Symbiosis having th? sourc? of th? sam?.515

Symbiosis Int?rnational Univ?rsity,Pun?                     CONSTITUTIONAL LAW I Int?rnalI TOPIC- DOCTRIN? OF S?PARATION OFPOW?R Submitt?d by: Pulkit D?vpura   PRN-17010122069 Batch: 2017-2020     Symbiosis Law School, Pun?         0INTRODUCTION Th?r? isan und?rlying conn?ction b?tw??n th? principl?s of rul? of law and s?parationof pow?r.

Ina syst?m gov?rn?d by rul? of law th?r? should not b? any absolut? pow?r b?ingrun at th?whims of th? on?s having th? sourc? of th? sam?.515 Th?r?for? if th?r? is nosourc? of pow?r inth? first plac?; th?n chanc?s of th? pow?r b?ing ?x?rcis?d whimsically by abody b?com? ?v?nl?ss and distant. Th? conc?pt of S?paration of Pow?r has b??n d?riv?d to r?duc? th? lik?lihoodof gov?rnm?nt violating th? rights of individuals. Th? basic assumption b?hind this conc?ptis that wh?n a singl? p?rson or group has a larg? amount of pow?r, th?y can b?com?dang?rous to citiz?ns. Th? S?paration of Pow?r is a way of r?moving th? amountof pow?r inany group’s hands, making it mor? difficult to abus?. It has b??nknown that S?paration of pow?r had b??n found?d by th? Mont?squi?u and Lock? but itsroots ar? found in th? V?das. If w? study th? Smritis which ar? anci?nt sourc?of law i.?.

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Dharma, w? find such typ? of s?paration. In Narad Smriti w? trac? th? v?ryprincipl? of s?parationof pow?r. At that tim? D??wan was h?ad of th? ?x?cutiv? wing of any l?gacy, S?napatidid a job to maintain law and ord?r and Kaji was th? judicial h?ad. At th? sam?tim? w? hav?to b?ar in mind that th?y all ar? subordinat? to th? King and King was th? supr?m? authoritywho mak?s th? law and th?r?for? h? was similar to pr?s?nt form of l?gislatur?.In short,what com?s out is that in anci?nt tim? also th?r? was a s?paration of pow?r inon? provinc?or l?gacy. Aft?r all, King is known as th? supr?m? authority of all but th?functions and pow?rshas b??n s?parat?d. Th? valu? of this doctrin? li?s in that it att?mpts to pr?s?rv? humanlib?rty by avoiding th? conc?ntration of pow?rs in any on? p?rson or body of p?rson.

As stat?d by Madison- “Th? accumulation of all pow?rs, l?gislativ?, ?x?cutiv?and judicial, in th? sam? hands wh?th?r of on?, a f?w, or many and wh?th?r h?r?ditary,s?lf-appoint?d or ?l?ctiv?, may justly b? pronounc?d th? v?ry d?finition oftyranny.” And for th? pr?v?ntion of this tyranny, th? doctrin? of s?paration ofpow?r holds its gr?at?st importanc?.           1DOCTRIN? OF S?PARATION OF POW?RIN INDIA- In India, th?r? ar? thr?? distinct activiti?s in th? Gov?rnm?nt throughwhich th? will of th? p?opl? ar? ?xpr?ss?d. Th? l?gislativ? organ of th? stat?mak?s laws, th? ?x?cutiv? forc?s th?m and th? judiciary appli?s th?m to th? sp?cificcas?s arising out of th? br?ach of law.

?ach organ whil? p?rforming itsactiviti?s t?nds to int?rf?r? in th? sph?r? of working of anoth?r functionary b?caus?a strict d?marcation of functions is not possibl? in th?ir d?alings with th? g?n?ralpublic. Thus, ?v?n wh?n acting in ambit of th?ir own pow?r, ov?rlapping functionst?nd to app?ar amongst th?s? organs. Th? qu?stion which is important h?r? isthat what should b? th? r?lation among th?s? thr?? organs of th? stat?, i.?.

wh?th?rth?r? should b? compl?t? s?paration of pow?rs or th?r? should b? co-ordinationamong th?m. Th? application of doctrin? of s?paration of pow?r has a propositionthat non? of th? thr?? organs of Gov?rnm?nt, L?gislativ? ?x?cutiv? andJudicial, can ?x?rcis? any pow?r which prop?rly b?longs to ?ith?r of th? oth?rtwo.    L?GISLATUR?- L?gislatur?is that institution which consist of th? r?pr?s?ntativ? of th? p?opl? i.?.,politician. Its mainobj?ctiv? is to discuss and d?bat? on th? issu?s conc?rning th? p?opl? and th? Country.It is th? law and policy making body.

G?n?rally, n?w laws or polici?s ar? introduc?din th? Parliam?nt/ Stat? L?gislatur? in th? form of Bills. Th?s? Bills onc?pass?d by th? L?gislatur?ar? s?nt to th? Pr?sid?nt for ass?nt. Onc? th? pass?d bill g?ts th? ass?nt of th? Pr?sid?nt,it b?com?s th? law, or th? policy com?s into ?ff?ct. Parliam?nt or th? Stat? L?gislatur?ar? th? forms of “L?gislatur?”. It is h?r? wh?r? th? Govt.

is bound to answ?rth? qu?stionswhich ar? rais?d by anoth?r r?pr?s?ntativ? of th? hous?.  ?X?CUTIV?- ?x?cutiv? is that branch of th? Govt. which ?nabl?s and impl?m?nt th? actionsand d?cisions of th? Govt. may it b? impl?m?ntation of th? laws pass?d by th? l?gislatur?or pr?paring th? blu?print of various oth?r initiativ?s which ar? tak?n up byth? Govt lik? Jan-Dhan Yojana, Start-up India Stand Up India ?tc., th? rul?sand r?gulation as w?ll as th?ir fram?work is   2pr?par?d by th? ?x?cutiv? only. This body consist of th? bur?aucratsfrom All India S?rvic?s lik? IAS, IFS, IRS, IPS.

 Lik? th? oth?r two important parts of syst?m or country wh?r? l?ad?rs ar?chos?n by vot?s, th? ?x?cutiv? is ?qually ?xp?ct?d to b? fr?? of invasions fromth? oth?r two. It is always said that ?x?cutiv? is ind?p?nd?nt of th? two, butth? un?xp?ct?d w?irdn?ss continu?s to ?xist and do hard or annoying things. Itis compl?t?ly w?aring away in actual practic?. Th? r?ason is that th? ?x?cutiv?is qu?stion?d for its actions by th? judg?s, th? court and th? Gov?rnm?nt. Thiswat?rs down th? ind?p?nd?nc? of th? ?x?cutiv? to th? high?st possibl? valu?.It’s not that th? qu?stion of answ?rability pops up only in th? cas? of ?x?cutiv?.Th? judiciary and th? l?gislatur? ar? ?qually answ?rabl? but in th?ir cas?s, abuilt-in syst?m from within would b? availabl? for discharging thos? functions.

This is th? r?al situation, which ?xists in practic?.  JUDICIARY- Judiciaryis anoth?r ‘ind?p?nd?nt’ branch of th? Govt whos? main task is to b? uphold th? Constitutionand th? rul? of law. It acts as a watchdog ov?r th? actions of th? l?gislatur?and ?x?cutiv?and curtails th? sam? wh?n it violat?s th? rights of th? individuals. Judiciaryhas to ?nforc? th?law and p?nalis? thos? who ar? found to b? br?aching th? sam?. It consists ofth? Judg?swho pr?sid? ov?r th? court. It is th? most important f?atur? of d?mocracy.

Itis r?sponsibl?for saf?guarding th? int?r?sts and th? fundam?ntal rights of th? p?opl?.Judiciary consistsof th? Hon’bl? Supr?m? Court, Hon’bl? High Court and oth?r low?r courts. Judiciaryk??ps a tab on th? activiti?s of th? gov?rnm?nt and plays an important rol? inth? ?v?nt ofviolation of Fundam?ntal Rights of th? p?opl? of th? country. Judiciary alsohas th? authorityto ?xamin? th? validity of th? Laws ?nact?d by th? Parliam?nt on th?constitutional param?t?rs.

     LANDMARKCAS?S- 1.     1. In th? r? D?lhi Laws Act cas?,it was for th? first tim? follow?d by th? Supr?m? Court that ?xc?pt wh?r? th?constitution has v?st?d pow?r in a body, th? way of thinking that on? organshould not compl?t? functions which basically b?long to oth?rs is follow?d inIndia. By a majority of 5:2, th? Court h?ld that th? ?xplanation of s?parationof pow?rs 3though not an important part of our Constitution, in rar? circumstanc?sis obvious in th? l?gal rul?s of th? Constitution its?lf. As obs?rv?d by Kania,C.

J.- “Althoughin th? constitution of India th?r? is no ?xpr?ss s?paration of pow?rs, it is cl?arthat a  l?gislatur? is cr?at?d by th? constitution and d?tail?d provisions ar?mad? for making that l?gislatur? pass laws. Do?s it not imply that unl?ss itcan b? gath?r?d from oth?r provisions of th? constitution, oth?r bodi?s-?x?cutiv?or judicial-ar? not int?nd?d to discharg? l?gislativ?functions?” Thisjudgm?nt sugg?st?d that all th? thr?? organs of th? Stat? which ar? th? L?gislatur?, th?Judiciary and th? ?x?cutiv? ar? bound by and subj?ct to th? l?gal rul?s of th? Constitution,which limits th?ir pow?rs, l?gal controls, r?sponsibiliti?s and r?lationship with on?anoth?r. Also, that it can b? assum?d that non? of th? organs of th? Stat?, th? L?gislatur?,th? Judiciary, and th? ?x?cutiv? would go b?yond its pow?rs as laid down in th?Constitution.  2.    K?SHAVANANDABHARTI CAS?- Th? qu?stion plac?d b?for? th? Supr?m? Court in this cas? was conn?ct?dto th? ?xt?nt of th? pow?r of th? gov?rnm?nt to updat? th? Constitution as giv?nund?r th? Constitution its?lf.

It was argu?d that Parliam?nt was “b?tt?rthan anyon? or anything ?ls?” and r?pr?s?nt?d th? sov?r?ign will of th? p?opl?.So, if th? p?opl?’s r?pr?s?ntativ?s in Parliam?nt d?cid?d to chang? aparticular law to control individual fr??dom or limit th? ?xt?nt of th? rang?of th? judiciary, th? ?x?cutiv? and th? l?gislatur? had no right to qu?stion wh?th?rit was r?lat?d to th? Constitution or not. How?v?r, th? Court did not allowthis argum?nt and inst?ad found in favor of th? p?rson who’s arguing against al?gal d?cision on th? grounds that th? b?li?f of s?paration of pow?rs was apart of th? “basic structur?” of our Constitution. As p?rthis ruling, th?r? was no long?r any n??d for confusing doubl?-m?aning as th? id?afor a  singl? purpos? r?cogniz?d as a part of th? Indian Constitution, p?rman?nt?v?n by an Act of Parliam?nt. So, th? id?a of s?paration of pow?rs has b??ninclud?d into th? Indian laws.  3.    INDIRA N?HRUGANDHI V. RAJ NARAIN How?v?r, it was aft?r th? landmark cas? of Indira N?hru Gandhi v.

RajNarain that th? plac? of this doctrin? in th? Indian cont?xt was mad? cl?ar?r.It was obs?rv?d: “That in th? Indian 4Constitution, th?r? is s?paration of pow?rs in a broad s?ns? only. Arigid s?paration of pow?rs as und?r th? Am?rican Constitution or und?r th?Australian Constitution do?s not apply to India.”Chandrachud J. also obs?rv?dthat th? political us?fuln?ss of th? doctrin? of S?paration of Pow?r is not wid?lyr?cogniz?d.

No Constitution can surviv? without a conscious adh?r?nc? to itsfin? ch?ck and balanc?. 4.    OTH?R CAS?S Th?doctrin? of s?paration of pow?rs was furth?r ?xpr?ssly r?cogniz?d to b? a partof th? Constitutionin th? cas? of Ram JawayaKapur v. Stat? of Punjab, wh?r? th? Court h?ld that though th?doctrin? of s?paration of pow?rs is not ?xpr?ssly m?ntion?d in th? Constitutionit stands tob? violat?d wh?n th? functions of on? organ of Gov?rnm?nt ar? p?rform?d by anoth?r.This m?ans th? Indian constitution had not ind??d r?cogniz?d th? doctrin? of s?parationof pow?rs in its absolut? rigidity but th? functions of diff?r?nt parts orbranch?s of th? Govt.hav? b??n suffici?ntly diff?r?ntiat?d and cons?qu?ntly it can v?ry w?ll b? saidthat ourconstitution do?s not cont?mplat? assumption, by on? organ or part of th? stat?,of functionsthat ?ss?ntially b?longs to anoth?r. In I.

C.GolakNath v. Stat? of Punjab, Supr?m? Court took th? h?lp of doctrin? of basic structur?as propound?d in K?svanandaBharati cas? and said that Ninth Sch?dul? isviolativ? of thisdoctrin? and h?nc? th? Ninth Sch?dul? was mad? am?nabl? to judicial r?vi?wwhich alsoforms part of th? basic structur? th?ory. It was obs?rv?d: “Th? Constitutionbrings into ?xist?nc?diff?r?nt constitutional ?ntiti?s, nam?ly, th? Union, th? Stat?s and th? Union T?rritori?s.It cr?at?s thr?? major instrum?nts of pow?r, nam?ly, th? L?gislatur?, th? ?x?cutiv?and th? Judiciary. It d?marcat?s th?ir jurisdiction minut?ly and ?xp?cts th?mto ?x?rcis? th?irr?sp?ctiv? pow?rs without ov?rst?pping th?ir limits.

Th?y should function within th?sph?r?s allott?d to th?m.”    Diff?r?ntmod?ls around th? world: Constitutionswith a high d?gr?? of s?paration of pow?rs ar? found all ov?r th? world. ?v?n though th?r?is th? ?xist?nc? of th? saf?guards it giv?s against v?ry bad tr?atm?nt, th? mod?rn-daycommuniti?s of p?opl? find it v?ry hard to apply it stiffly and strictly. Inway of basictruth/rul? th?y go for s?paration of pow?rs and dilution of pow?rs at th? sam?tim?.  5 Unit?dStat?s: In th? Unit?d Stat?s Constitution, Articl? I S?ction I giv?s Congr?ssonly thos? “law-bas?d pow?rs within this ar? grant?d” and mov?forwards to list thos? allow?d actions in Articl? I S?ction 8, whil? S?ction 9lists actions that ar? prohibit?d for Congr?ss. Th? claus? in Articl? II  plac?s no limits on th? ?x?cutiv? branch, simply stating that, “Th??x?cutiv? Pow?r will b? v?st?d in a Pr?sid?nt of th? Unit?d Stat?s of Am?rica.” Th? Supr?m? Court holds “Th? Judicial Pow?r”according to Articl? III, and it ?stablish?d th? ?ff?ct of Judicial r?vi?w inMar bury v.

Madison. Th? f?d?ral gov?rnm?nt r?f?rs to th? branch?s as “branch?s of gov?rnm?nt”, whil? som? syst?ms us?”gov?rnm?nt” to d?scrib? th? ?x?cutiv?. Th? ?x?cutiv? branch has tri?dto forc?fully tak? pow?r from Congr?ss arguing for S?paration of pow?rs toinclud? b?ing th? Command?r in Chi?f of a standing army sinc? th? war b?tw??ngroups that all liv? in on? country, ?x?cutiv? ord?rs, ?m?rg?ncy pow?rs and s?curityclassifications sinc? WWII, national s?curity, signing stat?m?nts, and now th?id?a of a unitary ?x?cutiv?. To pr?v?nton? branch from b?coming most pow?rful or b?tt?r than anyon? or anything ?ls?, and tocaus? th? branch?s to coop?rat?, authority and control syst?ms that ?mploy a s?parationof pow?rs n??d a way to balanc? ?ach of th? branch?s. Usually this was v?ry skilfulthrough a syst?m of “ch?cks and balanc?s”, th? origin of which, lik?s?paration of pow?rsits?lf, is sp?cifically cr?dit?d to Mont?squi?u.

Ch?cks and balanc?s allows fora syst?mbas?d r?gulation that allows on? branch to limit anoth?r, such as th? pow?r of Congr?ssto chang? th? composition and ar?a of l?gal control of th? f?d?ral courts.    SUGG?STION- In India a p?rf?ct syst?m of s?paration of pow?r do?s not ?xist, this isdu? to th? un?qual distribution of pow?rs among th? 3 organs. As s??n in th?yardsticks as giv?n by prof?ssor Ivo Duchac?k, India fails in c?rtain asp?ctsof impl?m?nting doctrin? of s?paration of pow?r. If th?s? conditions ar? th?nfulfill?d all th? organs can work tog?th?r smoothly. Th? first sugg?stion forth? sam? is:   6?achorgan should b? giv?n ?qual r?pr?s?ntation as giv?n in th? U.

S. constitution.This will giv? a b?tt?r chanc? to all th? organs, bringing th?m on par with th?irpow?rs. Th? pow?r to am?nd th? constitution is giv?n mainly to th? parliam?nt.Th? oth?r organs hav? a v?ry small say in th? sam?. Mor? pow?r should b? giv?nto th? ?x?cutiv? to giv? rath?r mor? r?pr?s?ntation.

 Th?y should consciously r?aliz? th? uns??n boundari?s and r?sp?ct ?achoth?r’s sov?r?ignty. It is not only th? duty of th? tripartit? to r?aliz? th? sam? but alsoth? obligation of th? citiz?ns to r?aliz? th? ultimat? sanctity of th?Constitution.  Th?s? ar? f?w of th? sugg?stions that might giv? ris? to a n?ar to p?rf?ctsyst?m of doctrin? of s?paration of pow?r h?lping in a smooth functioning b?tw??nth? c?ntr? and stat?.  CONCLUSION- The doctrine of separation of power in its true sense is very rigid andthis is one of the reasons of why it is not accepted by a large number ofcountries in the world. The main object as per Montesquieu in the Doctrine ofSeparation of Power is that there should be government of law rather thanhaving will and whims of the official. Also another most important feature ofthe said doctrine is that there should be independence of judiciary i.e. itshould be free from the other organs of the State and if it is so then justicewould be delivered properly.

The judiciary is the scale through which one can measurethe actual development of the State. If the judiciary is not independent, thenit is the first step towards a tyrannical form of government i.e. power isconcentrated in a single hand and if it is so then there is a very high chanceof misuse of power. Hence the Doctrine of Separation of Power does play a vitalrole in the creation of a fair government and also fair and proper justice isdispensed by the judiciary as there is independence of judiciary. In conclusion, it is evident that governments in their actual operationdo not opt for the strict separation of powers because it is undesirable andimpracticable, however, implications of this concept can be seen in almost allthe countries in its diluted form.

The discrepancies between the plan and practice,if any, are based on these very grounds that the ideal plan is impractical foreveryday use. India relies heavily upon the doctrine in order to regulate, 7check and control the exercise of power by the three organs ofGovernment. Whether it is in theory or in practical usage, the Doctrine ofSeparation of Powers is essential for the effective functioning of a democracy.

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