Separation of Powers between various organs

Meaning of Separation of Powers:

The theory of separation of powers advocates that the three powers of the government should be used by three separate organs. Legislature should use only law-making powers, Executive should undertake only law-enforcement functions, and Judiciary should perform only adjudication/ judicial functions. Their powers and responsibilities should be clearly defined and kept separate.

 

In general, the meaning of separation of power can be categorized into three features:

  • Person forming a part of on organs should not form the part of other organs.
  • One organ should not interfere with the functioning of the other organs.
  • One organ should not exercise the function belonging to another organ.

 

Quote:

“I say, that Power must never be trusted without a check.” ― John Adams.

In his book, ‘The Spirit of the Laws’ (1748), Montesquieu enunciated and explained his theory of separation of powers. If the legislative and executive powers are combined in the same organ, the liberty of the people gets jeopardized because it leads to tyrannical exercise of these two powers.

 “Power corrupts and absolute power tends to corrupt absolutely” – Lord Action.

 

Constitutional Provisions:  

 

Need For Separation of Power

  • When the power of the government is concentrated in one hand there are chances of maladministration, corruption, nepotism and abuse of power.
  • Hence there is a need for Separation of power to prevent autocratic rule in the country, helps create an efficient administration, prevents the legislature from enacting arbitrary or unconstitutional laws and to safeguard the individual liberty.

 

Functional Overlap Among Organs of the Government

 Overlapping Powers of Legislature:

With JudiciaryWith Executive
  • Impeachment and the removal of the judges.
  • Power to amend laws declared ultra vires by the Court and revalidating it.
  • In case of breach of its privilege and it can punish the person concerned.
  • The heads of each governmental ministries are members of the legislature.
  • Through a no-confidence vote, it can dissolve the Government.
  • Power to assess the works of the executive.
  • Impeachment of the President.
  • The council of ministers on whose advice the President and the Governor acts are elected members of the legislature.

 

Overlapping Powers of The Executive:

With JudiciaryWith Legislative
  • Making appointments to the office of Chief Justice and other judges.
  • Powers to grant pardons, reprieve, respite or remission of punishments or sentence of any person convicted of any offence.
  • The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial functions.
  • Power to promulgate ordinance which has the same force of the Act made by the Parliament or the State legislature.
  • Authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution.
  • Powers under delegated legislation.

 

Overlapping Powers of The Judiciary:

With ExecutiveWith Legislative
  • Under Article 142, the Supreme Court functions as an Executive in order to bring about the complete justice.
  • Judicial review, i.e. the power to review executive action to determine if it violates the Constitution.
  • Unamendability of Constitution under basic structure.

 

Overlapping Powers of The Executive:

With JudiciaryWith Legislative
  • Making appointments to the office of Chief Justice and other judges.
  • Powers to grant pardons, reprieve, respite or remission of punishments or sentence of any person convicted of any offence.
  • The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial functions.
  • Power to promulgate ordinance which has the same force of the Act made by the Parliament or the State legislature.
  • Authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution.
  • Powers under delegated legislation.

 

Overlapping Powers of The Judiciary

With ExecutiveWith Legislative
  • Under Article 142, the Supreme Court functions as an Executive in order to bring about the complete justice.
  • Judicial review, i.e. the power to review executive action to determine if it violates the Constitution.
  • Unamendability of Constitution under basic structure.

Issues with Functional Overlapping:

  • Unaccountability:One of the demerits of overlapping powers, is that a particular organ cannot be held accountable for its decisions. Eg. Judicial verdicts in 2G and Coal Block allocation case.
  • Erosion of faith:Repeated interventions of one organ into another’s functioning can diminish the faith of the people in the integrity, quality, and efficiency of the other organs.
  • Accumulation of power:It undermines the spirit of democracy as too much accumulation of powers in organs of government undermines the principle of check and balance.
  • Adverse effect on development:Excessive infringement on each other jurisdiction may impede smooth functioning of government and hinder public service and overall development.

 

Checks and balances:

There is a system of checks and balances wherein the various organs impose checks on one another by certain provisions. Checks and balances ensure that no one organ becomes all-too powerful. The Constitution guarantees that the discretionary power bestowed on any one organ is within the democratic principle.

  • The judiciary has the power of judicial review over the actions of the executive and the legislature.
  • The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
  • It can also declare unconstitutional executive actions as void.
  • The legislature also reviews the functioning of the executive.
  • Although the judiciary is independent, the judges are appointed by the executive.
  • The legislature can also alter the basis of the judgment while adhering to the constitutional limitation.

 

Judicial Pronouncements on Separation of powers:

 

Comparison of Separation of Powers in USA

  • The doctrine of separation of powers forms the foundation on which the whole structure of the constitution is based. It has been accepted and strictly adopted in U.S.A.
  • The doctrine of separation finds its home in U.S. It forms the basis of the American constitutional structure.
  • Article I vest the legislative power in the congress; Article II vests executive power in the President and Article III vests judicial power in the Supreme Court.
  • The framers of the American constitution believed that the principle of separation of powers would help to prevent the rise of tyrannical government by making it impossible for a single group of persons to exercise too much power.
  • Accordingly, they intended that the balance of power should be attained by checks and balances between separate organs of the government.
  • This alternative system existing with the separation of prevents any organ to become supreme.

 

Conclusion:

In the Indian situation, the principles of constitutional restraint and confidence have been implemented in such a manner that no institution can, by means of a specific or necessary clause, usurp the duties or powers delegated to another institution and cannot detach itself from the basic roles that belong to the organ in compliance with the Constitution.

A Parliamentary structure with a rigid division of powers is unnecessary and unsustainable for a democratic politics and complex population such as India. Nevertheless, the institutional partnership of the three government institutions is feasible with judicial and measured constitutional functional overlap. Such cooperation bridges the legislative, executive and judicial divide that makes Government operate smoothly.

 

Practice Question:

Discuss whether separation of power in India, as provided by the constitution, is rigorous and whether it is more of a separation of functions rather than separation of power? (250 words)

 

What is separation of powers in the Constitution? Discuss the concept of checks and balances reflected in Indian Polity. (250 words)