{"id":166,"date":"2019-08-30T11:16:18","date_gmt":"2019-08-30T11:16:18","guid":{"rendered":"http:\/\/lawp03.epgpbooks.inflibnet.ac.in\/?post_type=chapter&p=166"},"modified":"2019-08-30T11:33:08","modified_gmt":"2019-08-30T11:33:08","slug":"separation-of-powers","status":"publish","type":"chapter","link":"https:\/\/ebooks.inflibnet.ac.in\/lawp03\/chapter\/separation-of-powers\/","title":{"rendered":"Separation Of Powers"},"content":{"raw":" \r\n
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1.<\/strong>Introduction<\/strong><\/p>\r\n \r\n

The term \u201eSeparation of Powers\u201f was coined by a French Jurist Montesquieu in his book L. Esprit Des Lois<\/em> (Spirit of Laws) published in 1748. The doctrine of Separation of Powers deals with the mutual relations among the three organs of the Government namely legislature, executive and judicial. According to Montesquieu, there can be no liberty if the legislative and executive powers are amalgamated in the same person, or body and judicial power is not separated from the Legislative and Executive power. The integration of Judicial and legislative power would expose the life and liberty of the subject to arbitrary control as judge would then be the legislator. Judges might behave with violence and oppression if Judiciary is merged with the\u00a0Executive.<\/span>1<\/em><\/p>\r\n \r\n

Learning Outcome<\/strong><\/p>\r\n \r\n

Understanding the functioning of different organs of the State.<\/span><\/p>\r\n \r\n

Comprehensive view regarding applicability of principle of separation of powers along with system of checks and balance.<\/span><\/p>\r\n \r\n

Historical Background<\/strong><\/p>\r\n \r\n

The origin of this principle goes back to the period of Plato and Aristotle. It was Aristotle who for the first time classified the functions of the Government.<\/span><\/p>\r\n \r\n

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The concentration of powers in a single person would result in a tyrannical form of government. There should be clear cut division of power between the three organs of the state i.e. Executive, Legislative and the Judiciary in order to check the arbitrariness of the government.<\/p>\r\n \r\n

Position of Doctrine of Separation of Powers in U.K. and U.S.A<\/strong><\/p>\r\n \r\n

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The three organs can practically not be segregated into three watertight compartments due to their interdependence on each other to ensure efficacious governance. They have to work in accordance and in consonance to achieve a meaningful sustenance and purposeful progress of citizens. Therefore the system of checks and balances has to be followed so that each organ can work efficiently without any abuse of power vested in them.<\/p>\r\n \r\n

Doctrine of Separation of Powers in India<\/strong><\/p>\r\n \r\n

In India, the governance is vested in three organs of the State i.e. Executive, the Legislature and the Judiciary. The executive powers are with the President, the legislative powers with the Parliament and the judicial powers with the Judiciary. The functions and powers of the President are enumerated in the Constitution itself. The Parliament is competent to make any law subject to the provisions of the Constitution and there is no other limitation on its legislative powers. Similarly, the Judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or by the legislature. At the same time, the Court cannot arrogate to itself any function, which is left to the domain of the other two branches, namely, the executive and the legislature.5 Thus, no organ can overstep the essential functions of the other organ. But, apart from the Directive Principle laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional provisions does not embody any formalistic and dogmatic division of powers. In order to have clear understanding of this principle each organ has to be dealt with separately.<\/p>\r\n \r\n

Executive in India and Doctrine of Separation of Powers<\/strong><\/p>\r\n \r\n

As India is a federation, there is Executive both at Union and State level. President is operating at Union level and Governor at State level.<\/p>\r\n \r\n

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6.1 Interference of Executive in Legislature<\/strong><\/p>\r\n

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6.2 Interference of Executive in Judiciary<\/strong><\/p>\r\n \r\n

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7. Legislature in India and Doctrine of Separation of<\/strong><\/p>\r\n

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7.1 Interference of Legislature in Executive<\/strong><\/p>\r\n

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8. Judiciary in India and Doctrine of Separation of Powers<\/strong><\/p>\r\n \r\n

Article 13 makes fundamental rights enforceable in the Courts. It declares that a law which is inconsistent with the fundamental rights is void, whether that law is pre constitutional or post constitutional. This power of judicial review is exercised by the Supreme Court and the High Court under Article 32 and 226 respectively. The courts can declare a law unconstitutional if it is inconsistent with the fundamental rights.<\/p>\r\n \r\n

The theory of basic structure was laid down by the Supreme Court in Fundamental rights case.<\/em>6 There are certain basic features <\/em>of the Constitution like Sovereignty, free and fair elections, federal structure, rule of law etc. that cannot be altered or destroyed by the parliament. <\/a>History is the proof of the fact that this amendment power tilted either in favour of Parliament or Judiciary. By 42nd Amendment, Parliament tried to nullify the effect of the Supreme Court ruling in Smt.<\/em> Indira Nehru Gandhi v Raj Narain<\/em>7. <\/em>When Indira Gandhi was found guilty of using corrupt practices during elections by the Allahabad High Court, several amendments were made in the Constitution in order to take away the power of judicial review. Thus, the validity of elections could not be challenged.8 It brought about a drastic change in the provisions of the Constitution. Article 368, which gives amending power to the Parliament, was so amended that any amendment made by the Parliament is immuned from being questioned in Court of law. The power tilted in favor of the legislature.9 Ultimately, in Minerva Mills v Union of India<\/em>10,<\/em> the Supreme Court ruled that the \u201ejudicial review\u201f, being a basic feature of constitution, cannot be taken away by the Parliament by amendment of the Constitution.<\/p>\r\n \r\n

8.1 Interference of Judiciary in Executive<\/strong><\/p>\r\n \r\n

It is submitted that it is difficult to achieve independence of judiciary from the executive as the ever increasing power of the executive is likely to topple the balance on which the Indian Judicial System rests. Now-a-days, there are many instances where judiciary has intervened in matters entirely within the domain of executive.<\/p>\r\n \r\n

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9. Conclusion<\/strong><\/p>\r\n \r\n

There is no enunciated demarcation beyond which each of these organ cannot cross. What is most expected out of each of them is that they consciously realize the unseen boundaries and respect each other\u201fs sovereignty. This realization would help in upholding the rights of the citizens and establishing a \u201ewelfare state\u201f. It is important to value the efforts of the framers of our Constitution who envisaged the nation\u201fs future as a harmonious relationship between the pillars of the government. It is not only the duty of the tripartite to realize the same but also the obligation of the citizens to realize the ultimate sanctity of the Constitution<\/p>\r\n \r\n\r\n\r\n\r\n
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