Meaning of Doctrine of Separation of Powers
According to Montesquieu, the Doctrine of Separation of Powers means that one person or body of persons should not exercise all the three types of powers-legislative, executive and judicial. Each of these powers should be vested in a distinct and separate organ. There cannot be any liberty, if all these powers or any two of them are vested in the same organ or same individual.
According to Wade and Philips, separation of powers may mean the following three different things-
(1) The same set of persons should not form part of more than one of the three organs of Government,
(2) One organ of the Government should not control or interfere with the exercise of function by another organ, and
(3) One organ of Government should not exercise the functions of another.
Importance of Doctrine of Separation of Powers/ Application of Doctrine of Separation of Powers in India
In India, there is no historical background of this doctrine. The doctrine in its absolute rigidity is not inferable from the provisions of the Constitution. However, Article 50 provides for the separation of the judiciary from the executive. As a general practice, the executive has been entrusted with the legislative and judicial powers.
We have adopted Parliamentary form of Government based on the pattern of British system. The President exercises all executive powers but under Article 74 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. But like the American President he is the Supreme Commander of the Armed Forces, Air force and the Navy; he can declare war himself, send armies abroad without consulting the Legislature. This has been contained in Article 53 of the Constitution but clause (2) of the said Article provides that the exercise of such powers shall be regulated by law.
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Furthermore, the Parliament can confer the power on any other authority.
All executive powers of the union are vested in the President under Article 53 of the Constitution. President of India is only nominal head of the State. Since India adopted a Parliamentary system of Government, it was practically not possible to adhere to the Doctrine of Separation of Powers as interpreted by Montesquieu. Mukherjee, J. has observed in Re Delhi Laws Act, [1951 S.C.J. 527] that the President has to act on the advice of his Ministers.
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The Constitution has recognised the need for the separation of the Judiciary from the Executive, as a Directive Principle of State Policy in Part IV. In certain States, this step has been taken on experimental basis. Besides, a series of checks and balances are patent in Constitution and they can be summarised thus;
(i) The Indian Legislative bodies are not sovereign. Their rights of legislation are regulated by:
(ii) the various Lists (I, II and III) of the Constitution;
(iii) the provisions of Part III;
(iv) the possibility of judicial veto on legislation; and
(v) the requirement that the President and the Council of Ministers have to act in accordance with the Constitution, and the provision for impeachment of the President, if he fails to act in accordance with the provisions of the Constitution.
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Furthermore, under Article 256 of the Constitution the executive powers in any State are to be exercised in such a way as to ensure compliance with the Constitution. So far as the Judiciary is concerned, the Constitution provides for the dismissal of a judge, on a motion in that behalf passed under Article 174. So it will be noticed that these are checks and balances on various agencies of the State, which operate under the various provisions of the Constitution. Therefore, it can be said that the Indian Constitution believes in checks and balances and not on any rigid separation of powers. In Ram Jawaya v. State of Punjab [AIR 1955 SC 549] Mukherji, J., has opined that the Indian Constitution has not indeed recognised the Doctrine of Separation of Powers in its absolute rigidity.
In the case of Ram Krishna Dalmia v. Justice Tendolker, [1959 SCR 229], it was laid down by Das. J. “The Constitution does not express the existence of the separation of powers and the Doctrine does not form an essential basis or foundation stone of the constitutional framework as it does in the USA”. In Chandra Mohan v. State of U.P. [A.I.R. 1966 SC 1897], it was held that though our Constitution does not accept the strict Doctrine of separation of powers but provides for an independent judiciary in the States. The controversy was finally settled by the Supreme Court in the leading case of Keshwanand Bharti v. State of Punjab, [AIR. 1973 SC 146] which changed its outlook and held that both the separation of powers and the supremacy of the Constitution are the part of the basic structure of the Indian Constitution. The view taken by it in the Keshwanand Bharti case in this connection was confirmed by Supreme Court in the leading case of Smt. Indira Nehru Gandhi v. Raj Narain [A.I.R. 1975 SC 2299], in which it was said that the three separate organs of the Republic cannot take over the functions assigned to the other as it forms the basic structure of scheme of the Government of the Republic laid down in this Constitution.
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Thus, the Constitution does not recognise the Doctrine of Separation of powers in its absolute form but the functions of the different branches of Government have been sufficiently differentiated. Therefore, we find that our Constitution does not postulate assumption by one organ of the State of functions that essentially belong to another. In Gurudevdutta v. K.S.S.S. Maryadit v. State of Maharashtra [A.I.R. 2001 SC 1980], the Apex Court expressed the view that Doctrine of separation of powers has been the basic tenet of our Constitutional framework since in terms therewith each of the three organs of the State vix, the judiciary, the executive and the legislature would be operating on its own sphere.
Question:- What do you understand by the Doctrine of ‘Separation of Powers’? Describe its importance in the context of Administrative Law.
Question:-Are the executive, legislature and Judiciary separate from each other? To what extent is the overlapping of functions of these three branches of the Government permissible? Discuss.
Question:- ‘The Indian Constitution has not indeed recognized the Doctrine of Separation of Power in its absolute rigidity but the functions of different branches of the Government have been sufficiently differentiated.’ Discuss.
Question:- ‘The Doctrine of Separation of Power is not fully applicable in India’. Comment.
Question:- Explain Montesquieu’s theory of Separation of Power and examine its application within Indian Constitution.
Answer:- You have to write the almost same content in the answer.