SEPERATION OF POWER AND ITS RELEVANCE

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This article is written by Cinta Johnson, an intern under Legal Vidhiya.

Abstract

The division of powers is a basic tenet of every functioning democracy, which seeks to avoid any one part of government from becoming too dominant. Charles de Montesquieu proposed the idea of separation of powers in his book “Esprit des Louis” and was the first to explain it scientifically. In India, the executive branch is responsible for carrying out the will of the people by executing the country’s laws and presiding over the day-to-day operations of the government. The President of India acts as both the country’s ceremonial head of state and the leader of the executive branch and is subject to checks and balances from the legislative and judicial branches. The Indian judicial system is made up of a hierarchy of courts, with the Supreme Court at the top and lesser courts at the district and state levels. It serves as a forum for settling legal issues and putting wrongdoers to account. Separation of power in the Indian Constitution places a duty upon the State to separate the judicial from the executive, which is a cornerstone of representative democracies. The doctrine of separation of powers is a system of checks and balances that promotes the rule of law and protects individual rights and freedoms. It prevents the concentration of power in the hands of a few individuals or groups, which can lead to tyranny and oppression. However, it can lead to gridlock and inefficiency, and governments must be carefully designed and implemented with oversight and accountability mechanisms.

Introduction

The division of powers is a basic tenet of every functioning democracy. The goal is to avoid any one part of government from becoming too dominant and dominating the others by delegating authority and responsibility to diverse parts.

This article will investigate the historical background, theoretical foundations, and contemporary applications of the principle of separation of powers in various forms of government. Blackstone, a British jurist, and the founding fathers of the American constitution particularly Madison, Hamilton, and Jefferson extended their full support to the theory of separation of powers. This paper will also discuss some of the challenges and limitations of the separation of powers, as well as its ongoing relevance in the context of globalisation and other contemporary challenges. They believed that preserving individual freedom required a system known as “Separation of Powers,” which held that the legislative, executive, and judicial branches of government should operate independently from one another. As a result, the legislative branch cannot usurp the authority of the executive or the judicial branch, and vice versa.History the idea of separation of powers has its origins in the political thought of Enlightenment authors like Montesquieu and Locke.

The separation of powers, according to these theorists, is crucial for avoiding totalitarianism and protecting citizens’ rights to freedom. In particular, Montesquieu argued that checks and balances between the legislative, executive, and judicial branches of government were necessary, and that such checks and balances should be kept separate. The concept of separation of powers was first put into practise in the United States, where it was enshrined in the Constitution to prevent the concentration of power in any one branch of government. The principle of separation of powers, first established in the United States, has been adopted in various forms by many other countries around the world. In the United States’ system, the legislative branch is responsible for making laws, the executive branch is responsible for carrying them out, and the judicial branch is responsible for interpreting and determining their constitutionality.

Theoretical Foundations

The principle of separation of powers is based on several key theoretical concepts, including checks and balances, accountability, and the rule of law. For example, in the United Kingdom, the executive branch is led by a prime minister who is accountable to the legislature, while in France, the president is elected independently from the legislature. The division of powers aids in setting up distinct lines of authority and preventing abuses of power by separating them among different parts of government. Moreover, the division of powers may be considered as a bulwark against corruption and abuse of power, since it serves to guarantee that all branches of government are answerable to one another and to the people they serve. Charles de Montesquieu used the phrase “separation of powers” or “trias-politica” to describe the system of checks and balances put in place to prevent any one arm of government from becoming too powerful or unfettered in its exercise of authority. Greeks originally adopted it, and subsequently Romans utilised it extensively as the basis for their own Constitution. It may be traced back to Aristotle and Plato, who included it as one of their wonders.

Justice Bodin, a French philosopher, shared the views of British statesman John Locke and others of the 16th and 17th centuries. When French scholar Montesquieu proposed the idea of separation of powers in his book “Esprit des Louis,” published in 1747, he was the first to explain it scientifically, properly, and systematically in his book “Esprit des Lois” (The Spirit Of Laws), published in the year 1785. (What the laws are supposed to represent in principle). Montesquieu observed that a dictatorial government arises when authority is vested in an individual or small group. To prevent this problem and rein in the government’s arbitrary character, he advocated for a distinct separation of powers among the three branches of government: the Executive, the Legislative, and the Judicial.

The separation of powers is defined in three ways by Wade and Phillips: (1) no branch of government should perform the functions of another, such as giving ministers legislative authority; (2) no branch of government should exert control over or interfere with the performance of the functions of another; and (3) no individuals serving in different branches of government should have overlapping or conflicting responsibilities.

Legislatures

Legislatures are normally made up of legislators elected to serve a certain period of office, and their roles might vary based on the country’s constitutional structure and political system. The legislative body of certain nations has more authority than the executive since it draughts laws, passes budgets, and monitors the president’s performance.

The legislative branch normally consists of two houses, the lower house (or “senate”) and the upper house (or “house of representatives”), however in other systems the executive branch has greater power and the legislature just acts as a check on the administration’s authority. The lower chamber is usually bigger and more broadly representative of the population than the upper chamber, and goes by names like the House of Representatives, the House of Commons, or the Assembly. The upper house is usually smaller and more exclusive than the lower house, and goes by names like the Senate, House of Lords, or Council also known as Lok Sabha and Rajya Sabha in India. The constitution or other legal frameworks usually spell out the exact makeup of the legislature, as well as the norms and procedures controlling its operation. The legislative body may have only one chamber (unicameral) or two (bicameral) depending on the circumstances. The legislature is one of the three branches of government in a democratic system; the others are the judiciary and the executive. The legislature’s specific powers and responsibilities may be defined by law, constitutional convention, or other sources of authority.

Executive Branch

Executive Branch in charge of enforcing the laws and running day-to-day government operations. In India, the executive branch of government is in charge of carrying out the will of the people by executing the country’s laws and presiding over the day-to-day operations of the government. The President of India acts as both the country’s ceremonial head of state and the leader of the executive branch. The Prime Minister of India serves as the country’s head of government and the leader of the dominant political party or coalition. Several government organisations and departments in India are charged with carrying out the Prime Minister’s policies and programmes. Many ministries, such as those of home affairs, finance, and defence, report directly to the President of India, who is chosen by an electoral college made up of members of parliament and the legislative assembly of the states. While the President does have certain discretionary powers, such as the ability to pardon criminals and appoint officials, this office is mostly ceremonial, with the actual authority in the executive branch resting with the Prime Minister and the Council of Ministers. The President of India appoints the Prime Minister, who is usually the head of the political party or coalition that has the most seats in the Lok Sabha (the lower house of parliament). The executive branch in India is subject to checks and balances from other branches of government, such as the judiciary and the legislature.

Judiciary

The judiciary is in charge of constitutional interpretation and making sure the government stays within the law. Overall, the executive branch in India plays an important role in the functioning of the government and is responsible for implementing policies that affect the lives of citizens. The legislature, comprised of the Lok Sabha and Rajya Sabha, is responsible for passing laws and holding the executive branch accountable for its actions. In most countries, the executive branch is headed by the president or prime minister, who appoints and oversees the heads of the various government departments and agencies.

This branch is subject to checks and balances from the legislative and judicial branches, which helps to ensure that the government acts in the best interests of the people. The executive branch includes the president or prime minister, who is also the head of state and, in certain cases, has the authority to veto legislation approved by the legislature. The judiciary, on the other hand, is responsible for interpreting laws and evaluating their validity. It is normally independent of the executive and legislative branches and works to limit their authority. The judicial system is in charge of settling disagreements between private parties and between the government and its constituents. Typically, a system of courts is established, with the highest court at the top and smaller courts below it. The highest court has the authority to interpret the constitution and other laws, and hears appeals from lesser courts. Depending on the country’s legal system and political structure, lower courts may only have jurisdiction over certain types of cases or restricted geographic areas. The task of interpreting the law and applying precedents to new instances falls on the shoulders of the judiciary in common law systems like the United States. Judges in civil law systems, like those used in many European nations, are responsible for applying a body of codified rules to specific circumstances.

The court is often seen as an unbiased and autonomous institution, unaffected by political pressure. This ensures the rule of law is maintained and the court can serve as a check on executive and legislative overreach. Yet, the judiciary is a vital part of our system, and its decisions should be free from political pressure and bias if they are to defend the rule of law and provide justice for all citizens. The judiciary is the arm of government in India that is in charge of interpreting and implementing the country’s laws. It serves as a forum for settling legal issues and putting wrongdoers to account. The Indian judicial system is made up of a hierarchy of courts, with the Supreme Court at the top and lesser courts at the district and state levels. Being an independent and impartial institution, it plays a crucial role in maintaining the rule of law and providing justice to everyone. The Supreme Court is the highest court of appeal and has the authority to hear appeals from lower courts as well as original jurisdiction in certain types of cases. Below the Supreme Court are the high courts of each state, which are responsible for hearing appeals from lower courts within their respective jurisdictions. Each supreme court oversees a certain area of the country or set of states, while lower courts at the district level hear civil and criminal cases. The Indian judicial system consists of many courts, such as district courts, family courts, and specialised courts, all of which adhere to the values of justice, equality, and fairness. All Indian citizens are guaranteed by the country’s constitution to receive a fair trial and equal justice under the law. In India, the judiciary is also responsible for interpreting the Constitution and making sure that laws passed by the legislature are consistent with constitutional principles, so they play a crucial role in protecting these rights and making sure that the government and other institutions follow the rule of law.[1][2]

Separation of Power in Indian Constitution

The India Constitution mentions separation of power in Article 50 in This article places a duty upon the State to separate the judicial from the executive. This helps to guarantee that the government works within its constitutional limitations and that the rights and freedoms of citizens are maintained. However, this is not binding because it violates the Directive Principles of State Policy.[3] Articles 53 and 154 state that the President and the Governor shall have the executive power of the Union and the State and shall be immune from civil and criminal liability.[4] Articles 121 and 211 state that the legislatures shall not discuss the conduct of a judge of the Supreme Court or High Court. Article 123 in it the President, as the country’s executive head, is authorised to exercise legislative powers (promulgate ordinances) under specific circumstances; [5]Article 361 in this the President and Governors enjoy immunity from court proceedings; neither shall be answerable to any court for the exercise or performance of the powers and duties of his office. The notion of separation of powers is based on the idea that no single branch of government should have too much authority over the others.[6]

Role of Judiciary in Ensuring Separation of Power

The Supreme Court through various judgements have explained the concept of In P Kannadasan V State of Tamil Nadu, it was held that “the Constitution has invested the Constitutional Courts with the power to invalidate laws made by Parliament and the state legislatures transgressing Constitutional limitations. If a court rules that a legislation the legislature passed is unconstitutional because of legislative ineptitude, the legislature cannot pass a statute saying that the ruling is null and void. Yet, this does not preclude the competent legislature from enacting the legislation again. Similarly, if the legislature disagrees with the foundation of the judgement, it can change it. It is possible to contest a new or revised statute on other grounds, but not on the basis that it attempts to in effectuate or circumvent a judicial ruling. This is what is meant by the “checks and balances” under a form of government that incorporates separation of powers, as remarked by the Chief Justice of India.[7]

In the case of Indira Nehru Gandhi v. Raj Narain Indira Nehru Gandhi v. Raj Narain. India’s Constitution does not mandate the same kind of strict separation of powers as in the United States’ or Australia’s. The Court further decided that resolving a particular issue is a judicial role that Parliament, even while using its right to change the Constitution, cannot do. There are challenges to enforcing a rigorous separation of powers in the current functioning of government, and there are also challenges to defining the division of powers into the executive, the legislature, and the judiciary in ways that are practical. [8]

Importance of the Separation of Powers Doctrine

The theory of separation of powers is a cornerstone of representative democracies. The doctrine of separation of powers is based on the idea that government authority should be delegated to separate branches with specific responsibilities to prevent any one branch from becoming too powerful and abusing its authority.

The doctrine’s significance lies in its ability to prevent the concentration of power in the hands of a few individuals or groups, and in ensuring that each branch of government is held accountable for its actions. Some of the most important advantages of the doctrine of separation of powers are as followed. Protecting individual rights and freedoms by separating the powers of government, the doctrine of separation of powers helps to prevent any one branch from becoming too powerful and violating the rights and freedoms of citizens.by promoting the rule of law by establishing a system of checks and balances, the doctrine of separation of powers helps to ensure that all citizens are treated equally under the law. This doctrine of separation of powers ensures that each branch of government is held accountable for its actions by separating the powers of government among different branches, such as the judicial branch striking down laws that are deemed unconstitutional and the legislative branch passing laws to protect the rights and freedoms of citizens.

The doctrine of separation of powers helps to prevent the concentration of power in the hands of a few individuals or groups, which can lead to tyranny and oppression. As an example, the executive branch is accountable to the legislative branch, which has the power to impeach the president or prime minister for abuses of power. The doctrine of separation of powers ensures that authority is divided across government, which helps to promote democracy and protect the rights and freedoms of citizens. Protection of liberty and rights According to the doctrine of the separation of powers, an individual’s freedoms and rights are protected, and they are shielded from various types of dictatorship and oppression. Sometimes there is simply too much work for any one government agency to manage. This is because the burden placed on each arm of government is reduced by the principle of separation of powers, which also encourages order in administration. If the idea were fully adhered to, everyone would be responsible for doing their own thing. This ensures the state is managed in a methodical fashion, and it prevents arrogance and misuse of power by those in positions of leadership. A dictatorship can’t take hold since power is spread around to different divisions. The plan makes sense since it limits the power of dictators. The proposal prevents an excessive concentration of power in any one governmental agency. Avoids the temptation to abuse power; achieves judicial independence.

Judicial independence is the principle that the judicial branch should operate independently from the executive, legislative, and judicial branches. Almost wherever you look, the constitution makes it clear that the judiciary has the final say on constitutional questions and can declare the actions of the other arms of government to be null and void. As a whole, the theory of separation of powers is an important tenet of democratic systems of government, since it helps to guarantee that power is dispersed among different departments of government and that each branch is held accountable for its activities. It’s crucial for stopping oppression and tyranny and preserving people’s freedoms and rights.

Challenges of Separation of Power

Although the division of powers has many positive effects, it also has certain drawbacks. One of the most difficult tasks is preventing one arm of government from infringing on the responsibilities of another. Moreover, some critics argue that the separation of powers can lead to gridlock and inefficiency, especially in systems where the branches of government are highly polarised or where there is a lack of trust and cooperation between them. To address these concerns, governments must be carefully designed and implemented, with ongoing oversight and accountability mechanisms to ensure that each branch is carrying out its responsibilities appropriately. Although this theory is based on the equality of powers assumption, this premise contains weaknesses that might hinder the government’s capacity to enact legislation or make key decisions, limiting its ability to solve pressing concerns and adapt to changing circumstances. Separation of powers is one component that contributes to liberty, but it is not the only one.

Under a presidential system, the executive branch has the greatest authority, whereas in a parliamentary system, the legislative branch, which represents the people, has the most power. A free society depends on many things, including the beliefs and ideas of its citizens, their level of political education, the strength of their government, the impartiality of its courts, the distribution of wealth, and many other things. Providing for the public good with problem-solving and crisis management is essential. This has resulted in an imbalance of power among the three branches of government and an expansion in executive power. The doctrine of separation of powers in its closest sense is considered as undesirable and impracticable since planning, security, and welfare need the “fusion” rather than the “division” of authorities. This means that it is not universally recognised by any country. Its significance, however, lies in the attention it draws to the need for checks and balances to prevent the abuse of the executive branch’s extensive authority.

Conclusion

The principle of separation of powers is an essential part of democratic governance, and discussions of its continued application and evolution will continue to be central to the fields of political science and law. The separation of powers promotes openness, integrity, and accountability in government by separating authority among distinct parts to prevent any one branch from becoming too powerful or dominating the others. There are several caveats to the separation of powers, and the idea will only remain effective through continued investigation and debate.[9]

Reference