This article is written by Richa Goel of Banasthali Vidyapith; Priyanka sharma, a second year LLB student from Symbiosis Law School, Pune; and Tejaswini Kaushal, a student at Dr Ram Manohar Lohiya National Law University, Lucknow. In this article, has discussed the separation of power and its applicability in India and other countries.
It has been published by Rachit Garg.
The separation of powers is imitable for the administration of federative and democratic states. Under this rule the state is divided into three different branches- legislative, executive and judiciary each having different independent power and responsibility on them so that one branch may not interfere with the working of the others two branches. Basically, it is the rule which every state government should follow in order to enact, implement the law, apply to specific case appropriately. If this principle is not followed then there will be more chances of misuse of power and corruption If this doctrine is followed then there will be less chance of enacting a tyrannical law as they will know that it will be checked by another branch. It aims at the strict demarcation of power and tries to bring the exclusiveness in the functioning of each organ.
In India, functions are separated from powers rather than the other way around. The idea of the separation of powers is not properly followed in India, unlike in the US. The court has the authority to overturn any unlawful legislation that the legislature passes thanks to a system of checks and balances that has been put in place.
Because it is unworkable, the majority of constitutional systems today do not have a tight division of powers among the several organs in the traditional sense. Although the theory of separation of powers is not expressly recognised in the Constitution in its absolute form, the Constitution does provide provisions for a fair division of duties and authority among the three branches of government.
The term “separation of powers” or “trias–politica “ was initiated by Charles de Montesquieu. For the first time, it was accepted by Greece and then it was widely used by the Roman Republic as the Constitution of the Roman Republic. Its root is traceable in Aristotle and Plato when this doctrine became a segment of their marvels. In 16th and 17th-century British politicians Locke and Justice Bodin, a French philosopher also expressed their opinion regarding this doctrine. Montesquieu was the first one who articulated this principle scientifically, accurately and systemically n his book “ Esprit des Lois” (The Spirit Of Laws) which was published in the year 1785.
Montesquieu, a French scientist, originally proposed the doctrine of separation of powers in his book “Espirit des Louis” published in 1747. (The spirit of the laws). Montesquieu discovered that when power is concentrated in the hands of a single person or a group of people, a despotic government emerges. To avoid this predicament and to limit the government’s arbitrary nature, he argued that the three organs of the state, the Executive, Legislative, and Judiciary, should have a clear distribution of power.
Montesquieu went on to clarify the idea in his own words:
“When the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not separated from the legislative and executive powers. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control, for the Judge would then be the legislator. Where it joined with the executive power, the Judge might behave with violence and oppression. There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”
Wade and Phillips provide three definitions of the separation of powers:
- That one branch of government should not carry out the duties of another, such as giving ministers legislative authority;
- That one branch of the government should not exert control over or interfere with another branch’s performance of its duties, such as when the judiciary is separate from the executive branch or when ministers are not answerable to Parliament;
- That the same individuals should not serve in more than one of the three branches of government, such as sitting as Ministers in Parliament.
Three formulations of structural classification of governmental powers are included in the separation of powers theory:
- A single person should not serve in more than one of the government’s three branches. Ministers, for instance, should not be allowed to sit in the House of Commons.
- A government organ should not be allowed to meddle with another government organ.
- The functions of one organ of government should not be performed by another.
The definition of separation of power is given by different authors. But in general, the meaning of separation of power can be categorized into three features:
- A person forming a part of one organ should not form part of another organ.
- One organ should not interfere with the functioning of the other organs.
- One organ should not exercise the function belonging to another organ.
The separation of power is based on the concept of triaspolitica. This principle visualizes a tripartite system where the powers are delegated and distributed among three organs outlining their jurisdiction each.
To know more about the separation of powers and its relevance in brief, please refer to the video below:
Three-tier machinery of state government
It is impossible for any of the organs to perform all the functions systematically and appropriately. So for the proper functioning of the powers, the powers are distributed among the legislature, executive and judiciary. Now let’s go into the further details of the functioning of each organ.
The main function of the legislature is to enact a law. Enacting a law expresses the will of the State and it also acts as the wain to the autonomy of the State. It is the basis for the functioning of executive and judiciary. It is spotted as the first place among the three organs because until and unless the law is framed the functioning of implementing and applying the law can be exercised. The judiciary act as the advisory body which means that it can give the suggestions to the legislature about the framing of new laws and amendment of certain legislation but cannot function it.
It is the organs which are responsible for implementing, carrying out or enforcing the will of the state as explicit by the constituent assembly and the legislature. The executive is the administrative head of the government. It is called as the mainspring of the government because if the executive crack-up, the government exhaust as it gets imbalanced. In the limited sense, executive includes head of the minister, advisors, departmental head and his ministers.
It refers to those public officers whose responsibility is to apply the law framed by the legislature to individual cases by taking into consideration the principle of natural justice, fairness.
As it is a very well known fact that whenever a large power is given in the hand of any administering authority there are higher chances of maladministration, corruption and misuse of power. This doctrine helps prevent the abuse of power. This doctrine protects the individual from the arbitrary rule. The government is the violator and also protects individual liberty.
Summarily, the importance can be encapsulated in the following points:
- Ending the autocracy, it protects the liberty of the individual.
- It not only safeguards the liberty of the individual but also maintains the efficiency of the administration.
- Focus on the requirement of independence of the judiciary
- Prevent the legislature from enacting an arbitrary rule.
Constitutional status of separation of power in India
Going through the provisions of Constitution of India one may be ready to say that it has been accepted in India. Under the Indian Constitution:
|Legislature||Parliament ( Lok Sabha and Rajya Sabha)
State legislative bodies
|Executive||At the central level- President
At the state level- Governor
|Judiciary||Supreme Court, High Court and all other subordinate courts|
The Parliament is competent enough to make any law subject to the conditions of Constitution and there are no restrictions on its law-making powers. The president power and functions are given in the Constitution itself (Article 62 to Article 72). The judiciary is self –dependent in its field and there is no obstruction with its judicial functions either by Legislature or the Executive. The High Court under Article 226 and Article 227 and Supreme Court under Article 32 and Article 136 of Constitution are given the power of judicial review and any law passed by the legislature can be declared void by the judiciary if it is inconsistent with Fundamental Rights (Article 13). By going through such provisions many jurists are of opinion that doctrine of separation of powers is accepted in India.
Before looking into the case laws, let us understand what the meaning of the doctrine of separation of power is in a strict and broad sense.
The doctrine of separation of power in a rigid sense means that when there is a proper distinction between three organs and their functions and also there should be a system of check and balance.
The doctrine of separation of power in a broad sense means that when there is no proper distinction between three organs and their functions.
In the case of I.C Golakhnath vs State of Punjab, the Constitution brings in actuality the distinct constitutional entities i.e namely, the Union territories, Union and State. It also has three major instruments namely, judiciary, executive and legislature. It demarcates their jurisdiction minutely and expects them to exercise their function without interfering with others functions. They should function within their scope.
If we go through the constitutional provision, we can find that the doctrine of separation of power has not been accepted in a rigid sense in India. There is personnel overlapping along with the functional overlapping. The Supreme Court can declare any law framed by the legislature and executive void if they violate the provisions of the Constitution.
Executive also has an impact on the functioning of the judiciary as they appoint the judges and Chief justice. The list is so exhaustive.
In the case of Indira Gandhi vs Raj Narain, the court held that In our Constitution the doctrine of separation of power has been accepted in a broader sense. Just like in American and Australia Constitution where a rigid sense of separation of power applies is not applicable in India.
Justice Chandrachud also expressed his views by stating:
“The political purpose of the doctrine of separation of power is not widely recognized. No provision can be properly implemented without a check and balance system. This is the principle of restraining which has in its precept, innate in the prudence of self- preservation that discretion is better than its valor.”
In Ram Jawaya vs The State of Punjab, Justice Mukherjee observed:
“In India, this doctrine has been not be accepted in its rigid sense but the functions of all three organs have been differentiated and it can be said that our constitution has not been a deliberate assumption that functions of one organ belong to the another. It can be said through this that this practice is accepted in India but not in a strict sense. There is no provision in Constitution which talks about the separation of powers except Article 50 which talks about the separation of the executive from the judiciary but this doctrine is in practice in India. All three organs interfere with each other functions whenever necessary.”
Although, there is an explicit provision in Constitution just like American Constitution that executive power is vested in President under Article 53(1) and in Governor under Article 154(1) but there is no provision which talks about the vesting of legislative and judiciary power in any organ. We can conclude that there is no rigid separation of power.
At the first instance, it appears that our Constitution is based on this doctrine itself as the judiciary is self-sufficient and there is no interference either by executive or legislature. Court also prohibits the administration of judiciary is not to be discussed in the parliament. Power of judicial review and to declare any law as void is given to the Supreme Court. The judges of Supreme Court is appointed by President in consultation. Chief Minister and judges of the supreme court. The Supreme court make the rules and regulations for the effective conduct of business.
However, Article 50 of the Constitution of India talks about the separation of the executive from the judiciary as being a Directive Principle of State Policy it is not enforceable. Certain privileges, power, immunities are given to the Member of Parliament under Article 105. This provision makes the legislature independent. The executive power is conferred on President and Governor they are being exempted from civil and criminal liabilities.
But, if we read carefully it is clear that doctrine is not accepted in a rigid sense. The executive is a portion of the legislature and the executive is accountable for its conduct to the legislature and also its derive its authority from the legislature. Since India has a parliamentary form of government should a mutual connection and coordination between the legislature and executive. As executive power is vested in the president but in actuality, the real head is Prime Minister of India along with Council of Minister and president is only a nominal head. Article 74(1) talks that executive head has to conduct in conformity with the aid and advice of Cabinet.
Ordinarily, all the legislative power is vested in the legislature but in certain circumstances, the president may be empowered to exercise the legislative power. For example, the president can issue ordinance under Article 123 when the parliament is not in session, making the rules when there is an emergency. Sometimes the president may also exercise judiciary power. When a president is being impeached, both houses take active participation and finalize the charges.
Judiciary also performs the administrative actions while formulating the regulations and giving guidance for the subordinate court as well as perform legislative powers by framing the rules regulating their own procedure
So it is presumed from the provisions of the constitution that India being a parliamentary form of government does not follow the absolute separation there is an amalgamation of the powers where the connections between the different wings are inevitable and it can be drawn from the constitution itself. Every organ performs all types of functions in one or other form subject to the check and balance by other organs. All three organs are interdependent because India has a Parliamentary democracy. This does not mean that it is not accepted in India it has been accepted up to a certain extent.
But when it is expressly provided that one organ shall not perform functions of the other, then it is prohibited. In the Delhi laws case, it was stated that the legislature should exercise all the powers of legislation only in extraordinary circumstances like when parliament is not in session or emergency. We can say that the legislature is created by the Constitution to enact the laws.
In India, there is no separation of power but there is a separation of powers. Hence, in India, the people are not stuck by the principle by its rigidity. For example, the cabinet minister exercises both the executive and administrative functions. Article 74(1) states that it is mandatory for the executive head to comply with the advice of the cabinet ministers. In Ram Jawaya vs the State of Punjab, it was held that the executive is a part of the legislature and is accountable.
If we talk about the amending power of the Parliament under Article 368, it has been subject to the concept of the basic structure held in case of Kesavananda Bharati vs State of Kerala.
In this case, it was held that the Parliament couldn’t amend the provision in such a way that violated the basic structure.
And if it is made in violation of basic structure then such amendment will be declared as unconstitutional null and void.
Going through this case law regarding the Supreme court judgment it can be observed that the basic structure cannot be amended and strict applicability of doctrine can be seen.
Although strict separation of power is not followed in India like the American Constitution, the system of check and balance is followed. However, no organs are to take over the essential functions of other organs which is the part of the basic structure, not even by amending and if it is amended, such amendment will be declared as unconstitutional.
Impact of the doctrine of separation of powers on democracy
The doctrine of separation of powers seeks to protect the centralization of power in one hand; as history has repeatedly demonstrated, centralisation of power in one or a few hands can lead to disastrous outcomes. The application of this principle makes the government liable, accountable, and answerable to its citizens for its actions, thereby aiding in the promotion and protection of human rights. This eliminates one of the most serious weaknesses of other forms of administration, such as monarchy or dictatorship, in which the king is not accountable to his people. When applied, the principle creates a balance of powers inside the government, in which each of the government’s bodies’ functions are kept in check by the others while remaining independent of one another. This assures that the laws are just, fair, and adhere to the natural justice ideal. Furthermore, because it is independent of the other departments, the court can administer equitable justice. Democracy is flawed without Separation of Power.
Separation of power has been accepted and adopted across the globe. The United States has one of the most initially established versions of this doctrine, which finds its origin in its constitution. The theory of separation of powers in various aspects has been included in certain other constitutions around the world. The Australian Constitution favours the devolution of legislative functions to the executive rather than judicial institutions. This idea is also believed to be the foundation of the Sri Lankan Constitution. France is another country where this doctrine has an effect, and this doctrine flows out of the French constitution. The United Kingdom too has a separation of powers concept on an informal note. Some of the prominent countries that have adopted this concept are as follows:
The concept of separation of powers is quite specifically stated in the US Constitution. It gives Congress, which consists of the Senate and the House of Representatives, legislative authority. The President has executive authority, and the Supreme Court and any further Federal Courts that Congress may establish have judicial authority. The Constitution specifically outlines the President’s powers, and he is elected in a separate election for a fixed term of four years. He is tasked by the Constitution with ensuring that the country’s laws are faithfully carried out. The President has the authority to nominate and dismiss the executive officers known as the Cabinet, who are in charge of the major state departments. This is done to maintain the separation between the executive and legislative branches of government. Neither the President nor any of his secretaries may be members of the Congress, and any member of the Congress may join the government only after resigning from his membership. The President is normally irremovable from office, but the Senate has the power to remove him through the process of impeachment if he commits high crimes and misdemeanours such as bribery or treason. The after-effects of the Watergate scandal of 1972 on the President act as a prominent illustration of this. Once nominated, the Supreme Court’s judges are not subject to the authority of either Congress or the President. But they too could be impeached and forced out of their positions.
The Supreme Court’s authority was created in Marbury v. Madison in 1803 when it ruled that the President’s acts and the Acts of the legislature were both in violation of the Constitution. The Supreme Court also found that any significant delegation of legislative authority by Congress to executive agencies was in violation of the Constitution’s tenet of the separation of powers.
Unlike the United States, the United Kingdom does have a separation of powers concept and it exists in the country more on an informal note. The United Kingdom benefits more from Black Stone’s “mixed government” with checks and balances doctrine. The U.K. Constitution does not have separation of powers as an essential or defining principle. Because there is no formal division of powers in the United Kingdom due to the lack of a written constitution, any Act of Parliament that grants any power in violation of the concept may be deemed unconstitutional. The Parliament continues to have undisputed authority, and as a result, the Crown rules through ministers who are elected by and answerable to the Parliament. The Act of Settlement, 1700, effectively cemented the judiciary’s independence. The Supreme Court operates with its powers separated from those of Parliament. The Constitutional Reforms Act of 2005‘s Section 61 outlines the structure for judicial appointments. Commission responsible for choosing judges for the Supreme Court and the court of appeals. Thus, the Constitutional Reforms Act of 2005 has generally ensured the independence of the court.
The three branches continue to significantly overlap and are not properly divided. Administrative tribunals rather than regular courts handle many issues that emerge during the course of government. However, by preserving key components of “fair judicial procedure“, the impartiality of the tribunals is kept intact. Senior justices have frequently stated that a division of powers is the foundation of the British Constitution. It cannot be emphasised enough how deeply rooted in the separation of powers the British Constitution is while being mostly unwritten. Parliament makes the laws, and the judiciary interprets them.
The separation of powers in Australia is achieved by the partition of the Australian organs of government into the legislative, executive, and judicial branches. According to this theory, laws are created by the legislative, implemented by the executive branch, and then interpreted by the court. The word and its use in Australia are a result of the Australian Constitution’s language and structure, which draws its inspiration from democratic ideas ingrained in the Westminster system, the idea of a ‘responsible government’, and the American interpretation of the separation of powers.
The Australian political system does not always exhibit a strong separation of powers, however, as a result of the Westminster system’s norms. The executive is required to be chosen from the legislative and must uphold its trust, resulting in a fusion between the two.
The Parliament, the executive government, and the judiciary are the respective headings of the first three chapters of the Australian Constitution. Parliaments serve as the legislative branch of government. Ministers and the departments and agencies they oversee make up the executive branch. Judges and courts make up the judicial branch of government. Each of these chapters starts with a section that vests the applicable power of the Commonwealth to the proper people or organisations. On the other hand, responsible governance, in which the legislative and the administration are essentially one, is a feature of the Constitution. However, there is a lot of overlap in terms of both individuals and activities because the ministry (executive) is chosen from and answerable to the parliament (legislature). The distinction between the judiciary’s divisions is clearer.
According to the Constitution Act of 1867, there shall be a legislative branch, an executive branch, and a judicial branch. The monarch of Canada, working through their representative, the Governor General of Canada, is granted executive authority at the federal level. The Canadian Parliament, which consists of the monarch, the Senate, and the House of Commons, is given the responsibility of passing laws. Although Parliament approved provisions for the establishment of federal courts, the judicial authority is generally delegated to the provincial superior courts. The Federal Court of Appeal, the Federal Court of Canada, and the Supreme Court of Canada are currently considered to be federal courts.
The Prime Minister and other Cabinet ministers are members of Parliament, and Canada, like other parliamentary nations utilising the Westminster system, combines the executive and legislative departments. The two branches, however, play different roles and occasionally even clash with one another. The judicial branch and the elected legislative and executive branches fall under a considerably stricter definition of the separation of powers. According to the Supreme Court of Canada, the Constitution of Canada’s core value is judicial independence. When it comes to carrying out their responsibilities and making decisions, the courts are separate from the elected branches. Similar institutional features, such as the sharp division between the judicial and elected institutions, also apply to provincial and territorial governments.
Despite the fact that France is credited with creating the theory of separation of powers, its Constitution recognises it in a flexible way. The legislative branch is defined as distinct from the executive branch in Articles 1 and 2 of the French constitution. Its dual court system is a crucial element that preserves the separation of powers.
In France, there are two different types of courts: one handles all civil cases, while the other handles administrative ones. The legislative, the executive branch, and the judiciary are the other three separate branches that make up the French government. The laws are made by the legislature. These laws are carried out by the executive branch. The executive branch can, however, use its veto power to block the passage of a particular statute. This is a method of controlling the legislature. Additionally, the judiciary has the authority to judge whether a law approved by the legislature is constitutional. If a president or judge isn’t carrying out their responsibilities properly, the legislative branch has the authority to have them removed. The legislative branch gives its approval to the judges chosen by the executive branch.
The Montesquieu principle was included in the original Constitution of 1814, and the people of the time shared the same distrust of political parties that the American founding fathers and the French revolutionaries did. Additionally, no one actually desired the overthrow of the king and the Council of State. The idea of a king and council was well-known, something that people had experienced for a while and, for the most part, were at ease with. The Treaty of Kiel, in particular, and other outside factors led to the creation of the constitution in 1814. As in the United States and France, there was no revolt against the ruling elite.
No organised political parties emerged until the 1880s since there was no election for the administration and the king exercised absolute independence in choosing the members of the Council of State. The assembly’s impeachment of the whole Council of State in 1884 marked the culmination of a struggle between the executive and legislative that had begun to emerge in the 1870s and so the government changed to a parliamentary one. Even though the system of parliamentary sovereignty where the Montesquieu principle of separation of powers is no longer in effect in Norway, the three branches are still significant institutions.
This does not imply that there are no safeguards in place. Political parties began to emerge shortly after the parliamentary system was established, which prompted calls for electoral reform due to the peculiarity of the Norwegian electoral system, it is quite challenging for one party to win an absolute majority. A popular uproar about having few enough parties and a general sense of lack of representation led to the creation of the multiparty system, which in turn, still serves as a perfectly adequate system of checks and balances. Hence, there isn’t a lot written on checks and balances or the separation of powers in contemporary Norwegian political science publications.
Since becoming independent in 1972, Ceylon and subsequent Sri Lanka have allegedly been operating according to the trias politica (three organs of the government) paradigm. However, many would contest the level of independence that each branch of the government has enjoyed since 1972. The effectiveness of the checks and balances in place to preserve this independence and the separation of powers is likewise a topic of contention.
Both the legislature’s independence and its commitment to the Lincolnian ideal of “government by the people, for the people”, are under doubt. Indeed, the rigid workings of the legislature and the party structures and constitutions are signs of parliamentary autocracy. The executive and the judiciary are similarly facing threats to their independent functioning in contemporary times.
Merits of separation of power
The theory of separation of powers in its strictest form is considered undesirable and unworkable. As a result, it is not entirely acknowledged in any nation on earth. However, its importance resides in emphasising the checks and balances that are required to avoid abuse of the vast executive powers.
Creating a system of checks and balances
One aspect of the theory of separation of powers is checks and balances. According to this characteristic, each organ has certain checking abilities over the other two organs in addition to its own power. The inter-organ relationships are governed by a system of checks and balances during the process.
The separation of powers thesis was good in principle. When it was attempted to be utilised in actual life circumstances, however, various flaws became apparent in practice.
Protection of liberty and rights
According to the doctrine of the separation of powers, an individual’s freedoms and rights are protected, and they are shielded from various types of dictatorship and oppression.
Improvement in government efficiency
As authority is divided across government agencies, these agencies learn in-depth information about the issues they are responsible for and improve their effectiveness. The tasks required in governance are sometimes too many for one branch of the government to handle. Therefore, the division of powers aids in lightening the strain on each individual branch of government.
Encourages order in governance
Each of the three branches of the government is given a certain set of responsibilities. Each person would have to do their part solely if the concept were to be strictly followed. This guarantees that the state is run in an orderly manner.
Prevents abuse of authority
The separation of powers is an excellent safeguard against the abuse and haughtiness of power. Because various departments are given varying degrees of authority, the emergence of a dictatorship is prevented. The idea is sound in that it can restrain tyranny on the part of those in authority. The idea makes sure that too much authority is not centralised in one branch of the government. By doing this, the desire to misuse authority is avoided.
Achieves judicial independence
The idea of judicial independence holds that the judiciary ought to be separate from the other arms of the government. In practically every constitution, the judiciary is granted the authority to decide all constitutional problems and the authority to deem the actions of the other branches of government null and invalid. The idea of the separation of powers contributes to bolstering the judiciary’s independence in carrying out its duties.
Demerits of separation of power
Although most nations have adopted this approach, it has not been without criticism. It has been decried as undesirable in addition to being impossible. “Montes was guilty of oversimplification. He united his theory to a hasty and superficial analysis of the constitutional principles of liberty.” Sabine said. According to Finer, it is useless to rigorously apply the doctrine of the division of powers to contemporary circumstances. The following arguments have been used to refute the separation of powers doctrine.
Misreading of the British system
The Cabinet system of government existed at the time Montesquieu formed his thesis on the division of powers. At the time, Britain lacked a clear division of authorities. Instead, there was a focus on who was responsible for what. Montesquieu incorrectly assumed that there was a division of powers in Britain after seeing the British people enjoy their freedom. He had the politics of Britain wrong.
The British Constitution during the first half of the eighteenth century, as he understood it, served as inspiration for Montesquieu. In actuality, the English Constitution did not have a division of powers. This theory was never included in the British Constitution.
The idea is predicated on the false premise that the three branches of government—legislative, judicial, and executive—are distinct from one another. In the current welfare state model, these three roles overlap. The government could become more effective as a result of this division.
Not in favour of the welfare state idea
The welfare state of today must address several intricate sociopolitical economic issues facing a nation. It is impossible to follow this concept in the current situation.
Unrealistic in and of itself
It hasn’t been discovered that concentrating one sort of power in one organ alone is conceivable in practice. In addition to being a body that makes laws, the legislature also has oversight responsibilities for the executive, which is an administrative entity. The judiciary has some rule-making authority in addition to performing judicial duties.
Deadlocks and inefficiencies can result from the separation of powers:
The division of powers might result in impasses and ineffective government operations. It could lead to circumstances where each organ engages in combat and becomes stuck with the other two organs.
Not completely achievable
This notion is not entirely achievable. The legislature also has some judicial duties, while the executive plays a little part in rulemaking. The legislature, for instance, carries out judicial actions like impeachment.
Separation of powers causes administrative challenges, which is number three. Making the government’s organs cooperate, coordinate, and live in harmony becomes challenging. Modern governments must “coordinate” their powers rather than strictly separate them in order to function effectively.
Could cause confusion and deadlock
The division of powers can occasionally cause rivalry, mistrust, and conflict amongst the several branches of government. It might cripple the government while causing discord and uncertainty. As a result, even in times of emergency, the government frequently makes poor judgments. The principle of the separation of powers, in Finer’s words, “throws governments into alternate phases of coma and convulsion.” According to a different academic, “division of powers equals confusion of powers.”
Although this theory is founded on the equality of powers assumption, this premise has flaws. While the administration is most powerful under a presidential system, the legislature, which represents the people, is most powerful in a parliamentary one.
Separation of powers is one of the factors that contribute to liberty, but it is not the only one. Liberty also heavily depends on people’s minds, perspectives, political awareness, customs and traditions, basic rights, the rule of law, the independence of the judiciary, economic equality, and other factors.
Could upset the balance of power
As it carries out several crucial tasks, the government has become stronger. It is necessary to offer welfare to the people in addition to solving problems and managing crises. All of this has increased the executive’s authority and thrown off the balance between the three branches of government. Not so much the “division” of authorities as their “fusion” is necessary for planning, security, and welfare.
As a result, the theory of separation of powers in its strictest definition is seen undesirable and unworkable. As a result, it is not entirely acknowledged in any nation on earth. However, its importance resides in emphasising the checks and balances that are required to avoid abuse of the vast executive powers.
Functional overlap among organs of the government
Overlapping powers of Legislature
With the Judiciary
- Impeachment and dismissal of judges
- Authority to revalidate legislation that the Court had deemed ultra vires and amend them.
- If its privilege is violated, it has the authority to penalise the offending party.
With the Executive
- Members of the legislature serve as the leaders of each governmental ministry.
- It can dissolve the government with a vote of no confidence.
- The ability to evaluate the executive’s job.
- President’s impeachment.
- Members of the legislature are chosen to the council of ministers, on whose advice the President and Governor act.
Overlapping powers of Executive
With the Judiciary
- Selecting candidates for the Chief Justice and other judicial positions.
- The authority to commute sentences, reprieves, respites, or pardons for those found guilty of crimes.
- The tribunals and other quasi-judicial organisations of the executive carry out judicial duties as well.
With the Legislative
- The authority to enact an ordinance that carries the same weight as a law passed by the state legislature or the parliament.
- Subject to the limitations of this Constitution, they have the power to enact rules governing their particular process and conduct of business.
- Powers are granted by a delegated law.
Overlapping powers of Judiciary
With the Legislative
- The Supreme Court serves as an Executive under Article 142 in order to ensure full justice.
With the Executive
- Legal review, or the authority to examine executive action to see if the Constitution is being violated.
- The basic structure of the Constitution cannot be changed.
“Power corrupts and absolute power tends to corrupt absolutely” – Lord Action.
Exercising the doctrine of separation power cannot be applied in the strict sense in any contemporary countries like The United States, Nepal, France etc. But still, this doctrine has relevancy nowadays. Our government is an organized system and it is very difficult to divide into watertight compartments.
For the smooth functioning of any government, cooperation and coordination among all three wings of the government are necessary. Professor Garner said that “this doctrine is impracticable as working principle of Government. It is difficult to divide the functions of each organ on an accurate basis”.
Although liberty heavily depends on the balance between the three branches of government, increased concern for welfare and security has resulted in the transfer of greater authority to the executive. The liberty of the individual, as well as that person’s wellbeing and the security of the state, should all be equally important in a perfect society. Without a question, this would necessitate a strong government, but it would also necessitate a system of checks and balances and the division of powers.
In my opinion, this doctrine has a great significance as it protects the liberty of the individual from the arbitrary rule and prevents the organs from usurping the essential functions of other organs.
It is applicable in almost all countries up to a certain extent.
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