Separation of Power, and its kinds and stuff

Separation of Power, and its kinds and stuff

1. Separation of Power By Sanya Agrawal

2. General Introduction G overns the mutual relations among the three organs of the Government What are the three organs? The functions of the Government were differentiated for the first time b y: Aristotle → into three categories Deliberative Magisterial Judicial

3. On the same lines, Locke gave a threefold classification of the power of the Government: Continuous executive power Discontinuous legislative power Federative power The term “Separation of Power” ( trias politica ) was coined by: French scholar Montesquieu in 1748 in his book ‘ Espirit des Louis ’ (The spirit of the laws)

4. According to Montesquieu: “When the legislative and executive powers are united in the same person, or in the same body or Magistrate, there can be no liberty. Again, there is no liberty if the judicial power is not separated from the Legislative and Executive power. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Where it joined with the executive power, the judge might behave with violence and oppression. There would be an end of everything were the same man or the same body to exercise these three powers.”

5. Separation of Power in India Article 50 Article 122 and 212 Article 121 and 211 Article 53 and 154 Article 361 No formal separation of powers in the Indian Constitution, rather a ‘parallelism of power’

6. Excerpts from Constituent Assembly Debate Prof. K.T. Shah suggested: insertion of a new Article 40-A to deal with doctrine of separation of powers Supported by Kazi Syed Karimuddin Extract: “There shall be complete separation of powers as between the principal organs of the State, viz; the legislative, the executive, and the judicial”

7. Contention of K.T. Shah “If you maintain the complete independence of all the three, you will secure a measure of independence between the Judiciary and executive and judiciary and legislature.” This is of the highest importance in maintaining the liberty of the subject, the Civil Liberties and the rule of law If highest judicial officers and the membership of the legislature can be interchanged, and : Law will be interpreted by party guidance and not by merits The Legislature in a democratic assembly is bound to be influenced by Party reasons rather than by reasons of principle

8. Shri K. Hanumanthiya dissented He remarked: Instead of having a conflicting trinity it is better to have a harmonious governmental structure In any country or in any government, conflicts are suicidal to the peace and progress of the country We need ‘harmony’ and not ‘three fold conflict’

9. Opinion of Dr. B.R. Ambedkar

10. Disagreed with K.T. Shah and said: Necessary to separate the executive from the judiciary With regard to the separation of the executive from the legislature, Such separation exist in the Constitution of United States However, even Americans themselves were dissatisfied with the rigid separation between the executive and legislature Moreover, the work of Parliament is very complicated and vast Legislatures need direct guidance and initiative from the Executives Otherwise it will be difficult for MPs to carry out work of the legislatures

11. Today’s Situation Significant overlaps Work as a check on the unwarranted use of power by one branch of the government Example: Judicial powers of Legislatures Executive powers of Legislatures Legislative powers of Executives Judicial power of Executives Executive and Legislative powers of Judiciary

12. Overlapping powers of Legislatures With Executives Ministers are also MPs. Power to dissolve government with no-confidence motion. Power to assess works of the executive. Impeachment of the President. With Judiciary Removal (Impeachment) of Judges Power to amend and revalidate a law declared as ultra vires by Court Punish for Breach of privilege.

13. Overlapping powers of Executives With Legislatures Ordinance making power of President and Governor Rule making authority to regulate their respective procedure and conduct of business. Powers under delegated legislation With Judiciary Appointment of CJI and other SC and HC judges Pardoning power of president and Governor Tribunals and other quasi-judicial bodies consist of permanent executives as their members

14. Overlapping powers of Judiciary With Legislatures Judicial review i.e. the power to review executive action to determine if it violates the Constitution Unamendability of constitution under basic structure With Executives Under Article 142, the Supreme Court functions as an Executive in order to bring about the complete justice

15. Judicial view on Separation of Power

16. Ram Jawaya v. State of Punjab, (1955 SC) The Supreme Court opined that - The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the 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 the State, of functions that essentially belong to another

17. Indira Gandhi v. Raj Narain (1975 SC) The doctrine was upheld as a basic structure of the constitution. Supreme Court held that the provisions of 39th Amendment violated the basic structure of the constitution SC held that: “ Separation of powers is a basic feature of the Constitution and therefore every dispute involving the adjudication of legal rights must be left to the decision of the Judiciary ” State of West Bengal & Ors. v.Committee for protection of Democratic Rights, West Bengal & Ors. (2010 SC) SC said: “ It is trite that in the constitutional scheme adopted in India, besides supremacy of the constitution, the separation of powers between the legislature, the executive and the judiciary constitutes the basic features of the Constitution ”

18. No strict separation of power Comes with requisite checks and balances India adopted doctrine not in rigidity but the essence of this doctrine It ensures transparency in the government Indira Nehru Gandhi v. Raj Narain J. Chandrachud said: “ No Constitution can survive without a conscious adherence to its fine checks and balances. Just as Courts ought not to enter into problems entwined in the "political thicket", Parliament must also respect the preserve of the courts. The principle of separation of powers is a principle of restraint which "has in it the precept, inmate in the prudence of self-preservation ”

19. Need of checks and balances S trict application might lead to inefficient governance, While a modified application with appropriate checks and balances ensures - no organ is given unbridled power and each functions cooperatively with the other This doctrine precludes unwarranted incursions by one organ of the government into the domain of another However, some type of incursions too are necessary

20. THANK YOU!