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Doctrine Of Separation Of Powers

By SURAJ VATS | Views 43770

The concept of separation of powers is the

rudimentary element for the governance of a
democratic country. This principle corroborates
fairness, impartiality and uprightness in the workings
of a government. Although it is not followed in its
strict sense yet, most of the democratic countries
have adopted its diluted version under their
respective constitutions. In most of the democratic
countries, it is accepted that the three branches are
the legislature, the executive and the judiciary.
Legal aid

According to this theory, the powers and the functions

of these branches must be distinct and separated in a
free democracy. These organs work and perform their
functions independently without the interference of
one into others in order to avoid any kind of conflict.
It means that the executive cannot exercise legislative
and judicial powers, the legislature cannot exercise
executive and judicial powers and the judiciary cannot
exercise legislative and executive powers.

Meaning Of Separation Of Powers

Separation of powers divides the mechanism of
governance into three branches i.e. Legislature,
Executive and the Judiciary. Although di!erent
authors give di!erent definitions, in general, we can
frame three features of this doctrine. Each organ
should have di!erent persons in capacity, i.e., a
person with a function in one organ should not be a
part of another organ.

One organ should not interfere in the functioning of

the other organs. One organ should not exercise a
function of another organ (they should stick to their
mandate only). Thus, these broad spheres are
determined, but in a complex country like India there
often arises conflict and transgression by one branch
over the other. Legal aid

Objectives of Separation of Powers:

The following are the fundamental objectives of the doctrine of
separation of powers:
1. Firstly, it aims to eliminate arbitrariness,
totalitarianism and tyranny and promote an
accountable and democratic form of
government.
2. Secondly, it prevents the misuse of powers
within the di!erent organs of the government.
The Indian Constitution provides certain limits
and boundaries for each domain of the
government and they are supposed to perform
their function within such limits. In India, the
Constitution is the ultimate sovereign and if
anything goes beyond the provisions of the
constitution, it will automatically be considered
as null, void and unconstitutional.
3. Thirdly, it keeps a check on all the branches of
the government by making them accountable
for themselves.
4. Fourthly, separation of powers maintains a
balance among the three organs of government
by dividing the powers among them so that
powers do not concentrate on any one branch
leading to arbitrariness.
5. Fifthly, this principle allows all the branches to
specialize themselves in their respective field
with an intention to enhance and improve the
e"ciency of the government.
Legal aid

Elements of Separation of Powers

Legislative
The legislative organ of the government is also known
as the rule-making body. The primary function of the
legislature is to make laws for good governance of a
state. It has the authority of amending the existing
rules and regulations as well. Generally, the
parliament holds the power of making rules and laws.

Executive
This branch of government is responsible for
governing the state. The executives mainly implement
and enforce the laws made by the legislature. The
President and the Bureaucrats form the Executive
branch of government.

Judiciary
Judiciary plays a very crucial role in any state. It
interprets and applies the laws made by the
legislature and safeguards the rights of the
individuals. It also resolves the disputes within the
state or internationally.

Advantages:
There are various advantages with the acceptance of this
doctrine in the system;
1. The e"ciency of the organs of state increased
due to separation of works hence time
consumption decreases.
2. Since the experts will handle the matters of
their parts so the degree of purity and
correctness increases.
3. There is the division of work and hence division
of skill and labour occurs.
4. Due to division of work there is no overlapping
remains in the system and hence nobody
interfere with others working area.
5. Since the overlapping removed then there is no
possibility of the competition in between
di!erent organs

Disadvantages:
As there are advantages attached to this doctrine, there are
some disadvantages can also occur due to this doctrine:
1. As I have said there will be increased e"ciency
but reverse e!ect can also be seen because of
the overlapping between rights of the organs if
we are not following the doctrine in its strict
sense because organs may fight for the
supremacy over each other.
2. There is also a possibility of competition
between organs again for proving ones
supremacy over the other organ.
3. There is also possibility of delay of process
because there will not be any supervisor over
other hence the actions of the organs can
become arbitrary.Provisions that Substantiate
Separation of Power Article 53(1) and Article
154 of the Indian Constitution clearly say that
the Executive powers of the Union and the
States are vest in the President and Governor
respectively and shall only be exercised directly
by him or through his subordinate o"cers.

Article 122 and Article 212 of the Indian Constitution

state that the courts cannot inquire in the
proceedings of Parliament and the State Legislature.
This ensures that there will be no interference of the
judiciary in the legislature.

Article 105 and Article 194 of the Indian Constitution

specify that the MPs and MLAs cannot be called by the
court for whatever they speak in the session.

Article 50 of the Indian Constitution encourages the

separation of judiciary from the executive in the
states.

Article 245 of the Indian Constitution gives authority

to Parliament and State Legislature for making laws
for the whole country and the states respectively.

Article 121 and Article 211 of the Indian Constitution

state that the judicial conduct of any judge of the
Supreme Court or High Court shall not be discussed in
Parliament or State Legislature.

Article 361 of the Indian Constitution specifies that the

President and the Governor are not accountable to
any court for exercising their powers and
performance of duties in his o"ce.

Separation of Powers and Judicial Pronouncements

in India
The first major judgment by the judiciary in relation to
Doctrine of separation of power was in Ram Jawaya
v state of Punjab
Punjab1 [i]. The court in the above case
was of the opinion that the doctrine of separation of
power was not fully accepted in India. Further, the
view of Mukherjea J. adds weight to the argument that
the above-said doctrine is not fully accepted in India.
He states that:

"The Indian Constitution has not indeed recognized

the doctrine of separation of powering its absolute
rigidity but the functions of the di!erent parts or
branches of the government have been 1 AIR 1955 SC
549.su"ciently di!erentiated 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".

Then in Indira Nehru Gandhi v. Raj Nara 2 in[ii],

where the dispute regarding Prime Minister's election
was pending before the Supreme Court, it was held
that adjudication of a specific dispute is a judicial
function which parliament, even under constitutional
amending power, cannot exercise. So, the main
ground on which the amendment was held ultra vires
was that when the constituent body declared that the
election of Prime Minister wouldn't be void, it
discharged a judicial function that according to the
principle of separation it shouldn't have done.

The place of this doctrine in the Indian context was

made a bit clearer after this judgment.

Conclusion
The doctrine of separation of powers must be
interpreted in a relative form. In the era of
liberalisation, privatisation and globalisation,
separation of power has to be expounded in a wider
perspective. It should not be curb to the principle of
restraint or strict classification only but a group power
exercised in the spirit of cooperation, coordination
and in the interest of the welfare of the state.

Though this doctrine is unfeasible in its rigid

perception nevertheless its e!ectiveness lies in the
prominence on those checks and balances which are
necessary in order to avert maladroit government and
to prevent abuse of powers by the di!erent organs of
the government.

References:
1. https://byjus.com/free-ias-prep/separation-
power-indian-constitution/
2. https://www.cusb.ac.in/images/cusb-
files/2020/el/law/w2/The_Separation_of_Powers2_iv_sem.pdf
3. http://www.legalservicesindia.com/article/1878/Administrative-
Law-Separation-of-Powers.html
4. https://www.lawctopus.com/academike/doctrine-
of-separation-of-power/
5. 21975 Supp SCC 1

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