“Power tendsto corrupt, and absolute power corruptsabsolutely.
” – John Acton THE DOCTRINE OFSEPARATION OF POWERS The separation ofpowers, also known as trias politica, was coined by Charles-Louis de Secondat.The Doctrine of Separation of Power is the indication to all the constitutionsof the world which came into existence since the days of the “Magna Carta”. To analyze theseparation of powers doctrine, the theory aspect will be managed, and a farreaching comprehension of the teaching as utilized as a part of our nationunder our parliamentary arrangement of administration will be made. There should notconcentration of powers in the hands of any particular institution or agency ofthe Government.The Legislature shouldbe concerned with the making law but not in its implementation / administeringit· The Administration (Executive) shouldnot control the legislature nor should it over take the justice system becausedoing so it might lead to arbitrary and capricious justice.
· The Judiciary should be independent ofExecutive and Legislation.· The Doctrine says that, in a freedemocracy, these three functions are separated and exercised by three separateorgans of the Government.Each organ while carryingout its activities tends to interfere in the range of working of anotherfunctionary because a strict differentiation of functions is not possible intheir relations with the general public. Thus, even when acting in range of their own power, overlapping functions tendto appear amongst these organs.That is why today all the systems might not be opting for the strict separationof powers because that is undesirable and unrealistic but consequences of thisconcept can be seen in almost all the countries in its diluted.In theory separation ofpowers doctrine, aims at separating power and distributing it such that oppressionby the government may be prevented altogether as equivalent power which acts inthree separate organs which act as a check and balance for each other.
Thus handingover a different function to each organ and creating selective functions forthem, helps grouping of powers and makes this doctrine a success. In fact thisdoctrine has been adopted around the world in many constitutions and in ourdegree to an extent as well. It is an exceptional way of protecting humanliberty, freedom and creating a system of procedure of governance which isresponsible, reasonable and dependable.
The doctrine ofseparation of powers has become an integral part of the governmental structure.But, the practical application of the doctrine differs to a great extent. Intheory, the doctrine of separation of powers is supposed to have a threefoldclassification of functions and parallel organs. But because of the diverse andcomplex nature of a modern state, where the process of law making,administration and settlement cannot be clearly defined to separateinstitutions, the application of this doctrine in strict sense is verydifficult. It the government’srole to protect individual rights, but governments have generally been the realviolators of these rights. Thus, various measures have been determined tolessen this probability. The concept of Separation of Powers is one suchconcept.
The basic assumption behind this is that when a single person or grouphas a large amount of power, they can become dangerous to citizens. TheSeparation of power is a way of removing the amount of power in any group’shands, making it more difficult to abuse. Being variable innature, the doctrine, can be understood as being clearly committed to the achievementof political freedom or liberty, an essential part of which is the restriction ongovernmental power, and that this can best be achieved by setting up divisionswithin the government to prevent the centralization of such power in the handsof a single body of men. Characteristically, the doctrine is normative innature prescribing certain governmental arrangements which should be created orin order to achieve certain desirable ends.
A major problem in an approach tothe literature on the doctrine of the separation of powers is that a fewwriters define exactly what they mean by it, what its essential views are, andhow it relates to the other ideas. For this reason generally, one can find muchconfusion and chaos in discussions relating to its origin as the exact natureof the claims being made for one thinker or the other are not measured againstany clear definition. It is essential for the establishment and maintenance ofpolitical liberty that the government be divided into three branches ordepartments, the legislature, the executive, and the judiciary. To each ofthese branches there is a corresponding identifiable function of government,legislative, executive or judicial. Each branch of the government must beconfined to the exercise of its own function and not allowed to infringe uponthe functions of the other branches.
Moreover, the people who make these threeagencies of government, must be kept separate and distinct where no individualshould be allowed to be at the same time a member of more than one branch. Inthis way each of the branches will be a check to the others and no single groupof people will be able to control the mechanism of the State. IMORTANCEThe doctrine ofseparation of power in its true sense is very inflexible and this is one of thereasons of why it is not accepted by a large number of countries in the world.The main object as per Montesquieu in the Doctrine of separation of power isthat there should be government of law rather than having will and notions ofthe official. Similarly another most important characteristic of the above stateddoctrine is that there should be self-rule of judiciary that is it should befree from the other organs of the state and if it is so then justice would bedelivered properly. Hence, the Doctrine ofthe separation plays an essential role in the making of a impartial governmentand proper justice is distributed as there is independence of judiciary.
Alsothe importance of the above said doctrine can be traced back to as early as1789 where the Constituent Assembly of France in 1789 was of the view that”there would be nothing like a Constitution in the country where the doctrineof separation of power is not accepted”. The idea of separationof powers developed during the period known as the European Enlightenment. TheEnlightenment began in the seventeenth century and lasted until shortly beforethe beginning of the American Revolution.
The three structures ofthe government which we know as the executive, the judiciary and legislaturerepresent the people which are in charge of the smooth running of a law basedgovernment in our society. The legislature is the law- making body, theexecutive is in charge of the implementation of every single such law and thejudiciary manages the cases that emerge from a breach of law. In this way theyare altogether interlinked organs of the government and their functions and guidelinestend to overlap with each other, as it isn’t likely to isolate the three fromeach other completely.
This has been the cause for not only serious politicaldebate in our country but has raised many ethical and jurisprudential debatesamong legal scholars and the law society. We know that the governmentis form for the protection of our rights, but governments have historicallybeen the major violators of these rights. The basic concept behind this is thatwhen a single person or group has a large amount of power, they can become hazardousto society and citizens.
The Separation of power is a way of removing theamount of power in any group’s hands, making it more difficult to use. JUDICIAL VIEW ON THE DOCTRINE OF SEPARATION OF POWER As stated about theseparation of power there were times where the judiciary faced tough challengesin maintaining and preserving the Doctrine of separation of power and it has inthe process of preservation of the above said Doctrine has delivered landmarkjudgments which clearly talks about the independence of judiciary as well asthe success of judiciary in India for the last six decades.The first major judgmentby the judiciary in relation to Doctrine of separation of power was in RamJawaya v state of Punjab AIR 1955 SC 549.
The court in the above casewas of the view that the Doctrine of separation of power was not entirelyaccepted in India. Moreover, the view of Mukherjea J adds weight to theargument that the above said doctrine is not fully accepted in India. He statesthat: “TheIndian constitution has not indeed recognize the doctrine of separation ofpowering its absolute rigidity but the functions of the different parts orbranches of the government have been sufficiently distinguished and subsequentlyit 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 toanother”.Later in I.C.
GolakNath v State of Punjab, Subha Rao AIR 1967 SC 1643,C.J opined that: “Theconstitution brings into existence different constitutional entitles, namelythe union, the state and the union territories. It forms three majorinstruments of power, namely the Legislature, the Executive and the Judiciary.It defines their jurisdiction thoroughly and expects them to exercise theirrespective powers without violating there limits. They should function with theareas allotted to them”The above opinion of thecourt clearly states the change in the courts view pertaining to the opinion inthe case of Ram Jawaya v state of Punjab related to the doctrine of separationof power. CONCLUSIONBroadly speaking thedoctrine of the separation of powers is a valuable doctrine. In the Americanconstitution there is a system of checks and balances and the power vested inone organ cannot be exercised or encroached upon by the other.
At no point oftime was the doctrine accepted in its strict sense in England. In the Britishministry there exists a union of persons but separation of organs. Thus we findseveral branches of government headed by the same persons.
The doctrine ofseparation of powers is not accepted fully in the constitution of India and onemay agree with the observation of Mukherjee,J. in Ram Jawaya v state of Punjab”The Indian constitution has not indeed recognize the doctrine of separation ofpowering its absolute rigidity but the functions of the different parts or branchesof the government have been sufficiently differentiated and consequently it canvery well be said that our constitution does not contemplate assumption, by oneorgan or part of the state, of functions that essentially belong to another”.