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It is not possible to say precisely since when the theory of separation of powers was first propagated or experimented. The earliest known date is that of Aristotle (4th century B.C.) and Cicero (106 – 43 B.C.). According to Aristotle’s point of view the three functions, namely deliberative, magisterial and judicial are present before the state.
A French philosopher, Jean Bodin, made a fresh emphasis on the need of separation of these three powers. He especially hammered on keeping the judiciary outside the purview of the other two organs. According to Bodin, the judiciary has a special case of remaining separate and independent of others.
The above is a hazy account of the origin and development of the doctrine of separation of powers. It was the celebrated French philosopher Charles-Louis Montesquieu (1689-1755) who was the first to scientifically study this theory so much so that this theory is associated with his name. He held out this theory in his book The Spirit of Laws published in 1748.
The reason for Montesquieu’s holding a brief for separation of power was his experience of the tyrannical regime of Louis XIV who had all-pervading powers in France.
He was perfectly correct to observe:
“When the legislative and the executive powers are united in the same person or in the same body of persons, there can be no liberty, because they make tyrannical laws and execute them in a tyrannical manner. Again, if the judicial authority is combined with legislative, the life and liberty of the subjects would be subjected to arbitrary control. If judiciary is joined with executive, the judge might behave with violence and oppression There would be an end of everything, where the same man or the same body, whether of nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions and of trying the causes of individuals. .”
The crux of the need for a separation of powers is couched in the above observation of Montesquieu.
Montesquieu called the idea of dividing the government powers into three branches of the government as the separation of powers. The three organs are three water-tight compartments and the functions of one cannot at all be exercised by the other. He found that concentration of power in one person or group of persons results in tyranny. According to him, the most important thing was creating different branches of the government with equal but distinct powers and in that way, the government wouldn’t place too much power and authority in an individual or group of individuals. He believed that the best form of the government is the one where the powers of the legislature, the executive and the judiciary are kept separate and they keep each other in check to prevent any branch from becoming too powerful. Dividing different functions and responsibilities to different organs counters the concentration of power in one organ and creates exclusive functions for each organ. The whole idea behind to divide the powers amongst different organs is that the whole authority shouldn’t vest in one hand as it could result in the misuse of powers and arbitrariness.
In each and every country, the government is a universally accepted necessity. The will of the people is expressed through three different activities in every government which are the legislative, executive and judicial functions. Corresponding to these three activities are three organs of the government, namely, the legislature, the executive and the judiciary.
Separation of powers is a political doctrine under constitutional law whereby the powers of the three branches of government, i.e., the executive, the legislature and the judiciary, are divided and kept separate so as to prevent the abuse of power. The doctrine of separation of power means that no one individual or a group of individuals should hold all the three powers. The division is to be done on the basis that the legislature makes laws, the executive administers them and the judiciary must determine rights and uphold justice. Such a division is necessary so as to ensure that justice doesn’t become arbitrary. Decentralization of power is necessary to check arbitrariness and there is a need to place the power into three different government organs. The principle is that no organ performs the functions of other and each organ is independent this doctrine has been adopted around the world in many constitutions and in ours to an extent as well. It is a remarkable way of protecting human liberty and creating a system of governance which is responsible and fair.
For the proper functioning of the three organs of the government, the concept of checks and balances is of great significance. Checks and balance are imposed by the different departments of the state on one another. The motive behind the acts of checks and balance is to ensure that no department becomes too powerful. The constitution of India makes sure that the discretionary power bestowed upon any organ of the state does not breach the principles of democracy. For instance, the legislature can impeach judges but as per the condition i.e. two-third majority.
Certain instances to illustrate the concept of checks and balances:
Separation of powers in Indian context:
A proposal of incorporation of the doctrine of separation of powers was proposed in the constituent assembly and the Constitutional history of India exhibits that the framers of the Indian constitution had no sympathy with the doctrine. In India separation of powers has not been awarded a Constitutional status. The doctrine of separation of powers is a part of the doctrine of the basic structure of the Indian constitution although it isn’t explicitly noted in it and consequently, no law and amendment can be surpassed violating it. The functions of various organs of the state have been diligently defined by the makers of the constitution. Parliamentary form of governance is followed in India. In Indian Constitution, it is expressly mentioned that the executive power of the Union and of a state is vested by the constitution in the President and the Governor, respectively by articles 53(1) and 154(1), but there is no corresponding provision vesting the legislative and judicial powers in any organ. So accordingly it has been held that there is no strict separation of powers.
Although prima facie it appears that our constitution has based itself upon the doctrine of separation of powers. The Indian constitution has not entirely incorporated the doctrine of separation of powers but has taken a lot from the concept and kept it as a guiding force. The theory of separation of power has just been used as a guiding principle to separate the powers only to that extent to which it alienates the organs of the government from each other.
In India fusion and not the rigidity of separation of power is followed.
The legislature or the executive cannot interfere with the judicial functions of the judiciary as it is independent in its field. The conduct of any judge cannot be discussed in the Parliament as per the Constitution. The High Court and the Supreme Court has been given the power of judicial review and they can declare any law passed by the Parliament as unconstitutional. The judges of the Supreme Court are appointed by the President in consultation with Chief Justice Of India and the judges of the Supreme Court. The power to formulate Rules for efficient conduct of business vests with the Supreme Court. Article 50 of the Constitution puts an obligation over the state to take steps to separate the judiciary from the executive. But since it’s a Directive Principle of State Policy, therefore it’s unenforceable. In a similar way, certain constitutional provisions provide powers, privileges, and immunities to MP’s, immunity from judicial scrutiny into the proceedings of the house, etc. Such provisions are thereby making legislature independent, in a way. The President is conferred with the executive power as it is provided in the Constitution. The Constitution enumerates the powers and functions of the President. The President and the Governor are immune from civil and criminal liabilities.
India, since it is a parliamentary form of government, therefore it is based upon intimate contact and close coordination among the legislative and executive wings. However, the executive power vests in the President but, in reality, he is only the formal head and that, the real head is the Prime Minister along with his Council of Ministers. The reading of article 74(1) makes it clear that the executive head has to act in accordance with the aid and advice given by the cabinet. Generally, the legislature is the repository of the legislative power but, under some specified circumstances, the President is also empowered to exercise legislative functions. Like while issuing an ordinance, framing rules and regulations relating to public service matters, formulating law while the proclamation of emergency is in force. These were some instances of the executive head becoming the repository of legislative functioning. President performs judicial functions also like while assenting to death sentences.
Parliament can also exercise judicial functions, like in the matter of the breach of its privilege. In case of impeaching the President both the houses take active participation and decide the charges.
Judiciary also performs various administrative functions when it has to supervise all the subordinate courts below. It exercises legislative power also when it formulates the rules regarding their own procedure for the conduct and disposal of cases.
Executive functions of the legislature:
Legislative functions of the executive:
The executive also performs some legislative functions as noted below:
From whatever angle of vision we look at it, the legislature and the executive are two wheels of a chariot and must have a harmonious and meaningful relationship.
When a judge has to open ground in a barren field he is to go by his conscience based on justice, equity and good sense.
Thus all these three organs act as a check and balance to each other and work in coordination and co-operation to make our parliamentary system of governance work. India is an extremely large and diverse country needs a system like this where all organs are responsible to each other as well as coordinated to each other, otherwise making governance possible becomes a very rigid and difficult task.
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.
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.
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 Swaran Singh case (1998) the Supreme Court declared the Governor’s pardon of a convict unconstitutional.
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