Symbiosis OF POW?R Submitt?d by: Pulkit D?vpura

Symbiosis Int?rnational Univ?rsity,
Pun?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CONSTITUTIONAL LAW I

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Int?rnal
I

 

TOPIC- DOCTRIN? OF S?PARATION OF
POW?R

 

Submitt?d by:

 

Pulkit D?vpura

 

 

 

PRN-17010122069

 

Batch: 2017-2020

 

 

 

 

 

Symbiosis Law School, Pun?

 

 

 

 

 

 

 

 

 

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INTRODUCTION

 

Th?r? is
an und?rlying conn?ction b?tw??n th? principl?s of rul? of law and s?paration
of

 

pow?r. In
a syst?m gov?rn?d by rul? of law th?r? should not b? any absolut? pow?r b?ing
run

 

at th?
whims of th? on?s having th? sourc? of th? sam?.515 Th?r?for? if th?r? is no
sourc? of

 

pow?r in
th? first plac?; th?n chanc?s of th? pow?r b?ing ?x?rcis?d whimsically by a
body

 

b?com? ?v?n
l?ss and distant. Th? conc?pt of S?paration of Pow?r has b??n d?riv?d to r?duc?

 

th? lik?lihood
of gov?rnm?nt violating th? rights of individuals. Th? basic assumption b?hind

 

this conc?pt
is that wh?n a singl? p?rson or group has a larg? amount of pow?r, th?y can

 

b?com?
dang?rous to citiz?ns. Th? S?paration of Pow?r is a way of r?moving th? amount
of

 

pow?r in
any group’s hands, making it mor? difficult to abus?.

 

It has b??n
known that S?paration of pow?r had b??n found?d by th? Mont?squi?u and Lock?

 

but its
roots ar? found in th? V?das. If w? study th? Smritis which ar? anci?nt sourc?
of law

 

i.?.
Dharma, w? find such typ? of s?paration. In Narad Smriti w? trac? th? v?ry
principl? of

 

s?paration
of pow?r. At that tim? D??wan was h?ad of th? ?x?cutiv? wing of any l?gacy,

 

S?napati
did a job to maintain law and ord?r and Kaji was th? judicial h?ad. At th? sam?
tim?

 

w? hav?
to b?ar in mind that th?y all ar? subordinat? to th? King and King was th? supr?m?

 

authority
who mak?s th? law and th?r?for? h? was similar to pr?s?nt form of l?gislatur?.
In

 

short,
what com?s out is that in anci?nt tim? also th?r? was a s?paration of pow?r in
on?

 

provinc?
or l?gacy. Aft?r all, King is known as th? supr?m? authority of all but th?
functions

 

and pow?rs
has b??n s?parat?d.

 

Th? valu? of this doctrin? li?s in that it att?mpts to pr?s?rv? human
lib?rty by avoiding th? conc?ntration of pow?rs in any on? p?rson or body of p?rson.
As stat?d by Madison- “Th? accumulation of all pow?rs, l?gislativ?, ?x?cutiv?
and judicial, in th? sam? hands wh?th?r of on?, a f?w, or many and wh?th?r h?r?ditary,
s?lf-appoint?d or ?l?ctiv?, may justly b? pronounc?d th? v?ry d?finition of
tyranny.” And for th? pr?v?ntion of this tyranny, th? doctrin? of s?paration of
pow?r holds its gr?at?st importanc?.

 

 

 

 

 

 

 

 

 

 

 

1

DOCTRIN? OF S?PARATION OF POW?R
IN INDIA-

 

In India, th?r? ar? thr?? distinct activiti?s in th? Gov?rnm?nt through
which th? will of th? p?opl? ar? ?xpr?ss?d. Th? l?gislativ? organ of th? stat?
mak?s laws, th? ?x?cutiv? forc?s th?m and th? judiciary appli?s th?m to th? sp?cific
cas?s arising out of th? br?ach of law. ?ach organ whil? p?rforming its
activiti?s t?nds to int?rf?r? in th? sph?r? of working of anoth?r functionary b?caus?
a strict d?marcation of functions is not possibl? in th?ir d?alings with th? g?n?ral
public. Thus, ?v?n wh?n acting in ambit of th?ir own pow?r, ov?rlapping functions
tend to appear amongst these organs. The question which is important here is
that what should be the relation among these three organs of the state, i.e. whether
there should be complete separation of powers or there should be co-ordination
among them.

 

The application of doctrine of separation of power has a proposition
that none of the three organs of Government, Legislative Executive and
Judicial, can exercise any power which properly belongs to either of the other
two.

 

 

 

 

LEGISLATURE-

 

Legislature
is that institution which consist of the representative of the people i.e.,
politician.

 

Its main
objective is to discuss and debate on the issues concerning the people and the

 

Country.
It is the law and policy making body. Generally, new laws or policies are

 

introduced
in the Parliament/ State Legislature in the form of Bills. These Bills once
passed

 

by the Legislature
are sent to the President for assent. Once the passed bill gets the assent of

 

the President,
it becomes the law, or the policy comes into effect. Parliament or the State

 

Legislature
are the forms of “Legislature”. It is here where the Govt. is bound to answer
the

 

questions
which are raised by another representative of the house.

 

 

EXECUTIVE-

 

Executive is that branch of the Govt. which enables and implement the actions
and decisions of the Govt. may it be implementation of the laws passed by the legislature
or preparing the blueprint of various other initiatives which are taken up by
the Govt like Jan-Dhan Yojana, Start-up India Stand Up India etc., the rules
and regulation as well as their framework is

 

 

 

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prepared by the Executive only. This body consist of the bureaucrats
from All India Services like IAS, IFS, IRS, IPS.

 

Like the other two important parts of system or country where leaders are
chosen by votes, the Executive is equally expected to be free of invasions from
the other two. It is always said that Executive is independent of the two, but
the unexpected weirdness continues to exist and do hard or annoying things. It
is completely wearing away in actual practice. The reason is that the executive
is questioned for its actions by the judges, the court and the Government. This
waters down the independence of the Executive to the highest possible value.
It’s not that the question of answerability pops up only in the case of executive.
The judiciary and the legislature are equally answerable but in their cases, a
built-in system from within would be available for discharging those functions.
This is the real situation, which exists in practice.

 

 

JUDICIARY-

 

Judiciary
is another ‘independent’ branch of the Govt whose main task is to be uphold the

 

Constitution
and the rule of law. It acts as a watchdog over the actions of the legislature
and

 

executive
and curtails the same when it violates the rights of the individuals. Judiciary
has to

 

enforce the
law and penalise those who are found to be breaching the same. It consists of
the

 

Judges
who preside over the court. It is the most important feature of democracy. It
is

 

responsible
for safeguarding the interests and the fundamental rights of the people.
Judiciary

 

consists
of the Hon’ble Supreme Court, Hon’ble High Court and other lower courts.

 

Judiciary
keeps a tab on the activities of the government and plays an important role in
the

 

event of
violation of Fundamental Rights of the people of the country. Judiciary also
has the

 

authority
to examine the validity of the Laws enacted by the Parliament on the
constitutional

 

parameters.

 

 

 

 

 

LANDMARK
CASES-

 

1.     
1. In the re Delhi Laws Act case,
it was for the first time followed by the Supreme Court that except where the
constitution has vested power in a body, the way of thinking that one organ
should not complete functions which basically belong to others is followed in
India. By a majority of 5:2, the Court held that the explanation of separation
of powers

 

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though not an important part of our Constitution, in rare circumstances
is obvious in the legal rules of the Constitution itself. As observed by Kania,
C.J.-

 

“Although
in the constitution of India there is no express separation of powers, it is clear
that

 

a  legislature is created by the constitution and detailed provisions are
made for making that legislature pass laws. Does it not imply that unless it
can be gathered from other provisions of the constitution, other bodies-executive
or judicial-are not intended to discharge legislative

functions?”

 

This
judgment suggested that all the three organs of the State which are the Legislature,

 

the
Judiciary and the Executive are bound by and subject to the legal rules of the

 

Constitution,
which limits their powers, legal controls, responsibilities and relationship

 

with one
another. Also, that it can be assumed that none of the organs of the State, the

 

Legislature,
the Judiciary, and the Executive would go beyond its powers as laid down in

 

the
Constitution.

 

 

2.    KESHAVANANDA
BHARTI CASE-

 

The question placed before the Supreme Court in this case was connected
to the extent of the power of the government to update the Constitution as given
under the Constitution itself. It was argued that Parliament was “better
than anyone or anything else” and represented the sovereign will of the people.
So, if the people’s representatives in Parliament decided to change a
particular law to control individual freedom or limit the extent of the range
of the judiciary, the executive and the legislature had no right to question whether
it was related to the Constitution or not. However, the Court did not allow
this argument and instead found in favor of the person who’s arguing against a
legal decision on the grounds that the belief of separation of powers was a
part of the “basic structure” of our Constitution.

 

As per
this ruling, there was no longer any need for confusing double-meaning as the idea
for

 

a  single purpose recognized as a part of the Indian Constitution, permanent
even by an Act of Parliament. So, the idea of separation of powers has been
included into the Indian laws.

 

 

3.    INDIRA NEHRU
GANDHI V. RAJ NARAIN

 

However, it was after the landmark case of Indira Nehru Gandhi v. Raj
Narain that the place of this doctrine in the Indian context was made clearer.
It was observed: “That in the Indian

 

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Constitution, there is separation of powers in a broad sense only. A
rigid separation of powers as under the American Constitution or under the
Australian Constitution does not apply to India.”Chandrachud J. also observed
that the political usefulness of the doctrine of Separation of Power is not widely
recognized. No Constitution can survive without a conscious adherence to its
fine check and balance.

 

4.    OTHER CASES

 

The
doctrine of separation of powers was further expressly recognized to be a part
of the

 

Constitution
in the case of Ram JawayaKapur v. State of Punjab, where the Court held that

 

though the
doctrine of separation of powers is not expressly mentioned in the Constitution
it

 

stands to
be violated when the functions of one organ of Government are performed by

 

another.
This means the Indian constitution had not indeed recognized the doctrine of

 

separation
of powers in its absolute rigidity but the functions of different parts or
branches of

 

the Govt.
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 belongs to another.

 

In I.C.
GolakNath v. State of Punjab, Supreme Court took the help of doctrine of basic

 

structure
as propounded in KesvanandaBharati case and said that Ninth Schedule is
violative

 

of this
doctrine and hence the Ninth Schedule was made amenable to judicial review
which

 

also
forms part of the basic structure theory. It was observed: “The Constitution
brings into

 

existence
different constitutional entities, namely, the Union, the States and the Union

 

Territories.
It creates three major instruments of power, namely, the Legislature, the

 

Executive
and the Judiciary. It demarcates their jurisdiction minutely and expects them
to

 

exercise their
respective powers without overstepping their limits. They should function

 

within the
spheres allotted to them.”

 

 

 

 

Different
models around the world:

 

Constitutions
with a high degree of separation of powers are found all over the world. Even

 

though there
is the existence of the safeguards it gives against very bad treatment, the

 

modern-day
communities of people find it very hard to apply it stiffly and strictly. In
way of

 

basic
truth/rule they go for separation of powers and dilution of powers at the same
time.

 

 

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United
States:

 

In the United States Constitution, Article I Section I gives Congress
only those “law-based powers within this are granted” and move
forwards to list those allowed actions in Article I Section 8, while Section 9
lists actions that are prohibited for Congress. The clause in Article

 

II  places no limits on the Executive branch, simply stating that, “The
Executive Power will be vested in a President of the United States of America.”

 

The Supreme Court holds “The Judicial Power”
according to Article III, and it established the effect of Judicial review in
Mar bury v. Madison. The federal government refers to the

 

branches as “branches of government”, while some systems use
“government” to describe the executive. The Executive branch has tried
to forcefully take power from Congress arguing for Separation of powers to
include being the Commander in Chief of a standing army since the war between
groups that all live in one country, executive orders, emergency powers and security
classifications since WWII, national security, signing statements, and now the
idea of a unitary executive.

 

To prevent
one branch from becoming most powerful or better than anyone or anything else,

 

and to
cause the branches to cooperate, authority and control systems that employ a

 

separation
of powers need a way to balance each of the branches. Usually this was very

 

skilful
through a system of “checks and balances”, the origin of which, like
separation of

 

powers
itself, is specifically credited to Montesquieu. Checks and balances allows for
a

 

system
based regulation that allows one branch to limit another, such as the power of

 

Congress
to change the composition and area of legal control of the federal courts.

 

 

 

 

SUGGESTION-

 

In India a perfect system of separation of power does not exist, this is
due to the unequal distribution of powers among the 3 organs. As seen in the
yardsticks as given by professor Ivo Duchacek, India fails in certain aspects
of implementing doctrine of separation of power. If these conditions are then
fulfilled all the organs can work together smoothly. The first suggestion for
the same is:

 

 

 

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Each
organ should be given equal representation as given in the U.S. constitution.
This will give a better chance to all the organs, bringing them on par with their
powers.

 

The power to amend the constitution is given mainly to the parliament.
The other organs have a very small say in the same. More power should be given
to the executive to give rather more representation.

 

They should consciously realize the unseen boundaries and respect each
other’s sovereignty.

 

It is not only the duty of the tripartite to realize the same but also
the obligation of the citizens to realize the ultimate sanctity of the
Constitution.

 

 

These are few of the suggestions that might give rise to a near to perfect
system of doctrine of separation of power helping in a smooth functioning between
the centre and state.

 

 

CONCLUSION-

 

The doctrine of separation of power in its true sense is very rigid and
this is one of the reasons of why it is not accepted by a large number of
countries in the world. The main object as per Montesquieu in the Doctrine of Separation
of Power is that there should be government of law rather than having will and
whims of the official. Also another most important feature of the said doctrine
is that there should be independence of judiciary i.e. it should be free from
the other organs of the State and if it is so then justice would be delivered
properly. The judiciary is the scale through which one can measure the actual development
of the State. If the judiciary is not independent, then it is the first step
towards a tyrannical form of government i.e. power is concentrated in a single
hand and if it is so then there is a very high chance of misuse of power. Hence
the Doctrine of Separation of Power does play a vital role in the creation of a
fair government and also fair and proper justice is dispensed by the judiciary
as there is independence of judiciary.

 

In conclusion, it is evident that governments in their actual operation
do not opt for the strict separation of powers because it is undesirable and
impracticable, however, implications of this concept can be seen in almost all
the countries in its diluted form. The discrepancies between the plan and practice,
if any, are based on these very grounds that the ideal plan is impractical for everyday
use. India relies heavily upon the doctrine in order to regulate,

 

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check and control the exercise of power by the three organs of Government.
Whether it is in theory or in practical usage, the Doctrine of Separation of
Powers is essential for the effective functioning of a democracy.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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