Topic: Applicability of Doctrine of separation of Power in India

Introduction

The doctrine of Separation of power has emerged in several forms at different

periods. Its origin is traceable to Plato & Aristotle . In the 16th & 17 th centuries
French philosopher John Bodin & British politician Locke expressed their views
about the theory of separation of power but it as Montesquieu who for the first tie
formulated this doctrine systematically, scientifically & clearly in his book ‘esprit
deslois(the spirit of the laws) published in the year 1748.

In his writing, Montesquieu said

“when the legislative and executive power are united in the same person there can
be no liberty. Again there is no liberty if the judicial powers be not separated from
the legislative and the executive powers.
If all the 3 kinds of power is in hands of legislature, than law would be arbitrary,
anarchy.

Professor Wade said

The objection of montesque was against accumulation rather than interaction.

Therefore the logic behind this doctrine is polarity rather than strict doctrine which
means that the centre of authority must be disposed to avoid absolutisium .

Separation of Power :- According to the theory of separation of power “The

power and function of all the 3 organs of the state must always be kept sepQrate
and be exercised by 3 separates organs of the government. Thus,‘ the legislature’
cannot exercise executive or judicial powers , ‘the executive’ cannot exercise
legislative or judicial powers & ‘ the judiciary’ cannot exercise legislative or
executive power of the government.

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Postulates of Separation Of Power:- “ Professor wade gave these 3 postulates”.

 Same person should not form part of more than one of the three organs of
the state.
 One organ should not control or interfere with the exercise of its function by
another organ.
 One organ of the state should not exercised the function of another .

The Aim Of Doctrine Of Separation Of Powers : It is a guard against tyrannical

& arbitrary powers of the states. The rational underlying the doctrine has been that
if, all power is concentrated in one & the same organ , there would arise the
danger that it may enact tyrannical law, execute them in a despotic manner, &
interpret them in a arbitrary fashion without any external control.

Division Of Sepration Of power :- Locke divided separation of power in his book

“ the second treaties of civil government”

 Discontinuous legislative power

 Continuous executive power and
 Federative power

He include within

“discontinuous legislative power” the general rule making power.

“Continuous executive power” includes all those powers which we now call
executive & judicial. “Federative power” he meant the power of conducting
foreign affairs.

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Montesquieu’s division of power included a ‘ General legislative power’ & 2
kinds of executive powers; an executive power in the nature of locke’s “federative
power” & a “civil law” executive power including executive and judicial power.

‘Locke’ & ‘Montesquieu’ derived the contents of this doctrine the developments in
the British constitutional history of the early 18th centuary.
In England after a long war between parliament and the king, they saw the triumph
(great victory) of parliament in 1688 which gave parliament legislative supremacy
culminating in the passage of the bill of rights.

At that time, the king exercised executive powers, parliament exercise legislative
powers & the court exercised judicial powers, though later on England did not
stick to this structural classification of functions & changed to the parliamentary
form of government.

Purpose of Doctrine Of Separation of Power :-

The purpose of the Separation of power doctrine is not to promote efficiency in the
administration but to preclude the exercise of arbitrary power.
The purpose is not to avoid friction amongst various organs of the state by keeping
them separate but promote efficiency in the administration but to preclude the
exercise of arbitrary power.

The purpose is not to avoid friction amongst various organs of the state of the state
by keeping them separate but to protect people from autocracy by means of
inevitable friction due to distribution of powers. Therefore, the basic purpose of the
doctrine of “separation of power” is to divided governance against itself by

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creating distinct centre of power so that they could prevent each other from
tyranny.

Practical Significance of Separation Of Power:-

Is that no significant deprivation of life, liberty & dignity of any person can take
place unless all the organs of the government combine together. If a person is to
be put in jail then a legislature has to pass a law making his action illegal,
executive has to execute the law & judiciary must find him guilty.

In Westminister type of democracy where legislature & executive are not

separate, judiciary must not be separated from the rest. Executive always demand
powers, at time by threatening insecurity among the people & legislature would
always oblige because it is controlled by the executive. In such situation, judiciary,
if separate would apply brakes & save people from tyranny. It is for this that
judiciary has now been separated from Parliament in the United Kingdom.

Separation Of Power In Context Of United States

The doctrine of separation of power is implicit in the American constitution. It

emphasized the mutual exclusiveness of the three organs of the government.

According to this doctrine, the legislature cannot exercise executive or judicial

power; the executive cannot exercise legislative and judicial power; and the
judiciary cannot exercise the other two powers.

The form of the government in USA, characterized as the presidential is based on

the theory that there should be separation between the executive and the
legislature. This is different from the system prevailing in Britain or India where

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the parliamentary form of government operates & which is based on co –
ordination of the executive & the legislative.

The doctrine of separation of power does not apply rigorously even in the United
States, & some exceptions thereto are recognized in the constitution itself.

The doctrine of separation Of power has influenced and has itself been influenced
by the growth of administrative law in U.S.A.

Sepration of Power in India

The doctrine of separation of power has no place in strict sense in the constitution
of India. But the function of different organs of the government have been clearly
remarked. So that one organ of the government does not usurp the function of
another.

Article50 of constitution of India provides that separation of judiciary from

executive but being under the head of Directive principle of state policy, it is non-
enforceable.

Article 73 of Indian constitution provides that “extent of executive power of the

union” it states that “executive power of the union shall extend to all the matter to
which parliament or union legislature has power to make laws.

Article 162 of Constitution Of India provides that “ extent of executive power of

state” it states that “executive power of the state shall extend to all the matters
which state legislature has power to make laws.

These 2 provisions of the Constitution of India indicates that legislature and

executive are mutually exclusive in their function.

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Parliament have the authority to make laws on certain matter are given in 7 th
schedule and article 246 & 245. So the parliament have power to make the laws on
certain subject- matter which has been specified by the constitution Under article
246.So it is clear than on what subject – matter the parliament can make laws.

Article 73 says that the Indian Executive can take any action, can make any
decision on all the matters on which parliament can make the law. So there is
nothing in article 73 in which makes the union executive dependent of legislature
that first the legislature should make law & only then the executive should take
action, so the executive is not to wait for the parliament to have first law only then
to take any action . :- According to the opinion of S.C. in Ram Jawaya Versus
State Of Punjab Case.

Therefore these 2 organ the executive & legislature according to the decision of
supreme court in this case are mutually exclusive, there is mutual exclusiveness in
these 2 organs of the state, the executive is no way dependent of legislature in
taking any action, in making any decision.

Supreme Court in this case also stated about status of a separation Of Power
doctrine :- The Indian Constitution has not recognized the doctrine of separation of
power in its absolute rigidity, but the function of all the different part/ branches
have been sufficiently differentiated & consequently it can be very well said that
our constitution does not contemplate assumption of one organ of state that
essentially belong to another.

Application of doctrine of separation of power can also be noticed from various

Supreme Court judgments :- Though the doctrine is not expressly mentioned, but
the judiciary by its various cases had always denied to entertain those cases which
belongs to policy matters either it is legislative policy or executive policy.

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TATA Cellular Vs. Union Of India( Also called sukhram case)

A writ petition was filed in S.C. seeking directions to parliament to laydown

policy or to enact law to regulate the use of cell phone or mobile phone.

Supreme Court in this case held that policy determination falls with the advent of
legislature & the court cannot direct the legislature to pass or not a law. The court
can decide only on the principle of legality. If the court find any illegality in the
law made by the legislature / Parliament , only then the court can be empowered to
see, Otherwise it is prerogative of the legislature whether it want to enact any law
or not. The court can only suggest the legislature to make laws, but it cannot direct
the legislature to make the law or not make the law.

In Vemeet Narayan Vs. Union Of India ( Hawala Case)

In this case, R.C.Sharma was appointed as the director of the CBI. The High Court
entertained the application which questioned the appointed of R.C. Sharma. When
the matter reached to the Supreme Court, it expressed great displeasure over the
way the high court inferred this procedure of appointment of C.B.I. director.

The Supreme Court held that ; the High Court was not acting within the
jurisdiction when it interfered in this matter because that was beyond the judicial
power. According to the opinion of supreme court, the appointment procedure is an
executive function & the court can interfere only when there is question of
legality.

Manshik Lal Vithal Das Chauhan Vs. State Of Gujrat

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Under the prevention of corruption act, the cabinat secretary is the sansing
authority to prosecute a person.

High Court in this case issued the writ of mandamus to prosecute Manshuk lal. The
Supreme Court held that it as was violation of separation of power, because the
secretary is to form his own subjective opinion whether to prosecute a person or
not. The court cannot direct the secretary to prosecute a person. At most the court
can say/ direct to expedite the matter.

Conclusion :- these cases show that there is great respect to the function aspect of
separation of power in India. Though structural aspect is not there in Indian
Constitution but the functional aspect is very well adopted by the constitution & is
interpreted in the same way by the Supreme Court of India, to give due respect to
the doctrine of separation of Power because we know that until & unless there is no
decentralization of power a there is no dispassion of power, if the centre of
authority does not dispose the rule of law cannot be obtained. So for maintain rule
of law there is need for dispassion of centre of authority.

In Keshwanand Bharti Case : Supreme court put their opinion regarding the
function aspect of Separation of power doctrine :-

None of the 3 organ of republic can take over the function assigned to another &
this scheme of classification cannot be changed even by exercising the power of
Article 368 of constitution.

Conclusion

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The doctrine of separation of power cannot be applied in absolute/ strict or
classical sense anywhere in the world even in United States .All the 3 organs
cannot be put in water tight compartment & there should always be interaction
between the organs to put a system of check & balance.
Montesque was against the accumulation of power in one organ or person & not of
interaction of the 3 organs. In the complex regiem of welfare state, the organs can
not be put in water tight compartment because there is always some overlapping in
the welfare states. The corporation between the 3 organs of the state is very
essential in the welfare states. The doctrine is essential to established rule of law &
eliminate arbitrariness & to ensure that the authority is dispense to avoid
absolutisium.

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