SEPARATION OF POWER vis-à-vis INDIAN SCENARIO (By- Nikita Raj)
SEPARATION OF POWER vis-à-vis INDIAN SCENARIO
Authored
By- Nikita Raj
The Origin
The development of absolute position and a clear
division between the executive, legislative and judicial branches of
government, Montesquieu laid the groundwork for the concept of the ‘Separation
of Powers’. However, Aristotle was the first to write about it, though not in a
straightforward manner. He states in his work that "all constitutions have
three elements, with respect to which the good lawgiver must respect what is
expedient for each constitution," and that "all constitutions have
three elements, with respect to which the good lawgiver must respect what is
expedient for each constitution."This body is divided into three parts:
one that deliberates on public matters; a second that deliberates on
magistrates—the subject of what magistrates should look like, how they should
exercise authority, and how they should bechosen; and a third that holds
judicial jurisdiction.”[1] Aristotle, on the
other hand, does not lay much weight on it.
Locke, an English philosopher and author, specifically
discusses three powers in his work "The
Second Treatise of Civil Government":
(1)
discontinuous legislative authority, (2) continuous legislative power, and
(3) federative
power.
The ability to
set wide regulations, he argues, is a discontinuous legislative power, while
continuous executive power is the ability to make executive and judicial
decisions, and federative power is the capability of managing international
affairs.
As a result of the changes in British constitutional
history throughout the early eighteenth century, Locke and Montesquieu were
compelled to put up a comprehensive list of the concepts underlying the
‘Separation of Powers’ notion. In England, a long battle between the King and
the Parliament, resulted in the development of ‘Bill of Rights’ where:
Parliament – entrusted with Legislative function;
King- entrusted with Executive function; and
Courts- entrusted with Judicial function.
It is known as
the “trias politica” in Latin, and it refers to a governing paradigm that is
used in the States that have a democratic government. In accordance with this
paradigm, the State is divided into branches which having its own set of powers
and responsibilities. The traditional divisions of estates are as follows: an
executive, a legislative, and a judiciary.[2]
The ‘Separation of Powers’ is a basic elements of
modern democracy and the ‘rule of law’, is one of the most important concepts
in political philosophy. Because of this, it is necessary for government power
to be devolved to autonomous institutions comprised of, at the very least in
theory, diverse individuals. The concept of judicial independence developed
parallely, and subsequently got associated with, concept of division of powers,
which is also worth mentioning.
The theoretical features of the concept of separation
of powers will be treated first in this project, followed by an examination of
the doctrine's historical development and development. In addition,
current constitutional law in a few countries will be
discussed, and the post will conclude with some observations on present
difficulties surrounding the separation of powers doctrine.
The Theory
The principle of ‘Separation of Powers’ classifies
government authority as:
It is unacceptable for any one person to serve in more
than one government-run organs. Ministers, for instance shouldn’t be permitted
to sit in the House of Commons.
It should not be permitted for any government organ to
interfere with the operations of any other government organ.
Functions of one government organ shouldn’t be
performed by other government organ without their consent.
The division of authority for distinct government
functions is referred to as the separation of powers. To simplify things, all
of the government's powers are grouped into three categories: (1)
enactment (2) interpretation (3) the execution, of legislation.
These three categories are known as legislative,
judicial, and executive powers. Traditional division refers to the division of
the government into three branches, each with its own set of responsibilities;
this classification is referred to as classical division.
French Concept
A check on the other,
according to Montesquieu's division of government into the executive,
legislative, and judicial branches, and therefore power should be a check on
power, is achieved through the division of government. The ability to arête it
puts a stop to power—power is put a stop to power by the ability to arête
it—power is put a stop to power by the ability to arête it Because
"apprehensions may emerge," he says, "that the same Monarch or
Senate may impose tyrannical laws and carry them out in a tyrannical way,"
when the Legislative and Administrative powers are merged in the same person,
there can be no liberty. As previously said, liberty cannot exist unless and
until the judicial power is separated from the legislative and administrative
authorities. When the judiciary merges with the legislative branch, the
subject's life and liberty would be vulnerable to arbitrary control, as the
judge would then be a member of the legislative branch. When the judiciary
comes into conflict with executive authority, the judge may retaliate brutally
and oppressively. If the same man or group of men or women, whether from the
Nobles or from the people, could wield the three powers of enforcing laws,
carrying out public decrees, and adjudicating individual cases, everything
would come to a stop."[3]
Montesquieu's submission can
be summarized as the division of powers according to function, and the
separation of powers doctrine that resulted from this division. It was in the
18th century that the current concept of separation of powers was established
as a basic tenant of political thought.
The Indian Scenario
Indian Judiciary and
Separation of Power
Separation of powers and
judicial independence are two concepts that must be studied
together since the court can
only be independent if authority is divided across the government's three
institutions. A country's fair and neutral court system, which has the
authority to make decisions without interference from the executive or
legislative arms of government, is referred to as "judicial
independence" in this context. The concept of judicial independence, like
many other concepts, has its beginnings in the Britain and Ireland. “The cases
of Hampden (1637) and Coke (1616) resulted in the passage of the Act of
Settlement, 1701,” which secured judicial independence in the United Kingdom.
Judges had already been dismissed from their positions by the King's decree
prior to the passage of this legislation. The wishes of the King (Charles) -
the Executive must be followed by the actions of the judges. Unlike now, the
parliamentary body did not play a direct role in the firing of judges at the
time of the ruling.
According to the term
"judicial independence," a country's fair and unbiased judicial system,
which is free to make decisions without the influence of the executive or
legislative branches, is considered to be independent pertaining to the federal
government.
Prior to independence,
criminal justice system was under the direct supervision of the federal
government. The general public was strongly opposed to such a situation. The
public requested that the judicial and the executive be separated at all levels
of government. Those in favour of the ‘separation of powers’ fiercely argued
that without it, the judiciary's independence at the lower levels would be a
charade. Essentially, this is the principle upon which Art. 50 is based.[4]
Because the primary purpose
of the judiciary is to uphold the constitution, only an independent judiciary
is capable of protecting the rights that are necessary for the establishment of
the rule of law. Provision 50 of the constitution describes the separation of
the executive and judicial branches of government, and it is the only article
in the constitution that discusses the separation of two organs. It suggests
that the judiciary should be able to operate independently of the executive
branch of government. The concept of judicial
independence serves as the
foundation for this clause of the constitution. If the executive has influence
over the judiciary, it is possible that the rights of the people will not be
protected, the rule of law will not be established, and the judiciary will
function only in accordance with the executive's wishes. It will be the executive's
responsibility to oversee all functions, including the administration of
justice. In a parliamentary form of government, such as the one that India has
embraced, the executive is the head of state, and as such, it has the authority
to control everything it deems necessary. This discretionary power could be
exploited, resulting in massive turmoil throughout the country as pure justice
does not always triumph over political expediency. The apex court said that:
"the constitutional design aims at securing an independent judiciary,
which is the cornerstone of democratic institutions."[5]
In other words, judicial
independence refers to the court's ability to make decisions about its own
functions without interference. No other government agency is permitted to
interfere with the Department of Justice's function of delivering justice. In India,
the exercise of this autonomy is limited to the administration of justice.
There are a number of additional matters that Parliament
has the jurisdiction to act
on that are related to the judiciary. Examples include salaries, privileges,
allowances, and other related topics,[6] and parliament
has the authority, among other things, to increase the number of judges in the
country[7]. The
independence of the court has also been deemed to be a fundamental component of
the constitution in some quarters. While judicial independence is an essential
element of the constitution,[8] Fazal Ali, J.
held that it must be preserved within the four corners of the
constitution, as was the case in S.K. Gupta v. The President of India13.
Shortly stated, we have independent judiciary authority and powers to a certain
extent. Article 50 now incorporates judicial independence as a guiding
principle, which is a significant improvement.
“Checks And Balance” And “Separation Of Powers”
The system of checks and
balances is critical to the proper functioning of the three branches of
government, as well as the general public. It makes certain that no part of the
government gets an excessive amount of authority. If the legislative branch
passes a law, the executive branch signs it into force, and the judiciary
branch declares a bill unconstitutional, the bill is prevented from becoming
law. A judge who is not carrying out his or her responsibilities properly may
be removed from office by the legislative branch. Judiciary appointments are
made by the executive branch, while their confirmation is made by the
legislative branch. Once again, the branches check and balance one another,
ensuring that no single branch has an excessive amount of power. According to
this definition, the theory of checks and balances exists. Three government
entities are given a wide range of capabilities in a predominantly Indian
context, although these powers are not absolute in nature. All three have
independent authorities and functions, albeit one may interfer with the other's
if the former has broken constitutional standards in the manners specified
above.
Several constitutional
provisions for such checks and balances between three organs are included, such
as the following:
In the case of judges, they
are considered members of the judiciary; nonetheless, they can be dismissed by
the President in circumstances when they have not acted adequately in response
to an address submitted in the same session by both chambers of Parliament.
Each house's total membership must support the address, as well as a majority
of not less than two-thirds of the members present and voting in each house, in
order for it to be adopted. As a result, two objectives are met: As a matter of
principle, the judiciary may not remove any judges by exercising its
discretionary power in any situation, even situations where a judge has acted
inappropriately and situations where there is political pressure or prejudice
against a judge For the time being, a judge cannot be removed for any reason
unless and until the legislature acts. Second, a judge
can be impeached by a
legislative body, but only with a two-thirds vote of the members of the
legislative body. In other words, the legislature has the authority to
intervene in the judicial process, but only under specific conditions, such as
a two-thirds majority vote.
Another example is the
Supreme Court of India's judicial branch, which has the jurisdiction to
overturn laws passed by the country's legislative arm of government.
Furthermore, it has the
authority to declare executive actions null and void if they are in
contravention of the constitution or legislation enacted by the legislature. On
the basis of these two examples, we may conclude that the Indian constitution
has divided powers since the various branches of government do not have
excessive power or discretionary power, which are both damaging to democratic
norms.
Conclusion
Finally, while the idea of
separation of powers cannot be exercised in its traditional sense, it is used
in conjunction with checks and balances in accordance with the particular
nation's constitution. “The political usefulness of the idea of separation of
powers is now widely recognised...”, writes Chandrachud J. In today's context,
this philosophy should be used in a way that serves the best interests of the
citizens.
[1]Aristotle-
Politics- BOOK 4- Part XIV
[2]http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html
[3]
Thakker. C.K., Administrative Law, (1992), Eastern book company
[4]
Indian Constitutional Law by M.P. Jain, pg 1393, para. 4
[5]
A.C. Thalwal v. High Court of Himachal Pradesh [ (2000) 7 SCC 1].
[6]
Article 125 (1) .
[7]
Article 216 - Constitution of India, 1950.
[8]
Kumar Padma Prasad v. U.O.I. [AIR 1992 SC 1213]. 13 AIR 1982 SC
149.