0Symbiosis Int?rnational Univ?rsity, Pun?CONSTITUTIONAL LAW IInt?rnal ITOPIC- DOCTRIN? OF S?PARATION OF POW?RSubmitt?d by:Pulkit D?vpuraPRN-17010122069Batch: 2017-2020Symbiosis Law School, Pun?1INTRODUCTIONTh?r? is an und?rlying conn?ction b?tw??n th? principl?s of rul? of law and s?paration ofpow?r. In a syst?m gov?rn?d by rul? of law th?r? should not b? any absolut? pow?r b?ing runat th? whims of th? on?s having th? sourc? of th? sam?.515 Th?r?for? if th?r? is no sourc? ofpow?r in th? first plac?; th?n chanc?s of th? pow?r b?ing ?x?rcis?d whimsically by a bodyb?com? ?v?n l?ss and distant. Th? conc?pt of S?paration of Pow?r has b??n d?riv?d to r?duc?th? lik?lihood of gov?rnm?nt violating th? rights of individuals.
Th? basic assumption b?hindthis conc?pt is that wh?n a singl? p?rson or group has a larg? amount of pow?r, th?y canb?com? dang?rous to citiz?ns. Th? S?paration of Pow?r is a way of r?moving th? amount ofpow?r in any group’s hands, making it mor? difficult to abus?.It has b??n known that S?paration of pow?r had b??n found?d by th? Mont?squi?u and Lock?but its roots ar? found in th? V?das. If w? study th? Smritis which ar? anci?nt sourc? of lawi.
?. Dharma, w? find such typ? of s?paration. In Narad Smriti w? trac? th? v?ry principl? ofs?paration of pow?r. At that tim? D??wan was h?ad of th? ?x?cutiv? wing of any l?gacy,S?napati did a job to maintain law and ord?r and Kaji was th? judicial h?ad. At th? sam? tim?w? hav? to b?ar in mind that th?y all ar? subordinat? to th? King and King was th? supr?m?authority who mak?s th? law and th?r?for? h? was similar to pr?s?nt form of l?gislatur?. Inshort, what com?s out is that in anci?nt tim? also th?r? was a s?paration of pow?r in on?provinc? or l?gacy.
Aft?r all, King is known as th? supr?m? authority of all but th? functionsand pow?rs has b??n s?parat?d.Th? valu? of this doctrin? li?s in that it att?mpts to pr?s?rv? human lib?rty by avoiding th?conc?ntration of pow?rs in any on? p?rson or body of p?rson. As stat?d by Madison- “Th?accumulation of all pow?rs, l?gislativ?, ?x?cutiv? and judicial, in th? sam? hands wh?th?r ofon?, a f?w, or many and wh?th?r h?r?ditary, s?lf-appoint?d or ?l?ctiv?, may justly b?pronounc?d th? v?ry d?finition of tyranny.” And for th? pr?v?ntion of this tyranny, th?doctrin? of s?paration of pow?r holds its gr?at?st importanc?.2DOCTRIN? OF S?PARATION OF POW?R IN INDIAInIndia, th?r? ar? thr?? distinct activiti?s in th? Gov?rnm?nt through which th? will of th?p?opl? ar? ?xpr?ss?d.
Th? l?gislativ? organ of th? stat? mak?s laws, th? ?x?cutiv? forc?sth?m and th? judiciary appli?s th?m to th? sp?cific cas?s arising out of th? br?ach of law.?ach organ whil? p?rforming its activiti?s t?nds to int?rf?r? in th? sph?r? of working ofanoth?r functionary b?caus? a strict d?marcation of functions is not possibl? in th?ir d?alingswith th? g?n?ral public. Thus, ?v?n wh?n acting in ambit of th?ir own pow?r, ov?rlappingfunctions t?nd to app?ar amongst th?s? organs.
Th? qu?stion which is important h?r? is thatwhat should b? th? r?lation among th?s? thr?? organs of th? stat?, i.?. wh?th?r th?r? should b?compl?t? s?paration of pow?rs or th?r? should b? co-ordination among th?m.Th? application of doctrin? of s?paration of pow?r has a proposition that non? of th? thr??organs of Gov?rnm?nt, L?gislativ? ?x?cutiv? and Judicial, can ?x?rcis? any pow?r whichprop?rly b?longs to ?ith?r of th? oth?r two.L?GISLATUR?-L?gislatur? is that institution which consist of th? r?pr?s?ntativ? of th? p?opl? i.?., politician.Its main obj?ctiv? is to discuss and d?bat? on th? issu?s conc?rning th? p?opl? and th?Country.
It is th? law and policy making body. G?n?rally, n?w laws or polici?s ar?introduc?d in th? Parliam?nt/ Stat? L?gislatur? in th? form of Bills. Th?s? Bills onc? pass?dby th? L?gislatur? ar? s?nt to th? Pr?sid?nt for ass?nt. Onc? th? pass?d bill g?ts th? ass?nt ofth? Pr?sid?nt, it b?com?s th? law, or th? policy com?s into ?ff?ct. Parliam?nt or th? Stat?L?gislatur? ar? th? forms of “L?gislatur?”. It is h?r? wh?r? th? Govt. is bound to answ?r th?qu?stions which ar? rais?d by anoth?r r?pr?s?ntativ? of th? hous?.?X?CUTIV?-?x?cutiv? is that branch of th? Govt.
which ?nabl?s and impl?m?nt th? actions and d?cisionsof th? Govt. may it b? impl?m?ntation of th? laws pass?d by th? l?gislatur? or pr?paring th?blu?print of various oth?r initiativ?s which ar? tak?n up by th? Govt lik? Jan-Dhan Yojana,Start-up India Stand Up India ?tc., th? rul?s and r?gulation as w?ll as th?ir fram?work is 3pr?par?d by th? ?x?cutiv? only. This body consist of th? bur?aucrats from All India S?rvic?slik? IAS, IFS, IRS, IPS.Lik? th? oth?r two important parts of syst?m or country wh?r? l?ad?rs ar? chos?n by vot?s,th? ?x?cutiv? is ?qually ?xp?ct?d to b? fr?? of invasions from th? oth?r two. It is always saidthat ?x?cutiv? is ind?p?nd?nt of th? two, but th? un?xp?ct?d w?irdn?ss continu?s to ?xist anddo hard or annoying things. It is compl?t?ly w?aring away in actual practic?. Th? r?ason isthat th? ?x?cutiv? is qu?stion?d for its actions by th? judg?s, th? court and th? Gov?rnm?nt.
This wat?rs down th? ind?p?nd?nc? of th? ?x?cutiv? to th? high?st possibl? valu?. It’s notthat th? qu?stion of answ?rability pops up only in th? cas? of ?x?cutiv?. Th? judiciary and th?l?gislatur? ar? ?qually answ?rabl? but in th?ir cas?s, a built-in syst?m from within would b?availabl? for discharging thos? functions. This is th? r?al situation, which ?xists in practic?.JUDICIARYJudiciaryis anoth?r ‘ind?p?nd?nt’ branch of th? Govt whos? main task is to b? uphold th?Constitution and th? rul? of law. It acts as a watchdog ov?r th? actions of th? l?gislatur? and?x?cutiv? and curtails th? sam? wh?n it violat?s th? rights of th? individuals. Judiciary has to?nforc? th? law and p?nalis? thos? who ar? found to b? br?aching th? sam?. It consists of th?Judg?s who pr?sid? ov?r th? court.
It is th? most important f?atur? of d?mocracy. It isr?sponsibl? for saf?guarding th? int?r?sts and th? fundam?ntal rights of th? p?opl?. Judiciaryconsists of th? Hon’bl? Supr?m? Court, Hon’bl? High Court and oth?r low?r courts.Judiciary k??ps a tab on th? activiti?s of th? gov?rnm?nt and plays an important rol? in th??v?nt of violation of Fundam?ntal Rights of th? p?opl? of th? country. Judiciary also has th?authority to ?xamin? th? validity of th? Laws ?nact?d by th? Parliam?nt on th? constitutionalparam?t?rs.LANDMARK CAS?S1.
1. In th? r? D?lhi Laws Act cas?, it was for th? first tim? follow?d by th? Supr?m? Courtthat ?xc?pt wh?r? th? constitution has v?st?d pow?r in a body, th? way of thinking thaton? organ should not compl?t? functions which basically b?long to oth?rs is follow?d inIndia. By a majority of 5:2, th? Court h?ld that th? ?xplanation of s?paration of pow?rs 4though not an important part of our Constitution, in rar? circumstanc?s is obvious in th?l?gal rul?s of th? Constitution its?lf. As obs?rv?d by Kania, C.J.-“Although in th? constitution of India th?r? is no ?xpr?ss s?paration of pow?rs, it is cl?ar thata l?gislatur? is cr?at?d by th? constitution and d?tail?d provisions ar? mad? for making thatl?gislatur? pass laws. Do?s it not imply that unl?ss it can b? gath?r?d from oth?r provisionsof th? constitution, oth?r bodi?s-?x?cutiv? or judicial-ar? not int?nd?d to discharg? l?gislativ?functions?”This judgm?nt sugg?st?d that all th? thr?? organs of th? Stat? which ar? th? L?gislatur?,th? Judiciary and th? ?x?cutiv? ar? bound by and subj?ct to th? l?gal rul?s of th?Constitution, which limits th?ir pow?rs, l?gal controls, r?sponsibiliti?s and r?lationshipwith on? anoth?r.
Also, that it can b? assum?d that non? of th? organs of th? Stat?, th?L?gislatur?, th? Judiciary, and th? ?x?cutiv? would go b?yond its pow?rs as laid down inth? Constitution.2. K?SHAVANANDA BHARTI CAS?-Th? qu?stion plac?d b?for? th? Supr?m? Court in this cas? was conn?ct?d to th? ?xt?nt of th?pow?r of th? gov?rnm?nt to updat? th? Constitution as giv?n und?r th? Constitution its?lf. Itwas argu?d that Parliam?nt was “b?tt?r than anyon? or anything ?ls?” and r?pr?s?nt?d th?sov?r?ign will of th? p?opl?. So, if th? p?opl?’s r?pr?s?ntativ?s in Parliam?nt d?cid?d tochang? a particular law to control individual fr??dom or limit th? ?xt?nt of th? rang? of th?judiciary, th? ?x?cutiv? and th? l?gislatur? had no right to qu?stion wh?th?r it was r?lat?d toth? Constitution or not. How?v?r, th? Court did not allow this argum?nt and inst?ad found infavor of th? p?rson who’s arguing against a l?gal d?cision on th? grounds that th? b?li?f ofs?paration of pow?rs was a part of th? “basic structur?” of our Constitution.As p?r this ruling, th?r? was no long?r any n??d for confusing doubl?-m?aning as th? id?a fora singl? purpos? r?cogniz?d as a part of th? Indian Constitution, p?rman?nt ?v?n by an Act ofParliam?nt. So, th? id?a of s?paration of pow?rs has b??n includ?d into th? Indian laws.
3. INDIRA N?HRU GANDHI V. RAJ NARAINHow?v?r, it was aft?r th? landmark cas? of Indira N?hru Gandhi v. Raj Narain that th? plac?of this doctrin? in th? Indian cont?xt was mad? cl?ar?r. It was obs?rv?d: “That in th? Indian 5Constitution, th?r? is s?paration of pow?rs in a broad s?ns? only. A rigid s?paration ofpow?rs as und?r th? Am?rican Constitution or und?r th? Australian Constitution do?s notapply to India.”Chandrachud J. also obs?rv?d that th? political us?fuln?ss of th? doctrin? ofS?paration of Pow?r is not wid?ly r?cogniz?d.
No Constitution can surviv? without aconscious adh?r?nc? to its fin? ch?ck and balanc?.4. OTH?R CAS?STh? doctrin? of s?paration of pow?rs was furth?r ?xpr?ssly r?cogniz?d to b? a part of th?Constitution in th? cas? of Ram JawayaKapur v.
Stat? of Punjab, wh?r? th? Court h?ld thatthough th? doctrin? of s?paration of pow?rs is not ?xpr?ssly m?ntion?d in th? Constitution itstands to b? violat?d wh?n th? functions of on? organ of Gov?rnm?nt ar? p?rform?d byanoth?r. This m?ans th? Indian constitution had not ind??d r?cogniz?d th? doctrin? ofs?paration of pow?rs in its absolut? rigidity but th? functions of diff?r?nt parts or branch?s ofth? Govt. hav? b??n suffici?ntly diff?r?ntiat?d and cons?qu?ntly it can v?ry w?ll b? said thatour constitution do?s not cont?mplat? assumption, by on? organ or part of th? stat?, offunctions that ?ss?ntially b?longs to anoth?r.In I.C.
GolakNath v. Stat? of Punjab, Supr?m? Court took th? h?lp of doctrin? of basicstructur? as propound?d in K?svanandaBharati cas? and said that Ninth Sch?dul? is violativ?of this doctrin? and h?nc? th? Ninth Sch?dul? was mad? am?nabl? to judicial r?vi?w whichalso forms part of th? basic structur? th?ory. It was obs?rv?d: “Th? Constitution brings into?xist?nc? diff?r?nt constitutional ?ntiti?s, nam?ly, th? Union, th? Stat?s and th? UnionT?rritori?s.
It cr?at?s thr?? major instrum?nts of pow?r, nam?ly, th? L?gislatur?, th??x?cutiv? and th? Judiciary. It d?marcat?s th?ir jurisdiction minut?ly and ?xp?cts th?m to?x?rcis? th?ir r?sp?ctiv? pow?rs without ov?rst?pping th?ir limits. Th?y should functionwithin th? sph?r?s allott?d to th?m.
“Diff?r?nt mod?ls around th? world:Constitutions with a high d?gr?? of s?paration of pow?rs ar? found all ov?r th? world. ?v?nthough th?r? is th? ?xist?nc? of th? saf?guards it giv?s against v?ry bad tr?atm?nt, th?mod?rn-day communiti?s of p?opl? find it v?ry hard to apply it stiffly and strictly. In way ofbasic truth/rul? th?y go for s?paration of pow?rs and dilution of pow?rs at th? sam? tim?.
6Unit?d Stat?s:In th? Unit?d Stat?s Constitution, Articl? I S?ction I giv?s Congr?ss only thos? “law-bas?dpow?rs within this ar? grant?d” and mov? forwards to list thos? allow?d actions in Articl? IS?ction 8, whil? S?ction 9 lists actions that ar? prohibit?d for Congr?ss. Th? claus? in Articl?II plac?s no limits on th? ?x?cutiv? branch, simply stating that, “Th? ?x?cutiv? Pow?r willb? v?st?d in a Pr?sid?nt of th? Unit?d Stat?s of Am?rica.”Th? Supr?m? Court holds “Th? Judicial Pow?r” according to Articl? III, and it ?stablish?dth? ?ff?ct of Judicial r?vi?w in Mar bury v.
Madison. Th? f?d?ral gov?rnm?nt r?f?rs to th?branch?s as “branch?s of gov?rnm?nt”, whil? som? syst?ms us? “gov?rnm?nt” to d?scrib? th??x?cutiv?. Th? ?x?cutiv? branch has tri?d to forc?fully tak? pow?r from Congr?ss arguingfor S?paration of pow?rs to includ? b?ing th? Command?r in Chi?f of a standing army sinc?th? war b?tw??n groups that all liv? in on? country, ?x?cutiv? ord?rs, ?m?rg?ncy pow?rs ands?curity classifications sinc? WWII, national s?curity, signing stat?m?nts, and now th? id?aof a unitary ?x?cutiv?.To pr?v?nt on? branch from b?coming most pow?rful or b?tt?r than anyon? or anything ?ls?,and to caus? th? branch?s to coop?rat?, authority and control syst?ms that ?mploy as?paration of pow?rs n??d a way to balanc? ?ach of th? branch?s. Usually this was v?ryskilful through a syst?m of “ch?cks and balanc?s”, th? origin of which, lik? s?paration ofpow?rs its?lf, is sp?cifically cr?dit?d to Mont?squi?u. Ch?cks and balanc?s allows for asyst?m bas?d r?gulation that allows on? branch to limit anoth?r, such as th? pow?r ofCongr?ss to chang? th? composition and ar?a of l?gal control of th? f?d?ral courts.SUGG?STIONInIndia a p?rf?ct syst?m of s?paration of pow?r do?s not ?xist, this is du? to th? un?qualdistribution of pow?rs among th? 3 organs.
As s??n in th? yardsticks as giv?n by prof?ssorIvo Duchac?k, India fails in c?rtain asp?cts of impl?m?nting doctrin? of s?paration of pow?r.If th?s? conditions ar? th?n fulfill?d all th? organs can work tog?th?r smoothly. Th? firstsugg?stion for th? sam? is:7? ?ach organ should b? giv?n ?qual r?pr?s?ntation as giv?n in th? U.S. constitution. Thiswill giv? a b?tt?r chanc? to all th? organs, bringing th?m on par with th?ir pow?rs.
? Th? pow?r to am?nd th? constitution is giv?n mainly to th? parliam?nt. Th? oth?r organshav? a v?ry small say in th? sam?. Mor? pow?r should b? giv?n to th? ?x?cutiv? to giv?rath?r mor? r?pr?s?ntation.
? Th?y should consciously r?aliz? th? uns??n boundari?s and r?sp?ct ?ach oth?r’ssov?r?ignty.? It is not only th? duty of th? tripartit? to r?aliz? th? sam? but also th? obligation of th?citiz?ns to r?aliz? th? ultimat? sanctity of th? Constitution.Th?s? ar? f?w of th? sugg?stions that might giv? ris? to a n?ar to p?rf?ct syst?m of doctrin?of s?paration of pow?r h?lping in a smooth functioning b?tw??n th? c?ntr? and stat?.CONCLUSIONThedoctrine of separation of power in its true sense is very rigid and this is one of thereasons of why it is not accepted by a large number of countries in the world.
The mainobject as per Montesquieu in the Doctrine of Separation of Power is that there should begovernment of law rather than having will and whims of the official. Also another mostimportant feature of the said doctrine is that there should be independence of judiciary i.e. itshould be free from the other organs of the State and if it is so then justice would bedelivered properly. The judiciary is the scale through which one can measure the actualdevelopment of the State.
If the judiciary is not independent, then it is the first step towards atyrannical form of government i.e. power is concentrated in a single hand and if it is so thenthere is a very high chance of misuse of power. Hence the Doctrine of Separation of Powerdoes play a vital role in the creation of a fair government and also fair and proper justice isdispensed by the judiciary as there is independence of judiciary.
In conclusion, it is evident that governments in their actual operation do not opt for the strictseparation of powers because it is undesirable and impracticable, however, implications ofthis concept can be seen in almost all the countries in its diluted form. The discrepanciesbetween the plan and practice, if any, are based on these very grounds that the ideal plan isimpractical for everyday use. India relies heavily upon the doctrine in order to regulate, 8check and control the exercise of power by the three organs of Government. Whether it is intheory or in practical usage, the Doctrine of Separation of Powers is essential for the effectivefunctioning of a democracy.