INTRODUCTION is known as th? supr?m? authority of all

 

 

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?.

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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?.

 

 

 

 

 

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 t?nd to app?ar amongst th?s?
organs. Th? qu?stion which is important h?r? is that what should b? th? r?lation
among th?s? thr?? organs of th? stat?, i.?. wh?th?r th?r? should b? compl?t? s?paration
of pow?rs or th?r? should b? co-ordination among th?m.

Th? application of doctrin? of s?paration
of pow?r has a proposition that non? of th? thr?? organs of Gov?rnm?nt, L?gislativ?
?x?cutiv? and Judicial, can ?x?rcis? any pow?r which prop?rly b?longs to ?ith?r
of th? oth?r two.

 

L?GISLATUR?-

L?gislatur? is that
institution which consist of th? r?pr?s?ntativ? of th? p?opl? i.?., politician.
Its main obj?ctiv? is to discuss and d?bat? on th? issu?s conc?rning th? p?opl?
and th? Country. It is th? law and policy making body.
G?n?rally, n?w laws or polici?s ar? introduc?d in th? Parliam?nt/ Stat? L?gislatur?
in th? form of Bills. Th?s? Bills onc? pass?d by th? L?gislatur? ar? s?nt to th?
Pr?sid?nt for ass?nt. Onc? th? pass?d bill g?ts th? ass?nt of th? Pr?sid?nt, it
b?com?s th? law, or th? policy com?s into ?ff?ct. Parliam?nt or th? Stat? L?gislatur?
ar? th? forms of “L?gislatur?”. It is h?r?
wh?r? th? Govt. is bound to answ?r th? qu?stions which ar? rais?d by anoth?r r?pr?s?ntativ?
of th? hous?.

 

?X?CUTIV?-

?x?cutiv? is that branch of th?
Govt. which ?nabl?s and impl?m?nt th? actions and d?cisions of th? Govt. may it
b? impl?m?ntation of th? laws pass?d by th? l?gislatur? or pr?paring th? blu?print
of various oth?r initiativ?s which ar? tak?n up by th? Govt lik? Jan-Dhan
Yojana, Start-up India Stand Up India ?tc., th? rul?s and r?gulation as w?ll as
th?ir fram?work is pr?par?d by th? ?x?cutiv? only. This body consist of th? bur?aucrats
from All India S?rvic?s lik? IAS, IFS, IRS, IPS.

Lik? th? oth?r two important parts of syst?m
or country wh?r? l?ad?rs ar? chos?n by vot?s, th? ?x?cutiv? is ?qually ?xp?ct?d
to b? fr?? of invasions from th? oth?r two. It is always said that ?x?cutiv? is
ind?p?nd?nt of th? two, but th? un?xp?ct?d w?irdn?ss continu?s to ?xist and do
hard or annoying things. It is compl?t?ly w?aring away in actual practic?. Th?
r?ason is that th? ?x?cutiv? is qu?stion?d for its actions by th? judg?s, th?
court and th? Gov?rnm?nt. This wat?rs down th? ind?p?nd?nc? of th? ?x?cutiv? to
th? high?st possibl? valu?. It’s not that th? qu?stion of answ?rability pops up
only in th? cas? of ?x?cutiv?. Th? judiciary and th? l?gislatur? ar? ?qually answ?rabl?
but in th?ir cas?s, a built-in syst?m from within would b? availabl? for
discharging thos? functions. This is th? r?al situation, which ?xists in
practic?.

 

JUDICIARY-

Judiciary is anoth?r ‘ind?p?nd?nt’ branch
of th? Govt whos? main task is to b? uphold th? Constitution and th? rul? of
law. It acts as a watchdog ov?r th? actions of th? l?gislatur? and ?x?cutiv?
and curtails th? sam? wh?n it violat?s th? rights of th? individuals. Judiciary
has to ?nforc? th? law and p?nalis? thos? who ar? found to b? br?aching th? sam?.
It consists of th? Judg?s who pr?sid? ov?r th? court. It is th? most
important f?atur? of d?mocracy. It is r?sponsibl? for saf?guarding th? int?r?sts
and th? fundam?ntal rights of th? p?opl?. Judiciary consists of th? Hon’bl?
Supr?m? Court, Hon’bl? High Court and oth?r low?r courts. Judiciary k??ps a tab
on th? activiti?s of th? gov?rnm?nt and plays an important rol? in th? ?v?nt of
violation of Fundam?ntal Rights of th? p?opl? of th? country. Judiciary also
has th? authority to ?xamin? th? validity of th? Laws ?nact?d by th? Parliam?nt
on th? constitutional param?t?rs.

 

LANDMARK CAS?S-

1.      1.
In th? r? D?lhi Laws Act cas?, it was for th? first tim? follow?d by th? Supr?m?
Court that ?xc?pt wh?r? th? constitution has v?st?d pow?r in a body, th? way of
thinking that on? organ should not compl?t? functions which basically b?long to
oth?rs is follow?d in India. By a majority of 5:2, th? Court h?ld that th? ?xplanation
of s?paration of pow?rs though not an important part of our Constitution, in
rar? circumstanc?s is obvious in th? l?gal rul?s of th? Constitution its?lf. As
obs?rv?d by Kania, C.J.-

“Although in th? constitution of India th?r?
is no ?xpr?ss s?paration of pow?rs, it is cl?ar that a l?gislatur? is cr?at?d
by th? constitution and d?tail?d provisions ar? mad? for making that l?gislatur?
pass laws. Do?s it not imply that unl?ss it can b? gath?r?d from oth?r
provisions of th? constitution, oth?r bodi?s-?x?cutiv? or judicial-ar? not int?nd?d
to discharg? l?gislativ? functions?”

This judgm?nt sugg?st?d that all th? thr??
organs of th? Stat? which ar? th? L?gislatur?, th? Judiciary and th? ?x?cutiv?
ar? bound by and subj?ct to th? l?gal rul?s of th? Constitution, which limits
th?ir pow?rs, l?gal controls, r?sponsibiliti?s and r?lationship with on? anoth?r.
Also, that it can b? assum?d that non? of th? organs of th? Stat?, th? L?gislatur?,
th? Judiciary, and th? ?x?cutiv? would go b?yond its pow?rs as laid down in th?
Constitution.

 

2.      K?SHAVANANDA
BHARTI CAS?-

Th? qu?stion plac?d b?for? th? Supr?m?
Court in this cas? was conn?ct?d to th? ?xt?nt of th? pow?r of th? gov?rnm?nt
to updat? th? Constitution as giv?n und?r th? Constitution its?lf. It was argu?d
that Parliam?nt was “b?tt?r than anyon? or anything ?ls?” and r?pr?s?nt?d
th? sov?r?ign will of th? p?opl?. So, if th? p?opl?’s r?pr?s?ntativ?s in
Parliam?nt d?cid?d to chang? a particular law to control individual fr??dom or
limit th? ?xt?nt of th? rang? of th? judiciary, th? ?x?cutiv? and th? l?gislatur?
had no right to qu?stion wh?th?r it was r?lat?d to th? Constitution or not. How?v?r,
th? Court did not allow this argum?nt and inst?ad found in favor of th? p?rson
who’s arguing against a l?gal d?cision on th? grounds that th? b?li?f of s?paration
of pow?rs was a part of th? “basic structur?” of our Constitution.

As p?r this ruling, th?r? was no long?r
any n??d for confusing doubl?-m?aning as th? id?a for a singl? purpos? r?cogniz?d
as a part of th? Indian Constitution, p?rman?nt ?v?n by an Act of Parliam?nt.
So, th? id?a of s?paration of pow?rs has b??n includ?d into th? Indian laws.

 

3.      INDIRA
N?HRU GANDHI V. RAJ NARAIN

How?v?r, it was aft?r th? landmark cas? of
Indira N?hru Gandhi v. Raj Narain that th? plac? of this doctrin? in th? Indian
cont?xt was mad? cl?ar?r. It was obs?rv?d: “That in th? Indian Constitution, th?r?
is s?paration of pow?rs in a broad s?ns? only. A rigid s?paration of pow?rs as
und?r th? Am?rican Constitution or und?r th? Australian Constitution do?s not
apply to India.”Chandrachud J. also obs?rv?d that th? political us?fuln?ss of
th? doctrin? of S?paration of Pow?r is not wid?ly r?cogniz?d. No Constitution
can surviv? without a conscious adh?r?nc? to its fin? ch?ck and balanc?.

4.      OTH?R
CAS?S

Th? doctrin? of s?paration of pow?rs was
furth?r ?xpr?ssly r?cogniz?d to b? a part of th? Constitution in th? cas? of
Ram JawayaKapur v. Stat? of Punjab, wh?r? th? Court h?ld that though th?
doctrin? of s?paration of pow?rs is not ?xpr?ssly m?ntion?d in th? Constitution
it stands to b? violat?d wh?n th? functions of on? organ of Gov?rnm?nt ar? p?rform?d
by anoth?r. This m?ans th? Indian constitution had not ind??d r?cogniz?d th?
doctrin? of s?paration of pow?rs in its absolut? rigidity but th? functions of
diff?r?nt parts or branch?s of th? Govt. hav? b??n suffici?ntly diff?r?ntiat?d
and cons?qu?ntly it can v?ry w?ll b? said that our constitution do?s not cont?mplat?
assumption, by on? organ or part of th? stat?, of functions that ?ss?ntially b?longs
to anoth?r.

In I.C. GolakNath v. Stat? of Punjab, Supr?m?
Court took th? h?lp of doctrin? of basic structur? as propound?d in K?svanandaBharati
cas? and said that Ninth Sch?dul? is violativ? of this doctrin? and h?nc? th?
Ninth Sch?dul? was mad? am?nabl? to judicial r?vi?w which also forms part of th?
basic structur? th?ory. It was obs?rv?d: “Th? Constitution brings into ?xist?nc?
diff?r?nt constitutional ?ntiti?s, nam?ly, th? Union, th? Stat?s and th? Union
T?rritori?s. It cr?at?s thr?? major instrum?nts of pow?r, nam?ly, th? L?gislatur?,
th? ?x?cutiv? and th? Judiciary. It d?marcat?s th?ir jurisdiction minut?ly and ?xp?cts
th?m to ?x?rcis? th?ir r?sp?ctiv? pow?rs without ov?rst?pping th?ir limits. Th?y
should function within th? sph?r?s allott?d to th?m.”

 

 

Diff?r?nt mod?ls around th?
world:

Constitutions with a high d?gr??
of s?paration of pow?rs ar? found all ov?r th? world. ?v?n though th?r? is th? ?xist?nc?
of th? saf?guards it giv?s against v?ry bad tr?atm?nt, th? mod?rn-day communiti?s
of p?opl? find it v?ry hard to apply it stiffly and strictly. In way of basic
truth/rul? th?y go for s?paration of pow?rs and dilution of pow?rs at th? sam?
tim?.

 

Unit?d Stat?s:

In th? Unit?d Stat?s
Constitution, Articl? I S?ction I giv?s Congr?ss only thos? “law-bas?d pow?rs
within this ar? grant?d” and mov? forwards to list thos? allow?d actions
in Articl? I S?ction 8, whil? S?ction 9 lists actions that ar? prohibit?d for
Congr?ss. Th? claus? in Articl? II plac?s no limits on th? ?x?cutiv? branch,
simply stating that, “Th? ?x?cutiv? Pow?r will b? v?st?d in a Pr?sid?nt of
th? Unit?d Stat?s of Am?rica.”

Th? Supr?m? Court holds
“Th? Judicial Pow?r” according to Articl? III, and it ?stablish?d th?
?ff?ct of Judicial r?vi?w in Mar bury v. Madison. Th? f?d?ral gov?rnm?nt r?f?rs
to th? branch?s as “branch?s of gov?rnm?nt”, whil? som? syst?ms us?
“gov?rnm?nt” to d?scrib? th? ?x?cutiv?. Th? ?x?cutiv? branch has tri?d
to forc?fully tak? pow?r from Congr?ss arguing for S?paration of pow?rs to
includ? b?ing th? Command?r in Chi?f of a standing army sinc? th? war b?tw??n groups
that all liv? in on? country, ?x?cutiv? ord?rs, ?m?rg?ncy pow?rs and s?curity
classifications sinc? WWII, national s?curity, signing stat?m?nts, and now th?
id?a of a unitary ?x?cutiv?.

To pr?v?nt on? branch from b?coming
most pow?rful or b?tt?r than anyon? or anything ?ls?, and to caus? th? branch?s
to coop?rat?, authority and control syst?ms that ?mploy a s?paration of pow?rs
n??d a way to balanc? ?ach of th? branch?s. Usually this was v?ry skilful
through a syst?m of “ch?cks and balanc?s”, th? origin of which, lik?
s?paration of pow?rs its?lf, is sp?cifically cr?dit?d to Mont?squi?u. Ch?cks
and balanc?s allows for a syst?m bas?d r?gulation that allows on? branch to
limit anoth?r, such as th? pow?r of Congr?ss to chang? th? composition and ar?a
of l?gal control of th? f?d?ral courts.

 

 

SUGG?STION-

In India a p?rf?ct syst?m of s?paration
of pow?r do?s not ?xist, this is du? to th? un?qual distribution of pow?rs
among th? 3 organs. As s??n in th? yardsticks as giv?n by prof?ssor Ivo Duchac?k,
India fails in c?rtain asp?cts of impl?m?nting doctrin? of s?paration of pow?r.
If th?s? conditions ar? th?n fulfill?d all th? organs can work tog?th?r
smoothly. Th? first sugg?stion for th? sam? is:

·        
?ach organ should
b? giv?n ?qual r?pr?s?ntation as giv?n in th? U.S. constitution. This will giv?
a b?tt?r chanc? to all th? organs, bringing th?m on par with th?ir pow?rs.

·        
Th? pow?r to am?nd
th? constitution is giv?n mainly to th? parliam?nt. Th? oth?r organs hav? a v?ry
small say in th? sam?. Mor? pow?r should b? giv?n to th? ?x?cutiv? to giv? rath?r
mor? r?pr?s?ntation.

·        
Th?y should consciously
r?aliz? th? uns??n boundari?s and r?sp?ct ?ach oth?r’s sov?r?ignty.

·        
It is not only th?
duty of th? tripartit? to r?aliz? th? sam? but also th? obligation of th? citiz?ns
to r?aliz? th? ultimat? sanctity of th? Constitution.

 

Th?s? ar? f?w of th? sugg?stions
that might giv? ris? to a n?ar to p?rf?ct syst?m of doctrin? of s?paration of pow?r
h?lping in a smooth functioning b?tw??n th? c?ntr? and stat?.

 

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, 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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