This blog is written by Sneha Singh, a student of LLM in Lovely Professional University, Phagwara (Punjab). This blog deals with Military Actions in cyber security.
Table of Contents
“If the legislative and executive authorities are one institution, there will be no freedom. There won’t be any freedom anyway if the judiciary body is separated from the legislature and executive” – Charles de Montesquieu
The three organs of the government that are the Legislature, the executive and the Judiciary have been given essential functions of rule-making, rule application and rule adjudication respectively. This tripartite division of power in the government has been recognized and universally accepted as the best form of governance. This division of power is essential to secure the rights and freedoms of the citizens of the country. It is also necessary as it prevents the government from acting arbitrarily or despotic.
This theory of Separation of Powers denotes that the three organs of the government must be kept separate from one another and any togetherness of these into a single or two hands is bound to be dangerous for individual liberty and autonomy. Decentralization, division of powers, specialization, and separation of powers are essential instruments for the betterment of every country also the citizens residing in that country. The Government can work efficiently only when these separate organs exercise their power unhindered by the other organs. The theory of Separation of Power is based on the principle “Power corrupts and absolute power corrupts absolutely” as quoted by Lord Acton. The concentration of power on hand leads to despotism. It always endangers an individual’s liberty and rights. In order to prevent this type of scenario, each organ should be limited in its own sphere of action.
Meaning of the Theory of Separation of Powers
Gettel observed –
“The theory that the functions of government should be performed by different bodies of persons, that each department should be limited in its own sphere of action, without encroaching upon others, that it should be independent within the sphere, is called the theory of Separation of Powers.”
In layman’s words, the theory of Separation of Powers is the theory that advocates that the three functions of government should be performed by three separate organs. One organ should have the power of only its own sphere. Powers should be separated, dispersed and decentralized. Montesquieu in his book ‘The Spirit of the Laws’ (1748) enunciated and explained this theory of Separation of Powers.
The Theory of Checks and Balances
The theory of checks and balances holds that no organ of power should enjoy unchecked power in its sphere. The powers and spheres of one organ should be restrained and checked by the power of the other two organs. Thereby a balance needs to be secured which should prevent the misuse of power in a single organ. It is essential for preventing the arbitrary use of power by the government.
The theory of checks and balances has for its basis two principles:
- Power corrupts and Absolute power corrupts absolutely. This demands that no organ of the government should have absolute power over its sphere of activity.
- Power alone can be the antidote to power. If the power is not to be abused, it is necessary that power should be made to check power.
Critical Evaluation of the Theory of Separation of Powers
Despite its popularity, the theory of Separation of Powers has various limitations which are discussed herein below:
- Complete Separation is not possible – The government is a unitary mechanism, its three organs can never be separated completely. The three organs Legislature, Executive and Judiciary are inter-dependant and interrelated with each other and cannot be completely separated from one another. Without any cooperation among them, the three organs cannot function properly.
- Impracticable- We cannot completely implement separation of powers. The function of law-making cannot be entrusted only to the legislature specifically. The needs of our times have made it essential to provide for law-making by the executive under the system of delegated legislation.
- Three organs of Government are not Equal- The theory of Separation of powers wrongly assumes the equality of all three organs of the government. The Legislature of the state is always regarded as the most important part or organ of the government. The work of government starts with law-making functions. However, in practicality, the executive has now become the most powerful and important organ of the government. Hence, the three organs are neither equal nor equally respected.
- Liberty does not depend only upon the Separation of powers- The critics reject the thesis that liberty can be safeguarded only when there is the separation of powers. They argue that in the absence of fundamental rights, independence of the judiciary, rule of law, economic equality, the spirit of democracy, and eternal vigilance, there can be no liberty even if there is a full separation of powers under the constitution of a state.
- This Theory can lead to dangerous results- In actual terms the separation of powers can lead to the existence of three governments that is Legislative Government, Executive Government, and Judicial Government within one government. Such instances can lead to deadlocks, constitutional conflicts, jealousies and inefficiency. The government can crack under the pulls and pushes of its three organs in three different directions. Lack of cooperation and coordination among them can prove very dangerous, particularly during emergency situations.
Separation of Power in Indian Constitution
The doctrine of separation of powers is a part of the basic structure doctrine of the Indian Constitution, yet it has not been specifically mentioned therein the legislature cannot override this law violating this principle of basic structure. The functions of the three organs are specifically mentioned in our Indian Constitution.
The following articles give us a clear idea about of separation of power in the Indian Constitution which are as follows:
- Article 50:This article puts an obligation on the State to separate the Judiciary from the Executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable.
- Article 123:The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions.
- Articles 121 and 211:These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.
- Article 361:The President and Governors enjoy immunity from court proceedings.
There is a system of checks and balances wherein the different organs keep a check on the other organs to prevent the misuse of power single-handedly. The judiciary has the power of judicial review over the actions of the executive and the legislature. The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights). It can also declare the actions of executives as void and unconstitutional. The legislature also reviews all the functions performed by the executive.
The theory of Checks and balances ensures 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.
Separation of Powers in US Constitution
The theory of Separation was first founded by Montesquieu. However, it got its major use in the efforts put by the founding fathers of US Constitution. They not only accepted this theory but also adopted it as a valid theory to secure the rights and liberty of the people by keeping three organs of the government in check. The Philadelphia Conventions have fully accepted this view.
The US Constitution incorporated separation of powers, though no single article of the Constitution directly enunciates this theory. The Supreme Court of the USA (the guardian protector and interpreter of the Constitution) has, on several occasions, observed that the Separation of Powers is the basis of the constitutional system created by the U.S Constitution. In the USA the separation of power has been secured by the following three Articles namely Legislative powers with the congress, Executive powers with the President and Judicial powers with the Supreme Court.
- Article I – Section 1 of the American Constitution states that –“All the legislative powers are vested in Congress.”
- Article II – Section 1 of the American Constitution states that – “All the executive powers are vested in the President.”
- Article III – Section 1 of the American Constitution states that –“All the judicial powers are vested in the federal courts and the Supreme Court.”
Separation of Powers in the UK Constitution
UK has a parliamentary form of government. The king is the nominal head, and the actual legislative functions are performed by the parliament. Although the king is the chief executive, he is also an integral part of the legislature and all his ministers are also members of specific houses of the parliament.
- The Lord Chancellor is head of the judiciary, Chairman of the Legislature (House of Commons), a member of the executive, and frequently a member of the cabinet.
- The House of Commons eventually controls the Legislature.
- The Judiciary is unbiased; however, the judges of the higher courts may be eliminated on recommendation from each of the Houses of Parliament.
- The resting of powers in a single institution thus denies the certainty that there may be any type of Separation of Powers in Britain.
Britain has the concept of separation of powers, but it is not in a formal sense like in the United States. The three branches are not officially separated, but there is still a large overlapping as in India. In numerous cases, senior judges have held that the U.K. Constitution is based on the doctrine of separation of powers.
Separation of Power in India, UK and USA- A Comparison
In India and UK, there is no separation of powers between the legislature and the executive. They have a parliamentary form of government which involves the dual concept of the close relationship between the legislature and the executive and the responsibility of the executive before the legislature. However, the Constitutions of India and the UK clearly demarcate the legislative and executive functions. In India, Judiciary works as an independent machinery and carries out its work without any interference from the legislature and executive. In the UK there is no separation of powers. The British Parliament has control over the executive and the British House of Lords is both the upper house of Parliament as well as the highest court of appeal. As against these, in the US Constitution, there is both a separation of powers and well as a system of checks and balances among the three different organs of government. The USA has a presidential form of Government which requires both separation of powers and also a system of checks and balances among the three different organs of the government (the Legislature, Executive and Judiciary).
- Comparative Constitution book by D.D Basu
- Massey I.P, “Administrative Law”, Eastern Book Company, Lucknow, 2012