Separation of powers

Introduction

It is generally accepted that there are three main categories of govermental functions
1) Legislative
2) Executive
3) Judiciary

At the same time there are 3 main organs of government in state
1) Legislature
2) Executive
3) Judiciary

According to theory of Separation of powers these three powers and functions of government must in free democracy always be kept separate and be exercise by separate organ of government. Thus the legislature cannot exercise executive or judicial power, the executive cannot exercise legislative or judicial power and the judiciary cannot exercise legislative or executive power of government.

Historical Background

The doctrine of separation of powers has emerged in several forms at different periods. It was Montesquieu who for first time formulated this doctrines on his bool Esprit des Lois (Sprit of Law) published in year 1748.

Montesquieu Doctrine

When the legislative and executive power are united in same person or in same body, there can be no liberty because apprehension arises. Again there is no liberty if the judicial power be not separated from the legislative and executive. Where it joined with legislative the life and liberty of subject would be exposed to arbitrary control for judge

According to wade and Phillips separation of powers means three different things-

1) That the same person should not form part of more than one of three organ of government.

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2) That one organ of government should not control or intervention with excercise of its function by another organ that is judiciary should be independent to Executive or that Minister should not be responsible to parliament.

3) That one organ of government should not excercise the function of another that is Minister should not have legislative powers.

Importance

The doctrine of separation of powers in strict sense is undesirable and unpractical and therefore not fully accepted in any country. Its value lies on emphasis on those check and balance which are necessary to prevent an abuse of enormous power of executive.
Montesquieu great point was that if totally power of government was divided into autonomous organ then one will act as check on others and in the check liberty can survive.

The most important aspects of doctrines of separation of powers is judicial independence from administrative discretion. There is no liberty if judicial power be not separated from legislative and executive.

Separation of power in USA

The doctrine of separation of power has been accepted and strictly adopted by founding father of constitution of united state of America. There the legislative powers are vested in Congress, the executive power in President and judicial power in supreme Court and the court subordinate. In American constitution there is system of checks and balances and lower vested in one organ of government cannot excercise by any other organ.

Separation of power in England

Although Montesquieu has based his doctrine of separation of power taking into account the British constitution as matter of fact at no point of time was this doctrines acceptable in strict sense in England. The three power are vested in three organ and each has its own pecular features but it cannot be said that there is no sharing out of power of government.

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Separation of power in India

The doctrine of separation of power is accepted in India. Under the Indian constitution the executive powers are with the president the legislative powers are with Parliament and the judicial power are with judiciary (supreme Court, High Court and subordinate Court) The president hold the office for fixed period. His function and power are enumerate in constitution itself.

Parliament is contempt to make any law subject to the provision of constitution and there is no other limitations on legislative powers. Similarly the judiciary is independent in his field and there can be no interference with its judicial function either by executive or by legislature.
The supreme Court and high Court are given power of judicial review and they can declare any law passes by Parliament or legislature as ultra vires or unconstitutional.

Case Laws

Kartar singh vs state of Punjab

It was held that it is basic postulate under indian constitution that the legal sovereign power has been distributed between the legislature to make law , the executive to implement the law and the judiciary to interpret the law within the limit set by constitution.

Golak Nath vs State of Punjab

It was held that the Constitution bring into existence different constitutional entities name the union and state and the union territory. It create three major instrument of power namely Legislature, Executive and Judiciary. They should function within the spheres alloted to them.

There is no provision in the Constitution itself regarding the division of function of government and excercise thereof. Under article 53(1) and 154(1) the executive power of union and state is vested in President and government, there is no corresponding procedure vesting the legislative and judicial power in any particular organ.

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Parliament excercise legislative functions and is competent to make any law not inconsistent with provision of constitution many legislative functions are delegated to Executive. In certain matters Parliament excercise judicial function also.

Though judiciary excercise all the judicial powers at the same time it excercise certain executive or administrative functions also. The high court has supervisory power over all the subordinate court and tribunal. And also the powers to transfer the cases. High Court and supreme Court have legislative powers also and they frames rules regulating their own procedure for conduct and disposal of cases.
Thus the doctrine of separation of power is not fully accepted in constitution of India. At last in short separation of powers means dividing the power between three branch of government that is legislature, Executive and Judiciary

All the three branches are totally independent to each other and behave like a watch dog if any one of body exceed his powers then the other body has power to intervene and stop the other authority. But it is not fully accepted in India.

Author: Mohak Jain,
Ideal Institute of Management and Technology Karkardooma

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