Abstract- of powers, we have moved from the

Abstract- This Article is to examine the system of Separation of Powers as advanced by the Constitution of India and the complexity faced by the three organs of government, viz., Legislature, Executive and Judiciary. The basic idea is that each of these organs should perform only one type of function. One organ must not concentrate all the functions, otherwise it will be a threat to democracy, for, in such matter, it may act in an arbitrary manner. The American Constitution scheme of separation of Powers has also been analysed comparatively. The Doctrine of Separation of power, has a principal purpose and that is to spread over governmental authority so as to guard against absolute and arbitrary powers of the states, and to assign each exercise to the institution best fit to discharge it. The principle behind the doctrine is that, if all power is focused in only one organ, there may rise the risk of  tyrannical, jeopardising one of the basic foundation of The Constitution Of India, i.e., DEMOCRACY.  Anyhow, each wing of the government should  have a keen  eye  to ensure they do not end up violating fundamental as well as legal rights of the people. Although, while considering the doctrine of separation of powers, we have moved from the subject of law to that of political theory.

 

                          
                                                           1. INTRODUCTION

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The proposition of the doctrine of suppuration of powers, examined that the governmental functions must be based on three different and  indeed independent bodies i.e., LEGISLATURE, EXECUTIVE and JUDICIARY. These three organs must be independent, distinct and sovereign in their own ambit and shall not disturb the functioning of the other. Theorists like Aristotle, Montesquieu, John Locke and Harrington perceived and saw that there is specialisation of function in each Constitution developed the doctrine of superheating of powers and described them as legislative, executive and judicial. All the political thinkers were of same opinion that, the rights and liberties of the people must be protected form absolute and autocratic rulers when all the powers are confer and functioned by the same people. 

                                                               2. ORIGIN

There is an old proverb that, “power corrupts and absolute power corrupts absolutely”. In order to develop successful managing system, man had been looking for mechanism to restrain the forces of absolutism and authoritarianism. “Separation of Powers” was evolved to be one such mechanism.

It maybe impossible to affirm exactly the origins of the doctrine of Separation of powers. Although, if we analyse the works of the Greek philosopher Aristotle, it is possible to observe a primitive doctrine of separation of powers. Thus in his Politics, Aristotle stated that:

There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these three elements. The three are, first the deliberative, which discusses everything of common importance; second, the officials . . .; and third, the judicial element.

John Locke (1632-1704), the English political theorist also propose a threefold classification of powers. Composing in The Second Treatise of Government, Loke classified three tier system: Legislature, Executive and Federative. In Locke’s analysis the legislature was superior and however the executive and  federative powers were definite, the one concerned with the implementation of domestic law within the state and the other with a defence and external affairs, he however had a perspective that ‘they are almost united’ in the hands of same persons. Absent from his categorisation is  any reference fo independent judiciary. In addition the correct functioning of these powers is achieved not through separation but on the grounds trust.  Consequently, Locke’s analysis does not become the explanation of separation of powers.

The doctrine achieved its full development in the hands of Charles Louis de Secondat, also known as Baron de Montesquieu (1689-1755). He realised that freedom was not secured , if the executive and legislature was conferred by the same persons. He concluded the very idea of  the separation of powers from his observation and ideas of the relation between the Parliament and the Stuart King. He thought parliament wouldn’t be arbitrary, and denial to the king of legislative power could make the rule by extemporary decrees impossible. Montesquieu having experienced dictatorship in the monarchical France, envied the other side of the channel. The Englishmen stood under the warm sunshine of the Magna Carta, was observed  by him in the second half of the 17th century. The English Kind was left with no authority as soon as he lost his legislative and tax powers to the Parliament. 

Montesquieu stated in his book, De L’Esprit des Lois ( The spirit of the Laws) 1748:

When legislative power is united with executive power in a single person or in a single body of the magistrates, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will executive them tyrannically. Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor. All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.

 
                                                    
                                           SEPARATION OF POWERS IN INDIA

The Doctrine in India, has not been concord a constitutional status. Article 50 laid down the directive principle, which prompts separation of judiciary from the executive, no constitutional device  incorporates any formalistic and dogmatic division of powers.

The Parliament is given responsibility to make the law for the union. Executive is incharge of implementation of law and judiciary is given an independent status under the Constitution of India. Although, many deviation which nullify the exercise of the doctorrine.

Constitutional Provisions

The President is conferred to executive powers of the union by the virtue of Article 53 and Governor is conferred to execution powers by the virtue of Article 154. With the cooperation and advice the council of ministers at the centre under Article 74 and also at the state, the president and governor can use or exercise their powers. As soon as the state legislature is dissolved, the president is Entitled to make laws, also known as Presidential’s rule under Article 356. The President is vested with the power to vested with the power to disqualify any member of the house as per Article 103. The President appoints the Judges of the Supreme Court and parliament has power to impeach judges.
 
Under Article 75, The Union Council of Ministers is accountable to the Lok Sabha. The President can be impeached by the house as per Article 61. In certain regards, the Parliament is too concrete of the Judicial functions. Parliament can examine the question of any whatsoever breach of parliamentary privilege, and also vested with power to punish for its contempt.

 In some ambits The High Courts perform such capacities which are authoritative instead of judicial. Their energy of supervision over other lower courts by the virtue ofArticle 227 is a greater amount of the regulatory nature than legal. At the point when under Article 228 they have energy to influence exchange of cases, they to practice regulatory control over the State area courts too. The administrative energy of the High Courts and the Supreme Court incorporates their energy to outline rules which is genuinely wide. The Executive in India is approved to administer for the sake of designated enactment. For the sake of managerial mediation of the privilege of individual subjects, the authoritative offices, which are statutory courts and residential councils have been constituted and perform legal capacity.

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