I.           
Introduction

 

1.      Concept

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Montesquieu in his work the spirit
of laws provides a grim picture of human nature wherein he observes that human
beings have a tendency to do evil and according to him his experience taught
him that a man invested with power is sure to abuse it and his efforts will
mostly be to carry out that power to the maximum extend.1

Even in the French declaration of
the rights of man the article 16 states that a society where rights are not
secured or separation of power not established has no constitution.2

From this statement it is quite
evident that separation of power becomes fundamental to the structure of a
constitution and the effective functioning of a law and order in any nation.

 

 Separation of power could mean
one of the following:-3

1. The difference in the function
among the three branches

2. The difference in the personnel
among the three branches

3. Ensuring the checks and balances
among the three branches 

 

In the United States,
the doctrine is followed in the rigid sense while it is not so in the UK or in
India. The most focused upon aspect in the Indian Constitution is the step of
ensuring checks and balances , each one has its own powers but with limitations
which can be checked by the others to eliminate abuse of power.

 

In India there are instances
where such functions overlap like in the case of maintaining law and order
where section 144 is enforced, it is mostly done by the executive magistrate
who is usually a member of the executive i.e. a collector who is allowed to
also carry out the role of the magistrate in a limited sense. There are also
instances where the legislature delegates the powers to the members of the
executive for better efficiency. 

2.      History

 

Aristotle was the first one to
suggest such a separation. In his book ‘The
Politics’ he suggested three elements that needs to be arranged in order to
have a well arranged constitution and he also mentioned that the differences in
the various constitutions across the world would be a result of the differences
in the functioning of the three elements. The three elements as per Aristotle were
– first the deliberative which is responsible for discussions of common
importance, second the official who has the duty to implement the methodologies
adopted in the discussions made by the deliberative and third the judicial
element where the actions of all the people in the deliberative or officials
can undergo scrutiny in case of breach of law. 4

The more famous adaptation of the version
was that of Montesquieu who divided the government into three branches –
legislature, executive and judiciary where each of them are in charge of the
formation , implementation and dispute resolution aspects of  law.

Montesquieu believed in the
philosophy of limited power through dissonant harmony. He believed that it was
healthy to have differences amongst the various branches in a way that each had
its own powers as well as limitations avoiding situations of excessive power at
the hand of a single individual.5

  
II.           
The Three Branches6

 

1.     
The Legislature

In India the
legislature has two bodies Lok Sabha and Rajya Sabha. It is responsible for
enacting laws, impose taxes, dealing with matters related to war, set a budget
and allocate it etc. It is also responsible for checking the actions of the
executive and thereby satisfying the system of checks and balances.

 

2.     
The Executive

The Executive has its
own set of powers invested upon it like commanding the military, the president
can grant pardon to convicted criminals. It has the right to veto laws. The
executive is under a constant check by both the judiciary and the legislature
which limits its powers. The President, Ministers of the cabinet headed by the
Prime Minister, the Governor, and Members of the police force are all members
of the Executive in India.

 

3.     
The Judiciary

The Judiciary is considered to be the
guardians or custodians of the rights of the people given under the
constitution. While the laws are made by the legislature and implemented by the
Executive it is the duty of the judiciary to interpret the laws by the
legislature and check the validity of the actions of the executive. Judiciary
in India consists of all the lower level Courts, district courts, High courts
and the Supreme Court of India.

 

III.           
Case laws

 

1.      Foreign Cases

 

a)      Nolan LJ in his judgment of M v Home secretary very clearly
describes the situation of the separation. He says that the relationship
between the executive and the judiciary as per the constitution is that while
the latter will respect all the acts of the executive within its power as per
law the former needs to respect all the decisions of the judiciary as to what
it’s lawful powers can entail.7

 

b)      In the landmark judgment of Entick v Carrington the Secretary of State
had issued a warrant to enter the property of Entick and seize goods .This was
done because of the political pressure Entick could pose on the government
through print media. Entick filed a case of trespass against the Secretary of State.
The defense then taken was that it was a state necessity and done because such
actions by the state were never questioned before. The ruling of Justice Camden
in this case is what establishes the relevance of rule of law and the
importance of the doctrine of separation of powers. He ruled that by the law of
the land any invasion on private property was trespass and in order to justify
such actions there should be some statutory power. The existence of such power
should be there in the books of law if not then it is clearly not a law.8

 

2.      Indian Cases

 

a)     
In the
case of the Kesavananda Bharti v State of
Kerala it was ruled that the basic structure of the constitution must not
be violated even within the amending powers that have been granted to the parliament
through Article 368.9

b)     
The above
judgment was further re-enforced in the case of Indira Gandhi V Raj Narain where the prime minister had amended the
constitution to include absolute power to the legislature for matters concerning
elections. The Supreme Court struck down the amendment as unconstitutional.

 

The above two cases clearly showcase the way separation
of powers works in India. Though not specifically mentioned in the constitution
it forms the basis for the functioning for our democracy. It works to establish
prevention of absolute power into the hands of one of the branches of the
government.10

 

Also, the recent decision of the triple talaq
case is a good example of separation of power. While the Supreme Court ruled
the practice as arbitrary and unconstitutional the matter is now with the
legislature who is responsible for making new laws governing the practice. The
role of the legislature is to make laws while role of the judiciary is to
understand if the current practice is against the law.

 

IV.           
Conclusion

 

The
functioning of any democracy is only possible with an efficient distribution of
powers. Unlike countries that follow monarchy where absolute power is invested
upon the King, democratic governments seek to enforce the rights of the
citizens.

 

For
such a government to function properly it is essential that each of them have
demarcated powers. The Supreme Court has ruled that the Doctrine of Separation
of power is a basis for the constitution though not explicitly stated in it.
Without the application of the doctrine, India would have lost its status of
being a democracy or welfare state years ago.

 

1 (Online Library of Liberty)

2 (Avalon Project – Declaration of the Rights of Man –
1789)

3 (Alder)

4 ( Historical Development Of Separation Of Powers)

5 (Alder)

6 (Singh & Vijay)

7 (Alder)

8 (Loveland)

9 (Kesavananda Bharati vs State Of Kerala And Anr,
1973)

10 (Indira Nehru Gandhi vs Shri Raj Narain , 1975)

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