Constitutional Executive and Judiciary.. 7 Legislature and Executive..

 

 

Constitutional Law – I

Internal Assessment – I

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Critical Essay on application of doctrine of separation of
power in India

Presented to – DR.
ATMARAM SHELKE

Presented by – MANAN
SONI

1ST YEAR
LL.B (3YRS)

PRN NO: 17010122066

 

 

 

 

 

Table
of Contents
Abstract 3
Introduction. 4
Montesquieu’s Theory of
Doctrine of Separation of Power. 5
The doctrine of Separation of Powers in India and the US. 5
Separation of powers among the three bodies of Government 6
Legislative
Powers. 6
Executive Powers. 6
Judiciary Powers. 6
How is the Separation of Powers
applied in India?. 7
Judiciary and
Legislature.. 7
Executive and
Judiciary.. 7
Legislature and
Executive.. 8
Problems with separation of power in
India – Overlap of functions. 8
Indian Cases on Separation of Power. 9
1.     Kesavananda
Bharati Vs. State of Kerela.. 9
2.     Ram
Jawaya Vs. State of Punjab.. 9
3.     Indira
Gandhi Nehru Vs. Raj Narain.. 9
4.     Delhi
Development Authority Vs. M/S UEE Electricals Engg. Pvt. Ltd.. 9
Conclusion. 10
References. 11
 

 

 

 

 

 

 

 

 

 

Abstract –

            The paper reviews one of the most
important question that is being asked about the doctrine of separation of
power in India and whether the powers of the three bodies of the Government
i.e. legislature, executive, and judiciary overlap. In the first section of the
text, the author talks about the origin of the theory of separation of power as
mentioned by Montesquieu in his book ‘Espirit des Louis’ (The spirit of the
laws). The author further reviews the separation of power in India but
mentioning about the various Articles from the Constitution of India. As well as
the Constitution of US. The text further mentions about the powers given to the
legislature, executive and the judiciary. The text also talks about how the
separation of power is applied in India and the problem of overlap of
functions. Lastly, the text highlights various cases that discuss the doctrine
of separation of power.

 

            The paper seeks to answer the
question: What is the Doctrine of Separation of Power and what powers are given
to the legislature, executive and the judiciary?

 

            It is hoped that this study will
inform about the separation of power in India by in-depth analysis of the
Doctrine of Separation of Power.

 

 

 

 

 

 

 

 

 

 

Introduction –

            The Doctrine of
Separation of power is a very important part of Indian Constitution as it
controls and regulates the powers given to different bodies of Government
namely, The Legislature, The Executive and The Judiciary. The Doctrine of
Separation of Power was first introduced by Montesquieu, a French scholar in
1747 in his book ‘Espirit des Louis’ (The spirit of the laws). According to his
theory he recommended that there should be a division of power among various
organs of the state. The separation of power between the various bodies of the
government establishes a system of checks and balances which maintains that the
various bodies do not get too powerful in one of the branches. The main role of
the legislature is to enact general rules of law that relate to the conduct of
its citizens and institutes. The main function of the executive body of the
Government is to enforce the laws established by the legislature. Executive
powers are vested by the President and the Governor of India as mentioned in
Article 53(1) of the Constitution of India. The main function of the judiciary
is to prevent the violation of laws and to protect the fundamental rights of
the citizens. The Supreme Court of India is the apex court and all the
judiciary power is vested in it. The Separation of Powers in India are applied
by granting different powers and imposing limitations on the three bodies of
the Government. The separation of power among both Judiciary and Legislature
can be observed in the Article 122 and Article 212 of the Constitution of
India. Article 368 grants powers to the Parliament to amend the Constitution
which can only be exercised by the Legislature and the Judiciary has to abide
by the changes thus made by the Parliament. Article 53(1) of the Constitution
of India vests the executive power in President and the Governor whereas,
Article 124(1) of the Constitution of India vests judiciary powers to the
highest court of the country i.e. The Supreme Court of India. In India, the
executive power is given to the President of India under Article 52 and Article
53 of the Constitution of India. The main problem with the separation of power
is the overlapping of the functions of the three bodies of the Government.
There are various case laws which talks about the separation of power especially
the Article 368 of the Constitution.

 

 

 

 

 

“Power
Corrupts and absolute Power tends to corrupt absolutely.”1

 

Montesquieu’s Theory of Doctrine of Separation of Power –

 

            The theory of Doctrine of Separation
of Power was first propounded by Montesquieu, a French scholar in 1747 in his
book ‘Espirit des Louis’ (The spirit of the laws).2 The theory states that if
the power is given to a single person or a group of people then it will result
in tyrannical form of the government. Thus, Montesquieu recommends that there
should be division of power among the various organs of the state i.e.
Legislature, Executive and Judiciary. Montesquieu also suggests in this book
that the legislative and judicial powers should not be united and if it is
united then there will be no liberty. Also, if the judicial powers are not
separated from the executive and legislative powers then also there will be no
liberty. Thus, Montesquieu in the book suggests that to achieve liberty there
should be separation of powers among the Legislative, Executive and Judicial
bodies of the Government.

 

The doctrine of Separation of Powers in India
and the US –

 

            The doctrine of separation power
states that separate powers are given to the legislature, executive and the
judiciary and these powers do not intertwine with each other. This doctrine of
the separation of power is embedded in various Articles of the Constitution
like Article 154 of the Constitution of India which states the executive powers
of the State. Article 154(1) states that, “The
executive power of the State shall be vested in the Governor and shall be
exercised by him either directly or through officers subordinate to him in
accordance with the Constitution.”3.
Other Articles of the Constitution of India that deals with the separation of
powers are Article 50, 53, 121, 122, 123, 124(1) 154, 211, 212 and Article 361
which gives various powers and state restrictions to the various bodies of the
government. The object of the doctrine of separation of powers between the
three bodies of the Government is to give exclusive powers to the various
bodies in specific matters. In India there is no strict separation of powers
like that in the US which is mentioned in Article I, II and III of the
Constitution of United States giving exclusive powers to the legislature, the
Presidency (Executive) and the Judiciary respectively. The separation of power
between the various bodies of the government establishes a system of checks and
balances which maintains that the various bodies do not get too powerful in one
of the branches. This is one of the main aims of the separation of powers among
the three objects of the government. All the three bodies of the Government act
as a pillar of democracy in India.

 

Separation of powers among the three bodies
of Government –

 

Legislative Powers –

The legislature enacts general rules of law that are primarily related
to the conduct of its citizens and institutes. Lok Sabha and the Rajya Sabha
are the two bodies of the Union Legislature of India and helps in the enactment
of laws, authorizes borrowing, imposes taxes and to write, debate and pass
bills which are in turn passed to the President for approval. A bill becomes a
law only after it is signed and approved by the President. Thus, emphasising
the system of checks and balances. This power is granted to the President under
Article 123 of the Constitution of India.

 

            Executive Powers –

The main function of the executive body of the Government is to enforce
the laws established by the legislature. Executive powers are vested by the
President and the Governor of India as mentioned in Article 53(1) of the
Constitution of India. They can veto laws and plays a major role in the
appointment of judges and can grant pardons to the convicts. Thus, maintaining
the system of checks and balances over the judiciary body of the Government.

 

Judiciary Powers –

The main function of the judiciary is to prevent the violation of laws
and to protect the fundamental rights of the citizens. The Supreme Court of
India is the apex court and all the judiciary power is vested in it. The
judiciary has the role of interpreting the laws created by the legislature but
cannot make new laws. In this sense they are dependent on the legislative body
of the Government. Article 124(1) of the Constitution of India grants various
rights to the judiciary by creating Supreme Court of India. Article 124(2)
states that the judge of the Supreme Court shall be appointed by the President
which is the executive, thus creating a system of checks and balances on the
Judiciary.

How is the Separation
of Powers applied in India?

 

            The Separation of Powers in India
are applied by granting different powers and imposing limitations on the three
bodies of the Government. As mentioned earlier different powers are granted to
Legislature, Executive and Judiciary thus the comparison of these powers among
these bodies will throw some light on the differences between the three and
also lay emphasis on the system of check and balances among them.

 

Judiciary and Legislature –

As mentioned earlier, the powers of the judiciary are to prevent the
violation of laws and to protect the fundamental rights of the individuals.
These laws and fundamental rights are laid down and created by the legislative
body of the Parliament. The separation of power among both Judiciary and
Legislature can be observed in the Article 122 and Article 212 of the
Constitution of India. Article 122 and Article 212 reads as, “Courts not to inquire into proceedings of
Parliament”4 stating that the
judiciary cannot question the validity of any proceedings of the Parliament
thus giving the legislature separate powers than the judiciary. Article 368
grants powers to the Parliament to amend the Constitution which can only be
exercised by the Legislature and the Judiciary has to abide by the changes thus
made by the Parliament.

 

Executive and Judiciary –

As mentioned earlier, the executives have the responsibility of
enforcing the laws created by the Legislature. Judiciary supplements the
executive by making sure that the rule of law that the executive body of the
Government has to enforce is followed properly and that the laws are not
violated including the fundamental rights of the individuals. Article 50 of the
Constitution of India states the separation of powers of the judiciary from the
executive. The Article reads as, “Separation
of judiciary from executive”5.
The intention (of the separation of powers among judiciary and executive) is
always to ensure that the judiciary does not decide cases under the influence
of the executives, rather follows the principle of Rule of Law.6 Article 53(1) of the
Constitution of India vests the executive power in President and the Governor
whereas, Article 124(1) of the Constitution of India vests judiciary powers to
the highest court of the country i.e. The Supreme Court of India.

 

Legislature and Executive –

As mentioned earlier, the role of the legislature is to make laws
whereas the role of the executive is to enforce those laws. In India, the
executive power is given to the President of India under Article 52 and Article
53 of the Constitution of India. He (The Executive) appoints officials of the
Union Government, Prime Minister, and Council of ministers at the advice of the
Prime Minister, Chief Justice and judges of Supreme Court and High Court at the
advice of the Chief Justice of India.7 Once a bill is drafted by
the legislature, it goes for the approval of the executive i.e. The President.
The President can then accept or reject the bill. In this sense there is a
system of checks and balances that exists between the legislature and the
executive.

Problems with
separation of power in India – Overlap of functions

 

In India the separation of power is not absolute as the three different
bodies of the Government depend on each other for their functioning. The
legislature exercises the power to make laws but also exercises judicial power
in case of breach of their privilege and the removal of the judges. The
tribunals are a part of the executive, but they also exercise the judicial
functions. The executives can also make laws under delegated legislature. If
someone exceeds the freedom of speech in the Parliament then the legislature
can impose punishment. There also exists a system of checks and balances among
the three bodies of the Government as mentioned earlier which also makes one
body depends on another and vice versa. Thus, the Indian Constitution does not
provide a strict separation of powers.

 

 

 

 

Indian Cases on Separation of Power –

 

1.     Kesavananda Bharati Vs. State of Kerela –
In this case Article 368 of the Constitution was challenged. Article 368
assigns power to the Parliament to amend the Constitution and the procedures
therefor. In this case it was decided that even though the Parliament is given
the power to amend the Constitution, but they do not have the absolute right to
amend and if there is a question to amend the basic features of the
constitution then it will be struck down to be unconstitutional

 

2.     Ram Jawaya Vs. State of Punjab –
In this case it was held by the Hon’ble Supreme Court that there is no rigid
separation of power that is being exercised in India. The Supreme Court held
that the executives are derived from the legislature and is dependent on it,
for its legitimacy.8

 

3.     Indira Gandhi Nehru Vs. Raj Narain –
This case deals with the dispute regarding Prime Minister elections that was
pending before the Supreme Court. It was held that the decision of a specific
dispute is the role of the judiciary and the parliament cannot by using Article
368 exercise their amending power. It was decided that the Prime Minister
elections would not be void but it was held ultra vires following the principle
of separation of power.

 

4.     Delhi Development Authority Vs. M/S UEE
Electricals Engg. Pvt. Ltd. –
In this case it was said that the judicial review should only be used for protection
and not for undue interference in executive functions.

 

 

 

 

 

 

 

 

 

 

Conclusion –

The concept of separation of power is embedded in the Constitution of
India. The system of checks and balances makes sure that the power exercised by
various bodies of the Government i.e. The Legislature, The Executive and The
Judicial are not misused and followed in the true sense. In India, the
separation of power is not followed in strict sense as there is an overlap of
functions among different bodies of the Government. In India, according to
Article 122 and Article 212 the courts cannot inquire into the proceedings of
Parliament. Article 50 of the Constitution of India separates the powers of the
judiciary from the executives. Article 52 and Article 53 gives the executive
powers to the President of India. Once a bill is drafted by the legislature, it
goes for the approval of the executive i.e. The President. The President can
then accept or reject the bill. In this sense there is a system of checks and
balances that exists between the legislature and the executive. Article 368 of
the Indian Constitution which gives the power to the Parliament to amend the
Constitution has been challenged at multiple times. In the landmark judgment in
the case of Kesavananda Bharati Vs. State of Kerala it was held that even
though the Parliament is given the power to amend the Constitution, they do not
have the absolute right to amend and if there is a question to amend the basic
features of the constitution then it will be struck down to be
unconstitutional. Thus, according to the Doctrine of Separation of Power in
India the powers of the three bodies of the Government namely, judiciary,
executive and legislature are divided so as to prevent in creating a tyrannical
form of the government.

           

 

 

 

 

 

 

 

 

 

 

 

 

References –

1.     Yashu
Bansal, Chanakya National Law University, Patna, Doctrine Of Separation Of Power, ACADEMIKE (Apr. 4, 2015), https://www.lawctopus.com/academike/doctrine-of-separation-of-power/

2.     Nidhi
Singh, Anurag Vijay, Separation of Powers:
Constitutional Plan and Practise, INTERNATIONAL JOURNAL OF SCIENTIFIC AND
RESEARCH PUBLICATIONS (Nov. 2013), http://www.ijsrp.org/research-paper-1113/ijsrp-p2337.pdf

3.     Separation of powers between various organs,
CIVIL SERVICES INDIA, https://www.civilserviceindia.com/subject/General-Studies/notes/separation-of-powers-between-various-organs.html

4.     Prachi
Shah, Separation of Powe in India &
USA, LEGAL SERVICES INDIA (Dec. 29, 2010), http://www.legalservicesindia.com/article/article/separation-of-power-in-india-&-usa-483-1.html

5.     Doctrine of separation of powers in India, CIVIL
DAILY (Sep. 22, 2017), http://www.civilsdaily.com/blog/doctrine-of-separation-of-powers-in-india/

6.     ‘Separation of Powers’ and The Indian Constituion, SHODHGANGA,
http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/9/10_chapter%204.pdf

7.     Aman
Chhibber, Separation of Powers: Its Scope
And Changing Equations, LEGAL SERVICES INDIA, http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html

8.     Bani
Mahajan, Doctrine of Separation Of
Powers, ACADEMIKE (Dec. 7, 2014), https://www.lawctopus.com/academike/doctrine-of-separation-of-powers/

9.     Indian Constitution And Separation Of Powers, LAWTEACHER,
https://www.lawteacher.net/free-law-essays/constitutional-law/indian-constitution-and-separation-of-powers-constitutional-law-essay.php

10.  Drishti,
Separation of Powers and Judicial
Activism in India, ACADEMIKE (Nov. 13, 2015), https://www.lawctopus.com/academike/separation-of-powers-and-judicial-activism-in-india/

11.  U.S.
CONST.

12.  INDIA
CONST. art. 50, 53, 121, 122, 123, 124(1) 154, 211, 212, 361 and 368

13.  12
V. N. SHUKLA, CONSTITUTION OF INDIA 47, 389, 1092 (2017)

1 Bani Mahajan, Doctrine
of Separation Of Powers, ACADEMIKE (Dec. 7, 2014), https://www.lawctopus.com/academike/doctrine-of-separation-of-powers/

2 Bani
Mahajan, Doctrine of Separation Of
Powers, ACADEMIKE (Dec. 7, 2014), https://www.lawctopus.com/academike/doctrine-of-separation-of-powers/

3 INDIA CONST. art. 154

 

4 INDIA
CONST. art. 122, 212

5 INDIA
CONST. art. 50

6 Nidhi Singh, Anurag Vijay, Separation of Powers: Constitutional Plan and Practise,
INTERNATIONAL JOURNAL OF SCIENTIFIC AND RESEARCH PUBLICATIONS (Nov. 2013), http://www.ijsrp.org/research-paper-1113/ijsrp-p2337.pdf

7 Nidhi Singh, Anurag Vijay, Separation of Powers: Constitutional Plan and Practise,
INTERNATIONAL JOURNAL OF SCIENTIFIC AND RESEARCH PUBLICATIONS (Nov. 2013), http://www.ijsrp.org/research-paper-1113/ijsrp-p2337.pdf

8 ‘Separation of
Powers’ and The Indian Constituion, SHODHGANGA, http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/9/10_chapter%204.pdf