Separation of Power
29th November, 2021 Polity
Figure 1: No Copyright Infringement Intended
- According to CJI, many people in this country believe that it is the courts which make the laws.
CJI Comment :
- People need to know the scope and limitations of the roles ascribed to the different organs of the State.
- Courts intervenes not to usurp the role of the government, but to nudge it towards the right path.
- It said that judicial hierarchy needs to be restructured to include four National Courts of Appeals across the country.
Purpose of the Separation:
- It is to prevent abuse of power by a single person or a group of individuals. It will guard the society against the arbitrary, irrational and tyrannical powers of the state, safeguard freedom for all and allocate each function to the suitable organs of the state for effective discharge of their respective duties.
Meaning Of Separation Of Powers
- Separation of powers divides the mechanism of governance into three branches i.e. Legislature, Executive and the Judiciary. Although different authors give different definitions, in general, we can frame three features of this doctrine.
- Each organ should have different persons in capacity, i.e., a person with a function in one organ should not be a part of another organ.
- One organ should not interfere in the functioning of the other organs.
- One organ should not exercise a function of another organ (they should stick to their mandate only).
- Keeps away autocracy
- Safeguards individual liberty
- Helps create an efficient administration
- Judiciary’s independence is maintained
- Prevents the legislature from enacting arbitrary or unconstitutional laws
- 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.
- Articles 53 and 154:It provide that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability
- 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 123: The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions
- Article 361:The President and Governors enjoy immunity from court proceedings., they shall not be answerable to any court for the exercise and performance of the powers and duties of his office.
- Kesavananda Bharati v State of Kerala (1973):In this case, the SC held that the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic features will be declared unconstitutional,
- Ram Jawaya Kapoor V State of Punjab(1955): In this case it was held that the Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution does not contemplate assumption by one organ or part of the state of functions that essentially belong to another.
- Indira Nehru Gandhi v. Raj Narain (1975): Where the dispute regarding Prime Minister’s election was pending before the Supreme Court, it was held that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise.