SEPARATION OF POWERS

INTRODUCTION

As said by Aristotle, “All constitutions have three elements, concerning which the good lawgiver has to regard what is expedient for each constitution. When they are well-ordered, the constitution is well-ordered, and as they differ from one another, constitutions differ. There is one element which deliberates about public affairs; secondly that concerned with the magistrates- the question being, what they should be, over what they should exercise authority, and what should be the mode of electing to them; and thirdly that which has judicial power.”[1]

Separation of power basically means distribution of the powers and authority as well as responsibilities and duties amongst the three pillars of our nation that is, the executive, the legislature and the judiciary. It deals with the function of each organ of the state and its inference on other organ. India is a quasi-federal country.

MEANING

The French thinker Montesquieu stated, early in eighteenth century, that moving power in the hands of only one organ or group of the government is tyrannical. In order to address this problem, he felt that the solution would be to place power in three separate three arms of government, namely the legislature, the executive and the judiciary. This would make it possible for each body to be autonomous of the other in such a way that there can be no encroachment or overlapping of powers and that there could be harmony that would help the smooth functioning of the government.

These words state the Doctrine of Separation of Powers as given by Montesquieu, “There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing laws, that of executing public resolutions, and of trying the causes of individuals.”

Understanding that the function of a government is to safeguard individual rights but recognizing that governments have traditionally been the principal violators of such rights, a number of measures to reduce that likelihood have been developed. One such measure is of the separation of powers.

The premise behind Separation of Powers is that if a single person or community has a considerable amount of control, they can become harmful to the general public. Separation of powers is a way to minimize the momentum of power in the hands of any group, making abuse and arbitrariness more difficult to be brought into practice. It is generally accepted that there is a tripartite structure of government authority and power:

(i) Legislature (ii) executive (iii) judiciary.

As per the theory of the separation of powers these three powers and functions of the government must always be kept separate in a free democracy, exercised by separate Government organs.

DOCTRINE OF SEPARATION OF POWERS

As explained by Wade and Philips, The Doctrine of Separation of Powers indicates 3 features to showcase the Powers of Government:

I. The same person should not form part of more than one of the three organs (i.e. Executive, Legislature and Judiciary) of the Government. For example, ministers should not sit in Parliament.

II. One organ of the Government should not control or interfere with any other organ of the Government in carrying out its functions. For example, judiciary should not be independent of executive.

III. One organ of the Government should not exercise the functions dispensed to any other organ. For example, ministers cannot be the part of law making body.

Separation of powers means delegation of powers for certain specified functions of the government. All the powers of the government have been conceived as falling within one or another of given three modules-

(1) The enactment of creation of laws

(2) The interpretation of the laws made

(3) The enforcement of those laws

Namely, legislative, judicial and executive. Government has been reckoned to be made up of tripartite structure having for their functions and such classification is known as classical division.

IMPORTANCE

As it is a very generally accepted fact that whenever a huge amount of power is given in the hand of any administering authority there are higher probabilities of corruption, maladministration and misuse of power. This doctrine aids in preventing the abuse of power.  This doctrine shields the individual from the arbitrary rule. The government is the violator and also safeguards individual liberty.

Basically, the importance can be summarized in the following points:

  • Terminating the authoritarianism, it safeguards the liberty of an individual.
  • It not only protects the liberty of the individual but also preserves the efficiency of the administration.
  • Focus on the requirement of independence of the judiciary
  • Prevent the legislature from enacting an arbitrary rule.

THE TRIPARTITE STRUCTURE

Model is divided into three branches of state. All have separate powers and responsibilities but are inter dependent on each other. Let’s know about these branches in brief.

Legislature:

It is the law making body of the country.

It is the basis for the functioning of the other two organs, the executive and the judiciary.

It is also sometimes accorded the first place among the three organs because until and unless laws are enacted, there can be no implementation and application of laws.

Executive:

The executive is the organ that implements the laws enacted by the legislature and enforces the will of the state.

It is the administrative head of the government.

Ministers including the Prime/Chief Ministers and President/Governors form part of the executive.

Judiciary:

The judiciary is that branch of the government that interprets law, settles disputes and administers justice to all citizens.

The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.

It comprises of the Supreme Court, the High Courts, District and other subordinate courts.

INDIAN CONSTITUTION AND SEPARATION OF POWERS

The doctrine of separation of powers is not accorded a constitutional status. Apart from the Directive principles laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers. In India we have parliamentary form of government where executive is very important part of legislature. We don’t follow this doctrine with rigidity but then the essential functions have been sufficiently differentiated and it is an assumption that one organ of the state will not perform the functions of another organ of the state. Every organ of the state has to perform the essential functions, i.e. the legislature must legislate, the executive must execute and the judiciary must adjudicate.

CONCLUSION

There is no clear difference between executive and legislative forms of government: the legislation that is enacted must always be enforced and executed, and a great deal of executive intervention involves new legislation. Although, judiciary is an independent body.

As such, division can be said to be an artificial division. This is borne out by the fact that there is presently no constitutional system with a comprehensive separation of powers where there is a distribution of the three functions between three independent bodies without overlapping or cross-coordination.


[1]Aristotle- Politics- BOOK 4- Part XIV