INTRODUCTION
The doctrine of separation of powers is an early doctrine developed by the scholar, Montesquieu. The doctrine envisages that power should not be concentrated in the hands of only one entity, it should be divided. This prevents dictatorship and also promotes fairness in the system. This system is however, not accepted widely but those countries that follow this system have well flourished.
DOCTRINE OF SEPARATION OF POWERS
The doctrine of separation of powers promotes that power should not be concentrated in one hand but divided in hands of many. The concept of the doctrine is to eliminate the abuse of power by one person holding all the power. There are four principles on which the doctrine is based upon:
- Exclusivity Principle – this principle divides the government into three different organs.
- Functional Principle – this principle defines that functions of the government should be divided.
- Check and Balance Principle – this principle states that organs of the government must keep a check on each other and maintain that all the duties are performed within the constitutional boundaries.
- Mutuality Principle – this principle aims at promoting cooperation, strength, concord and engagement. In other words, the principle promotes that the organs of the government should work in coherence and not in separation.
MONTESQUIEU’S VISION
Montesquieu, while describing the doctrine of separation of power remarked:
“There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the cause of individuals.”
He believed that decentralization of power is a must and should be done or else the justice would become capricious. He added, that the three organs of government i.e., legislature, executive and judiciary should work independently and there should be no overlap of their powers. According to him, if power is concentrated in one hand, it will be dangerous for the citizens and then the law will become arbitrary and flawed.
SEPARATION OF POWER IN INDIA
In India, the government is divided into three major powers, each performed by a separate branch: the legislature, the executive, and the judiciary. The legislature is responsible for making laws, the executive for enforcing them, and the judiciary for interpreting and implementing them. A key question is whether these branches should be independent of one another or if there should be a strict separation of powers among them.
The Constitution of India delineates the powers of each branch, suggesting a distinction but not a rigid separation. Although the Constitution does not explicitly state the doctrine of separation of powers, it is followed in an implied manner, defining the roles of each branch of government.
The Constitution lays out the functions of these branches in the following ways:
Judiciary: Article 50 ensures judicial independence. Articles 121 and 211 state that the conduct of judges cannot be discussed in Parliament or state legislatures. Executive powers are vested in the President at the national level and the Governor at the state level, as per Articles 53 and 154. The legislature can exercise judicial powers in cases such as the impeachment of the President or the removal of judges. Similarly, the executive has the power to appoint judges and the Chief Justice, which can influence the judiciary’s functioning.
Executive: The executive can exercise legislative powers when the legislature is not in session and there is an urgent need to make laws, as provided under Article 123 for promulgating ordinances.
The Constitution also establishes a system of checks and balances to prevent the misuse of vested powers. This framework indicates that the Indian Constitution does not rigidly enforce the doctrine of separation of powers. Instead, it adopts a broad approach, allowing some overlap in the functions and powers of the three branches.
CONCLUSION
The doctrine of separation of power is an essential doctrine in ensuring a robust form of governance. This doctrine aims that the power should not be concentrated in the hands of one so that only one does not dominate the government. Separation of powers as believed by Montesquieu should be implemented in most of the nations so that the citizens not suffer by the hands of their ruler. This doctrine also hinders the autonomy of one person that holds power and prevents that the law is not misused. This it ensures by the way of checks and balances principle that mandates that the different organs of the government must keep a check on the activities of the other.
Contributed by – Ishita Saxena
(Symbiosis Law School, Noida 2023-28)