THE DOCTRINE OF SEPARATION OF POWERS AND
ITS RELEVANCE TODAY
Author- PRATIBHA, B.A.LLB(Hons), C.M.P. Degree College, University of Allahabad, Prayagraj
ABSTRACT
The
underlying idea of the doctrine of separation of powers is that organs of the
government in which there is no overlap
or interchange the functions that are exercised by them individually. The
notion of separation of powers is the division of authorities and duties among
the legislature, executive and judicial branches. It is a doctrine which has
been design to prevent the concentration of power in the hands of government.
The idea of democracy is inconceivable without an effective system of
separation of power. This Article attempt to analyze the concept of this
doctrine in India, the objective and
relevancy.
Key
words:separation of power, authorities, division and branches
INTRODUCTION
The
doctrine of separation of power is an idea which talks about functioning of
government is at its best when the powers are not solely given to a single
authority but is sub divided into different branches. This principle is not
followed in a very strict sense but is adopted by many nations. It was first
adopted by United states of America.In India the doctrine of separation of
power was developed in 17th century. when the thinkers pointed out
three powers of the government which were power to make laws,power to enforce
law and power to interpret law. The power and accountability are being divided
among these organs of Indian government aslegislature, executive and judiciary.This
doctrine makes sure that there is no amalgamation of power.
Key
words: functioning, enforce, interpret, accountability,organs and amalgamation
of power
HISTORICAL BACKGROUND
The origin
of this principle goes back to the period of Plato and Aristotle. It was
Aristotle who has talked about the correct form of government in his famous
book titled ‘THE POLITICS’. John Locke has proposed the idea of separation of
power in his social contract as three parts namely, continuous executive power,
discontinuous legislative power and federative power. continuous executive
power implies the executive and the judicial power discontinuous legislative
power implies the rule of law making power and federative power signifies the
power regulating the foreign affairs. the idea of separation of power as in the
term was initiated by French Jurist Montesquieu in his book titled L. Esprit
Des Lois (Spirit of Law) which published in 1748. That’s why he is known as
modern exponent of this theory. His doctrine, in essence signifies the fact
that one person or body of persons should not exercise all the powers of the
government. The idea which this book proposed was in order to control the
misuse of power, it is necessary to separate the powers of the three organs of
state mainly, legislative, executive and judiciary. He further argued that in
case of absence of such separation the government is bound to become despotic
(corrupt) in his own words, there would be an end of everything if the same man
or the same body exercises all the powers. In a way this doctrine is preventive
in nature as the objective is to establish a balanced working between the 3
organ of the government.
Key
words: Aristotle, government, social contract, federative power, regulating, exercise,
and despotic
SEPARATION OF POWER
As many
of the thinkers have their own view on this. Richer Bemwemm has define
separation of power as a system in which major institutions of state are independent
functionally in such a way that no individuals has power that spam these
offices. Wade and Phillips, separation of power as system in which no branch of
government interfere with the working of another part of government. Now in
simple words, separation of power guarantee,effective and balance functioning
of the three branches of government.
Separation
of powers, dividing government into legislative, executive and judicial
branches, remains relevant today as a fundamental principle for democratic
governance. It prevents tyranny by distributing power, promoting
accountability, and safeguarding individual liberty. This principle ensures
that no single entity can concentrate power and abuse it fostering a more
efficient and transparent government.
In India
there are three major powers of government and each of them is performed by
separate organ. Legislative is responsible for making the laws(e.g.Parliament
and Congress), executive is for enforcing law(President or Prime Minister) and
judiciary(e.g. Supreme Court and High Court) is for implementing laws. The
applicability of doctrine of separation of powers in India which mentioned in IndianConstitution Article 50 as, directs the state to take steps
to separate the judiciary from the executive in the public services of the
state, which talk about separation of executive from judiciary. This Article 50
is a part of the Directive Principles of State Policy (DPSPs) which are not
legally enforceable like fundamental rights and this article reflects the principle
of separation of powers, which is crucial for a democratic and just society. It
ensures that the judiciary is not influenced or controlled by the executive
branch of government. And we also see in India, we have parliamentary form of
government which means executive is an integral part of legislative that is why
India does not follow a strict system of separation of power. We can see a
strict separation in American political system because no one person can be a
member of two organs of government at same time. However, in India a member of
parliament (legislature also becomes a executive).
Powers
are separated as follows:
Legislature-
the Lok Sabha is the ultimate authority for the council, which also produces
ministers. In cases of violation of its privileges, the impeachment of the President
pursuant to Article 61,and the dismissal of judge,the legislature acts as a
court.
Executive
– the president of India is the Union’s head of the executive and a member of
parliament (Article 53 and 74). He plays a legislative role in the parliament (Article
111). By choosing judges for the Chief Justice of India and other offices, the
executive has an impact on the judiciary as well.
Judiciary
– according to Article 142 and 145 of our constitution, the Supreme court has
the authority to rile that law passed by the legislature and executive actions
are unconstitutional and void if they violate any provisions of constitution or
law passed by legislature. If a constitutional amendment modifies the
fundamental design of the document, the court may declare it invalid.
Key
words: institution, independent, interfere. Tyranny, distributing power,
enforceable, parliamentary, dismissal, provisions and invalid
ITS RELEVANCE TODAY
As it is
known fact that, Power corruptan absolute power corrupt absolutely (said by
Lord Acton) therefore the primary relevancy of separation of power is to
prevent the holders of power from becoming corrupt. This doctrine is used as a
system of check and balances while not always a rigid ‘water-tight’ separation,
modern democracies employ a system of checks and balances where each branch has
some influence over the others, yet they are not isolated from each other.This
system of check and balances ensures that no arbitrary power can be exercised
against the people by any organ of the government.This prevents any one branch
from becoming too powerful and acting arbitrarily. As we take an example, the
judiciary can declare laws passed by the legislature or actions taken by the
executive as unconstitutional through the principle of judicial review.There
are three major powers of government and each of them is performed by separate
organ, Eachbranch has clearly defined roles, the legislature makes laws, the
executive implements them and the judiciary interprets them and resolve
disputes and this functional differentiation promotes specialization and
efficiency.
Its
relevancyin today’sseen the constant
oversight by each branch on the other ensures greater accountability and
transparency in governance as legislatures regularly exercise their oversight
functions, questioning executive actions, conducting investigations,and in some
cases, initiating impeachment proceedings against high – ranking officials.
Separation
of powers prevents any one branch from becoming too powerful and prevents abuse
of power by setting a limits on each branches.And many of the case mentioned
about separation of power ,As in KesavanandaBharati V. State of Kerala(1973) established the ‘basic structure’
doctrine , limiting parliament’s power to amend the Constitution and protecting
essential features like separation of powers ,rule of law,and protection of
fundamental rights and because of this, the idea of ‘separation of powers’ is
acknowledged as a key component of our constitution. And in S.R. Bommai V.
Union of India(1994) addressed the misuse of article 356 (President’s Rule) and
emphasized federalism and separation of powers between the center and states,
promoting cooperative federalism.
Key
words: relevancy, democracy, check and balances, arbitrarily, judicial reviewand
basic structure
Criticism
In our
Indian constitution we doesn't strictly following the principle of separation
of power between the three organs of the government as legislative, executive
and last one is judiciary that number of time leading to potential conflicts
and each one try to concentrate the power in one hand for example we all are
very much aware of the fact that ministers are part of both the executive and
legislature and administrative bodies which often preform judicial functions.
Judicial
overreach - judicial activism help when the situation is extraordinary but in
certain cases judicial activism takes safe of judicial overreach judicial overreach,
take place when the interference of
judiciary in the working of legislature and executive become undesirable for
the help of democracy judicial overseas is a violation of the principle of
separation of power and the result into the breakdown of healthy balance
between the organ of the government.
Conflicts
and gridlock- as the doctrine of separation of powers can leads to conflicts
and gridlock between the three organs of the government, as making it difficult
in passing laws or implement policies.
Key
words: strictly, conflicts, concentrate, administrative bodies, judicial overreach,
gridlock
CONCLUSION
The
separation of powers remains a cornerstone of democratic governance, ensuring
accountability, protecting individual rights and preventing abuse of power. It
is a fundamental principles ofgovernance that ensures power is distributed evenly
the legislative, executive and judicial branches. The theory in debate that is
the separation of power theory must be judged not in an absolute way but in
relation to its actual purpose. The only to fully extract it’s meaning is to
have a broader view and perceive it within a wide context. It can be argued
that this idea or notion is not compatible to work in its literal meaning, but
it can do so and succeed by laying emphasizes on the checks and balance,
prevent abuse of power, and promote accountabilitythat are placed so as to make
it a good government in it’s true form. It is seen that states do not follow this
doctrine in strict sense, and it is very impractical to follow the doctrine of
separation of powers. However, the three
pillars of government can cooperate democratically thanks to deliberate and
moderate constitutional functional overlaps. By bridging the gap between the
legislature,executive and judicial departments of government, mutual
collaboration like this improves the efficiency of government. A democracy
cannot function well without adhering to the doctrine of separation of powers.India
with the help of this doctrine check and look after the functions of the three
organs of the government. The effective working of a democracy requires doctrine
of separation of power to be an essential part of the constitution however, it
should not be used in a strict sense. It is crucial for safeguarding against tyranny
and abuse of power.
Key
words: democratic governance, abuse of power, distributed, constitutional,
overlaps and strict sense
BIBLIOGRAPHY
The Doctrine of Separation of Powers: Meaning, Importance & Relevance in Modern Democracy
Explore the doctrine of separation of powers, its origin, significance, and how it shapes democratic governance today. Learn about its challenges in modern contexts.
- Separation of Powers
- Doctrine of Separation of Powers
- Montesquieu theory
- Legislative Executive Judiciary
- Separation of powers in India
- Importance of separation of powers
- Modern democracy checks and balances
- Relevance of separation of powers today
- Constitutional governance
- Judiciary independence
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