This article on ‘Theory of Separation of Powers: A Critical Analysis‘ was written by Priyal Kumari an intern at Legal Upanishad.
The article will be emphasizing the origin of the theory of separation of powers and analysis of its position in India and its practical application. Lastly, it will include a critical analysis of the theory followed by the conclusion
“Power corrupts and absolute power corrupts absolutely”, on part of governance, the phrase enunciates the existence of arbitrariness due to absolute power upon a particular authority leading to corruption. The theory of separation of powers was proposed to fortify against such corruption and distribute the extent of authority and power among three organs of the government. It is an ancient theory that has been accepted by the Indian government for distributing powers, responsibilities, and functions amongst government organs.
The theory of separation of powers has its genesis in the 4th decade at the time of Aristotle when the first instance of its necessity was proposed. Later, the existence of the theory was found during the 16th and 17th decades in a vague sense. Initially, the theory was not having any systematic form but in the 18th century, it was given a systematic structure by Montesquieu.
Montesquieu’s proposition of the theory of separation of powers had a huge impact on the idea of political liberty. The power of government was distributed amongst the legislature, executive, and judiciary for the first time during this century.
The theory of “Trias Politica” refers to the distribution of powers, authority, and responsibilities between the respective branches of government to restrict the concentration of powers and make them separate and independent. The purpose of this theory is to protect the liberty of individuals. By this theory, Legislature is awarded the power to make laws; the Executive is awarded the power to enforce such laws, and Judiciary is awarded to use such laws for justice and maintain harmony.
Analysis of position in India
The theory is not expressly contained in the Indian Constitution because the constituent assembly decided to have a parliamentary form of government in India. Since the doctrine has not been considered in its rigid form. Therefore, the constitution only considers the separation of functions and not power. However, there is an essence of this theory in the political structure of India where the power is divided between the branches. There are certain constitutional provisions towards the complete separation of powers and certain provisions against it.
Provisions in favour of the complete theory of separation of powers
A.50 of the Indian Constitution separates the powers of the executive from the judiciary. As per A.53(1) and A.154 of the Indian Constitution, the President, and the governor have executive power at the central and state level respectively and the powers can be exercised directly or indirectly through their subordinate officers.
Independence of organs
Also, A.245 states that the Parliament has the authority to make laws for the entire nation. However, State Legislature also has a law-making authority for states. A.122 and A.212 restrict judicial courts from interfering in the affairs of the Parliament or State Legislature. Judicial immunity is conferred upon the MLAs as well as MPs for speaking during the sessions under A.105 and A.194. Further, the President, as well as, the Governor is not answerable for exercising their powers under A.361.
Provisions against completely separating powers
A.74 states that the powers of the Legislature and Executive are co-extensive to each other. The executive uses legislative powers when there is no House of Parliament and the President issues an ordinance for the same. Further, any bills passed by the parliament need the assent of the President to become law under A.111. The president has the authority to formulate laws for any state when State Legislature is dissolved during State Emergency under A.356.
Further, there is an overlap of power between the Executive and Judiciary where the President has the power to pardon, reprieve, remise, or respite the conviction of an accused under A.72. the President also decides for the appointment and removal of judges in the judiciary under A.124. The Parliament has the authority to punish for its contempt of parliamentary proceedings under A.145.
Analysis of Judicial Interpretation
The theory had a practical application to meet the purpose of attaining and maintaining liberty. In the case of Keshwananda Bharti v. the State of Kerala, 1973, Supreme Court held that the amending power of the body is associated with the basic structure of the Indian Constitution. Any amendment made violating such a structure will be considered unconstitutional.
In the case of Ram Jawaya Kapur v. State of Punjab, it was laid down by the court that the structure of the Indian Constitution adequately distinguishes between the organs and functions of the Indian government to avoid ambiguity concerning the powers.
In the case of Indira Gandhi Nehru v. Raj Narain, 1955 the court said that the concept of separating powers is recognized in a wide sense by the Indian Constitution. There are constitutional limits that cannot be escaped. The separation of powers and functions of the Legislature and Judiciary cannot be abridged as it will violate the basic structure.
In the case of Kartar Singh v. State of Punjab, 1926, it was held by J. Ramaswamy that the sovereign power amongst organs of government has been distributed within the limits of the Indian Constitution wherein, the Legislature makes the law; the Executive enforces the law and the Judiciary interprets the law which cannot be escaped.
In the case of Asif Hameed v. State of Jammu and Kashmir, 1989, it was held by the court that although the theory of separation of power was not approved earlier by the constitution-makers. They have mentioned the functions of the three branches of government and every branch shall work within the set limits of the constitution.
Critical analysis of the theory of Separation of Powers
The central idea behind the theory of separation of powers was to ensure the independent working of the Legislature, the Executive, and the Judiciary to maintain the liberty of individuals in the nation. But, the theory was criticized on the following grounds:
It was observed that Montesquieu agreed to take this concept from the US constitution but this concept never existed under the US constitution. Further, it was said that complete separation of power amongst organs of the government will not lead to ideal regulation. The government is formed by people and a little dependence is necessary for mutual help.
Lastly, When it comes to the practical application of the theory, it is ideally not possible to implement it in a rigid manner as it will completely restrict the power of the branches and will affect the functioning of the government organs. As a consequence of the same, the welfare state will not be able to resolve complex problems.
It is finally concluded that apart from the criticism faced by the theory, it gives the benefit of maintaining liberty in the nation. The lacuna of this theory is only visible when analyzed in-depth. This doctrine is essential for the modern period in a relative sense.
In a democracy, the basic framework for the working of the government is made so as to support the parliamentary form of government. Even if it is a key to the working of the government, no democracy in the world has rigidly accepted this principle. The powers as well as responsibilities intentionally overlap and are necessary for the smooth functioning of the government.
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