SEPERATION OF POWERS ( PRACTICAL

WORKING IN CONTEXT OF INDIA )

Submitted to :- submitted by :-
Prof. Bimaldeep Singh shafali
Guru nanak dev University , Amritsar LLM (OYC)
Though the doctrine is traceable to Aristotle. But the writings of
the Locke and Montesquieu Gave it a base on which modern
attempts to distinguish between Legislative, executive and
judicial powers
In 16th and 17th centuries ,French philosopher John Bodin and
British politician Montesquie who for the first time gave it
systematic and scientific formulation in his book “espirit des
Lois '’ ( The spirit of laws ) published in the year 1748.
Locke distinguished between what he called .
1) Discontinuous legislative power.
2) Continuous executive power
3) Federation power.
He included “ discontinuous legislative power '’ because the
general rule making called action from time to time and not
continuosly. Continuous executive power included are those
powers which we now called executive and judicial. By
federative power he means to conduct foreign affairs.
According to Montesquie theory , powers are of three kinds.
1) legislative 2) executive 3) judicial and each of those
powers vested in a separate and distinct organ for of all of
these powers or any of them are united in the same organ
or individual , there can be no liberty.
If for instance , legislation and executive are united , there is
apprehension that organ concerned may enact tyrannical
laws in tyrannical manners. Again ,there can be no liberty of
judicial power are not separated from the executive and
legislative where it joined with legislature, the life and liberty
of subject would be exposed to arbitrary control.
There would be end of everything if same man or body will
exercise their powers.
According to wade and Philips :- Separation of powers may
mean three different things. 1) That same person not form
part of more than one of three organs. Example. Minister
not sit in parliament.
2) That one organ of comment should not control or
interfere with the functions of other organ example judiciary
should be independent of executive or ministers should not
be responsible to parliament.
3) One organ of comment should. Not exercise functions of
another for example the minister should not have legislative
powers.
Doctrine of separation of powers divided into 2 senses.
In positive sense, this doctrine not only Demacrate limits,
but also defines minimum contexts of powers.
In negative sense, this doctrine put limit on the exercise of
powers by each organs of the state.
India’s position
In India, doctrine of separation of powers not accorded
constitutional status. In constituent assembly there was
 proposal to incorporate this doctrine. in the constitution but
it was knowingly accepted and as such dropped it was
knowingly accepted and as such dropped. Apart of tractive
principle of Article 50.which enjoins separation of judiciary
from the executive. the constitutional scheme does not
embody any formalistic and dogmatic Division of power.
parliamentary executive although the executive power of
union is vested in president. Under constitution provision
have been made for Council of Ministers with Prime Minister
to aid and advice the president. Thus Prime Minister and
council of minister .are collectively responsible to the House
of people. the president is not head of executive . The only
validity of separation of power in the sense one organ of
state should not assume the essential function of another.
The Supreme Court in ram jawaya Kapoor v. state of
Punjab AIR 1995 :- The Indian constitution has not
recognized the doctrine of separation of powers in the
absolute rigidity. But the functions of branches of
government have been sufficiently differentiated and
consequently it can very well be said that our constitution
does not contemplate assumption, by one organ or part of
state or functions that essentially belongs to another.
Broad division of functions
Justice Pathak in Bandhua mukti morcha v. Union of India AIR
1984 :- the constitution envisages a broad Division of powers
of state between legislature, executive. And judiciary. The
division is not precisely Demacrated. limits can be gathered
from conventions, practice and the decision of judiciary.
Golaknath v. State of Punjab AIR 1967 :- C.J. subba Rao
observed the constitution Brings inti existence different
constitutional entities namely the union , the state and the UT.
It creates there major instrument of power namely legislative ,
executive and judiciary. It Demacrated there jurisdiction
minutely and expected them to exercise their powers without
overstepping their limits. They should function within their
limits.
Functions overlapping
If we study the constitution provisions clearly .it’s clear that
doctrine of separation of power is not accepted in India. in
strict sense. The president who is executive exercises legislative
powers in the shape of ordinance making power under article
123and also exercise judicial powers under article 103 and 217
The Supreme Court has power to declare void laws made by
the legislation add the actions of the executive if they violate
constitution and declared it void. even the constituent power
to amend constitution by parliament subject to judicial review.
In Indira Nehru Gandhi v. Raj Narain AIR 1975 :- It is held by
the Supreme Court that adjudication off specific dispute is a
you Judicial function which parliament even in enacting under
constitution amending power cannot exercise. It is feature of
basic structure of constitution this constitutional scheme
cannot be changed even by amendment under article 368 (
keshavnanda bharti v. State of Kerala AIR 1973)
System of check and balances
In case of Indira Gandhi :- justice chandarchud Politically
usefulness of the doctrine of separation of power is widely
recognized. no constitution can survive without conscience
adherence to check and balances.
In Asif Hamid v. State of j & AIR 1989 :-The Supreme Court
observed that you Judicial review is a powerful weapon tourist
train unconstitutional exercise of powers by the legislature and
the executive.
IN Krishna Kumar v union of India AIR 1990 :-The constitution
bench of Supreme Court observed that in the matter of
expenditure include in the annual financial statement, this
court has to be loath to pass any order or give any directions ,
because of divisions of functions between the three co- equal
organs of government under the constitution.
No court can issue a direction. To a legislature to enact a
particular law similarly a court cannot direct and executive
authority to enact law which it has been empowered to do
under the delegated legislative authority.
In Mallikarjuna v. State of A.P. AIR 1990 :- The facts word that
the Andhra Pradesh administrative tribunal directed the state
government to evolve proper and rational method of
determination of seniority among the veterinary surgeons in
the matters of promotions to next higher rank of assistant
director of veterinary surgeons. Thus Supreme Court quashed
the aforesaid direction and observed that the power under
article 309 of the constitution to frame rules in the legislative
power which has to be decided by the president or the
governor of the state as the case may be.. the High Court or
administrative tribunals cannot issue a mandate to the state
government to legislate. in this way the principle of distraint
prevents any organ of state from becoming superior to another
or others in action.
Conclusion:- Doctrine of separation of powers in today context
of liberalization, globalization and privatization cannot be
interpreted mean either separation of power or check and
balance or principle of restraint but community of power
exercised in the spirit of cooperation by the various organs of
the state in the best interest of the people.