Separation of Power
“When legislative and executive powers are United in same persons or in same body of magistrates, there can be no Liberty because apprehension may arise, lest the same Monarch or Senate should enact tyrannical laws, to execute them in a tyrannical manner. again, there is no Liberty if the judicial power be not separated from legislative and executive powers” It was french jurist Montesquieu who gave a systematic and scientific formulation to the concept of separation of power in his book “ Esprit de lois (The spirit of laws).
He propounded that:- The executive should not exercise the legislative or judicial power because this may threaten the freedom and liberty of individual. The legislative should never exercise the executive or judicial power as this may lead to arbitrariness and hence end liberty. The judiciary should not exercise the executive or legislative power because then a judge would behave like dictator.
According to Wade and Phillips the principle separation of power meant 3 things
- One should not be made after of more than one branch govt.
- There should not be interfere and control any other organ of govt
- No organ of govt should exercise the function and power of other organ.
Elements of Separation of Power
- Legislation
- Executive
- Judiciary
Separation of Power in India
In Indian constitution there is no express provision recognizing the doctrine of separation of power in its absolute form but the Constitution does make provision for reasonable separation of power function between organ of government. As in our country there is parliamentary system of governance and an effort has been made by power of constitution to keep the organ of government separated from each other but a lot of overlapping and combination of power has been given to each other.
Provision that Substantive Prove with Separation of Power :-
- Article 53 (1) and art 154 of Indian constitution clearly says that execution power of union and States are vest President and governor respectively and shall only be exercised directly by him through his subordinate officer.
- Article 122 and Art 212 it state that Court cannot enquiry in proceeding of parliament and state legislature ensure that there will be e no interference of judiciary legislature.
- Article 50 state the separation of judiciary from executive.
- Article 245 empower parliament and state legislature for making law fall of the country and state.
- Article 121 and 211 states that judicial conduct of any judge of Supreme court shall not be discuss in parliament.
- Article 361 state that President and governor or not accountable to any Court for exercising their power and duties in office.
Overlapping Provision
- Article 123 allow president to to issue ordinance when both the houses are not in session.
- Article 213 gives power to governor to issue ordinance when state legislative assembly is not in session.
- Article 73 State Power of executive shall not be coextensive with that of legislature.
- Article 74 states that council of ministers shall aid the president in exercise of executive function.
- Article 72 empower President to grant pardon or suspend the sentence of any person who is convicted by Supreme Court of India.
- Article 145 of Indian constitution allows Supreme Court to make law for the court preceding and practice with approval of president.
- Article 124 give the president power of appointment of judges of supreme court.
- Article 356 lay the provision of presidential rule in case of state emergency.
So in Indian constitution separation of power is not followed in strict sense. It is used in broader sense only. Power of the branches are not separated strictly and sometimes it’s overlap too.
Indira Nehru gandhi v Raj Narain 1975
In this case Supreme court said frigid senses of separation of power which is as given in American Constitution does not apply to India.
About Author
Yeshwant is pursuing 2nd year of his BBA LLB course from Chanderprabhu Jain College of Higher Studies & School of Law.
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