“Doctrine of Separation of Powers in Constitutionalism”

Introduction
The doctrine of separation of powers is the second constitutional principal which
played an instrumental role in the growth of administrative law. The doctrine of powers
assumes that the government till powers can be classified into three Board of categories i.e.,
legislative executive and judicial. The executive is responsible for the formulation and
execution of the policy, the Legislature is responsible for the approval of the legislation and
taxation and the security of executive, the Judiciary is responsible for securing the
observance of the law, by determining whether it has been infringed and sentences those
found guilty of its infringement. This separation of the three branches is essential to secure
the different forms of the accountability i.e., legal accountability, political accountability and
financial accountability. Further, the doctrine envisages that these three powers should be
allocated to three separate and distinct department because concentration of the power in
one or more organs of the state would give rise to regulated and tyrannical exercise of
powers which would be threaten the rights and liberties of the citizens.
According to Jain and Jain, if the rule of law has enunciated by Dicey affected the
growth of Administrative law in Britain the doctrine of separation of power had an intimate
impact on the development of Administrative law in the USA.

Origin and meaning of the doctrine of separation of powers:-
The doctrine of separation of powers is of ancient origins. The history of origin of the
Doctrine is traceable to Aristotle. Aristotle in his book “Politics” had mention the three
branches of the government, deliberative, magisterial and judicial. In the 16th century, Jean
Bodin, the French philosopher, was the first modern writer the demand at separation of
power. He argued that “if the king where both law maker and judge, then a cruel king might
give cruel sentences.

According to the Montesquieu, the doctrine of separation of powers means that:
1. The executive should never exercise the judicial or the legislative powers,
2. The legislative shall never exercise the judicial on the executive powers, and
3. The judicial branch should never exercise the executive or the legislative powers.
Therefore, According to Montesquieu, the doctrine of separation of powers means
that a body or any person should not exercise all the three kinds of power for the purpose of
preserving the liberty of the individual and avoiding that tyranny.

Wade and Phillips have described the doctrine of separation of power as:
1. The same person should not compose more than one branch of the three branches,
2. One branch should not control and interfere with the acts of other two branches
3. One should not discharge the function of other two branches.
The aim of the Doctrine is to guard against tyrannical and arbitrary power of the state.
The rationale underlying the doctrine has been that if all power is concentrated in one and in
the same organ this would give rise to danger, that the organ may enact tyrannical laws,
execute them in a despotic manner and interpret them in an arbitrary fashion, without any
external control.


In countries which use a Presidential congressional system of government, such United
States, the separation is clear and well defined. But in parliamentary systems, a separation of
powers is unclear and impractical. For example, in the United Kingdom, the executive forms
a subset of the Legislature as does to a lesser extent – the judiciary.


It can be said that the objective of doctrine of separation of power is not simply to prevent
usurpation of power and dominance by one organ over the other organs of the state but to
ensure that every organ of the state should act within the confines of law and does not
abuse their power. The well-being of the citizens is dependent on the efficient functioning of
the three organs in accordance with the rule of law principle. So, the Doctrine of separation
of powers is also called the theory of check and balances, whose importance has to be
realized not from a philosophical or a theoretical perspective but as a part of practical
necessity.


Separation of powers in practice separation of powers in practice :-
1) England –
In England, the doctrine of separation of powers, is not followed in its
strict sense. Government consist of the crown (king) the Parliament and the Councils of
Ministers. The king is the nominal executive head and the real executive power vest in the
cabinet with the prime minister as the head. The members of the cabinet including the prime
minister are collectively responsible to the House of Commons and remain in office so long
as they enjoy the confidence of the House of Commons. The prime minister and other
ministers are also members of one or more house of the parliament the king exercise his
powers on the advice of the cabinet which is binding on him. According to Walter Bagehot,
in England. this there is complete confusion of the executive and the legislative powers full
stop according to him, cabinet is a “hyphen which joins a buckle with fasten the executive
parts of the state.”

So cabinet is virtually committee of the legislature which initiates legislation and controls the
legislature and also possess the power to dissolve the get legislature so there is complete
confusion the power in spite of separate legislative and executive wings.

Judiciary in England is independent of the executive control but the judges of the superior
court can be removed on an address from both the houses of the parliament if there is a
charge of corruption against the judge. So in England the doctrine of separation of powers has
its relic in the shape of independence of the judiciary.

2) India – In India, the text of the Indian constitution has not included the phrase of
separation of power in its a part but the notion of separation of powers between the three
organs of the state are employed in the various provisions of the constitution. Our
constitution recognises and incorporates the doctrine of separation of powers between the
three organs of the state viz. the legislature the executive and the judiciary. Even though the
constitution has adopted the parliamentary form of government where the theory of
separation of powers is it still valid. Ours is also a federal form of government. 20 objects in
respect of which the union and the States can make laws are separately set out in the List I
and List II office seventh schedule to the constitution respectively. The constitution has
invested the Supreme Court and the high court with the power to invalidate the laws made by the parliament and the state legislature transgressing the constitutional limitations. Where an act made by the state legislature is invalidated by the courts on the ground that the state
legislature was not competent to enact it the state legislature cannot enact a law declaring that the judgement of the court shall not operate it cannot overrule or annul a decision of the court but this does not mean that the other legislature which is competent to enact a law cannot enact a law. It can. Similarly, it is open to in legislature to alter the basis of judgement as pointed out by this court.

LEADING CASE LAWS :-
In Re Delhi Law Act, 1912, AIR 1951 SC 332, a seven Judges Special Bench of Supreme
Court Of India, has considered the doctrine of separation of powers and ruled that strictly
speaking, it has no place in the system of the governance in India nor at the present day under her own constitution or which she had during the British rule. Unlike, the American and
Australian Constitution, the Indian Constitution does not expressly vest the different sets of
powers in the different organs of the state. Under Article 53(1), the executive power is indeed
vested in the President, but there is no similar vesting provision regarding the legislative and
the judicial powers. Our Constitution, though federal in its structure, is modeled on the
British parliamentary system, the essential feature of which is the responsibility, of the
executive to the legislature. The President, as the head of the executive, is to act on the advice of the council of ministers and this council of ministers, like the British Cabinet is a “hypen which joins – a buckle which fastens – the legislative part of the state to the executive part”.

In Rai Sahib Ram Jawaya Kapur Vs. State of Punjab, AIR 1955 SC 549, The Supreme
Court Of India ruled that the Indian constitution has not indeed recognised the doctrine of
separation of powers in its absolute rigidity but the functions of the different parts or branch
of the Government have been sufficiently differentiated and consequently it can very well be
said that our constitution does not contain plate assumption by one organ or part of the state of functions that essentially belongs to another. The executive can exercise the power of
departmental or subordinate legislation but when such powers are delegated to it by the
legislature.

In Asif Hameed Vs. State of Jammu and Kashmir, AIR 1989 SC 1899, The Supreme
Court Of India observed that although, the doctrine of separation of powers has not been
recognised under the constitution in its absolute rigidity but the constitution makers have
meticulously define the functions of various organs of the states. Legislature, executive and
judiciary have to function within their own spares demarcated under the constitution. No
organ may usurp the function assigned to another. Legislature and Executive, the two face of
peoples Wills have all the powers including that of finance. Judiciary has no power over
sword or the purses; nonetheless it has power to ensure that the aforesaid to main organ of the state function within the constitutional limit and if it is not so that court must strike down
with the action. It is the sentinel of the democracy.

Judicial review is a powerful weapon to restrain unconstitutional exercise of the Power by the legislature and executive. The expanding horizons of the judicial review have taken its fold the concept of social and economic justice. While exercise of the powers by the legislature and executive is subject of power is the self imposed discipline of the judicial restraint. While exercising power of the judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of the policy or to sermonise qua any matter which under the constitution lies within the squares of legislature or executive, provided these authorities do not transgress their constitution limits or statutory powers.

Criticism of the Doctrine of Separation of Powers:-
(1) Legislature, executive and judicial functions are not watertight compartments. It is not
easy to demarcating line between one power and another with mathematical precisions.
(2) It is impossible to take certain actions if this document is accepted in its entirety. Thus, if
the legislature can not only legislate then it cannot punish anyone committing a breach of its
privilege.
(3) Modern state is a welfare state and it has to solve many complex problems and in the state of affairs also it is not possible to stick to this doctrine.
(4) The fundamental object behind Montesquieu’s doctrine was the liberty and freedom of an
individual but it cannot be achieved by mechanical division so the functions and powers.

Conclusion:— Doctrine of separation of powers in today’s context liberalisation, privatization
and globalisation cannot be interpreted to mean either separation of powers are check and
balances or principal of restraints, but community powers exercised in the spirit of
cooperation by various organs of the state in the interest of peoples. Thus, though on the
whole the doctrine in the strict sense is impracticable; nevertheless value lies in the emphasis
on those checks and balances which are necessary to prevent and abuse of enormous powers
of the executive the object of the doctrine is “to have a government of law rather than official
caprice or whim”.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

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The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

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In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.


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