all the essential power. They intended to create a system in which no one can claim as being omnipotent. To maintain the balance between the power of several organs, created the check and balance theory.. This alternative system works with the separation doctrine through which they can prevents any organ to become supreme.

Despite of the express provisions of this doctrine in the Constitution, U.S. embodies some exceptions to the principle of separation with a view to introduce system of checks and balances. For e.g, a bill passed by the Congress may be disallowed by the President in the exercising of his legislative power like as treaty-making power is within the hand of President but it is not effective till approved by the Senate. It was the executive power of the senate due to which U.S. could not become the member of the League of Nations. On the other hand the Supreme Court has the power to declare the acts passed by the Congress as unconstitutional.

England
England has parliamentary form of government in which the Crown is the nominal head and the real legislative functions are performed by the Parliament. The King though an executive head, is also an integral part of the legislature and all his ministers are also members of the Houses of the Parliament. Furthermore, the Lord Chancellor is plays a vital role in the governance because at the same time he is the member of the House of Lords, a member of the government of England and the meanwhile senior most member of the judiciary.

The judiciary is sovereign however judges of the superior courts may be removed by the impeachment process from both house of Parliament. The House of Lords performed both judicial and legislative functions at some extent. Legislative and judgment powers are being gradually delegated to the executive of the nation. The vesting of two powers in a single organ, denies the fact that there is any kind of separation of powers in England.

India
As per the provisions of the Indian constitution, one may be easily to say that the doctrine of separation power is applicable in Indian governance system. Under the constitution of India, the executive power vested in the hand of president, legislation power vested in the hand of parliament and judicial power vested in the hand of judiciary or courts.[6]

The President powers and function are contained in the Constitution itself. Parliament has power to make any law for the whole nation or any part of it subject to the exceptions mentioned in constitution. In India judiciary is independent and there is no inference in the judicial functions of the courts either by the legislature or executive.

For the independency of judiciary, the judicial review power is also given to the Supreme Court and High Courts and by exercising of this power they can declare any law unconstitutional which is arbitrary or unreasonable in nature. Taking these factors in consideration some jurist says Indian constitution accepted the doctrine of separation of power.

On the other hand, if observed carefully the provisions of the Indian constitution then we can find that our country is not following doctrine of separation of power in strict sense because if we see the legislative function then we can find judiciary can interfere in legislation function by declaring law as unconstitutional and on the other side legislature override the decision of judiciary by passing new enactments against the decision of Supreme Court and High Court. So we can say that India has doctrine of separation of power but not in strict sense.

Provisions of Indian Constitution with Doctrine of Separation of Power [7]
Several articles of the Indian constitution talks about the separation of power between the three organs of the nation.

These are followings:
  • Article 50 of the constitution Article 50 obligated the state to separate the judiciary from the executive.
  • Article 121 and 211 it prohibited and barred the discussion for the conduct of the judges of Supreme Court and High Court by the parliament unless for the impeachment proceeding.
  • Article 122 and 212 these are articles says that court shall not inquire any proceeding of the legislatures. It barred the jurisdiction of the court in this subject matter.
  • Article 361 it says that President and Governors shall not answerable to any court for his work and function.

Judicial Judgment on Separation of Power
In Keshavanand Bharti's case (1973) [8], the Supreme Court held that the amending power of the Parliament is subject to the basic features of the constitution and if it violates the basic structure then that shall be declared as unconstitutional.

In Ram Jawaya v. Punjab (1955) [9] case, separation power in India is not fully accepted as observed by J. Mukerjee that:
Indian constitution has been not recognised separation of power absolutely and rigid but it differentiate the functions of the different branches or organs of the government

In Indira Nehri Gandhi v. Raj Narain (1975) [10] case, the Supreme Court held that to adjudicate any dispute among the parties are purely judicial function and parliament cannot do this function even by using amending power under the constitution.

In Delhi Development Authority (DDA) v M/s UEE Electricals Engg. Pvt. Ltd [11] in this case supreme court sought to provide the objective of judicial review that it is preventive in nature not to undue influence the executive function. Court held that judicial review applicable on that matter where administrative action is illegal, irrational and procedural defect.
In Swaran Singh case (1998)[12], the Supreme Court held that the pardon act of the governor to the convicted is unconstitutional.

In afore-said judgements, Supreme Court upheld the decision and observation of the keshavnanda bharti case regarding to not amend the basic feature of the constitution which establishes the doctrine of separation of power.

Conclusion
The doctrine of separation of power in practically sense is not absolute and rigidly following because at some extent every organ has some relation with others. Despite that we need separation of power because to remove the risk of dictatorship and autocracy it is necessary to divide power and limit the jurisdiction of each organ.

In the modern world, the separation of powers has come to not only main organs such as the, executive, the legislature and the judiciary but also other institutions such as press and academic institutions.

Strictly it is impossible to follow this doctrine in rigidly but the logic behind this doctrine is still valid. Rule of check and balance is also maintaining the balance between the organs of the government.

End-Notes:
  1. Bakshi, P.M., The Constitution of India, ULP, Co. Pvt. Ltd., 2005.
  2. Jain, M.P., Treatise on Administrative Law, Wadhwa and CLP, Agra, Ed. 1996
  3. Singh, Avtar Intro of Jurisprudence , 4th Ed. Lexis nexis
  4. En.Wikkipedia.Org/Montesquieu9876/kl.HTML
  5. Constitutionus.Com/Html.56kl5.OJ
  6. Takwani, C.K., Lectures On Administrative Law, EBC, 2004
  7. Jain, M.P., Treatise on Administrative Law, Wadhwa and CLP, Ed. 1996
  8. AIR(1973 ) 4 SCC 255
  9. AIR 1955 SC 549.
  10. AIR1975 Supp SCC 1
  11. AIR1725 OF 2004(3) SCR 286
  12. AIR,(1998) SCC567

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