Separation of Power under Indian Constitution
As we know, India is a big country. It is not possible to control the entire population by one administrative individual. There are various rules are made for the proper development of the country. These rules help in the smooth function and smooth movement of the country in the direction of development. These rules are divided based on their function. Such division of rules or power is known as the separation of power. In India power is divided into three branches, these are Legislative, Executive, and Judiciary. Each branch has its function. It is considered that the concept of separation of powers is the rudimentary element for governance in a democratic country like India. This principle corroborates fairness and impartiality in the smooth functioning of the government. Although it is not followed in its real sense till now most of the democratic countries have adopted its diluted version of it.
Historical background of separation of power
It is said that the doctrine of separation of powers emerged from the ancient era. The concept of separation of power is based on the premise that governmental function must be based as a tripartite division, these are the Legislative, the Executive, and the Judiciary. These three organs are distinct, separate, and independent. Now the question arises from where the concept of separation of power originates? It is considered that the concept of separation of power was initiated by Charles de Montesquieu. It is considered that, For the very first time, it was accepted by Greece, and then it was widespread all over the world. The root of the concept of separation of power is traceable in Aristotle and Plato when this doctrine became the segment of their marvels. In 16th and 17th-century British politicians like Locke and Justice Bodin, a French philosopher also expressed their views on this doctrine. But Montesquieu was the first one in all who articulated this principle accurately, scientifically, and systemically in his book that is “ Esprit des Lois” which means The Spirit Of Laws, and this book was published in the year 1785.
Meaning and Purpose
The meaning of separation of power is that It is the mechanism of government in which the power is divided among various branches of the government and each branch controlling the different functions of government. According to the separation of power, Each organ should have different work and these branches cannot interfere with each other and in other words, we can say that each branch of government cannot interfere with the functioning of other groups to avoid any kind of conflict. It means that the executive cannot function of legislative and judicial powers, the legislature cannot function of executive and judicial powers and the judiciary cannot function of legislative and executive powers. This indicates that each branch is stick to its mandates only. In most democratic countries, it is accepted that the three main branches of government are the legislature, the executive, and the judiciary. It is considered that if this principle is not followed properly then there will be more chances of misuse of power and this will result in an increase in corruption. If this doctrine is followed properly then there will be very little chance of enacting a tyrannical law as they will know that it will be checked by another branch. Its main aim is the strict demarcation of power and tries to bring exclusiveness in the functioning of each organ. It will guard the society against the arbitrary, irrational, and tyrannical powers of the state, and safeguard the freedom for all and allocate each function to the suitable organs of the state for effective discharge of their respective duties, and that help in the smooth functioning of the government.
Three organs of separation of power
As we know the power is divided into three organs. These organs are the Legislative, the Executive, the Judiciary. Every organ has its function. These functions are done by every organ separately without interference with the function of another organ. Now we will discuss the function of every organ separately. These functions are given as below:-
- Legislative:- Legislative is one of the most important organs of the government. The main function of the legislative is to enact a law. It will not be wrong to say that Enacting a law indicates the wish of the State and it also functions as the wain to the autonomy of the State. We can say that it is the base for the functioning of both executive and judiciary. It is spotted in the first place in all the three organs because its main work is to enact law and until and unless the law is framed the functioning of both implementing and applying the law can not be exercised in any way. And the judiciary act as the advisory body that gives suggestions to the legislature about the making of new laws and amending of old laws of certain legislation. It includes Parliament ( Lok Sabha and Rajya Sabha ) and State legislative bodies.
- Executive:- Executive is another important organ of the government. It is responsible for implementing and carrying out or enforcing the will or wish of the state that is enacted by the constituent assembly and the legislature. We can say that the executive is the administrative head of the government. It is also called the mainspring of the government because if the executive doesn’t work properly or stopped working then the entire government exhaust and as a result it gets imbalanced. In common sense, we can say that the executive includes the head of the minister, advisor, departmental head, and his ministers. It also includes President (at the central level ) and the governor (at the state level).
- Judiciary:- The judiciary is one of the most important organs of the government. It is that organ of the government that interprets the law, settles various disputes which may be in between two individuals or maybe in-between state and individuals, and try to administer justice to all citizens. We can say that the judiciary is considered as the watchdog of democracy, and also the guardian of the Constitution because it takes action on those who breach or try to breach the laws that are enacted by the legislature for the welfare of the people. It includes Supreme Court, High Court, and all other subordinate courts.
Constitutional Status of Separation of Power in India
The doctrine of separation of powers is an important part of the basic structure of the Constitution but it is specifically not mentioned as a different thing. The legislature cannot pass a law that violates the basic structure of the constitution and this principle. The functions of all three organs are mentioned specifically in the Constitution. Now we will look at some articles of the Constitution which indicate the separation of powers. These articles are given as below:-
- Article 50:This article tells us about the obligation over the State to separate the judiciary from the executive. But it falls under the Directive Principles of State Policy, so it is not enforceable.
- Article 123:This article tells us that the President is the executive head of the country and he is empowered to exercise legislative powers in certain conditions by Promulgate ordinances.
- Articles 121 and 211:This article tells us that the legislatures cannot discuss the conduct of a judge of the Supreme Court or any High Court. But they can do it only in the situation of impeachment.
- Article 53 and 154:- This article tells us that the executive power of union and state shall be vested with the president and governor and they can enjoy immunity from civil as well as criminals liabilities.
- Article 361: This article tells us that The President and Governors enjoy immunity from court proceedings which means they are not answerable to that procedure.
Relevant Judicial Pronouncements
The first major judgment given by the judiciary regarding the Doctrine of separation of power was in Ram Jawaya v state of Punjab. The court in the above case gave its opinion that the doctrine of separation of power was not fully accepted in India. Furthermore, the view of Mukherjea J. adds argued that the above-said doctrine is not fully accepted in India and said that “The Indian Constitution has not recognized the doctrine of separation of powering its 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 functions that essentially belong to another”.
In another case Indira Nehru Gandhi v. Raj Narain, the issue is about the dispute regarding the election of the Prime Minister which was pending before the Supreme Court. In this case, it was held that adjudication of a specific dispute is a judicial function in which parliament cannot exercise even by constitutional amendment. This indicates that one organ cannot interfere in the function of another organ.
The Supreme Court in Keshvananda Bharti v Union of India was held that the amending power was subject to the basic features of the Constitution. If any amendment violates these essential features of basic structure then it will be struck down as unconstitutional. In this case, it was said that separation of powers is an important part of the basic structure of the constitution. Hence this is another confirmation that the opinion of the court about the doctrine of separation of power.
Significance of separation of power
As we all know that whenever a large power is given to one administering authority then there will be higher chances of maladministration along with fear of corruption and misuse of power. This doctrine of separation of power helps to prevent the abuse of power and helps in the smooth functioning of the government of any nation. This doctrine protects the nation from the arbitrary rule or monarchy system. Some significance is given as below:-
- Keep away from the autocracy, and monarchy system.
- It helps to protect the liberty of the individual.
- It helps to create an efficient administration.
- It helps to maintain judiciary independence.
- It also prevents the legislature from enacting arbitrary laws.
At last, After seen the entire concept of separation of power, I want to conclude that The separation of power is very necessary for the smooth functioning of the government. The main aim of the separation of power is to stop or prevent the abuse of power by a single person or a particular group. It will not be wrong to say that it guards the society against arbitrary rule, irrational and tyrannical power of the state. It also safeguards the freedom of liberty. It allocates the duty to the suitable organs of the state for effective discharge of their respective duties. Like the legislative have the duty to enact the law, the executive has to enforce those laws which are made by the legislature and the judiciary has to take action against those who violate the rules of law. We can say that the judiciary act as a watchdog of democracy. The doctrine of separation of power brings effectiveness in all three organs of the government and sought for achieving the target of democracy. For the proper and smooth functioning of any government, cooperation and coordination among all three organs of the government are very necessary. According to my views, this doctrine has a great role in to protects the liberty of the individual from arbitrary rule and prevents the organs from interfering in the essential functions of other organs. So, the separation of power is very necessary for the development of any nation without facing any difficulties.
Author: AMIT SHEORAN,
Symbiosis Law School, Nagpur