Separation of powers
Introduction
- Power corrupts & absolute power tends to corrupt absolutely
- Madison - accumulation of all powers, legislative, executive and judicial, in the same hands whether of one, a few, or many
and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.
Origin of Idea
- Origin of idea can be traced to Aristotle
- Cicero : power to be vested in people & authority in state
- Locke & Bodin : executive & legislative power should be separate for the sake of liberty as liberty is likely to suffer when same
human being makes the law & execute them
- Baron de Montesquieu in his book 'The Spirit of laws' - Chief propounder in modern times
- 16-18th century Europe , Doctrine was used in a number of countries to justify a compromise between bourgeoisie, which
had won control over the legislature and judiciary, and the feudal-monarchical circles that had retained executive power.
Various Approaches
Mainly three different approaches to Doctrine of Separation of Power
- Traditional /Classical Approach
- Modern /Contemporary Approach
- Marxist-Leninist Approach
This approach advocates for weak separation of powers with checks & balances to prevent abuses
- Primary functions of the state should be allocated clearly and there should be checks to ensure
that no institution encroaches significantly upon functions of the other
Constitutional Provision
Term separation of powers is nowhere mentioned in constitution but there are provisions recognising this doctrine
Art 50 DPSP - state shall take steps to separate judiciary from executive
Art 112 & Validity of proceedings in Parliament & State Legislature cant be called into question in any court
212
Art 121& 211 Judicial conduct of the judges of SC & HC cant be discussed in Parliament & State Legislature
Art 53 & 154 Executive power of union and state shall be vested with President & Governor & they are immune from civil
and criminal liability
Art 361 President & Governor is not answerable to any court for exercise of powers & duties
Functional overlap
Judicial functions by Legislature - Impeachment of President , removal of judges of SC & HC
other organs - Amending a law declared ultra vires by court & revalidating it
- Can impose punishment for exceeding freedom of speech in parliament
Executive - Make appointment of CJ & Judges of SC & HC
- Tribunals & other quasi judicial bodies are part of executive
Delhi Laws Act - First time observed by the SC that except where the constitution has vested power in a body, one
Case organ should not perform functions which essentially belong to other
- By a majority of 5:2, the Court held that the theory of separation of powers although not mentioned,
is part and parcel of our Constitution
Keshavanand - Question placed before the SC - extent of the power of the legislature to amend the Constitution
Bharti Case - It was argued that Parliament was supreme and represented the sovereign will of the people. If
peoples representatives in Parliament decided to change a particular law to curb individual freedom or
limit the scope of judicial scrutiny, judiciary had no right to question whether it was constitutional or
not.
- However, the Court did not allow this argument and instead found in favour of the appellant on the
grounds that the doctrine of separation of powers was a part of the basic structure of our
Constitution.
Indira Nehru - In the Indian Constitution, there is separation of powers in a broad sense only. A rigid separation of
Gandhi vs Raj powers as under the American Constitution or under the Australian Constitution does not apply to
Narain India
- But there would be adherence to fine check & balance while doing so
Judicial Review
- It is necessary to have machinery to decide on the interpretation of constitutional provisions or as to what constitution says
& means & to resolve dispute between different organs of government & state . In democracy , Apex court is given such
power
- Judicial review is powerful weapon to restraint unconstitutional exercise of power by legislature & executive . However
only check on judicial power is self imposed discipline of judicial restraint
England
- Very weak separation of powers
- Executive forms subset of legislature as was to lesser extent judiciary until SC was established in UK
- PM who is chief executive sits in house of commons etc etc
Others
- Australian Consti & French Constitution too have very rigid sepration of powers