Introduction
The term “Separation of Powers‟ was coined by a French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) published in 1748. The doctrine of Separation of Powers deals with the mutual relations among the three organs of the Government namely legislature, executive and judicial.
According to Montesquieu, there can be no liberty if the legislative and executive powers are amalgamated in the same person, or body and judicial power is not separated from the Legislative and Executive power.
The integration of Judicial and legislative power would expose the life and liberty of the subject to arbitrary control as judge would then be the legislator.
Judges might behave with violence and oppression if Judiciary is merged with the Executive.
The concentration of powers in a single person would result in a tyrannical (अत्याचारी) form of government. There should be clear cut division of power between the three organs of the state i.e. Executive, Legislative and the Judiciary in order to check the arbitrariness of the government.
Doctrine of Separation of Powers in India
In India, the governance is vested in three organs of the State i.e. Executive, the Legislature and the Judiciary.
- The executive powers are with the President,
- the legislative powers with the Parliament and
- the judicial powers with the Judiciary.
The functions and powers of the President are enumerated in the Constitution itself.
The Parliament is competent to make any law subject to the provisions of the Constitution and there is no other limitation on its legislative powers.
Similarly, the Judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or by the legislature. At the same time, the Court cannot arrogate to itself any function, which is left to the domain of the other two branches, namely, the executive and the legislature.
Thus, no organ can overstep the essential functions of the other organ.
Article 50: This article puts an obligation over the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable.
Article 123: The President, being the executive head of the country, is empowered to exercise legislative powers in certain conditions.
Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.
Article 361: The President and Governors enjoy immunity from court proceedings.
There is a system of checks and balances wherein the various organs impose checks on one another by certain provisions.
- The judiciary has the power of judicial review over the actions of the executive and the legislature.
- The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
- It can also declare unconstitutional executive actions as void.
- The legislature also reviews the functioning of the executive.
- Although the judiciary is independent, the judges are appointed by the executive.
- The legislature can also alter the basis of the judgment while adhering to the constitutional limitation.
Checks and balances ensure that no one organ becomes all-too powerful. The Constitution guarantees that the discretionary power bestowed on any one organ is within the democratic principle.