Constitutional Presented to – DR. ATMARAM SHELKE

  Constitutional Law – IInternal Assessment – ICritical Essay on application of doctrine of separation ofpower in IndiaPresented to – DR.ATMARAM SHELKEPresented by – MANANSONI1ST YEARLL.

B (3YRS)PRN NO: 17010122066      Table of Contents Abstract 3 Introduction. 4 Montesquieu’s Theory of Doctrine of Separation of Power. 5 The doctrine of Separation of Powers in India and the US. 5 Separation of powers among the three bodies of Government 6 Legislative Powers.

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6 Executive Powers. 6 Judiciary Powers. 6 How is the Separation of Powers applied in India?. 7 Judiciary and Legislature.

. 7 Executive and Judiciary..

7 Legislature and Executive.. 8 Problems with separation of power in India – Overlap of functions. 8 Indian Cases on Separation of Power. 9 1.     Kesavananda Bharati Vs. State of Kerela.

. 9 2.     Ram Jawaya Vs. State of Punjab.

. 9 3.     Indira Gandhi Nehru Vs. Raj Narain..

9 4.     Delhi Development Authority Vs. M/S UEE Electricals Engg. Pvt. Ltd.. 9 Conclusion. 10 References.

11           Abstract –            The paper reviews one of the mostimportant question that is being asked about the doctrine of separation ofpower in India and whether the powers of the three bodies of the Governmenti.e. legislature, executive, and judiciary overlap. In the first section of thetext, the author talks about the origin of the theory of separation of power asmentioned by Montesquieu in his book ‘Espirit des Louis’ (The spirit of thelaws). The author further reviews the separation of power in India butmentioning about the various Articles from the Constitution of India. As well asthe Constitution of US. The text further mentions about the powers given to thelegislature, executive and the judiciary. The text also talks about how theseparation of power is applied in India and the problem of overlap offunctions.

Lastly, the text highlights various cases that discuss the doctrineof separation of power.             The paper seeks to answer thequestion: What is the Doctrine of Separation of Power and what powers are givento the legislature, executive and the judiciary?             It is hoped that this study willinform about the separation of power in India by in-depth analysis of theDoctrine of Separation of Power.          Introduction –            The Doctrine ofSeparation of power is a very important part of Indian Constitution as itcontrols and regulates the powers given to different bodies of Governmentnamely, The Legislature, The Executive and The Judiciary.

The Doctrine ofSeparation of Power was first introduced by Montesquieu, a French scholar in1747 in his book ‘Espirit des Louis’ (The spirit of the laws). According to histheory he recommended that there should be a division of power among variousorgans of the state. The separation of power between the various bodies of thegovernment establishes a system of checks and balances which maintains that thevarious bodies do not get too powerful in one of the branches. The main role ofthe legislature is to enact general rules of law that relate to the conduct ofits citizens and institutes. The main function of the executive body of theGovernment is to enforce the laws established by the legislature. Executivepowers are vested by the President and the Governor of India as mentioned inArticle 53(1) of the Constitution of India. The main function of the judiciaryis to prevent the violation of laws and to protect the fundamental rights ofthe citizens.

The Supreme Court of India is the apex court and all thejudiciary power is vested in it. The Separation of Powers in India are appliedby granting different powers and imposing limitations on the three bodies ofthe Government. The separation of power among both Judiciary and Legislaturecan be observed in the Article 122 and Article 212 of the Constitution ofIndia.

Article 368 grants powers to the Parliament to amend the Constitutionwhich can only be exercised by the Legislature and the Judiciary has to abideby the changes thus made by the Parliament. Article 53(1) of the Constitutionof India vests the executive power in President and the Governor whereas,Article 124(1) of the Constitution of India vests judiciary powers to thehighest court of the country i.e. The Supreme Court of India. In India, theexecutive power is given to the President of India under Article 52 and Article53 of the Constitution of India. The main problem with the separation of poweris the overlapping of the functions of the three bodies of the Government.There are various case laws which talks about the separation of power especiallythe Article 368 of the Constitution.     “PowerCorrupts and absolute Power tends to corrupt absolutely.

“1 Montesquieu’s Theory of Doctrine of Separation of Power –             The theory of Doctrine of Separationof Power was first propounded by Montesquieu, a French scholar in 1747 in hisbook ‘Espirit des Louis’ (The spirit of the laws).2 The theory states that ifthe power is given to a single person or a group of people then it will resultin tyrannical form of the government. Thus, Montesquieu recommends that thereshould be division of power among the various organs of the state i.e.Legislature, Executive and Judiciary. Montesquieu also suggests in this bookthat the legislative and judicial powers should not be united and if it isunited then there will be no liberty. Also, if the judicial powers are notseparated from the executive and legislative powers then also there will be noliberty. Thus, Montesquieu in the book suggests that to achieve liberty thereshould be separation of powers among the Legislative, Executive and Judicialbodies of the Government.

 The doctrine of Separation of Powers in Indiaand the US –             The doctrine of separation powerstates that separate powers are given to the legislature, executive and thejudiciary and these powers do not intertwine with each other. This doctrine ofthe separation of power is embedded in various Articles of the Constitutionlike Article 154 of the Constitution of India which states the executive powersof the State. Article 154(1) states that, “Theexecutive power of the State shall be vested in the Governor and shall beexercised by him either directly or through officers subordinate to him inaccordance with the Constitution.”3.Other Articles of the Constitution of India that deals with the separation ofpowers are Article 50, 53, 121, 122, 123, 124(1) 154, 211, 212 and Article 361which gives various powers and state restrictions to the various bodies of thegovernment. The object of the doctrine of separation of powers between thethree bodies of the Government is to give exclusive powers to the variousbodies in specific matters. In India there is no strict separation of powerslike that in the US which is mentioned in Article I, II and III of theConstitution of United States giving exclusive powers to the legislature, thePresidency (Executive) and the Judiciary respectively.

The separation of powerbetween the various bodies of the government establishes a system of checks andbalances which maintains that the various bodies do not get too powerful in oneof the branches. This is one of the main aims of the separation of powers amongthe three objects of the government. All the three bodies of the Government actas a pillar of democracy in India.  Separation of powers among the three bodiesof Government – Legislative Powers –The legislature enacts general rules of law that are primarily relatedto the conduct of its citizens and institutes. Lok Sabha and the Rajya Sabhaare the two bodies of the Union Legislature of India and helps in the enactmentof laws, authorizes borrowing, imposes taxes and to write, debate and passbills which are in turn passed to the President for approval.

A bill becomes alaw only after it is signed and approved by the President. Thus, emphasisingthe system of checks and balances. This power is granted to the President underArticle 123 of the Constitution of India.             Executive Powers –The main function of the executive body of the Government is to enforcethe laws established by the legislature. Executive powers are vested by thePresident and the Governor of India as mentioned in Article 53(1) of theConstitution of India. They can veto laws and plays a major role in theappointment of judges and can grant pardons to the convicts. Thus, maintainingthe system of checks and balances over the judiciary body of the Government. Judiciary Powers –The main function of the judiciary is to prevent the violation of lawsand to protect the fundamental rights of the citizens.

The Supreme Court ofIndia is the apex court and all the judiciary power is vested in it. Thejudiciary has the role of interpreting the laws created by the legislature butcannot make new laws. In this sense they are dependent on the legislative bodyof the Government. Article 124(1) of the Constitution of India grants variousrights to the judiciary by creating Supreme Court of India. Article 124(2)states that the judge of the Supreme Court shall be appointed by the Presidentwhich is the executive, thus creating a system of checks and balances on theJudiciary.How is the Separationof Powers applied in India?             The Separation of Powers in Indiaare applied by granting different powers and imposing limitations on the threebodies of the Government.

As mentioned earlier different powers are granted toLegislature, Executive and Judiciary thus the comparison of these powers amongthese bodies will throw some light on the differences between the three andalso lay emphasis on the system of check and balances among them. Judiciary and Legislature – As mentioned earlier, the powers of the judiciary are to prevent theviolation of laws and to protect the fundamental rights of the individuals.These laws and fundamental rights are laid down and created by the legislativebody of the Parliament. The separation of power among both Judiciary andLegislature can be observed in the Article 122 and Article 212 of theConstitution of India. Article 122 and Article 212 reads as, “Courts not to inquire into proceedings ofParliament”4 stating that thejudiciary cannot question the validity of any proceedings of the Parliamentthus giving the legislature separate powers than the judiciary. Article 368grants powers to the Parliament to amend the Constitution which can only beexercised by the Legislature and the Judiciary has to abide by the changes thusmade by the Parliament.

 Executive and Judiciary –As mentioned earlier, the executives have the responsibility ofenforcing the laws created by the Legislature. Judiciary supplements theexecutive by making sure that the rule of law that the executive body of theGovernment has to enforce is followed properly and that the laws are notviolated including the fundamental rights of the individuals. Article 50 of theConstitution of India states the separation of powers of the judiciary from theexecutive. The Article reads as, “Separationof judiciary from executive”5.

The intention (of the separation of powers among judiciary and executive) isalways to ensure that the judiciary does not decide cases under the influenceof the executives, rather follows the principle of Rule of Law.6 Article 53(1) of theConstitution of India vests the executive power in President and the Governorwhereas, Article 124(1) of the Constitution of India vests judiciary powers tothe highest court of the country i.e. The Supreme Court of India.

 Legislature and Executive – As mentioned earlier, the role of the legislature is to make lawswhereas the role of the executive is to enforce those laws. In India, theexecutive power is given to the President of India under Article 52 and Article53 of the Constitution of India. He (The Executive) appoints officials of theUnion Government, Prime Minister, and Council of ministers at the advice of thePrime Minister, Chief Justice and judges of Supreme Court and High Court at theadvice of the Chief Justice of India.

7 Once a bill is drafted bythe legislature, it goes for the approval of the executive i.e. The President.The President can then accept or reject the bill. In this sense there is asystem of checks and balances that exists between the legislature and theexecutive.

Problems withseparation of power in India – Overlap of functions In India the separation of power is not absolute as the three differentbodies of the Government depend on each other for their functioning. Thelegislature exercises the power to make laws but also exercises judicial powerin case of breach of their privilege and the removal of the judges. Thetribunals are a part of the executive, but they also exercise the judicialfunctions. The executives can also make laws under delegated legislature. Ifsomeone exceeds the freedom of speech in the Parliament then the legislaturecan impose punishment. There also exists a system of checks and balances amongthe three bodies of the Government as mentioned earlier which also makes onebody depends on another and vice versa. Thus, the Indian Constitution does notprovide a strict separation of powers.

    Indian Cases on Separation of Power – 1.     Kesavananda Bharati Vs. State of Kerela –In this case Article 368 of the Constitution was challenged. Article 368assigns power to the Parliament to amend the Constitution and the procedurestherefor. In this case it was decided that even though the Parliament is giventhe power to amend the Constitution, but they do not have the absolute right toamend and if there is a question to amend the basic features of theconstitution then it will be struck down to be unconstitutional 2.     Ram Jawaya Vs.

State of Punjab –In this case it was held by the Hon’ble Supreme Court that there is no rigidseparation of power that is being exercised in India. The Supreme Court heldthat the executives are derived from the legislature and is dependent on it,for its legitimacy.8 3.     Indira Gandhi Nehru Vs. Raj Narain –This case deals with the dispute regarding Prime Minister elections that waspending before the Supreme Court. It was held that the decision of a specificdispute is the role of the judiciary and the parliament cannot by using Article368 exercise their amending power. It was decided that the Prime Ministerelections would not be void but it was held ultra vires following the principleof separation of power. 4.

     Delhi Development Authority Vs. M/S UEEElectricals Engg. Pvt. Ltd. –In this case it was said that the judicial review should only be used for protectionand not for undue interference in executive functions.          Conclusion –The concept of separation of power is embedded in the Constitution ofIndia. The system of checks and balances makes sure that the power exercised byvarious bodies of the Government i.

e. The Legislature, The Executive and TheJudicial are not misused and followed in the true sense. In India, theseparation of power is not followed in strict sense as there is an overlap offunctions among different bodies of the Government. In India, according toArticle 122 and Article 212 the courts cannot inquire into the proceedings ofParliament. Article 50 of the Constitution of India separates the powers of thejudiciary from the executives.

Article 52 and Article 53 gives the executivepowers to the President of India. Once a bill is drafted by the legislature, itgoes for the approval of the executive i.e. The President. The President canthen accept or reject the bill. In this sense there is a system of checks andbalances that exists between the legislature and the executive.

Article 368 ofthe Indian Constitution which gives the power to the Parliament to amend theConstitution has been challenged at multiple times. In the landmark judgment inthe case of Kesavananda Bharati Vs. State of Kerala it was held that eventhough the Parliament is given the power to amend the Constitution, they do nothave the absolute right to amend and if there is a question to amend the basicfeatures of the constitution then it will be struck down to beunconstitutional. Thus, according to the Doctrine of Separation of Power inIndia the powers of the three bodies of the Government namely, judiciary,executive and legislature are divided so as to prevent in creating a tyrannicalform of the government.                        References –1.     YashuBansal, Chanakya National Law University, Patna, Doctrine Of Separation Of Power, ACADEMIKE (Apr. 4, 2015), https://www.lawctopus.

com/academike/doctrine-of-separation-of-power/2.     NidhiSingh, Anurag Vijay, Separation of Powers:Constitutional Plan and Practise, INTERNATIONAL JOURNAL OF SCIENTIFIC ANDRESEARCH PUBLICATIONS (Nov. 2013), http://www.ijsrp.org/research-paper-1113/ijsrp-p2337.

pdf3.     Separation of powers between various organs,CIVIL SERVICES INDIA, https://www.civilserviceindia.

com/subject/General-Studies/notes/separation-of-powers-between-various-organs.html4.     PrachiShah, Separation of Powe in India , LEGAL SERVICES INDIA (Dec.

29, 2010), http://www.legalservicesindia.com/article/article/separation-of-power-in-india-&-usa-483-1.html5.     Doctrine of separation of powers in India, CIVILDAILY (Sep. 22, 2017), http://www.civilsdaily.com/blog/doctrine-of-separation-of-powers-in-india/6.

     ‘Separation of Powers’ and The Indian Constituion, SHODHGANGA,http://shodhganga.inflibnet.ac.

in/bitstream/10603/32340/9/10_chapter%204.pdf7.     AmanChhibber, Separation of Powers: Its ScopeAnd Changing Equations, LEGAL SERVICES INDIA, http://www.legalserviceindia.

com/article/l16-Separation-Of-Powers.html8.     BaniMahajan, Doctrine of Separation OfPowers, ACADEMIKE (Dec. 7, 2014), https://www.lawctopus.com/academike/doctrine-of-separation-of-powers/9.     Indian Constitution And Separation Of Powers, LAWTEACHER,https://www.

lawteacher.net/free-law-essays/constitutional-law/indian-constitution-and-separation-of-powers-constitutional-law-essay.php10.  Drishti,Separation of Powers and JudicialActivism in India, ACADEMIKE (Nov. 13, 2015), https://www.

lawctopus.com/academike/separation-of-powers-and-judicial-activism-in-india/11.  U.S.CONST.12.  INDIACONST.

art. 50, 53, 121, 122, 123, 124(1) 154, 211, 212, 361 and 36813.  12V. N. SHUKLA, CONSTITUTION OF INDIA 47, 389, 1092 (2017)1 Bani Mahajan, Doctrineof Separation Of Powers, ACADEMIKE (Dec. 7, 2014), https://www.lawctopus.com/academike/doctrine-of-separation-of-powers/2 BaniMahajan, Doctrine of Separation OfPowers, ACADEMIKE (Dec.

7, 2014), https://www.lawctopus.com/academike/doctrine-of-separation-of-powers/3 INDIA CONST. art. 154 4 INDIACONST.

art. 122, 2125 INDIACONST. art. 506 Nidhi Singh, Anurag Vijay, Separation of Powers: Constitutional Plan and Practise,INTERNATIONAL JOURNAL OF SCIENTIFIC AND RESEARCH PUBLICATIONS (Nov.

2013), http://www.ijsrp.org/research-paper-1113/ijsrp-p2337.pdf7 Nidhi Singh, Anurag Vijay, Separation of Powers: Constitutional Plan and Practise,INTERNATIONAL JOURNAL OF SCIENTIFIC AND RESEARCH PUBLICATIONS (Nov.

2013), http://www.ijsrp.org/research-paper-1113/ijsrp-p2337.pdf8 ‘Separation ofPowers’ and The Indian Constituion, SHODHGANGA, http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/9/10_chapter%204.pdf

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