Topic > Separation of Power in India and its Consequences

IndexPower Corrupts and Absolute Power Corrupts AbsolutelyAnalysisConclusionReferencesPower Corrupts and Absolute Power Corrupts AbsolutelyThe doctrine of separation of power, as the name suggests, states that the power of administration should be distributed among different bodies, i.e. legislative, executive and judiciary working together. This principle was originally established by Aristotle when he classified the functions of a government into three categories: deliberative, magisterial and judicial, this was the first ever mention of the separation of power, many other philosophers such as Locke suggested the Idea and divided governments into three parts namely continuous executive power, discontinuous legislative power and federative power. Where the first denotes the executive and judicial powers, the second denotes the power to make rules and the third denotes the power to manage foreign affairs. Say no to plagiarism. Get a tailor-made essay on "Why Violent Video Games Shouldn't Be Banned"? Get an original essay L.Esprit Des Lois which translates to Spirit of the Law. He stated that: When the legislative and executive power are united in the same person, or in the same body or Magistrate, there can be no freedom. Once again, there is no freedom if the judiciary is not separated from the legislative and executive power. Where it were combined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control, since the judge would then be the legislator. Where he joins the executive branch, the judge could behave with violence and oppression. There would be the end of everything if the same man or the same organism exercised these three powers. “In the present scenario the three bodies of separation of power are known as: The legislature-legislature is the principal legislative authority of India. It consists of two houses, Lok Sabha and Rajya Sabha. It makes laws, levies taxes and also controls the The legislator is responsible for selecting the head of the executive. He represents the true will of the people and acts as a knight for the proper functioning of democracy. But as the doctrine of power dictates, he is not omnipotent Of command and control the military, can veto laws, pardon convicted criminals and also participate in the appointment of judges of the three executives. It is the only body that has an express provision that defines its power and functioning. The judiciary – The authors of our constitution were very careful when it came to the judiciary, the provisions adopted for the judiciary were such that the functioning of the body the judiciary becomes independent and impartial. The judiciary is the authority that interprets the Constitution and acts as guardian of citizens' rights using the power of judicial review. But this also means that the judiciary interprets the law and does not make it. In India the doctrine of separation of power exists but is not strictly followed although the functions have been divided into three bodies i.e. legislative, executive and judiciary. the bodies are interconnected with each other and since this doctrine is not strictly followed in India. Therefore their functions tend to collude and overlap with each other. When the drafting committee was drafting the constitution, a debate arose between Professor KT Shah, a member of the drafting committee, who believed in the idea of ​​complete separation of power between the three bodies, and Mr K Hanumathiya, who believed that complete separation of power would lead to conflict. between the three organs since each of them will try to dominate the other. Mr Hanumathiya's ideology was: instead of having a conflicting trinity it isbetter to have a harmonious government. Mr. Hanumathiya's ideology and arguments were met with huge support and even the father of our Constitution Dr BR Ambedkar was not in favor of the idea of ​​absolute separation of powers, therefore Mr KT Shah's motion was rejected . This is how the concept of separation of power was shaped in India. Analysis In the Constitution of India there is an express provision which states that the power of the executive of the union shall be vested in the President of the country and the power of the executive of the Union the State shall be vested in the governor of that State. But when it comes to Legislature and Judiciary there is no specific mention that can confirm that the powers are vested in any body. Although the head of the executive is the president, but when it comes to his powers a closer look shows that he is only the nominal head, the real power lies with the Prime Minister and his Cabinet of Ministers. The doctrine of separation of power is not strictly followed in India i.e. there is no absolute separation, that is why we can observe that in certain situations the president has the power to exercise some judicial and legislative functions e.g. When the President approves an ordinance, he performs a function that falls within both the legislative and judicial fields. Likewise, the legislator is going through the process of impeachment of the President who, according to Article 61, performs a judicial function. Similarly, if the High Court or the Supreme Court finds certain provisions to be contrary to the law, they can declare them null and void. In this way an adequate check and balance is maintained so that no single body has too much power and the reason for this doctrine is therefore maintained. Through the analysis of the following cases we can see how the doctrine of separation of power works in India: In the case of Ram Krishna Dalmia v. Justice Tendolkar[1] - The Supreme Court held that unlike the American Constitution where there is a clear bifurcation regarding separation of power, in India there is no clear bifurcation but separation of power is implicit in the Constitution of India. In the case of the Delhi Act[2] the supreme court held that although there is no express separation in the Indian Constitution, our Constitution makers have scrupulously provided for the legislature to pass laws. This clearly implies that the only duty of the legislature is to pass laws, even if this is not expressly mentioned. Justice BK Mukherjee observed: "The Constitution of India has not indeed recognized the doctrine of separation of powers in absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can well be said that our Constitution does not provide for the assumption by one body or part of the State of functions that essentially belong to another." In the case of Asif Hameed v. State of Jammu and Kashmir[3] the Supreme Court observed: “Though the doctrine of separation of powers has not been recognized by the Constitution in its absolute rigidity, the constitution-makers have meticulously defined the functions of the various organs of the State. Legislative, executive and judiciary must function within their spheres delimited by the Constitution. No organ can usurp the functions assigned to another. The Constitution entrusts the functioning and exercise of their discretionary power to the judgment of these bodies by scrupulously following the procedure prescribed therein. The functioning of democracy depends on the strength and independence of each of its organs." Compared to the United States, where the doctrine of separation of powers isfollowed in a narrower sense, there (a) all legislative powers are vested in congress (b) all executive power is vested in the president (c) and all judicial powers are vested in the supreme court. Therefore in the United States the supreme court cannot interfere in the political decision-making of the executive branch of government. The power of judicial review is not exercised. awarded to the supreme court. But the president can interfere in both judicial and legislative matters through his veto and treaty-making powers. The judiciary, i.e. the Supreme Court, has made many more amendments to the US Constitution than Congress itself. The system of checks and balances also stated by Montesquieu allows the three bodies to control each other's power. In symbolism King Solomon's throne was supported by lions on both sides where the lions represented the executive and legislative and the throne represented judicial. He made a statement that the judiciary was supported by the legislature and the executive. The Supreme Court held that: “Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on an equal footing with the administrative executive must be discouraged.” In pre-independence India there was a strong agitation regarding separation of power between executive and judiciary, if the judiciary was not separated from the executive, the independence of judiciary would be just a joke. Nowadays the Supreme Court acts as a major litigant and supreme courts serve as a center for major politically flavored controversies for which they face public ire. The question has also been raised whether the judiciary is crossing the line and interfering with the functioning of the executive and legislature. What is wanted at the moment is to ensure a relationship of mutual understanding and harmony and since the doctrine of separation of power has been adopted in India it fails to demarcate the boundary between these three bodies. Nowadays, in response to demands for public interest litigation, courts have begun directing the government on everything from removing trash from the streets to cleansing the political system of political squalor. As the horizons of "judicial activism" broaden, a small percentage of the population criticizes the judiciary overstepping its bounds and taking over government functions, but this is not a justifiable thought. The Supreme Court and High Courts act as watchdogs to keep the executive and legislature within the bounds of the law. Today, millions of people suffer in the country. It is the judiciary that offers them hope. It is time for these three governing bodies to realize the invisible boundaries that separate the three and not interfere in the functioning of each other and, respecting this invisible line, set an example of good governance.ConclusionFrom the above analysis of the doctrine of separation of power we have given that although it is not strictly followed in India, it still plays a very important role in the functioning of the country we have seen how these three bodies work together even if there is no specific boundary how much they can interfere with the work of others. From the above analysis we can see that in the current age of technology and globalization it is almost impossible to stick to the old doctrine of separation of power which stated that the bifurcation of power between the three bodies should be absolute. It is not possible to give one body absolute power in an area because if this happens there will be no gatekeeper to control it or question its functioning, leading to absolute chaos. Please note: this is just an example. Get. 1899