Constitutional Aspect of Separation of Powers
From inception when the origin of State took place, the only need for the survival at that time was to fulfil their psychological, biological and social needs. It was later; the nature of society which allowed the formation of a regulatory authority whose existence took place for administering society, their primary objective being to work for the welfare of their subjects. It should be noted that the term “regulatory authority” used includes every form of government whether democratic, autocratic, monarch, dictatorship etc.
The main functions that were needed to represent the will as well as to fulfil the social desires of the constituents of the state made are
- Legislative Functions
- Judicial Functions
- Executive Functions
These are the basic powers that the regulating authority should be given and moreover should exercise for betterment of the State. But as time went by, malafide intentions grabbed these authorities and concentration of power encouraged them to exploit their subjects. This resulted in degradation of the same, despite of the fact for which they were originally constituted.
To counter this situation, a magical tool was developed and if we describe it, in respect of Hindu Mythology, this could be termed as “Brahmastra”. And this is the same concept about which this paper will deal in its entirety, in legal senses; it is termed as “Doctrine of Separation of Powers”.
Regarding the same, Separation of power simply means, “distribution of the powers as well duties among the three pillars of the State i.e. the executive, legislature and judiciary. It mainly deals with the powers exercised by each organ of the state and its implication on the other.”
In India, separation of functions is followed and not of powers and hence, the principle is not abided in its rigidity. In India, strict separation of powers is not followed as it is followed in the U.S. But a system of checks and balance has been embedded so much so that the courts are competent to strike down the unconstitutional amendments made by the legislature. The constitution makers have also meticulously defined the functions of various organs of the state. Legislative and executive, which act as the two facets of people’s will have all the powers including that of finance.
Some of the articles in the Indian constitution which emphasizes the separation of powers are the following:
Article 50 puts an obligation over the state to separate the judiciary from the executive. However, Article 50 falls under the Directive Principles of State policy (DPSP) and hence is not enforceable.
Articles 121 and 211
The legislatures cannot discuss the conduct of a judge of the High Court or Supreme Court. They can do so only in matters of impeachment.
Articles 122 and 212
The courts cannot inquire the validity of the proceedings of the legislatures.
The President and Governors enjoy immunity from court proceedings.
Another contrasting feature of the same could be traced which provides overlapping of the functions and powers of different organs of government and these are provided with the Constitution itself, which states as follows.
The Union Council of Ministers is responsible to the Lok Sabha (Article 75). This house has the powers to start impeachment proceedings against the President (Article 61) and the judges of the Supreme Court. The members of Council of Ministers will be members of either house of Parliament under Article 75(5) which means there is also overlapping of personnel.[i]
The judicial function of Parliament is too substantial in certain respects. It can consider the question of breach of any known parliamentary privilege; and in a case where the charge is established, it has the power to punish for contempt.
The High Courts in certain marginal spheres perform such functions which are administrative rather than judicial. Their power of supervision over other subordinate courts under Article 227 is more of the administrative nature than judicial. When under Article 228 they have power to make transfer of cases, they exercise administrative control over the State district courts as well. The legislative power of the High Courts and the Supreme Court includes their power to frame rules which is wide in nature.
The Executive in India is authorized to legislate in the name of delegated legislation. In the name of administrative adjudication of the right of individual citizens, the administrative agencies, which are statutory tribunals and domestic tribunals have been constituted and perform judicial function.[ii]
The above discussed points are the constitutional aspect of Separation of Powers and further, this concept is developed by the judicial pronouncements per the requirements of the changing society.
[i] Devinder Kumar, “Administrative Law”, Allahabad Law Agency, Faridabad 19-20 (2007).
[ii]Kagzi M.C Jain., “The Indian Administrative Law”, University Law Publishing Co. Pvt. Ltd.19 (2002).
Author: Harshit Sharma
College: Amity Law School, Amity University Madhya Pradesh
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