SEPERATION OF POWERS IN INDIAN CONSTITUTION

INTRODUCTION-

Montesquieu’s writings in the spirit of the laws, where he discusses the division of governmental functions into three distinct branches to ensure that no branch intrudes into another’s territory, are where the theory of separation of powers first emerged. The three departments of government—the deliberative, ministerial, and judicial—were addressed by Aristotle in his work “Politics,” 1which is where the idea of separation of powers first emerged. Preventing the consolidation of power and establishing checks and balances were the real goals of implementing these principles. Compared to the Indian constitution, the American and Australian constitutions are much more inflexible and do not apply in either India or England.
India observes the separation of powers, however not to the same extent. In one way or another, the three primary branches of government carry out the duties of others. Since governments have traditionally been the main violators of people’s rights, the idea of separation of powers is a way to defend those rights. According to the Separation of Powers theory, a single individual or organization with significant authority may turn against the interests of the populace. One way to stop power misuse is through the separation of powers.

MEANING OF SEPARATION OF POWER

The principles of politics are followed by the theory of separation of powers. The idea behind this ideology is to stop the abuse of authority by the government. According to this theory, no branch of government may use its authority beyond what has been granted to it. This concept is founded on the following four principles:
• The Exclusivity Principle, which created three structural organs inside the government.

• The functional principle, which establishes the organs’ limits and states that no organ should carry out another’s duties.

According to the Check and Balance Principle, these organs should check one another to ensure that the tasks and responsibilities carried out are within the parameters of the constitution.
• The Mutuality Principle, which seeks to foster harmony rather than conflict, collaboration rather than conflict, and involvement rather than alienation.

MONTESQUIEU’S CONTRIBUTION

This doctrine’s premise is that no man should have all three of these powers. These should be split as follows: the legislative branch should create laws, the executive branch should administer them, and the judiciary should enforce the law and administer justice.

“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 the public resolutions, and of trying the cause of individuals.”

According to Montesquieu, decentralization of power is necessary to prevent arbitrary justice. There should be no overlap in the authority of the legislative, executive, and judicial branches; instead, each should function independently. He asserts that the fundamental presumption

CONCEPT SEPARATION OF POWER IN ANCIENT INDIA:

Although Montesquieu and Locke are credited with discovering the separation of powers, the Vedas are the source of this concept. Such a division can be found in the Smritis, which are the original source of Dharma, or law. We follow the fundamental idea of separation of powers in the Narad Smriti. At the time, Senapati was responsible for upholding law and order, Kaji was in charge of the judiciary, and Deewan led the executive branch of any legacy.

The King was the ultimate authority who made laws; therefore, he was comparable to the current form of legislature. However, we must keep in mind that they are all subservient to the King. In summary, it is revealed that there was a division of authority within a province or legacy in ancient times as well. Although the functions and powers have been divided, King is still seen as the ultimate authority over everyone.

SEPARATION OF POWER IN INDIA

Each of the three main governmental functions in India is carried out by a different organ. The legislature is in charge of creating laws, the executive branch is in charge of upholding them, and the judiciary is in charge of carrying them out. The main question that emerges is whether these organs should be strictly separated in their powers or if they should be dependent on one another. The Indian Constitution has provisions that distinguish between the powers of the government’s organs, but there are also strict rules that define the separation of powers in absolute terms. Although this idea is not specifically mentioned, it is implicitly observed in India.
The only provision in the constitution that discusses the division of powers between the government and the judiciary is Article 50, 3which outlines this division. It implies that the judiciary should exist independently of the executive branch. It highlights how important judicial independence is. In addition to preserving administrative effectiveness, it shields the populace from the executive branch’s capricious rule.

To protect the freedom of the people in society, this idea cautions the executive and administrative branches of government against interfering with the administration of justice and the rule of law. The division of authorities for particular governmental activities is known as separation of powers.

All of the government’s powers are thought to fit into one of three main categories: (1) passing laws, (2) interpreting existing laws, and (3) enforcing those laws. These categories are legislative, judicial, and executive. Three branches of government have been identified as having distinct roles, and this arrangement is known as the classical division. The assumption of the division of forces was not seen rigidly by the Indian Constitution’s framers. Nonetheless, administrative tribunals handle a lot of disputes that come up during the government process instead of regular courts. However, by upholding fundamental aspects of “fair judicial procedure,” the tribunals’ neutrality is preserved Analysis reveals that the president and the governors, respectively, have the executive authority of the union and the states under a number of Constitutional clauses, including Article 53(1) and 154(1). 4Under this plan, the president serves as the head of the Indian Union and, with the help and counsel of the Ministerial Council, performs his constitutionally granted authority under Article 74(1). The parliament, state legislatures, and the Supreme Court and other courts have not been granted unrestricted “legislative powers,” and the threefold separation of powers is only partially acknowledged. On this matter, India’s constitution has adopted a moderate stance. According to Article 50 of the Constitution, the state must take steps to keep the executive and judicial branches of its public services distinct. In addition, the constitution gives the President the authority to enact ordinances as part of his legislative authority, which covers all issues that fall under the purview of Parliament. According to Article 123, the President may issue an ordinance during the breaks of both houses of Parliament if he or she deems it necessary.
The Supreme Court upheld its sovereignty and its function as the Constitution’s watchdog in Minerva Mills’ case 5by declaring sections 4 and 5 of the 42nd Amendment Act 6to be extra vires. Regarding Section 4 of the aforementioned amendment, which aimed to remove the Court’s jurisdiction, Mr. N.A. Palikhivala noted that the measure was obviously beyond the Parliament’s amending authority. This shattered the legislatures’ power balance and attempted to deny the people the avenues of redress that Article 32 guarantees.

THEORY OF CHECK AND BALANCES

Despite not being expressly stated in the Indian Constitution, the concept of separation of powers is a fundamental component of its framework. Therefore, it cannot be violated by any statute or modification. For the three branches of government to operate effectively, the checks and balances system is necessary. The state’s many branches enforce checks and balances on one another. The only provision in the constitution that discusses the division of powers between the government and the judiciary is provision 50, which outlines this division. The function of checks and balances is to ensure that no branch of government grows too strong. The Indian Constitution ensures that the democratic values are upheld by the discretionary authority granted to any state organ. For example, the legislature has the authority to remove judges from office, but only if a two-thirds majority agrees.

The successful operation of the three branches of government depends on the checks and balances system. It ensures that no branch of the government grows too strong. For instance, laws are made by the legislative branch, passed by the executive branch, and then declared unconstitutional by the judiciary branch, which ensures that the bill does not become law. A judge who is not performing their duties effectively may potentially be removed by the legislative branch. Judges are appointed by the executive branch, while the legislative branch authorizes the executive branch’s selection. To ensure that no one branch has excessive authority, the branches once more check and balance one another. This sums up the concept of checks and balances.

THE CURRENT PRACTICES OF THE DOCTRINE OF SEPARATION OF POWER IN INDIA

The separation of powers is not defined in the Indian Constitution. The division of authority is implied but not explicitly stated anywhere. The Indian Constitution contains numerous sections that outline the appropriate separation of powers, notwithstanding the lack of explicit language outlining the differences between the three organs.

Article 50: The state will take action to keep the executive and judicial branches apart. Articles 122 and 212, which provide that the legitimacy of actions in Parliament and the Legislatures cannot be questioned in any court, are meant to ensure the independence of the judiciary.

According to Articles 53 and 154, respectively, the executive power of the Union and the State shall be vested in the President and the Governor, who are also immune from civil and criminal liability. This guarantees the legislatures’ separation and immunity from judicial intervention on the grounds of procedural irregularities. Article 361 7states that neither the governor nor the president may be held accountable in court for the use of their official authority or execution of their duties.

Legislature: In charge of enacting legislation and amending existing ones The Legislative Council will be overseen by the Council of Ministers, which will be selected from among the Legislature’s members. Article Removal of judges and impeachment of the president.
Executive: The highest executive power in the state, the Indian President, is the one who approves new laws. If he thinks a law is unfair, he has the option to reject it and not sign it. Additionally, he has the authority to consult with the Supreme Court of India under Article 143, pardon under Article 72, and exercise judicial powers under Article 123, Article 103(1), and Article 217(3). By appointing judges and the Chief Justice of India, the administration also has an impact on how the judiciary operates. It should be mentioned that the Chief Justice of India is chosen by the executive branch, which has an impact on the judiciary.

Judiciary: The Indian Constitution’s Articles 142 and 145 outline or discuss the judiciary’s authority, which establishes its independence. If a statute violates the Indian Constitution, the Supreme Court has the authority to declare it unconstitutional and to take necessary action against the executive. The Court will also examine any changes made to the laws. It was decided in Kesavananda Bharati v. State of Kerela8 that the Parliament could not change the clause in a way that went against its fundamental framework.

OBJECTIVE

Now let us have an overview of the fundamental concepts and objectives of separation of power: –
• First and foremost, it seeks to make the government more democratic and accountable by overcoming its authoritarianism, tyranny, and inconsistency.
Second, it enables a check on the various branches and sectors of government’s use of power, which further prevents these particular blocks from abusing their position of authority. The minimum and maximum requirements for these sectors are spelled out in detail in the Indian Constitution, and it is their responsibility to work within these parameters and complete their tasks. The constitution is the ultimate and sovereign embodiment of our nation, and if any thought or ideal tends to cause something to slip outside of its scope,
• Thirdly, each branch of government has its own responsibilities and must be solely focused on completing them. Therefore, the idea of separation of powers holds each branch accountable for its own responsibilities and serves as a check on all of them. Lastly, when each branch has a specific role to play, it allows each branch to refine their skills using their resources and make decisions.

• Fourth, the concept of separation of power divides the power into three segments so that instead of having a specific branch, which would lead to inconsistency, it makes it possible to have a balance of this power and makes the government more democratic and effective.
• Finally, assigning each branch a defined role allows them to develop their abilities using their resources and become experts in their position and duty. This is done with the goal of increasing, promoting, and multiplying the government’s efficiency.

ADVANTAGES OF SEPARATION OF POWER

The job is split among the three groups because the functions are separated. When all groups are working on different aspects at the same time, the job is more efficient and more work is completed in less time. It is essential to the state’s efficient operation. The subject matter specialists are chosen by the three organs. Working under their respective organs, the professionals are able to manage the tasks entrusted to them with efficiency, which guarantees that the job completed is exact and right. It clarifies and establishes the separation between the necessary labour and talents since the functions and tasks are segregated. The division establishes a methodical process for managing the nation. The separate division aids in eliminating job overlap, which prevents work from interfering with those of others. Additionally, since each organ has its own tasks, competition is eliminated. Because it offers a vital system of checks and balances that keeps power from concentrating, the separation of powers is crucial. It aids in the abolition of tyranny, totalitarianism, and arbitrariness while advancing a democratic and responsible system of governance. It strengthens the various branches’ accountability and control over one another, or “the checks.” It is known as “balances” because it distributes authority among the many branches of government to prevent administration from being centralized in one area. It keeps power from being abused and protects everyone’s freedom because when one person or group has unrestricted authority, it can lead to the repression of others and the limitation of their rights and abilities. By establishing clear limitations and bounds for every branch of government, it forbids the abuse of authority within the various organs. In order to increase the effectiveness of the government, it also permits each of the three branches to focus on their own areas of expertise. According to this theory, one branch of government takes over another’s authority.

DISADVANTAGES OF SEPARATION OF POWER

According to the idea behind the notion of the separation of powers, the legislative, executive, and judicial branches perform distinct roles that are not visible in everyday life. As part of the check-and-balance mechanism, the three roles do overlap. However, this clause might lead to more competitiveness and efficiency. Deadlocks and conflicts between two organs could result from the separation. Furthermore, it is impossible to assign a single type of power to a single body in practice. As a result, the theory is unfavourable and impracticable in its strictest sense.

INTERDEPENDENCE OF THREE POWERS

1. Executive over Legislative- When Parliament is not in session and a situation arises that calls for quick action, the President may promulgate an ordinance under Article 1239 that has the same legal effect as one adopted by the state legislature or by Parliament. The Executive uses delegated legislation to carry out its duties. Both Houses of Parliament are empowered to create rules governing their respective processes and business operations under Articles 118 and 208, subject to the Constitution’s provisions.

2. Judiciary over Legislative- The procedure by which the Legislature creates laws is referred to as judicial review, and it is discussed in Article 13. It alludes to the Judiciary’s authority to interpret the Constitution and, in the event that it is determined that a statute or executive order is unconstitutional, to declare it null and void. The Supreme Court and the High Court are granted legislative powers under Articles 145 and 225, which enable them to create regulations to govern their operations. In numerous cases, their rulings have demonstrated the development of laws and policies. The Vishakha rules10, for instance, were a regulatory guideline on sexual harassment issued by the Supreme Court.
3. Executive over Judiciary- The chief justice and other justices were appointed by the executive branch to carry out the Judiciary’s operations. The President may pardon, reprise, respites, or remit penalty, as well as remit or commute the sentence of any individual found guilty of any offense (must be judicial) in accordance with Article 71. In accordance with Articles 124 (2A) and 217(3), the President exercises his judicial authority by settling disagreements on the constitutional court judges’ retirement ages. The executive branch’s judicial tasks are also carried out by the Tribunal and other quasi-judicial entities. The Executive agencies have the authority to hear cases involving a specific future of any administrative activity and render decisions in administrative adjudication.

JUDICIAL APPROACH TOWARDS THE DOCTRINE OF SEPARATION OF POWER

In Ram Jawaya v. Punjab (1955) 11case, The Supreme Court ruled that the legislative branch is the source of the executive branch’s legitimacy. In India, cabinet ministers serve in both legislative and executive capacities. By requiring their assistance and counsel for the President, who is the official head of state, Article 74(1) gives the cabinet members the upper hand over the administration.
In Re Delhi Laws Act The Supreme Court’s seven-judge panel based its decision on the idea that one body shouldn’t carry out tasks that fundamentally belong to another. The court ruled that although if our Constitution does not specifically address the concept of separation of powers, it is clear in certain extraordinary situations. The three distinct branches of the state— the legislative, executive, and judicial branches—were likewise clearly distinguished in terms of their respective authorities, duties, and areas of authority.

In Ram Krishna Dalmia v Justice Tendolkar 12Even while our Constitution does not have explicit provisions for the separation of powers, the American Constitution does, according to the honorable Chief Justice SR Das. Nonetheless, our Constitution implicitly recognizes a certain amount of power sharing between the legislative, executive, and judicial branches.

In Keshav Singh v Speaker, Legislative Assembly 13Using the theory of separation of powers, the Supreme Court emphasized that Article 211 prohibits the state legislature from debating the actions of a High Court judge. The fundamental tenet of India’s constitutional framework is the existence of an independent and fearless judiciary, which does not grant the legislature the authority to take action against a judge for alleged contempt in the course of his duties under Articles 194(3) or 105(3).
In IC Golakhnath v State of Punjab 14The concept of separation of powers was highlighted by the Supreme Court. According to the then-C.J. Subha Rao, “The Constitution establishes various constitutional rights, including the Union, the State, and the Union Territories.”

Itestablishes the legislative branch, the executive branch, and the judicial branch—the three potent tools of authority. It carefully outlines their different spheres of influence and anticipates that they will use their authority within those bounds. They ought to operate inside the designated spheres.
In Indira Nehru Gandhi v Raj Narain15 The respondent asserted that Article-329A, which was added by the 39th Constitutional (Amendment) Act, 1975, violated the fundamental principles of the Constitution and hence was unconstitutional. The court ruled that the contested clause-4 of Article-329A was unlawful by applying the seminal ruling of Kesavananda Bharati. According to Justice Chandrachud, this amounts to a breach of the separation of powers principle since the Legislature is gaining control of the pure judicial role.
In Asif Hamid v State of Jammu and Kashmir 16In India, the concept of separation of powers was not as strict. Nonetheless, each organ’s constraints are predetermined because the legislative, executive, and judicial branches must operate within the parameters specified by the Constitution. The judiciary must have self-imposed disciplinary requirements while using its judicial review powers, even though it aids in checking the legislative and executive branches’ unconstitutional actions.

In Madras Bar Association v UOI 17the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT) violate the fundamental framework of the Constitution and the Legislature lacked the authority to delegate the courts’ judicial functions to the tribunals, which goes against the separation of powers doctrine, their constitutionality was contested. However, the court maintained that the establishment of NCL and NCLAT, as well as the authority and jurisdiction granted to these tribunals by the High Courts, are constitutional. According to the court, the fundamental structure theory solely applies to constitutional amendments; legislative actions are not covered by this basic framework doctrine.

The institution’s independence from the other branches of government is referred to here. Choosing members based on their honesty, skill, and caliber would be an example of functional independence. Additionally, it guarantees the Judiciary’s independence from executive pressure and shields it from other branches’ involvement, thus strengthening the separation of powers.

OBSTACLE TO ADMINISTRATIVE LAW

A subset of public law known as administrative law regulates the composition, authority, and duties of administrative agencies. The three branches of government are defined by the concept of separation of powers. Administrative law, however, is no longer consistent with this idea. In addition to carrying out administrative duties, the administrative agencies also carry out quasi-judicial and quasi-legislative duties, which may be against the separation of powers doctrine. Delegating further legislative and judicial functions to administrative bodies is now a must in order to ensure competent law enforcement and establish an efficient and adroit government. The purpose of these tribunals’ creation was to lessen the workload for the courts and lawmakers. Additionally, it will expedite the legislative process and deliver justice on time. However, because it restricts administrative law, this is not feasible if the theory of separation of powers is adhered to strictly.

CRITICSM

Every doctrine has two sides to its consequences, just as every pointy end has a dull side. Even while the idea of dividing power into three heads may seem fantastic, it is not appealing when applied in the actual world because this is the moment when the brutal side of things becomes apparent. When we try to distinguish between these three heads—legislature, executive branch, and judiciary—a dilemma occurs. Cohesion and collaboration among these powers are necessary for a government to function correctly and promptly. A system breakdown or even inefficient government operations could result from attempting to have these sectors operate separately. Let’s now assume that we embrace this concept in its entirety. In particular and certain matters, it will render it nearly hard to proceed and take action. In this sense, the legislative, which has the authority to assign authority, cannot do so for the executive branch, which may possess the origins and knowledge of any topic under consideration. Additionally, the courts that rule and create rules for everything will not be able to do the same for the courts and their operations.
. It is the responsibility of the state to take the initiative and strive for the well-being and prosperity of its citizens in the current systemic global environment. In any case, it must be able to resolve problems in society, whether they are simple or complicated. Therefore, the separation of powers does appear and appear to be impossible when taken into account. This implies that the ideology will not be able to accomplish the goals of the contemporary state as long as its strict and inflexible ideas are enforced. Thus, it may be said that power separation is both practically and conceptually impossible. Montesquieu, whose goal was to guarantee an individual’s freedom and liberty while preserving and protecting it, supported this viewpoint. However, if the strict principles of separation of powers are in effect, this is completely impossible.

CONCLUSION

The separation of powers thesis, which is at issue, needs to be evaluated not just objectively but also in light of its true intent. Particularly in this day of globalization, anarchy, and privatization, the only way to completely extract its significance is to have a wider perspective and examine it within a broad context. It should be used in a positive spirit of unification, collective enhancement, and for the greater good of the people rather than being limited to the idea of being used as a medium of categorization, especially in a strict manner. One could argue that this concept is incompatible with its literal meaning, but it can still function effectively by emphasizing the checks and balances that are in place to make the government a good one in its true form and enable the elimination of power abuse and manipulation by the various branches and areas of the government. It is evident that states do not adhere to the separation of powers idea strictly, and doing so is highly impracticable. India uses this theory to monitor and control the operations of the three branches of government. The notion of separation of powers must be a fundamental component of the constitution for a democracy to function effectively, but it shouldn’t be applied rigidly.

REFERENCES

1. Bakshi, P.M. ‘The Constitution of India’, Universal Law Publishing Co. Pvt. Ltd. (2005).

2. Basu, D.D. ‘Administrative Law’, Kamal Law House, Kolkata, Sixth Edition, 2004.

3. Somnath Chatterjee, “Separation of Powers and Judicial Activism in India”, Indian Advocate, vol. 3435, 2006-2007.
4. Akhtar Majeed, “Separation of Powers Vs Judicial Activism: Crisis of Governance”, Indian Journal of Federal Studies, 2008.
5. Justice J.N. Bhatt, “Separation of Powers: The Role of Judicial Review Juristic or Forensic? Evolving or Elusive?” vol. 86, A.I.R. 1999.
6. Massey, I.P. ‘Administrative Law’, Eastern book Company Lucknow Sixth Edition (2005).

7. Basu, D.D.‘Administrative Law’, Kamal Law House, Kolkata, Sixth Edition, 2004 Jain,
M.P. ‘Indian Constitutional Law’, Wadhwa and company, Nagpur, Fifth Edition, 2005.

8. Gwyn, W. B. (1965). The Meaning of the Separation of Powers.