About this sample
About this sample
Words: 2030 |
11 min read
Published: Nov 7, 2018
Words: 2030|Pages: 4|11 min read
The Doctrine of separation of power as the name suggests states that the power of administration should be distributed among different organs namely legislature, executive and judiciary who work mutually . This principle was originally laid down by Aristotle when he classified the functions of a Government into three categories i.e. deliberative , magisterial and judicial this was the first ever mention of separation of power many other philosophers like locke were alsosuggestive of the Idea and they bifurcated the governments into three parts namely continuous executive power , discontinuous legislative power and federative power Where the first one denotes the executive and judicial powers the second one denotes the power of framing rules and the third one denotes the power of handling foreign affairs.
L.Esprit Des Lois which translates to Spirit of Law . He stated that : When the legislative and executive powers are united in the same person, or in the same body or Magistrate, there can be no liberty. Again, there is no liberty if the judicial power is not separated from the Legislative and Executive power. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Where it joined with the executive power, the judge might behave with violence and oppression. There would be an end of every thing were the same man or the same body to exercise these three powers"
In the present scenario the three organs of Separation of power are known as:
In India the doctrine of separation of power is there but it is not followed in a strict sense though the functions have been divided into three organs i.e. Legislature , executive and judiciary these three organs are interlinked with each other and since this doctrine is not followed in a strict sense in India. Therefore their functions tend to collude and overlap with each other . When the drafting committee was drafting the constitution a debate arose between Prof K.T shah a member of the drafting committee who believed in the idea of complete separation of power between the three organs and Mr K hanumathiya who believed that complete separation of power would lead to conflict among the three organs as each of them will try to stand over the other . Mr Hanumathiya Ideology was –Instead of having a conflicting trinity its better to have a harmonious government . Mr Hanumathiya ideology and arguments were met with a huge support and even the father of our constitution Dr B.R Ambedkar was not in favour of the idea of having absolute separation of power therefore the motion by Mr K.T Shah was rejected . This is how the concept of separation fo power was moulded into India.
In the Indian constitution there is an express provision which states that the power of the Executive of the union shall be vested on the President of the country and the power of the executive of the state shall be vested on the Governor of that state . But when it comes to Legislature and Judiciary there is no specific mention so as to confirm that there powers are vested upon some organ . Although the head of the Executive is the president but when its come to his powers a closer look shows he is just the nominal head , the real power lies with the Prime Minister and his Cabinet of ministers.
The Doctrine of separation of power is not followed in its strict sense in India i.e. there is no absolute separation that’s why we can observe that under certain situations the president has the power to exercise some judicial as well as legislative function for eg. When the President passes ordinance he is performing a function that is lying under both legislative as well as judicial . Similarly legislature is going through the process of impeachment of the President stated in article 61 performs a judicial function. Similarly if the High court or the Supreme court finds certain provision against the law then it cand declare it null and void. Thus through this way a proper check and balance is maintained therefore no single organ gets too much power and the reason for this doctrine is thus maintained.
Through the analysis of the following cases we can see how the Doctrine of separation of power works in India : In Ram Krishna Dalmia v. Justice Tendolkar - The supreme court stated that unlike the American constitution where there is a clear bifurcation as far as separation of power is concerned in India there is no clear bifurcation but separation of power is implicit in the Indian constitution. In the Delhi law act case the supreme court held that although in the India constitution there is no express separation but our constitution makers have painstakingly made provisions for the legislature to pass laws . This clearly implies that it’s only the duty of the legislature is to pass laws even though it’s not expressly mentioned.
Justice B.K mukherjee observed : "The Indian Constitution has not indeed recognised the doctrine of separation of powers in the absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption by one organ or part of the State of the functions that essentially belong to another."
In Asif Hameed v. State of Jammu and Kashmir the Supreme Court observed: "Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs."
When compared to USA where Doctrine of Separation of power is followed in a stricter sense there (a)all the legislative powers are vested in the congree (b) all the executive power is vested on the president (c) and all the judicial powers are vested on the supreme court . Thus in USA the Supreme court cannot interfere in political decision making of the executive branch of the government .The power of Judicial review is not vested in the supreme cour . But the president can interfere in both judicial as well as legislative matters through his veto and treaty making power . The judiciary i.e supreme court has made much more amendments in the American constitution than the congress itself . The system of checks and balances which was also stated by Montesquieu allows the three bodies to keep a check on each others power.
In Symbolism King Solomon’s throne was supported by lions on both side where the lions represented the executive and the legislature and the throne represented judiciary. It made a statement that the Judiciary was supported by the legislature and Executive. The Supreme court has stated that : "Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged.".In the pre independence India there was a strong agitation in relation to separation of power between the executive and the judiciary if judiciary was not separated from the executive then independence of judiciary will just be mockery.
In the present day Supreme Court is acting as a major litigant and the supreme courts are serving as a centre for major controversies with a flavor of political tinge because of which they have to face the wrath of the public . The question has also be raised whether the judiciary is crossing the line and interfering with the functioning of the executive and the legislature . What one wants at present time is to ensure a relation of mutual understanding and harmony and since the way doctrine of separation of power has been adopted in India it fails to demarcate the line between these three bodies.
Nowadays in response to public interest litigation writs, the courts have begun to direct the Government on everything from clearing garbage off the streets to cleansing the polity of political sleaze. With the widening of the horizons of "Judicial Activism" criticism emanated from a few percent of the people that the judiciary is overstepping its bounds and taking over the Government functions, but this is not a justificable thought. The Supreme Court and the High Courts act as a watch-dogs to keep Executive and Legislature within the bounds of law. Today millions of the people are suffering in the country. It is the judiciary which is holding out hope for them Its time these three governing bodies realize the invisible boundaries that separate the three and not interfere in the functioning of the other and by respecting this invisible line set up an example of good governance.
From the above analysis of the doctrine of separation of power we saw that although its not followed rigidly in India it still plays a very important role when it comes to the functioning of the country we saw how these three organs work together even though there is no specified boundary as to how much they can interfere with each others working . We can see from the above analysis that in the present time of technology and globalization it’s almost impossible to stick to the old doctrine of separation of power which stated that the bifurcation of power between the three bodies should be absolute . It’s not possible to give one organ absolute power in one area because if that happens there will be no custodian to keep a check or question its working leading into absolute chaos.
Today the countries follow the Ideal of welfare state and if the priority is the welfare of the people the power cannot be given into only the hands of a few . So in present time strict application of doctrine of separation of power is impractical and undesirable. Although there are times when the lines are crossed by one of the organs and that organ starts to interfere with the working of that other organ disputes arise and the validity of this doctrine is brought into question . Its time that these three bodies realize that at the end of the day constitution is the ultimate authority.
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