Separation of powers refers to the division of a state’s government into “branches”, each with separate, independent powers and responsibilities so that the powers of one branch are not in conflict with those of the other branches.
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Separation of power – Constitutional Provisions
- Article 50: Provides that the State shall take steps to separate the judiciary from the executive in the public services of the State.
- The Indian Constitution explicitly states that in Article 53(1) and Article 154 the President and Governor respectively, have executive powers over the Union and the States.
- Articles 122 and 212: The legality of Parliamentary and legislative processes cannot be questioned in any court.
- Article 361: states that the President or Governor is not liable to any court for the exercise and performance of his or her powers and duties.
Evolution of Separation of Power
- The doctrine of separation of powers has emerged in several forms at different periods. Its origin is traceable in Plato and Aristotle, in the 16th and 17th centuries, French philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers.
- But it was Montesquieu who for the first time formulated this doctrine systematically, scientifically and clearly in his book “Esprit des Lois” (The Spirit of the Laws), published in the year 1748.
- Montesquieu divided the government into legislative, executive and judicial functions. He understood legislative power as an activity of declaring the general will of the state. He apprehended the executive power as that of executing the public resolutions embodying the general will of State. Similarly, he understood judicial power as the power of deciding civil and criminal cases. Out of all, Montesquieu considered judicial power to be frightening as it has the power to harm a subject’s life, liberty or property.
Separation of power in Ancient India
The roots of separation of power are also found in Vedas. Narad Smiriti has the very principle of separation of power. In those days, Deewan was head of the Executive wing. Senapati maintained law and order and Kaji was the judicial head. However, their positions were all subordinate to a king, who was the supreme authority. King was the one who made laws and can be compared to the present form of legislature. Hence, in ancient times also, one can find a separation of powers and functions.
Need for Separation of Power
- Separation of powers preserves a balance among the three branches of government by dispersing powers among them. This prevents powers from concentrating in one branch, which could lead to arbitrariness.
- It ensures that the government stays fair and accountable.
- The main idea behind separation of power is mutual restraint in the exercise of powers by the three organs of the state, not impenetrable barriers and immutable borders.
Issues with Separation of Power
- Judiciary Being Averse to Checks & Balances: The Supreme Court has held the 99th constitutional amendment, which provided for the establishment of the National Judicial Appointments Commission as ultra-vires.
- Judicial Activism: In many recent judgments, the SC has become hyper-activist in making judgements that are deemed as laws and rules. This transgresses the domain of legislature and executive.
- Executive Excesses: The executive in India is alleged of over-centralisation of power, weakening of public institutions and passing laws to strengthen law, order & security of the state but curbing freedom of expression as well.
Important Judgements on Separation of Power
Kesavananda Bharati Case (1973): In this case, the SC held that the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic features will be declared unconstitutional.
Ram Jawaya Kapoor vs State of Punjab: SC held 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.
Indira Nehru Gandhi vs Raj Narain: SC observed that in the Indian Constitution, there is a separation of powers in a broad sense only. A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India.
