Theory Of Separation Of Powers

Charles-Louis de Secondat, Baronde La Brède et de Montesquieu, an 18th century French social and political philosopher, coined the term "triaspolitica" or "separation of powers." His book, Spirit of the Laws, is regarded as one of the most important works in the history of political theory and jurisprudence, and it served as the inspiration for the Declaration of the Rights of Man and the United States Constitution. His model divides the state's political authority into legislative, executive, and judicial powers. 

 

He claimed that for these three powers to be most effective in promoting liberty, they must be separate and act independently. Separation of powers is the division of government responsibilities into distinct branches with the goal of preventing one branch from performing the core functions of another. The goal is to prevent power concentration and establish checks and balances. Under the theory of separation of powers, the traditional characterizations of the powers of the various branches of government are as follows:

 

• The legislative branch is in charge of enacting state laws and appropriating the funds required to run the government.

 

• The executive branch is in charge of carrying out and administering public policy that has been enacted and funded by the legislative branch.

 

• The judicial branch is in charge of interpreting the constitution and laws, as well as applying those interpretations to disputes that come before it.

 

While separation of powers is necessary for government to function, no democratic system has an absolute separation of powers or no separation of powers at all. Governmental powers and responsibilities are intentionally overlapping because they are far too complex and intertwined to be neatly divided. As a result, there is a natural level of competition and conflict among government branches. For example, there has been an ebb and flow of supremacy among the governmental branches throughout American history. Such encounters suggest that determining where power resides is a natural part of the evolutionary process.

 

On a cursory examination of the provisions of the Indian Constitution, one might conclude that the doctrine of separation of powers is accepted in India. Executive powers are vested in the President, legislative powers in Parliament, and judicial powers in the judiciary, according to the Indian Constitution.

The President's role and powers are spelled out in the Constitution. Parliament has the authority to enact any law subject to the Constitution's provisions, and its legislative power is unrestricted. The Judiciary is autonomous in its field, and neither the Executive nor the Legislature can interfere with its judicial functions. The Supreme Court and the High Courts have judicial review powers, meaning they can declare any law passed by Parliament or the Legislature unconstitutional. Some jurists believe that the doctrine of Separation of Powers has been accepted in the Indian Constitution as a result of these factors.

 

However, a careful examination of the Constitution reveals that the doctrine of Separation of Powers has not been accepted in India in its strict sense. Not only is there functional overlap in India, but there is also personnel overlap.

 

Ram Jawaya v State of Punjab was the first major case in which the judiciary addressed the doctrine of separation of powers. In the case at hand, the court concluded that the doctrine of separation of powers was not universally accepted in India. Furthermore, Mukherjea J.'s viewpoint supports the claim that the above-mentioned doctrine is not universally accepted in India. He claims 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 branches of the government 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 belong to another”.

 

Then, in Indira Nehru Gandhi v. Raj Narain, a Supreme Court case involving a dispute over the Prime Minister's election, it was decided that adjudication of a specific dispute is a judicial function that parliament cannot exercise, even if it has constitutional amending power. The main reason the amendment was declared ultra vires was that when the constituent body declared that the election of Prime Minister would not be void, it discharged a judicial function that it shouldn't have done under the separation of powers principle. After this decision, the place of this doctrine in the Indian context became a little clearer.

 

In Keshavananda Bharti v State of Kerala, the Supreme Court held that amending power was subject to the Constitution's basic features. As a result, any amendment that modifies these fundamental features will be declared unconstitutional. Separation of powers is part of the constitution's basic structure, according to Beg J. None of the republic's three separate organs can take over the functions of the others. As a result, the court's position on the doctrine of separation of powers was strengthened.

 

We follow a separation of functions rather than a separation of powers in India. As a result, we do not adhere to the principle in its strict form. As a result, India lacks the strict separation of powers that exists in the United States.

 

The framers of the United States Constitution divided the powers and responsibilities of the new federal government into three branches: the legislative branch, the executive branch, and the judicial branch, based on the ideas of Polybius, Montesquieu, William Blackstone, John Locke, and other philosophers and political scientists over the centuries.

 

In addition to the separation of powers, the framers established a system of checks and balances to prevent tyranny by ensuring that no branch of government seized too much power.

“If men were angels, no government would be necessary,” James Madison wrote in the Federalist Papers, of the necessity for checks and balances. “In framing a government which is to be administered by men over men, the great difficulty is this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

 

In tripartite governments, such as the United States or India, where powers are divided among the legislative, executive, and judicial branches, checks and balances are essential. Under parliamentary systems, checks and balances can be used to modify the separation of powers by using a parliament's prerogative to pass a no-confidence vote in a government; the government, or cabinet, can then dissolve the parliament. Similarly, the executive appoints judges, while the legislature's laws are challenged in constitutional or supreme courts. The judiciary has the power to issue writs against the executive branch. The judges can be removed from office if the parliament issues an address. As a result, the other two control every government organ.