Separation of Powers

This article is written by Shubham chaudhari,M.C.C,T.Y.B.com. during his internshuip with LeDroit India.

  INTRODUCTION:

                    The concept of separation of powers refers to a system of government in which the powers are divided among multiple branches of the government, each branch controlling different facet of government. In most of the democratic countries, it is accepted that the three branches are the legislature, the executive and the judiciary. According to this theory, the powers and the functions of these branches must be distinct and separated in a free democracy. These organs work and perform their functions independently without the interference of one into others in order to avoid any kind of conflict. It means that the executive cannot exercise legislative and judicial powers, the legislature cannot exercise executive and judicial powers and the judiciary cannot exercise legislative and executive powers. Separation of Powers’ is a fundamental principle whereby powers and responsibilities are divided among the legislative branch, executive branch, and judicial branch. The officials of each branch are selected by different procedures and serve different terms of office; each branch may choose to block action of the other branches through the system of checks and balances. The framers of the Constitution designed this system to ensure that no one branch would accumulate too much power and that issues of public policy and welfare would be given comprehensive consideration before any action was taken. The concept of Separation of Powers is a measure to protect individual’s rights, acknowledging the fact that governments have historically been the major violators of such rights. The hypothesis behind the Separation of Powers is that when a single person or group has a large amount of power, they can become treacherous to citizens. The Separation of Power is a method of removing the abuse of power.

• IMPORTANCE OF SEPERATION OF LAW:

          Briefly, the significance of this doctrine can be summed in the following points:

1. Ending the despotism, it safeguards individual liberty.
2. To prevents the misuse of powers within the different organs of the government. The Indian Constitution provides certain limits and boundaries for each domain of the government and they are supposed to perform their function within such limits. In India, the Constitution is the ultimate sovereign and if anything goes beyond the provisions of the constitution, it will automatically be considered as null, void and unconstitutional.
3. It not only maintains the efficiency in administration but also protects the people from the arbitrary rule of the executive.
4. This theory admonishes the executive and the administrative wings of the government not to interfere with the process of law and justice, so as to ensure the liberty of the individuals in the society.
5. it keeps a check on all the branches of the government by making them accountable for themselves.
6. separation of powers maintains a balance among the three organs of government by dividing the powers among them so that powers do not concentrate on any one branch leading to arbitrariness.
7. this principle allows all the branches to specialize themselves in their respective field with an intention to enhance and improve the efficiency of the government.

• ELEMENTS OF SEPERATION OF LAW:

1.  Legislative:

      The legislative organ of the government is also known as the rule-making body. The primary function of the legislature is to make laws for good governance of a state. It has the authority of amending the existing rules and regulations as well. Generally, the parliament holds the power of making rules and laws. Legislatures review the functioning of the executive. Legislative branch removes the judges. It can also alter the basis of the judgment while adhering to the constitutional limitation.

• Executive:

      This branch of government is responsible for governing the state. The executives mainly implement and enforce the laws made by the legislature. The President and the Bureaucrats form the Executive branch of government. Executive appoints the judges.

• Judiciary:

       Judiciary plays a very crucial role in any state. It interprets and applies the laws made by the legislature and safeguards the rights of the individuals. It also resolves the disputes within the state or internationally. Judiciary exercises judicial review over legislative and executive actions. Judiciary has the power to void laws passed by the Parliament.

• JUDICIAL PRONOUNCEMENTS :

1. In Keshavanand Bharti case (1973), the Supreme Court held that the amending power of the Parliament is subject to the basic features of the constitution. So, any amendment violating the basic features will be held unconstitutional. This scheme cannot be altered by even resorting to Art.368 of the constitution.
2. In Ram Jawaya v. Punjab (1955) case, the Supreme Court held up the observation that the executive is derived from the legislature and is dependent on it for its legitimacy. Cabinet ministers in India both executive and legislative functions. Art. 74(1) gives the upper hand to the cabinet ministers over the executive by making their aid and advice mandatory for the President, who is the formal head of the State.
3. In Indira Nehru Gandhi v. Raj Narain (1975) case, the Supreme Court held that adjudication of a dispute is a judicial function and parliament cannot even under constitutional amending power is competent to exercise this function.

       In subsequent judgments, the Supreme Court upheld the rulings of the Keshavananda Bharti case regarding the non-amend ability of the basic features of the Constitution and strict adherence to the doctrine of separation of powers.

Criticism :

Every doctrine has some effects and defects. The separation of powers might have proved to be flawless theoretically but it cannot be applied comprehensively in real life situations. There are certain drawbacks and limitations to it.

It is extraordinarily difficult to distinguish the powers of the legislature, executive and judiciary precisely. A smooth and stable government can exist only if there is cooperation among the three organs. Any attempt made to separate these organs into watertight compartments may lead to failure and inefficiency in the government.

If this concept is adopted in its totality, then it will become impossible to take certain actions. Consequently, neither the legislature can delegate the law making power to the executive which may have expertise in the subject matter, nor the courts can make laws related to the functioning of courts and proceedings.

In the present scenario, a state works for the welfare and prosperity of the people. It has to resolve the complex issues of society. In such circumstances, the principle of separation of power seems to be impossible. The imposition of this doctrine in its rigid conception will not lead to the effectuation of the objectives of the modern state. Thus, separation of power is theoretically improbable and practically impossible. Montesquieu, by propounding this theory aimed to protect and safeguard the freedom and liberty of the individuals which is impossible by the strict enforcement of separation of powers.

Conclusion :

        It is crucial to understand that the doctrine of separation of powers has come a long way from its theoretical inception. Today, the doctrine in its absolute form is only recognized in letter as it is entirely unfeasible and impractical for usage in the operational practices of a government. With the passage of time, States have evolved from being minimal and non-interventionist to being welfare oriented by playing the multifarious roles of protector, arbiter, controller and provider to the people. In its omnipresent role, the functions of the State have become diverse and its problems interdependent hence, any serious attempt to define and separate the functions would only cause inefficiency in the government. The doctrine of separation of powers must be interpreted in a relative form. In the era of liberalization , privatization  and globalization, separation of power has to be expounded in a wider perspective. It should not be curb to the principle of restraint or strict classification only but a group power exercised in the spirit of cooperation, coordination and in the interest of the welfare of the state. Though this doctrine is unfeasible in its rigid perception nevertheless its effectiveness lies in the prominence on those checks and balances which are necessary in order to avert maladroit government and to prevent abuse of powers by the different organs of the government.

        In conclusion, it is evident that governments in their actual operation do not opt for the strict separation of powers because it is undesirable and impracticable, however, implications of this concept can be seen in almost all the countries in its diluted form. The discrepancies between the plan and practice, if any, are based on these very grounds that the ideal plan is impractical for everyday use. Otherwise, the doctrine is itself a part of the founding structure of the Constitution of all democratic nations. Whether in its theoretical conception or its practical usage, the Doctrine of Separation of Powers is essential for the effective functioning of a democracy.