DOCTRINE OF SEPARATION OF POWERS by MAHEK UPADHAYAY @LexCliq

INTRODUCTION

In democracies government is divided into three branches: the executive, responsible for the formulation and execution policy; the legislature, responsible for the approval of legislation and taxation and the security of the executive; the judiciary, responsible for securing observance of the law, by securing no infringement of law on the part of individuals of the state. This separation of the three branches has proved essential to secure the different forms of accountability (legal, political and financial).

ORIGIN and MEANING OF THE DOCTRINE

The history of origin of the doctrine is traceable to Aristotle from his book “Politics” wherein he had mentioned the three branches of the Government: Deliberative, Ministered and Judicial.  Further, in 17th Century John Locke talked about the three branches of the Government: Discontinuous Legislative Power, Continuous Legislative Power and Federative Power. However, in the 17th century, it was Montesquieu who for the first time gave Separation of Powers a systematic and scientific formulation in his book “The Spirit of Laws” where he asserted that, “when the legislative and executive organs are united in the same person, or in the same body of magistrates, there can be no liberty, because apprehension may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the legislative and executive, where it joined with violence and oppression”.

According to Wade and Phillips, the doctrine of Separation of Powers visualizes three fold structural classification of powers:

  1. same person should not form part of more than once of the three organs of government.
  2. one organ of the government should not interfere with any other organ of the government.
  3. one organ of the government should not exercise the functions assigned to any other organ.

OBJECTIVE OF DOCTRINE OF SEPARATION OF POWER

The aim of the doctrine is to guard against tyrannical and arbitrary powers of the state. The rationale underlying the doctrine has been that if all organ is concentrated in one and in the same organ this would give rise to danger, i.e., accumulation of power, which is a definition of tyranny.

This doctrine of Separation of Powers is an animation of the rule of law and its roots also lie in the concept of natural law because both aim at progressive diminution of the exercise of arbitrary power necessary for protecting the life, liberty and dignity of the individual. The purpose of this doctrine is:

  1. not to promote efficiency in the administration but to preclude the exercise of arbitrary power.
  2. not to avoid friction amongst various organs of the state by keeping them separate but to protect people from autocracy by means of inevitable friction due to distribution of powers.

SEPARATION OF POWER IN INDIA

In India, like England, there is parliamentary form of government where executive is very important part is legislature. So, the doctrine is not followed strictly and it is not accorded a constitutional status. We do not follow this doctrine rigidly, nevertheless, the essential functions of every organ of the state have been sufficiently differentiated, i.e., the legislature must legislate, the executive must execute and the judiciary must adjudicate Functional overlapping is permissible under constitutional limits.

Article 53(1)-executive power of union vest in the hands of President, but he is only a nominal head as real executive power lie within the council of ministers headed by Prime Minister. Article 123 empowers the President with legislative power by giving ordinance-making power. The DPSP’s laid down in Article 50 enjoins separation of judiciary from the executive, but the judges of High Courts and Supreme Courts are appointed by the President (article 124). Even supreme court has been given a sort of legislative powers under Article 32, 136, 137, 141 and 145.

Thus, Indian Constitution has not provided for rigid Doctrine of Separation of Power but it has provided for Doctrine of ‘Check and Balances’ through which one organ can keep watch on the other. Thus, administrative law and separation of powers go hand in hand with each other, having common objective, i.e., to decrease concentration of power in one hand and to ensure there is no arbitrary use of power.

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