A COMPARTIVE STUDY ON SEPERATION ON POWER BY KODALI NEEHARIKA@LEXCLIQ

                         A COMPARTIVE STUDY ON  SEPARATION ON POWER  

INTRODUCTION :  This paper deals with “separation of power”. The research will be on the point of separation of power in USA and England after that the researchers would like through the light on the separation of power in India. The doctrine of “the separation of powers” as usually understood is derived from Montesquieu whose elaboration of it was based on a study of Locke‟s writings and an imperfect understanding of the eighteen century English constitution.

Montesquieu, an exploration researcher, considered the guideline of division of force. He found that centralization of force in one individual or on the other hand gathering of people brought about oppression. He accordingly, felt that the administrative force ought to be vested in three organs, the governing body, the leader and the legal executive.

The principle can be as followed :

  1. each organ should be independent of the other;
  2. no one organ should perform functions that belong to the other[1]

 

Lock and Montesquieu determined the substance of this convention from the improvements in the British sacred history of the mid eighteenth century. In England after a long conflict among parliament and the King, they saw the victory of Parliament in 1688 which gave Parliament authoritative incomparability coming full circle in the entry of  the Bill of Rights. This drove eventually to an acknowledgment by the King of administrative and assessment forces of Parliament and the legal forces of the courts. At that  occasions, the King practiced leader powers, Parliament practiced authoritative powers and the courts practiced legal forces, however later on England didn’t adhere to this primary characterization of capacities and changed to the parliamentary type of government.[2]  There is no liberty if the judicial power is not separated from the legislative and executive powers where it joined with the legislative power. There would be an end of everything where the some body to exercise these three powers.

Article 50 directs the state for the separation of judiciary from executive, it means to “Independence to the judiciary in decision making.” It also mean that the executive should no interfere with the functions of judiciary. The sovereign power has been distributed among the three-wings:

  • Legislature
  • Executive
  • Judiciary

The situation in India is that the doctrine of division of forces has not been agreed sacred status. In the Constituent Assembly, there was a proposition to join this convention in the Constitution yet it was intentionally not acknowledged and as such dropped. Aside from the order standards set down in Article 50 which urges partition of legal executive from the chief, the protected plan doesn’t encapsulate any formalistic and stubborn division of forces.

IDEA  BEHIND  THE DOCTRINE : The thought behind precept of partition of force had been in the spotlight since the antiquated period. The Greek philosopher Aristotle and John Locke had given subtleties of an idealistic culture acknowledging partition of force in their particular records. The genuine soul and meaning of the thought was given by Sir Montesquieu in “The Spirit of Laws”. The tenet of partition of force basically involves that the three elements of the public authority presented before in the article are kept discrete. Diving further into this idea, the teaching can be understood to involve two significant standards without which understanding the embodiment of the regulation would be an inconceivable undertaking. As a matter of first importance, the offices which embrace the capacities ought to be in a general sense discrete and autonomous in its working. Furthermore, similar people ought not be made a piece of two divisions. Ideally, separation of power should be followed absolutely and should not be dispensed with at any cost so as to maintain the spirit of constitutionalism. However, pragmatically absolute isolation of the three departments is not possible and some degree of overlap between the departments becomes necessary in modern democracies. For this very reason, the doctrine of checks and balances comes into picture.

SEPARATION OF POWER IN INDIA : The President’s capacity and forces are listed in the actual Constitution. Parliament is capable to make any law subject to the arrangements of the Constitution and there could be no other constraint on it administrative force. The Judiciary is free in its field and there can be no impedance with its legal capacities either by the Executive or by the Legislature. The Supreme Court and High Courts are given the force of legal audit and they can pronounce any law passed by the Parliament or the Legislature illegal. In the event that we study the protected arrangements cautiously, plainly the regulation of Separation of Powers has not been acknowledged in India in its severe sense. The Supreme Court has power to declare void the laws passed by the legislature and the actions taken by the executive if they violate any provision of the Constitution or the law passed by the legislature in case of executive actions.

In the case of  Ram Jawaya vs State of Punjab , the court was of the opinion  that the doctrine is not fully accepted in India. “The Indian Constitution has not indeed 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”. It was held that executive can be construed to be a part of the legislature and is accountable to it insofar as some functions are concerned. The president is only considered to be a nominal head and the real authority resides with the prime minister.

IN USA : The USA encompasses rigid separation of powers but practically the doctrine is coupled with the doctrine of checks and balances in a bid to produce effective and efficient governance. The Constitution of the US expressly provides for three departments of the government and the functions performed by each of these departments. Article I of the Constitution provides for power of the legislature and it is provided that Congress holds all the legislative powers in the country. Similarly, Article II provides for executive powers to be vested with the president and Article III provides for judicial powers to be vested in the apex court i.e. the Supreme Court and the other lower courts.

The constitution of the USA applies separation of power somewhat more strictly than that in India. Thus, in theory the legislature cannot delegate its rule making power to any other department or its constituents. However, there have been many instances where the congress has delegated its rule making power and the rules thus framed are upheld by the apex court.

In America the president is considered to be the real head of the executive. The president has a fixed tenure and can be removed only through a difficult process of impeachment. The president is not answerable to congress and the president is not required to consider the decisions of the secretary and in this sense is different from India. However, this should not be construed to mean that the president has absolutely unlimited powers and there is absolutely no check kept on the President by the other departments. The rules framed by the president can be checked for constitutionality and any rule inconsistent with the constitution can be declared to be unenforceable by the apex court. The Congress also keeps a check on the executive by deciding upon the payment to be received by the personnel of the executive and framing rules for functioning of the executive. This in no way implies that the Congress can frame arbitrary and unreasonable rules with respect to the executive department and its functioning. This power is limited by the judiciary which can declare any rule made by the Congress or the executive to be unconstitutional.

CONCLUSION :

By going through the different provisions of the respective constitutions of India and USA, it can be observed that though both the countries do not provide for absolute and rigid separation of power, the separation of power applied by the Constitution theoretically in the US is stricter than that applied in India. Though the Constitutions of both the countries do not explicitly provide for separation of power in all the departments, it can very well be implied from the various provisions of the constitution. A distinction in this regard has to necessarily be made with regards to the Indian scenario and the control of legislature over the executive and vice-versa. In India, the president can only be considered to be the nominal head. The president has to make decisions under the aid and advice of the council of ministers who are a part of the legislature. Also, the prime minister, who may be construed to be the real head can dissolve a parliament. Therefore, it can be pointed out that though there remain fundamental similarities in the operation of the doctrine in India and USA, there are certain differences which cannot be overlooked. The structure adopted by both the countries is often criticized. However, it is pertinent to note that both the countries have adopted the practice which would be best for them keeping in mind the social and historical conditions that the countries had been through.

 

-KODALI NEEHARIKA

 

 

 

 

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