Separation of Power

This article is written by Vaibhav Kaushik, School of Law Delhi Metropolitan Education affiliated with GGSIP University, 1^st Year, BBA-LLB, during internship at LeDroit India

Keywords

Separation of Powers, Judiciary, Legislature, Executive, Checks and Balances, Constitutional Law

Abstract

It remains one of the essential features of constitutional governance-the doctrine of Separation of Power, ensuring that the Legislature, Executive and Judiciary are separate and distinct bodies with well-defined responsibility and prevents the concentration of power, thereby creating an environment for checks and balances to ensure protection of democracy. Rooted historically in Montesquieu’s theory, it has evolved into diverse political systems, ultimately amenable to all nations. This article elucidates the doctrinal underpinnings with its historical perspective, theory building, and doctrinal operationalism outlining in how much better perspective doctrine performed for countries worldwide and brought to life accountability at large constricting discretionary exercise of authority. Landmark judgment from Marbury v. Madison and Kesavananda Bharati v. State of Kerala-decided earlier discussions have been made so showing judicial perception by enforcing that the doctrine indeed subsisted. Examples also show how dynamic this relationship between the two branches of government is, thereby making the doctrine current even until the present times. This paper aims to make known whether these two seemingly contradictory models may still remain integral to the truth of holding on to the tenets of maintaining the rule of law and democratic values in modern governance, using both rigid and flexible models particularly, especially in the United States and India.

Heading and Sub-Headings

Introduction to Separation of Powers

Principles of Separation of Powers

The three pillars of the governance

Application in different countries

Checks and Balances

Illustrations/Examples

Case laws and citations

Conclusion

Introduction to Separation of Powers

One of the most paramount principles found in constitutional law is the Separation of Power, which propounds the division of government functions into the three powers, namely Legislature, Executive, and Judiciary. Division ensures that no single authority acquires power to concentrate or control all governmental functions, thus offering checks and balances and safeguarding democracy as well as the rule of law. It gained worldwide acceptance but has to make the case adapt to their respective governance models, initiated first out of writings by Montesquieu. The purpose would be that each of the arms of the government, namely, the legislative, the judicial, and the executive, must have the power to preserve autonomy, accountability, and check the misuse of power.

Principles of separation of powers

Some core principles guide the doctrine of Separation of Power, ensuring effective governance and preventing the concentration of power. They are as follows:

Each Organ shall be independent from others: No one organ must have control over any other branch-the Legislature, Executive, and Judiciary. If no interference happens with one another, then every organ may discharge their duties without prejudice according to the constitutional obligation.

Mutual Checks and Balances: Independent, yet interdependent through a system of checks and balances, by mechanisms existing whereby each branch can act as a constraint on the powers of the others to avoid authoritarian rule.

No wing should encroach upon the functions and responsibility of the other wing with resultant cut-and-dried roles and as such smoothness of governance.

All organs are liable under the constitutional structure and framework. Above all, the root culminates with the transparent processes to culminate accountability.

Above all, the full machinery of rule of law will ensure the proper power of law, with which the operations of all wings would be carried out so that it might protect democratic values and rights of citizenry.

The three pillars of the governance

In this section, explanation is made about the roles of three arms of government. The Legislature expresses laws into actionable statements on the will of the people. The Executive executes and governs in operation of the implemented laws. The Judiciary interprets the laws and dispenses justice on it. All three arms of government operate independently but interdependently to ensure that no single part holds the absolute power at any given time. The section identifies the reasons why the system achieves efficiency, accountability, and transparency in governance and how overlapping of functions creates the need for cooperation from the branches.

Application in different countries

The doctrine of Separation of Power manifests differently in countries. It is basically because of the difference in constitutional framework.

United States: The U.S. is strict separation of power with clear demarcation of authority by the Legislature (Congress), the Executive (President), and the Judiciary (Supreme Court). Strict checks and balances provided for in the U.S. Constitution have been strictly implemented through cases like Marbury v. Madison where judicial review was recognized to strengthen the position of the Judiciary against the Executive and Legislature.

India: India is an elastic system where there are separate Legislature, Executive, and Judiciary but inter-dependent. Functional overlap can be particularly seen in the Indian Constitution, specially the overlap between the Executive and the Legislature because of the parliamentary system; on the other hand, the independence of the Judiciary is enjoyed through judicial review as explained in Kesavananda Bharati v. State of Kerala.

Checks and Balances

Checks and Balances examine characteristics intended to prevent an arbitrary exercise of power by any of the three branches. These include, for example, judicial review, which allows the judiciary to sit in judgment over actions of legislatures and the executive; the legislatures can impeach officials of the executive or judges; and the executives veto legislation. This section attempts to elucidate what such a mechanism is said to sustain, thus making it responsible but not abusive of authority. Moreover, it further attempts to carry out an analysis of the problems relating to the conduct of such a balance brought about by judicial overreach or executive dominance and its implications on governance.

Illustrations and Examples

The next section will use practical examples to explain how the Separation of Powers works. It would quote some provisions of the IPC, like Section 197, which mandates that executive sanction for the prosecution of public servants be not granted, to explain the interplay between the executive and the judiciary. The case study like the NJAC judgment shows how the doctrine functions in real life. These examples of the working toward governance and justice can better help one understand how the doctrine acts.

Case Laws with Citations

Kesavananda Bharati v. State of Kerala (1973) Link to Indian Kanoon

Indira Nehru Gandhi v. Raj Narain (1975) Link to Indian Kanoon

Marbury v. Madison (1803) Link to U.S. Supreme Court site

I.R. Coelho v. State of Tamil Nadu (2007) Link to Indian Kanoon

Maneka Gandhi v. Union of India (1978) Link to Indian Kanoon

R. (Miller) v. Prime Minister (2019) Link to UK Supreme Court

Golaknath v. State of Punjab (1967) Link to Indian Kanoon

A.K. Gopalan v. State of Madras (1950) Link to Indian Kanoon

United States v. Nixon (1974) Link to U.S. Supreme Court site

Conclusion

The most fundamental principle of democratic governance is the separation of powers, where the systems of the Judiciary, Legislature, and Executive are considered to be independent but balanced. It was based on Montesquieu’s theories; it prevents centralization of power and ensures liberty protection to individuals. Judgments as of **Kesavananda Bharati in 1973** and also some recent ones such as NJAC in **2015** prove that judiciary stands firm at this very point that is of the modern democracy. It so happens because overreach by judicial, interference of the executive and controversies regarding judicial activism vs judicial restraint explain the reasons why this is so challenging. The doctrine of separation and overlap of the Indian Constitution shows its practical implementation.

Judicial review and accountability of the executive ensure that no one arm exceeds its jurisdiction. However, dynamic governance calls for continuous change to tackle the emergent problems. The **Separation of Powers** is not merely a theoretical concept but a living principle which keeps on changing with the change in society and politics. It is going to be relevant because it stands for rule of law, democratic values, and accountability in governance. Adaptability and resilience in the doctrine will be vital as new challenges arise for democracies around the world to uphold constitutional integrity and protect individual rights.

References