SEPARATION OF POWERS

Contents
Concept Historical background Motesquieus doctrine Operation of the doctrine in India Critical evaluation of the doctrine

Concept
Dividing different powers among three branches of government Prevents one branch from gaining too much power Legislative, Judicial, and Executive branches have their own unique powers

Historical background
Origin of the doctrine traceable to PLATO and ARISTOTLE. 16th and 17th century French philosopher JOHN BODIN and British politician LOCKE further developed it.

However MONTESQUIEU for the firth time gave its systematic and scientific exposition in 1748 in his book ESPRIT DES LOIS( Spirit of Laws).

Motesquieus doctrine
It is most important to create separate branches of government with equal but different powers. That way, the government would avoid placing too much power with one individual or group of individuals. He stated that -When the [law making] and [law enforcement] powers are united in the same person... there can be no liberty. According to him, each branch of government could limit the power of the other two branches. Therefore, no branch of the government could threaten the freedom of the people.

Defects
Absolute separation of powers not possible Practical difficulties Adherence to this doctrine not possible in a welfare state.

Operation of the doctrine in India

Cursory glance at the Constitution may lead to the inference that doctrine of SOP has been incorporated in the constitution because: Legislative powers Legislature. Executive powers President. Judicial powers-SC/HC/Other Court. However closer look at the constitution would reveal a contrary position.

 There is only a single Article in Indian Constitution that expressly mentions about separation of powers. The Directive Principles of State Policy (Part IV) lays down in Article 50 that three shall be separation of the Judiciary from the Executive.

Exceptions to the doctrine in India

(a) The SC has the power to declare void the laws passed by the parliament and the actions taken by executive if they violate the provisions of the constitution. (b) Judicial legislation or law making by the judges is another example of judiciary encroaching upon the sphere of legislature. 1. Judiciary(a) SC has power of rule making. (b) HC the power of administrative control over subordinate courts.

Exceptions to the doctrine (contd.) in India

2.Executivea) President/Governor exercises law-making power in the form of ordinances. b) President/Governors assent is required for all legislations. c) President/Governor also have judicial powers in the form of granting pardon etc. d) Power of adjudication has been conferred on the executive in the form of administrative tribunals.

Exceptions to the doctrine (contd.) in India

(3)

Legislature(a)Council of ministers(executive) is selected from the legislature and is responsible to legislature. (b)Legislature exercises judicial powers in case of breach of its privilege, impeachment of President, the removal of Judges.

Judicial precedents.
Golaknath v. State of Punjab-The Constitution demarcates jurisdiction of three organs of government minutely and expects them to executive their respective powers without overstepping their limits. They should functions within the spheres allotted to them.

Judicial precedents.
Keshavananda Bharti v. State of Kerela It was held that separation of power is spoken as a structural basis of the constitutional framework.

Indira Nehru Gandhi v. Raj Narain It was ruled that our Constitution recognizes division between three main powers of the government. It was further held that it is feature of the basis structure of the Constitution.

Judicial precedents.
Bandhua Mukti Morcha v. Union of India The Constitution of India envisages a board division of the power of State between the Legislature, the Executive and the Judiciary. Although the division is not precisely demarcated, there is general acknowledgment of its limits.

Judicial precedents.
Asif Hamid v. State of Jammu & Kashmir A new interpretation was given to the concept of separation of powers while maintaining the balance of power and having a check on other organs of government. It was held that judicial review is a powerful weapon to restrain unconstitutional exercises of power by the Legislature and Executive.