Doctrine Of Separation Of Powers.pdf
- 1. Doctrine Of Separation Of Powers Power separation has long been a source of contention. It is significant in government. Another topic of disagreement is whether it is incorporated in our country's constitution. The primary purpose of this research paper is to define the concept of separation of powers. What is the significance of this? What are the several types of constitutions, and which one do we have? Is there a system of checks and balances in our constitution? What does the independence of the judiciary mean? How is Montesquieu's idea of separation of powers used in the United States, and, more crucially, is it inscribed in our constitution? Because the purpose of this study is to educate and increase awareness among ordinary people who believe that law is hard and not for them, extremely simple English is used. Also Read: IPC Section 307- Attempt to Murder: An overview Introduction Any democratic form of government must follow the principle of separation of powers. This system separates the state into three major branches: legislative, executive, and judicial. Each of these bodies is empowered to carry out specific tasks that have been entrusted to it. These sections are also known as government organs. As a result, no single branch or institution can develop to be so powerful as to completely govern the system, thanks to the tasks assigned to each organ and their institutions in such a way that each may check the exercise of power by the others. Before beginning the analysis, it is critical to understand the relevance of the three governmental bodies. The legislative branch creates laws, the executive branch implements them, and the judicial branch interprets them. The Evolution of the Separation of Powers Doctrine Throughout history, we have witnessed the detrimental consequences of having too much power in the hands of one person. Kings frequently used their power to subjugate their subjects. Magna Carta was the watershed moment in human history when King John's power was limited. People were so oppressed by King John's cruelty that they took action and established the first historical document, known as Magna Carta, which contained some
- 2. essential rules and principles to protect both the people's and the king's interests. On June 15, 1215, King John signed the Magna Carta in front of witnesses. It was the first document in human history to state that the king and his government were subject to the rule of law. The purpose of the Magna Carta was to prevent the king from abusing his power and to limit the king's authority by creating the rule of law as a source of power in and of itself. Aristotle was the first to introduce the concept of power separation. Aristotle was the first to categorize political functions as deliberative, official, and judicial. Viscount Henry St. John Bolinbroke developed Aristotle's theory of the separation of powers, arguing that creating and maintaining equilibrium between the people, the king, and parliament is critical to ensuring security and freedom within the state. In the year 1748, while living in the United Kingdom, French jurist Baron Montesquieu, also known as the modern exponent of the power of separation theory, wrote a book titled "In the spirit of law" in which he discussed the concept of separation of powers and emphasized the importance of the judiciary's independence to safeguard democracy. Montesquieu classified governmental power into three branches: legislative, executive, and judicial. He claimed that these three powers should be kept separate at all times since there can be no liberty if all three or even two of them are merged. Montesquieu foretold the end if only one person or entity possessed these three powers. All democracies currently employ some variant of Montesquieu's theory of separation of powers. In plain English, the phrase "separation of powers" can be defined as "the three branches of government (legislature, judiciary, and executive) should act separately without interfering with each other's functions." Constitutional Forms (Written and Unwritten) There are two types of constitutions: written constitutions and unwritten constitutions. The United States of America has the world's first written constitution, and altering one is
- 3. extremely tough. Unwritten constitutions are very malleable and can be altered in light of previous rulings, cultures, customs, and so on. Changes to the United Kingdom's constitution are quite simple. For example, if a simple law is passed, parliament will change the constitution, exhibiting the unwritten constitution's flexibility. If we look at the American constitution, we can see that amending it is a difficult task that requires the cooperation of all parties before it can be done. America's written constitution is fairly rigid. As a result, the unwritten constitution can be said to be flexible, whereas the written constitution is rigid. The Indian Constitution, on the other hand, is a distinct balance of rigor and flexibility. Article 368 of the Indian Constitution provides for constitutional amendments. Article 368 gives the Indian Parliament the ability to modify the constitution. Montesquieu's Theory in Action in the United States of America The United States constitution was based on Montesquieu's separation of powers philosophy. The drafters of the American constitution completely embraced this notion. The United States has the oldest written constitution. We can see that all of the authorities associated with administrative, legislative, and judicial tasks are vested in separate institutions from the commencement of the American constitution. The president of the United States has executive authority. Section 1 Article 1 of the American Constitution assigns legislative authority to Congress, executive authority to the President of the United States of America, and judicial authority to the Supreme Court and other national courts to Section 1 Article 3 of the American Constitution. Because the US constitution is so conservative and steadfastly adheres to the doctrine of separation of powers, changing any aspect of the document is extremely difficult. This constitution has only been changed 27 times since it was written. The Constitution of the United States of America was most recently amended in 1992. In America, the presidential system of government is implemented. The American Constitution is strictly federal in nature. The United States' fifty separate states agreed to its constitution. In America, each state and the federal government have their own constitutions, and neither
- 4. interferes with the obligations of the other. In a nutshell, the United States of America is said to rigorously adhere to dual federalism, with direct public election of the President. Power Separation in India India has the largest constitution in the world. The notion of separation of powers was beautifully included by the authors of the Indian constitution. The most difficult challenge India faced after becoming an independent democracy was drafting a new constitution. After becoming an independent democracy in 1947, India faced a number of obstacles. Should we have total separation of powers or not? was a major point of debate during the constitution assembly. Deliberations on the Separation of Powers in the Constitution When India's constitution was being drafted, the separation of powers between the executive and judicial branches was adopted as a guiding notion of state policy. However, as the process of revising the constitution began, many members questioned why there was no clear division of powers between the three institutions of government throughout the discussions of the constitution assembly. According to Prof. K. T. Shah, Article 41-A was added to the constitution to totally divide the functions of the three organs (a member of the constitution assembly). Mr.Kazi Sayed Karimuddin, in addition to agreeing with Prof. K. T. Shah, argued that a non-parliamentary system of administration should be utilized instead of a parliamentary one. According to Mr. Kazi Sayed Karimuddin, political opponents are neglected, silenced, and ignored under parliamentary rule. He also stated that our people are not equipped to cope with the nation's opposition under a parliamentary system of government, and that if we do, there will be major conflict between the three pillars of government. While the constitution assembly was debating Prof. K. T. Shah's recommendations, Shri K. Hanumanthaiya offered an opposing viewpoint. While we can debate the pros and cons of both systems, he added that we have already concluded that the parliamentary system is
- 5. better for the country. He also stated that the parliamentary system appears to be better suited to Indian settings for a variety of reasons. He made an excellent point when he stated that having a harmonious governmental system is more superior to having a clashing trinity. He said that the proposed new amendment was utterly unsuitable for our current political structure. The Honourable K. Santhanam clarified this further by pointing out how, for the most part, the division of powers entrenched in the American constitution is a fiction. He went on to say that, while it is widely assumed that the Supreme Court in America is completely independent of the executive branch, presidents have occasionally tried to influence the court by appointing judges who share their political opinions. He went on to suggest that if the president and the Supreme Court disagreed, the president only needed to wait until the judge retired, choose someone to fill the seat, and then have all verdicts rendered in his favor. According to Mr.Kazi Sayed Karimuddin, political opponents are overlooked, silenced, and ignored under parliamentary government. He also stated that our people are not equipped to cope with the nation's opposition under a parliamentary system of government, and that if we do, there will be major conflict between the three pillars of government. According to the Honourable Shri K. Santhanam, the president only has the ability to nominate judges who will support his ideas, even if he must first seek Senate approval. Dr. B. R. Ambedkar spoke about the status of circumstances in the United States of America. Many Americans, he argued, are dissatisfied with the way the American constitution is now constructed, which strictly adheres to the separation of powers between the executive and judicial branches. He went on to say that the absolute separation of powers between the judiciary and the executive has been established as a guiding principle of state policy, and that this separation of powers is accepted even under parliamentary rule. By reviewing the arguments, it is possible to deduce that the majority of the members were opposed to the establishment of total separation of powers and the change of the parliamentary system to a presidential one. Prof. K.T. Shah was concerned that, in the absence of a clear separation of powers between the executive and the judiciary, executives would use their power to influence the judiciary. Many members of the constitution assembly,
- 6. though, assuaged his fears. As a result, we can say that we have adhered to the doctrine of separation of powers to some extent. Separation of the Judiciary and the Executive Because it is the only way for the common citizen to obtain justice, the court must be allowed to act freely and without interference from anything or anybody in the country. The judiciary also safeguards citizens' fundamental rights and prevents abuse of power by other departments. Simply put, the judiciary serves as both the people's and the law's guardian angel. Any country with a separate judiciary from the executive or legislative branches is guaranteed to have an impartial judicial system. Any nation's judicial system may serve its citizens more efficiently if it is kept separate from other government organizations. Even the president finds it difficult to influence the court if it is kept distinct. The basic responsibility of the judiciary is to uphold the constitution. The separation of the judiciary and the executive is essential because it prevents the government's institutions from wielding excessive power over the judiciary. If anything violates the constitution, the judiciary can reject it without being pressured by the executive or legislative branches. Structure of Indian Government Under India's parliamentary style of governance, the head of the state and the head of the government are wholly separate. Along with the prime minister, the president of India acts as both the head of state and the head of government. The legislative branch is comprised of the President, Rajyasabha, and Loksabha. The judiciary is completely separate from these two bodies. Despite being the head of state, the president is answerable to the courts. This illustrates that the court wields more power than the legislative and executive departments. Structure of Indian Government As shown in the diagram above, the president of India is a member of both the legislative and executive branches of government, while the judiciary is completely autonomous and
- 7. has no overlaps with any other institutions. The separation of powers is strictly enforced under the American constitution, as proven by the president's lack of accountability to any other body. However, due to the risk of executive branch abuse of power and manipulation by the president, this cannot be adopted in India. The authors of the Indian Constitution established that no one is above the law by establishing complete independence of the judiciary. Instead of strictly implementing separation of powers, the Indian constitution's framers purposely diversified the functions of several government agencies. The Indian constitution has established coordination between the various government institutions by doing so, preventing one organ from usurping another. This is made possible by Article 50 of the Indian Constitution, which specifies that the judiciary and executive institutions must be maintained distinct. In its public services, the state must take steps to keep the executive and judicial branches apart. As a result, it is understandable that we only embraced the parliamentary form of government after Prof. K.T. Shah's concerns about the separation of the executive and judicial arms of government were fully addressed. Checks and Balances System It is a prevalent fallacy among authors that India does not have the checks and balances system that America does, however this is not the case. As of today, we are conscious that our constitution is a hybrid of the constitutions of a few other countries, and we have picked the best parts from those other constitutions. So how can we claim that there is no system of checks and balances? The drafters of the Indian Constitution had a well-designed system of checks and balances that they had implemented. For example, as soon as our constitution was adopted, Article 13 declared invalid all legislation that contradicted or interfered with fundamental rights. Articles 32 and 136 empower the Supreme Court, while Articles 226 and 227 empower the High Courts to conduct judicial reviews of any act of the country's administrative or legislative branches. It is incorrect to conclude from these examples that there is no judicial
- 8. oversight. According to Article 124(2) of the Indian Constitution, every Supreme Court judge must be selected by the president. While you would expect the president to be astute and select judges who will support his agenda, Article 124(2) requires that the Chief Justice of India be consulted when selecting Supreme Court justices. Furthermore, the president has the ability to remove any judge from office, but only after receiving written notification from the speaker from at least 100 Loksabha members or 50 Rajyasabha members. Articles 32 and 136 empower the Supreme Court, while Articles 226 and 227 empower the High Courts to conduct judicial reviews of any act of the country's administrative or legislative branches. It is incorrect to conclude from these examples that there is no judicial oversight. According to Article 124(2) of the Indian Constitution, every Supreme Court judge must be selected by the president. While you would expect the president to be astute and select judges who will support his agenda, Article 124(2) requires that the Chief Justice of India be consulted when selecting Supreme Court justices. The aforementioned clauses demonstrate that the Indian Constitution has a system of checks and balances. Conclusion When it came to the application of the separation of powers in the Indian Constitution, a few members of the constitution assembly expressed concern that we were not using a complete separation of powers, which would leave the independent Indian judicial system vulnerable to manipulation by other government organs and only the wealthy able to afford the luxury of justice. However, it was made clear during the debate that the judiciary would be independent. Furthermore, even if we had chosen the presidential system of government, the judiciary would have manipulated. To summarize, while the Indian constitution established the division of powers, the separation of powers was not strictly enforced.