This article has been written by Faiza M, currently in fourth year pursuing a BBA LLB (Hons.) at Crescent University, Chennai.
Abstract:
Despotic government arrives when power is distributed in the hands of one person or a group. To limit the arbitrary nature of the government, he argued for equal distribution of powers for the organs of the government. Montesquieu also elaborated that if both the legislature and executive powers were united in the hands of the same person, then there will be absence of liberty. Also stated if judiciary is not separated from the other two, again there will be absence of liberty. If judicial power combines with Legislative power it is the gate for arbitrary control. If judicial power combines with executive power, it leads to violence and oppression.
Concept of Trias-politica is the basis of “separation of powers” . It is called the tripartite system. Tripartite system means there are delegated powers and we’re distributed among the three branches of government. It is clear that whenever greater power is given in the hands of any administering authority, It may lead to misuse of power, maladministration and corruption too. Hence, abuse of power is prevented by the doctrine “separation of powers”. It also helps in prevention of arbitrary rule.
By ending autocracy liberty of the individual is protected, efficiency of administration is maintained. Judiciary’s independence is focused and judiciary also helps in preventing legislature from enacting unconstitutional laws. The doctrine of separation of power is not accepted in a rigid sense. In India parliamentary form of government is practiced. The executive and legislature should maintain mutual connection and coordination. While formulating the regulations and giving guidance for the subordinate court administrative actions are performed by judiciary.
Key Words: Legislature, Executive, Judiciary, Checks And Balances, Judicial Activism, Indian Constitution
Introduction:
The separation of powers is used for the administration of democratic states, which is also federative. The three different branches of the state- Legislative, executive and judiciary . These three branches of government have their own independent power and responsibilities. One branch should not interfere in the functioning of the other two branches. It is the rule, that is followed by the government to enact the order, implementation of law, apply to specific case appropriately. If this rule is not followed, there will be greater chances of misuse of power and as a result corruption may occur. If this rule is followed properly then there will be lesser the chance of enacting a tyrannical laws.
The three branches of government is put forward to safeguard citizens liberties and guard against tyranny, disputes, etc. In countries like US, separation of powers is followed strictly but in India, it is not followed properly. The court has the power to overturn the legislation which is passed by legislature, if it is unlawful. Separation of powers helps in equal distribution of powers to legislature, executive and judiciary. So that there will be peace in the country and it will be easy to erase the corrupted India. No organ can interfere in the functioning of the other organs or follow the functions of the other organ. Among the three organs of the government, judiciary has the power of judicial review .
Charles De Montesquieu was the person who coined the term “separation of powers”. Another name of “separation of powers” is “Trias-politica”. Greece was the 1st to accept “separation of powers” followed by Roman Republic. Montesquieu is a well known French scientist. This principle was scientifically articulated by Montesquieu. This was also systematically published in a book named “Esprit des Lois”(The spirit of law) in 1785 and was originally published in 1747.
As per article 53(1), the executive power is vested in the hands of the president. Separation of powers helps to avoid autocracy and to prevent abuse of powers. Three classification of governmental powers- A single person cannot serve in more than one branch, one organ should not interfere in the functioning of another organ and functioning of one organ should not be performed by the other organ.
Three-tier Machinery Of State Government:
All the systematic and appropriate functions cannot be performed by the single organ. It is impossible. There should be equal distribution of powers among the three organs. So, there will be peace .
Legislative:
- Laws are enacted by legislature. It’s main function is to enact laws. While enacting law the will of state expressed. It also gives way to autonomy of the state. Without legislature, executive and judiciary cannot be functioned. Unless the laws are enacted, implementation and applying the law cannot be exercised. Judiciary provides suggestions to legislature regarding framing of new laws. So, the judiciary act as the advisory body.
- Usually, laws enacted by legislatures are called primary legislations. Legislators were the members of legislature. Legislation is derived from a Latin word ‘legislatio’ . Legis means ‘law’ and latum means ‘to make’, together called “to make law” . Legislation means “making of law”. Legislature consists of president and council of states (Rajya sabha) and house of the people (Lok sabha). There are two kinds of legislature – unicameral legislature and bicameral legislature. Unicameral legislature means it consists of one house or assembly. Bicameral legislature encompass two houses.
- Legislative procedure – article 107 to 122
- Legislative power of president – article 123
Executive:
- Executive is the powerful organ of the government. The main function of this organ is to implement the laws which are enacted by the legislature. It helps in enforcing the will of the state. The executive is called as the administrative head of the government and mainspring of the government. It also has the overall responsibility of governance of a state. Executive comprises of President, CM and Bureaucracy. Minister is the political executive and civil servants or bureaucracy is the permanent executive.
- Article 73- speaks about extent of executive powers of the union
- Article 52-78 and 123 deals with union executive
- Article 154- deals with the executive power of state
- Article 53-deals with the executive power of union
Judiciary:
The main function of judiciary is to apply the laws enacted by the legislature to the most appropriate cases. Judiciary interpret the laws and helps in resolving disputes. Judiciary act as the guardian of constitution and protects justice. Judiciary is also well known as the watchdog of democracy. Supreme court, high court and district court and subordinate court are the types of judiciary. Supreme court and high court has the power of judicial review. The best-known power of supreme court is judicial review. This doctrine was established by the court in Marbury vs. Madison (1803) .[1] Judicial review is initiated to prevent any one organ of government From becoming too powerful. Other main functions – administer justice, creation of judge, guardian of the constitution, protector of fundamental rights, supervisory functions, advisory functions, special role in federation, conduct judicial enquiry.
Ability of the individuality of judges and court to perform their duties is called independent judiciary. Independent judiciary helps in ensuring the rule of law.
Chapter Iv- article 124-147 of Indian constitution deals with “The union judiciary”.
Constitutional Status Of Separation Of Powers In India:
- Parliament is capable to make any law with the conditions of the Indian constitution and there are no restrictions on its power of making law.
- President’s power and functions were mentioned under article 62 to article 72 of Indian constitution.
- The judiciary is the self dependent i.e. independent in its field and there is no hindrance with its functions either by legislature or the executive.
- High court is given power of judicial review under article 226 and article 227 of Indian constitution. Supreme court is given power of judicial review under article 32 and article 136 of Indian constitution.
- Judiciary has the power to declare the law passed by legislature as void if it is inconsistent with Fundamental rights under article 13 of Indian constitution.
By going through the above mentioned articles many jurists had opinion that the doctrine of separation of power is accepted in India. Doctrine of Trias-politica in a rigid sense means- There should be proper difference between the three organs and their functions and then there should also be a system of checks and balances. The doctrine of Trias-politica in a broad sense means- where there is no proper difference between the three organs and their functions.
Just like American constitution, president is vested with the executive power under article 53(1)of Indian constitution and governor is vested with executive power under article 154(1) of Indian constitution.
Under article 105 of Indian constitution – definite privileges, power, immunities are given to the member of parliament. Legislature is made independent by this provision. The executive power is awarded to the president and governor So they are exempted from civil liability and criminal liability.
- Article 74(1) – executive head has to conduct in conformity with the aid and advice of cabinet i.e. it is mandatory for the executive head to follow the advice of cabinet ministers.
- Article 123 of Indian constitution – president has the power to issue ordinance.
- Article 121 and Article 211 of Indian constitution – The legislature cannot controversy the conduct of a judge of High court or Supreme court, except in the case of impeachment.
- Article 361 of Indian constitution – The governor and president enjoy immunity from court proceedings.
- Article 50 of Indian constitution – Puts an duty over state to take steps regarding separation of judiciary from the executive. Since it is a DPSP, so it is unenforceable.
The constitution of India has not indeed recognized the Doctrine of Trias-politica in its absolute rigidity. Normally legislature is repository of legislative power but under certain specific circumstances president is also permitted to exercise legislative functions. For example, while issuing ordinance framing of rules and regulations relating to public service matters, Formulating law when proclamation of emergency is in force. On the other hand, parliament also exercise judicial functions in certain matters. Legislature also exercises judicial powers in matters of amending a law which was declared as ultra vires by the court and revalidate it. Legislature can impose punishment for exceeding freedom of speech in parliament.
In the case I.C Golakhnath Vs. State Of Punjab,[2] The constitution brings the distinct constitutional entities, i.e. union territories, unions and states. The three major instruments of the constitution are – judiciary , executive and legislative. It also limits their jurisdiction minutely. It also expects them to perform their function without intrude into the other functions.
In the case Indira Nehru Gandhi v. Raj Narain,[3] The Supreme Court held that the judiciary cannot interfere in parliamentary processes but can strike down constitutional amendments that violate the basic structure.
In the case Ram Jawaya Kapoor v. State of Punjab,[4] Justice Mukherjee observed:-
In India, the Trias-politica doctrine has been not accepted in its rigid sense but all the three organs functions are differentiated. In constitution, there is no provision which speaks about separation of powers except article 50 of Indian constitution, that speaks about the separation of executive from the judiciary. Whenever there is a necessary situation, all the three organs intrude with each other functions. In this case the Court clarified the extent of executive powers, stating that while the executive’s functions are co-extensive with the legislature’s, it cannot act independently of legislative authority.
In the case Delhi Development Authority vs. M/s UEE Electricals Engg. Pvt. Ltd,[5] The meaning and objective of judicial review was clarified as a protection not an instrument for Interference in executive functions.
In the case Dr. Ashwini Kumar vs. Union Of India,[6] Scope and extent of the doctrine of separation of powers is discussed.
In the case Kesavananda Bharati v. State of Kerala,[7] This case established the basic structure doctrine, holding that certain features of the Constitution, including separation of powers, cannot be amended by Parliament.
In the case Asif Hameed v. State of Jammu & Kashmir,[8] This case reiterated that the executive, legislature, and judiciary must operate within their defined spheres to prevent encroachment upon each other’s functions.
In the case State of Rajasthan v. Union of India,[9] The Supreme Court emphasized that the Judiciary should not interfere with the functions of the Legislature and Executive unless there is a clear violation of constitutional provisions. This case reinforced the distinct roles of each branch under the doctrine of separation of powers.
In the case I.R. Coelho v. State of Tamil Nadu,[10] The Court reiterated that the Judiciary has the power of judicial review to ensure that amendments made by the Legislature or actions taken by the Executive do not violate the basic structure of the Constitution, including the principle of separation of powers.
The Minerva Mills Ltd. V. Union of India (1980)[11] case is a landmark Supreme Court decision that reinforced the doctrine of separation of powers and the basic structure of the Constitution amid challenges to the 42nd Amendment Act of 1976, which sought to expand Parliament’s powers to amend the Constitution without adequate checks. The Court struck down these amendments, reaffirming the Basic Structure Doctrine established in Kesavananda Bharati v. State of Kerala, which asserts that while Parliament can amend the Constitution, it cannot alter its fundamental structure, including the separation of powers among the Legislature, Executive, and Judiciary. The judgment emphasized the essential nature of judicial independence and the power of judicial review as safeguards against legislative overreach, thereby reinforcing checks and balances within the government. By invalidating the amendments, the Court protected fundamental rights from legislative encroachments and limited Parliament’s power to ensure it operates within constitutional bounds. This ruling serves as a cornerstone in Indian constitutional law, affirming the Judiciary’s role in upholding democratic principles and protecting individual rights.
The Judiciary’s Role in Overturning Amendments:
The Supreme Court has also applied the doctrine of separation of powers to strike down amendments that infringe upon individual rights. In the case of Madras Bar Association v. Union of India,[12] the court struck down provisions of the Finance Act, 2017, which set a minimum age of 50 years for appointment to courts. The Court affirmed the principle that laws cannot override judicial decisions and affirmed that amendments that undermine the independence of the law are void.
In the same decision, the court held that the appointments made in its interim order were valid and could not be repealed by the provisions of the retroactive law. This indicates the important role of the doctrine in maintaining the independence of the judiciary.
Impact Of The Doctrine Of Separation Of Powers:
The concentration of power in one hand is protected by the doctrine of Trias-politica. History has shown time and time again that when power gets into one or more hands, there are dire consequences. The government is accountable, responsible, and accountable to its citizens for its actions. To protect human rights. It helps to abolish monarchy and control as the king is not accountable to his people. This program helps to create a balance of power in the government. The activities of each government agency are monitored by the others and are independent of each other. Hence there is an assurance of fairness, justice and adherence to natural justice in the laws because this court can also administer equal justice. Therefore, democracy is nothing without distribution of power. World view of separation of powers:
Global Perspective Of Separation Of Powers:
USA:
The USA has the earliest versions of the doctrine of separation of powers, the origins of separation of powers can be found in the constitution of the country.
Great Britain:
The British constitution does not have separation of powers as a fundamental principle.
Australia:
However, due to the nature of the Westminster system, the Australian system does not always reflect a clear separation of powers.
France:
The French constitution allows for a flexible separation of powers.
Norway:
The principle of separation of powers is a very important one in the Constitution of 1814..
Merits Of Separation Of Powers:
- System Of Checks And Balances:
Each organ has certain checking abilities. System of checks and balances helps in governing the inter-organ relationships.
- Protection Of Liberty And Rights:
According to this doctrine, freedom and rights of an individual’s are protected and are shielded from various types of dictatorship and oppression.
- Improvement In Government Efficiency:
As the power is divided among the three organs of the government, It is easy for them to learn the information about issues and are responsible. So they can improve their effectiveness.
- Prevents Abuse Of Authority:
This doctrine helps in preventing abuse and haughtiness of power. The idea of separation of powers makes sure that too much power is not centralized in one branch of the government. Hence, the desire to misuse authority is avoided.
- Achieves Judicial Independence:
The idea of separation of powers contributes to bolstering the independence of judiciary in carrying out its duties.
Demerits Of Separation Of Powers:
- Misreading Of The British System:
When Montesquieu developed his theory on the division of powers, the Cabinet system of government was in place. Britain at the time lacked a distinct separation of powers. Instead, the emphasis was on who was in charge of what. When Montesquieu observed the British people enjoying their independence, he wrongly thought that there was a division of powers in that country. He was incorrect about British politics.
- Un Historical:
He believed that Montesquieu was influenced by the British Constitution during the first half of the eighteenth century. Under reality, there was no separation of powers in the English Constitution. The British Constitution never took this idea into consideration.
The concept is based on the fallacious assumption that the legislative, judicial, and executive departments of government are separate from one another. These three functions overlap in the contemporary welfare state model. This split might improve the efficiency of the government.
- Not In Favor Of The Welfare State Idea:
The welfare state of today must deal with a number of complex sociopolitical economic problems that a country faces. This idea cannot be implemented in the current context.
- Unrealistic In And Of Itself:
It hasn’t been shown to be practical to concentrate one type of power in a single organ. The legislature has supervision duties for the executive, which is an administrative body in addition to being a body that produces laws. In addition to carrying out judicial functions, the judiciary also has some power to make rules.
- The Division Of Powers Can Lead To Impasses And Inefficiency:
The separation of powers could lead to deadlocks and inefficient government operations. It might result in situations when each organ fights with the other two and becomes trapped.
- Not Completely Achievable:
This idea can’t be fully realized. While the executive has a small role in regulation, the legislature also has some judicial responsibilities. For instance, the legislature executes judicial actions like impeachment.
The third problem is that separation of powers results in administrative difficulties. It becomes difficult to get the many government agencies to work together, coordinate, and coexist peacefully. In order to operate efficiently, modern governments must “coordinate” their authorities rather than completely segregate them.
- Could Cause Confusion And Deadlock:
Occasionally, rivalry, mistrust, and conflict between the several departments of government can result from the separation of powers. It might impair the governance and lead to strife and ambiguity. Because of this, the government routinely makes bad decisions, even in emergency situations. According to Finer, the idea of the separation of powers “throws governments into alternate stages of coma and convulsion.” An alternative professor asserts that “division of powers equals confusion of powers.”
- Power Inequality:
Although the equality of powers presumption forms the basis of this argument, it is flawed. The legislature, which represents the people, is most powerful in a parliamentary system, but the executive branch is most powerful in a presidential one.
One of the things that contributes to liberty is the separation of powers, however it is not the only thing. Liberty also largely depends on people’s thoughts, worldviews, political sensibilities, cultural norms, fundamental rights, adherence to the law, judicial independence, economic equality, and other elements.
- Could Upset The Balance Of Power:
The government has grown stronger as a result of the numerous important jobs it performs.
Providing welfare to the populace is essential, in addition to resolving conflicts and handling disasters. The three branches of government are now out of balance, and the executive’s power has expanded. Planning, security, and welfare require the “fusion” of authorities more than their “division.”
The strict application of the separation of powers is seen as both undesirable and impractical, which is why no country fully adopts it. However, its importance lies in emphasizing the need for checks and balances to prevent the misuse of broad presidential powers.
Functional Overlap Among Organs Of The Government:
- Overlapping Power Of Legislature With Judiciary:
Impeachment of judges, Dismissal of judges, Authority to revalidate legislation which the court had held ultra vires.
- Overlapping Power Of Legislature With Executive:
Evaluate executive’s job, Impeachment of president.
- Overlapping Power Of Executive With Judiciary:
Candidates for chief justice and other Judicial positions were selected, Power to commute sentences or pardons for the persons who are guilty of crimes, Tribunal and other Quasi-judicial organization of executive perform Judicial duties as well.
- Overlapping Power Of Executive With Legislature:
Authority to enact ordinance as like a law passed by parliament, Power is granted by delegated law.
- Overlapping Power Of Judiciary With Legislature:
Under article 142 of Indian constitution supreme court serves as executive to ensure justice.
- Overlapping Power Of Judiciary With Executive:
Legal authority to examine executive actions to see if the constitution is being violated.
Criticisms And Challenges:
The doctrine of separation of powers is a fundamental principle of governance, aiming to create a system of checks and balances by dividing governmental responsibilities among the Legislature, Executive, and Judiciary. In India, this doctrine has been enshrined in the Constitution to prevent the concentration of power in any single branch. However, this separation is not absolute and has been the subject of considerable debate, particularly in the context of judicial activism.
Judicial activism, which refers to the proactive role taken by the Judiciary in interpreting the law, has drawn criticism for allegedly blurring the lines between the three branches. Through Public Interest Litigations (PILs) and judicial review, the Judiciary has sometimes been accused of overstepping its boundaries, entering the realm of policy-making, which traditionally belongs to the Legislature and Executive. This has led to concerns that the Judiciary’s intervention can disrupt the balance intended by the separation of powers, especially when it rules on politically sensitive matters or directs the Executive to implement certain actions.
Similarly, the Executive’s influence over the Legislature has raised questions about the integrity of this separation. The frequent use of ordinances, which allow the Executive to enact laws when Parliament is not in session, is seen by many as undermining the legislative process. While ordinances are meant to be temporary, their repeated use suggests an erosion of parliamentary oversight, weakening the checks that the Legislature is supposed to maintain on the Executive. This practice fuels concerns that the separation of powers is being diluted, and that the Executive is bypassing the constitutional framework meant to safeguard against authoritarianism.
Both the overreach of the Judiciary and the Executive’s dominance over the Legislature highlight the ongoing tensions in India’s interpretation and application of the doctrine of separation of powers.
Conclusion:
In modern nations like the United States, Nepal, France, etc., the theory of separation of powers cannot be strictly enforced. However, this idea is still relevant today. Being a well-organized institution, our government is exceedingly challenging to compartmentalize.
All three branches of the government must cooperate and work together for the government to run smoothly. This idea cannot be used as a guiding principle for government operations, according to Professor Garner. The precise division of each organ’s tasks is challenging.
Although the harmony of the three pillars of government is crucial to liberty, growing concerns about welfare and security have led to a shift of more power to the executive. In a perfect society, the individual’s liberty, wellbeing, and state security should all be prioritized on an equal basis. This would undoubtedly require a powerful government, but it would also require a system of checks and balances and the separation of powers.
This idea, in my opinion, is extremely important since it guards against arbitrary authority and forbids organs from taking over the vital duties of other organs. Up until a certain point, it is applicable in practically all nations.
[1] Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
[2] I.C. Golak Nath v. State of Punjab, (1967) 2 S.C.R. 762 (India).
[3] Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.
[4] Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549.
[5] Delhi Development Authority v. M/s UEE Electricals Engg. Pvt. Ltd., (2004) 11 SCC 213.
[6] Dr. Ashwini Kumar v. Union of India, (2016) 4 SCC 746.
[7] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
[8] Asif Hameed v. State of Jammu & Kashmir, AIR 1989 SC 1899.
[9] State of Rajasthan v. Union of India, (1977) 3 SCC 592.
[10] I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.
[11] Minerva Mills Ltd. V. Union of India (1980) 3 SCC 625
[12] Madras Bar Association v. Union of India, (2021) 3 SCC 481.
