Meaning ofSeparation of Powers: The theory of separation of powers advocates that the three powers of the government should be used by three separate organs. Legislature should use only law-making powers, Executive should undertake only law-enforcement functions, and Judiciary should perform only adjudication/ judicial functions. Their powers and responsibilities
should be clearly defined and kept separate. In general, the meaning of separation of power can be categorized into three features: Quote: “I say, that Power must never be trusted without a check.” ― John Adams. In his book, ‘The Spirit of the Laws’ (1748), Montesquieu enunciated and explained his theory of separation of powers. If the legislative and executive powers are combined in the same organ, the liberty of the people gets jeopardized because it leads to tyrannical exercise of these two powers. “Power corrupts and absolute power tends to corrupt absolutely” – Lord Action. Constitutional Provisions: Need For Separation of Power
Functional Overlap Among Organs of the Government Overlapping Powers of Legislature:
Overlapping Powers of The Executive:
Overlapping Powers of The Judiciary:
Overlapping Powers of The Executive:
Overlapping Powers of The Judiciary
Issues with Functional Overlapping:
Checks and balances: There is a system of checks and balances wherein the various organs impose checks on one another by certain provisions. Checks and balances ensure that no one organ becomes all-too powerful. The Constitution guarantees that the discretionary power bestowed on any one organ is within the democratic principle.
Judicial Pronouncements on Separation of powers: Comparison of Separation of Powers in USA
Conclusion: In the Indian situation, the principles of constitutional restraint and confidence have been implemented in such a manner that no institution can, by means of a specific or necessary clause, usurp the duties or powers delegated to another institution and cannot detach itself from the basic roles that belong to the organ in compliance with the Constitution. A Parliamentary structure with a rigid division of powers is unnecessary and unsustainable for a democratic politics and complex population such as India. Nevertheless, the institutional partnership of the three government institutions is feasible with judicial and measured constitutional functional overlap. Such cooperation bridges the legislative, executive and judicial divide that makes Government operate smoothly. Practice Question: Discuss whether separation of power in India, as provided by the constitution, is rigorous and whether it is more of a separation of functions rather than separation of power? (250 words) What is separation of powers in the Constitution? Discuss the concept of checks and balances reflected in Indian Polity. (250 words) |