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Article by - Jyoti Dahiya (This article was written by her during tenure of her Internship as Legal Soch Foundation)
Abstract-
The administration of federated and democratic nations can imitate the division of powers. To prevent one branch from interfering with the operations of the other two branches,
“the state is separated into three distinct branches: the legislative, executive, and judicial[1]”. Each has distinct autonomous powers and responsibilities. In essence, it is the guideline that each state government must adhere to in order to properly create, carry out, and apply the legislation
to a given scenario. If this rule is ignored, there will be increased opportunities for corruption and the abuse of authority. There will be less likelihood of passing a dictatorial legislation if this philosophy is adhered to since they will know that it will be reviewed by another branch. Therefore, we shall analyze the separation of powers in India with a number of significant court rulings in this essay.
Introduction
In India, functions are separated from powers instead of the other way around. The idea of the separation of powers is not properly adhered in India, contrary in the US. “The
judiciary has the authority to overturn any unlawful laws that the legislature passes pursuant to a system of checks and balances that have been put in place”[2]. Because it is unworkable, the majority of constitutional systems today do not have a precise division of powers among the various organs in the traditional sense. “The separation of powers
is implicitly supported in the Indian Constitution. Although the theory of separation of powers is not expressly recognised in the Constitution in its absolute form, the Constitution does provide provisions for a fair division of duties and authority among the three branches of government”. “As Montesquieu believes that the three departments of government—the executive, legislative, and judicial —should have a distinct separation of powers”[3]. And to clear his point he says “When the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not separated from the legislative and executive powers. 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 everything, were the same man or same body, whether of the 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.”[4]
Meaning of separation of powers-
“Separation of powers divides the system of government
into the legislative, executive, and judicial departments”. Despite the fact that different authors provide varying definitions, we may generalise three characteristics of this concept.
“A person having a function in one organ shouldn't also be a part of another organ, which means that each organ should have separate people serving in that capacity.
The operation of one organ shouldn't affect how the other organs work.
No one organ should do another organ's function (they should stick to their mandate only).”[5]
These broad realms are thus established, yet in a complicated nation like India, conflicts and transgressions by one branch against the other frequently occur.
Purpose of separation-
“Its goal is to stop the abuse of power by either a single person or a group of people. It will guarantee everyone's freedom, protect society from the arbitrary, illogical, and dictatorial powers of the state, and assign each role to the appropriate state organs for the efficient performance of their respective duties”[6].
Three tier machinery of government-
1. Legislative- Enacting laws is the legislature's primary duty. A law's passage represents the State's will and serves as a check on its independence. It is the cornerstone of how the
executive and judicial sector work. It is given the first slot among the three organs since it is only after the legislation has been framed that its implementation and application can take place. As an advisory body, the court is permitted to advise the legislature on the adoption of new laws and the amendment of existing ones, but it is not allowed to possess out such suggestions.
2. Executive- The state's stated will, as expressed by the constituent assembly and the legislature, is carried out, carried out, or enforced by its institutions. The executive branch of the government is in charge of administration. It is referred to as the government's “mainspring” because, in the event of an executive breakdown, an unbalanced government would exhaust itself. Executives in this context refer to the minister's head, advisors, department heads, and his ministers.
3. Judiciary- The government's judiciary is in charge of applying the law, settling disputes, and ensuring that all citizens get justice. “The judiciary is seen as the guardian of democracy and the defender of the Constitution”. This system is made up of the Supreme Court, High Courts, District Courts, and several lesser courts.
Significance of the Doctrine
Since it is a well-known truth that there are greater risks of bad administration, corruption, and power abuse anytime a significant amount of power is placed in the hands of any administering authority. This philosophy guards against the abuse of authority. The person is shielded against the arbitrary rule by this theory. The government both infringes upon and defends individual liberties.Briefly, the following statements might sum up the significance:
By putting an end to despotism, it safeguards individual liberty.
In addition to preserving an individual's freedom, it also keeps government operations
running smoothly.
Concentrate on the need for judicial independence.
Ensure that no arbitrary legislation is passed by the legislature.
Constitutional status of separation of powers in India-
Article 50: “This article puts an obligation over the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable”.[7]
Articles 53 and 154: “It provide that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.”[8]
Articles 121 and 211: “These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.”[9]
Article 123: “The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions.”[10]
Article 361: “The President and Governors enjoy immunity from court proceedings., they shall not be answerable to any court for the exercise and performance of the powers and duties of his office.”[11]
There is a system of checks and balances in place where specific rules place restrictions on one another on the various organs.
“The judiciary has the authority to evaluate legislative and executive decisions in court.
If a statute is unconstitutional or arbitrary as defined by Article 13 of the Constitution, the judiciary has the authority to invalidate it (if it violates Fundamental Rights).
It may also deem invalid executive activities that violate the Constitution.
The executive branch's performance is also examined by the legislature.
Despite the judiciary's independence, the administration appoints the judges.
While respecting the constitutional restriction, the legislature may also change the judgment's foundation”. A system of checks and balances makes sure that no organ gains excessive power. The Constitution ensures that every organ's discretionary authority falls within the bounds of democracy.
Judicial pronouncements
The Constitution makes the separate constitutional entities—namely, the Union territories, the Union, and the State—actual in the case of I.C. Golakhnath v. State of Punjab[12].
Additionally, it has three important tools: the legislative, executive branch, and judiciary. It precisely delineates their boundaries and calls on them to carry out their duties without interfering with those of others. They should operate within their authority The court ruled in the case of Indira Gandhi v. Raj Narain[13] that the theory of separation of powers has been embraced in our Constitution in a wider meaning. Additionally, Justice Chandrachud conveyed his opinions by saying: “The political purpose of the doctrine of separation of power is not widely recognized. No provision can be properly implemented without a check and balance system. This is the principle of restraining which has in its precept, innate in the prudence of self- preservation that discretion is better than its valor.” In Ram Jawaya vs The State of Punjab[14], Justice Mukherjee observed: “In India, this doctrine has been not be accepted in its rigid sense but the functions of all three organs have been differentiated and it can be said that our constitution has not been a deliberate assumption that functions of one organ belong to the another. It can be said through this that this practice is accepted in India but not in a strict sense. There is no provision in Constitution which talks about the separation of powers except Article 50 which talks about the separation of the executive from the judiciary but this doctrine is in practice in India. All three organs interfere with each other functions whenever necessary.”
Conclusion-
Although the idea of the rigorous separation of powers has not yet been completely adopted in any nation because it is undesirable and impractical, this does not mean that it is
irrelevant in the modern world. This doctrine still makes sense logically. The concept is based on polarity, not exact categorization, therefore in order to prevent absolutism, the centre of power must be diffused. “Power corrupts, and absolute power tends to corrupt absolutely,” as Lord Action once remarked, is a wise maxim. Absolutism results when
power is concentrated in a single entity. Consequently, even though it's crucial that authority not be centralised in one person, a system of checks and balances must be in place.
[1] “Separation of powers- Relationship between executive, legislature and judiciary available at
[2] Ibid
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