Doctrine of ‘Separation of Powers’ its incorporation under Indian Constitution, Objectives, Origin and Evolution and Merits and Demerits of the Doctrine of ‘Separation of Powers' (Notes)

 1) Doctrine of ‘Separation of Powers’

The Doctrine of Separation of Powers is a fundamental constitutional principle that divides the powers and responsibilities of the government into three distinct branches: the Legislature, the Executive, and the Judiciary.

The primary purpose of this doctrine is to prevent the concentration of power in a single authority, ensuring a system of checks and balances. This separation fosters accountability, transparency, and the protection of individual freedoms by ensuring that no branch of government becomes too powerful or interferes unduly with the functions of the other branches.


2) The Three Branches of Government

(1)    Legislature: The branch responsible for making laws. It consists of elected representatives and is typically divided into two houses (bicameral) or one house (unicameral), depending on the country’s system.

(2)    Executive: The branch responsible for implementing and enforcing the laws made by the legislature. It includes the President, Prime Minister, Cabinet, and administrative bodies.

(3)    Judiciary: The branch that interprets the laws and ensures that they are applied fairly. It includes the courts and judges, who have the power to review legislative and executive actions to ensure they conform to the Constitution.

3) Objectives of the doctrine

(1)    Prevention of Arbitrary Power

To prevent the arbitrary exercise of power by any one branch of government.

(2)    Prevention of Concentration of Power

To prevent the concentration of power in one branch of government, which could lead to authoritarianism or tyranny.

(3)    Protection of Fundamental Rights

To safeguard the fundamental rights of individuals by ensuring that no branch of government can overreach its powers and infringe upon those rights.

(4)    Preservation of Democratic Governance

To maintain a democratic system of government where no branch can become too powerful or unaccountable to the people.

4) Origin and evolution of the doctrine of separation of powers? 

(1)    The first modern formulation of the doctrine of separation of power was given by the French political philosopher Montesquieu in The Spirit of Laws, 1748. Inspired by the English constitution, Montesquieu argued that liberty is most effectively safeguarded by the separation of powers.

(2)    Later, The United States Constitution gave the doctrine of separation of powers in substance for the very first time where its provisions

o   Article I granted powers to the legislature.

o   Article II gave executive power to the President.

o   Article III created an independent judiciary.

(3)    In this spirit, the Constituent Assembly, while drafting the Indian Constitution, debated on inserting the provision ‘There shall be complete separation of powers as between the principal organs of the State-the Legislative, the Executive, and the Judiciary’ as one of the Directive Principles of the State Policies. 

(4)    Finally, Article 50 was inserted, which gave for the State to take steps to separate the Judiciary from the Executive in the public services of the State.

5) Incorporation of the Doctrine in the Indian Constitution

While the Indian Constitution does not explicitly mention the Separation of Powers doctrine in one place, the structure of the Constitution reflects the separation of powers among the three branches of government, and the doctrine plays a critical role in maintaining a balance of power.

(1) Legislature

The Legislature is vested with the power to make laws, amend laws, and control the finances of the government. The Constitution of India establishes a bicameral legislature consisting of:

  1. Lok Sabha (House of the People): The lower house, directly elected by the people of India.
  2. Rajya Sabha (Council of States): The upper house, consisting of representatives of the states and union territories.

The legislature’s powers are enshrined in Article 245 to Article 263 of the Indian Constitution, which outlines the distribution of legislative authority between the Parliament and the State Legislatures.

  1. Article 245: Grants the Parliament the authority to make laws for the whole country, and State Legislatures the authority to make laws for their respective states.
  2. Article 248: Lists the exclusive power of Parliament to legislate on matters in the Union List (Schedule VII).
  3. Article 249: Deal with the powers of Parliament to legislate on matters in the Concurrent List, with certain conditions.

The legislature also plays a role in oversight, through the system of question hour and debates, which hold the executive accountable for its actions.

(2) Executive

The Executive is vested with the power to implement and enforce laws made by the legislature. It consists of the President, Prime Minister, and the Council of Ministers. The President, though the formal head of the state, exercises executive powers on the advice of the Prime Minister and the Cabinet.

  1. Article 53: Vests the executive power of the Union in the President of India.
  2. Article 74: Provides that the President shall act on the advice of the Council of Ministers headed by the Prime Minister.
  3. Article 77: Outlines how the executive is responsible for the administration of the Union, and similar provisions exist for the states under Article 154.

The executive's role is to ensure the implementation of laws passed by the legislature, and it carries out day-to-day governance, manages foreign affairs, national security, and the administration of justice.

(3) Judiciary

The Judiciary in India is independent and vested with the power to interpret the law and ensure its fair application. It has the authority to review laws passed by the legislature and actions taken by the executive to ensure they are constitutional.

  1. Article 50: The Constitution provides for the separation of the judiciary from the executive in the functioning of the state.
  2. Article 121 and Article 211: Prohibit discussions in the legislature on the conduct of judges of the Supreme Court and High Courts.
  3. Article 124 to Article 147: Deal with the establishment, powers, and functions of the Supreme Court.
  4. Article 214 to Article 237: Deal with the establishment and functioning of the High Courts.

The Judiciary exercises its judicial review power under Article 13, where it can examine laws to ensure that they do not violate the fundamental rights of citizens. The Supreme Court and High Courts have the authority to strike down unconstitutional laws and executive actions, thus preserving the Constitution's supremacy.

6) Checks and Balances

While the Indian Constitution provides for the separation of powers, it also ensures checks and balances among the branches of government to maintain a balance of power and prevent one branch from becoming too dominant.

(1)    Legislature-Executive Check: The Executive is accountable to the Legislature. The Council of Ministers must answer to the Parliament (Article 75). The Lok Sabha can pass a vote of no-confidence against the Council of Ministers, which can lead to the resignation of the government.

(2)    Executive-Judiciary Check: The Judiciary ensures that the Executive acts within the limits of the Constitution. The judicial review power, as exercised by the Supreme Court, can review executive actions and legislative acts to ensure they do not violate the Constitution.

(3)    Legislature-Judiciary Check: The Judiciary has the power to review laws made by the Legislature through judicial review (Article 13). If the legislature passes a law that is inconsistent with the fundamental rights or Constitution, the judiciary can declare it void.

7) Practical Implications and Challenges

While the doctrine ensures the distribution of powers, in practice, there are challenges and debates regarding its application:

(1)    Judicial Activism: Sometimes, the Judiciary is accused of overstepping its boundaries through judicial activism, encroaching on the domain of the Legislature and the Executive.

(2)    Executive Dominance: The Executive, by virtue of having the majority in the Legislature, can dominate parliamentary proceedings, raising concerns about the balance of power.

(3)    Judicial Independence: Despite constitutional safeguards, ensuring the independence of the Judiciary from Executive influence remains an ongoing challenge.

8) Merits of the Doctrine of Separation of Powers

(1)    Avoidance of Conflict:

By defining the functions of each branch, the doctrine helps in minimizing conflicts between different branches of government, promoting a more orderly and efficient system of governance.

(2)    Prevention of concentration of power:

By ensuring that no single branch of government holds unchecked power, the doctrine helps in preventing the concentration of power, thus reducing the risk of tyranny. This is essential for a healthy democracy, where power is distributed among multiple institutions.

(3)    Protection of Fundamental Rights:

It helps safeguard individual freedoms and fundamental rights by ensuring that no branch of government can arbitrarily infringe on those rights. The Judiciary, for instance, acts as a protector of citizens' rights through judicial review.

(4)    Checks and Balances:

The doctrine promotes a system of checks and balances, where each branch has some measure of influence over the others, ensuring accountability. For example, the Judiciary can review laws made by the Legislature, and the Executive is accountable to the Legislature.

(5)    Specialization and Efficiency:

Separation of powers allows each branch to focus on its specific functions, ensuring specialization and efficiency. The Legislature can focus on law-making, the Executive on administration and policy implementation, and the Judiciary on interpreting laws and resolving disputes.

9) Demerits of the Doctrine of Separation of Powers

(1)    Lack of Flexibility:

The strict application of the doctrine can lead to a lack of flexibility in governance. In a rapidly changing world, the strict separation between the branches can hinder cooperation and coordination, leading to inefficiency.

(2)    Overlapping Functions:

In practice, there is often overlap between the powers of the branches, which can lead to confusion and conflict. For example, the Executive can influence the Legislature (through the Council of Ministers), and the Judiciary can interpret laws passed by the Legislature. This overlap can lead to a blurring of roles and responsibilities.

(3)    Executive’s Control over Legislature:

In many parliamentary systems, including India, the Executive is drawn from the Legislature. The Prime Ministerand the Council of Ministers are members of the Parliament, which can lead to a lack of true separation between these two branches. The Executive can have considerable influence over legislative decisions, weakening the system of checks and balances.

(4)    Judicial Overreach:

In some cases, the Judiciary's exercise of judicial review may be seen as an overreach, where it may be perceived to encroach upon the domains of the Legislature or the Executive. This can lead to a lack of clarity regarding the precise limits of judicial powers.

(5)    Delay in Policy Implementation:

The separation of powers can lead to delays in the implementation of policies. Since the Legislature, Executive, and Judiciary are independent entities with different roles, coordinating between them may take time. For example, laws may be delayed in the Legislature, or decisions might be subject to judicial review, slowing down the process.


By, 

Adv. Harashavardhan (Bhaiya) Deshmukh

(Pune Maharashtra)

Mail: dabangglawyer@gmail.com , Contact: 8483882344

Follow @DabanggLawyer 

Comments

Post a Comment

Popular posts from this blog

Delegated Legislation, Need for Delegated Legislation, Reasons for Growth of Delegated Legislation.

Image
  1) Introduction The modern state performs a vast variety of functions, necessitating a large body of laws and rules to govern these spheres. It is not practical for the legislature to enact all such rules itself. Delegated legislation refers to the laws made by bodies like the executive, judiciary, or statutory entities under the powers delegated to them by the legislature 2) Delegated Legislation Delegated legislation refers to laws or rules made by an authority other than the legislature, but with the legislature’s permission. This authority is usually the executive, government departments, or local authorities, who are given powers under an enabling or parent Act passed by the legislature. 3) Definitions: (1)     Salmond – "Delegated legislation means that part of the law which proceeds from any authority other than the sovereign power, and is regarded as having the force of law." (2)     K.C. Wheare – "Delegated legislation means th...
Read more

Classification of Functions of Administration | Administrative Law (Notes)

Image
The functions of administration can be broadly classified into different categories based on the nature of activities performed by administrative bodies. These functions are typically grouped into the following classifications: 1) Executive Functions Executive functions refer to the implementation and enforcement of laws, policies, and decisions made by the legislature. The executive branch of the government is responsible for carrying out laws, maintaining public order, and executing government policies. Examples : Law enforcement : Police force maintaining law and order. 2) Legislative Functions Legislative functions involve the creation and formulation of rules and regulations by the executive branch under powers granted by the legislature. The executive, through delegated legislation, can enact laws or create specific regulations within the limits defined by the legislature. This process is often referred to as delegated or subordinate legislation . Examples : Government ...
Read more

Evolution of Administrative Law in India (Notes)

Image
The evolution of administrative law in India has been shaped by its colonial past, the structure of the Indian Constitution, and the growing demands of governance in the modern era. Administrative law in India primarily governs the powers and functions of administrative authorities and the principles of natural justice, ensuring that administrative actions are taken within the boundaries of law. (1) Colonial Period: The roots of administrative law in India can be traced back to the British colonial era. During this period, the British government exercised supreme control over the administration in India, and the framework for administrative law was largely derived from the principles of English administrative law. Some key features of this era were: 1.         Limited Judicial Review :        British colonial governance did not allow much judicial intervention in administrative actions. Courts had limited power to review the d...
Read more