The theory of separation of powers is a doctrine of administration of a state. This theory states that the different functions of the state that is, the legislature, the executive and the judiciary must be separate and independent from each other. This distinction is made with understanding that the branches of the government should not conflict with each other. In this doctrine, it is believed that no single organ of the government should hold all the powers of the government thus there should be a dilution of the powers in different organs which would lead to the smooth running of the government. This theory was given by Montesquieu who was a French judge and a political philosopher. According to him, the powers of the government should be divided into between the legislatures, executive and judiciary. The legislature deals with the law-making process of the government, the executive would deal with the enforcement of law and the judiciary was responsible for protecting and resolves the disputes of the law. During the 17th century, most of the states were ruled by the monarchs. The monarchs were the amalgamation of all the three divisions of the state in one man. All the powers were concentrated in one man and he was the state, consequently, doctrine or theory which states the separation of power was a revolutionary idea. Here Montesquieu has divided the powers between three organs of the government. The independence of the organs means that people’s liberty would be protected. This system of distribution of power makes sure that the other organs would limit the powers of each other and prevent each other from being supreme. It forms an effective arrangement of checks and balances… It means that all the organs of the government have the same level of power so they can balance each other. The structure allows the smooth functioning of the government while protecting people’s liberty.
The UNITED STATES OF AMERICA –
The first big support to this theory came from the founding fathers of the Constitution of the USA. The first 3 articles of the constitution of the United States of America establishes the 3 organs of the government, the legislative branch, the executive branch and the judiciary.
Article 1 of the constitution establishes the legislative branch. The legislative branch consists of the Congress which is responsible for the making laws in the country. Article 2 of the constitution establishes the executive branch which comprises of the President of the country. The President is responsible for the implementation of the laws made by congress. Article 3 of the constitution establishes the judicial branch which is the United States Supreme Court which preserves and interprets the laws made by the legislative branch.
The main reason the theory was adopted into the country was because of its checks and balance system for example when the Congress makes the laws, the President has the right to veto them and the Supreme Court has the power to declare them unconstitutional. Therefore the separation of power between the three organs ensures the systematic and smooth functioning of the government and secures the people’s liberty in the state.
India is a constitutional democracy but it does not offer a solid differentiation of powers. Although India doesn’t follow the principle rigidly the functions of each organ is clear. Article 296 in the Indian constitution states that the executive powers rest on the President of the country and in the states, it rests on the Governors of the state. The president is assisted by the Prime Minister and his cabinet of ministers in the executive matters. The president is called as the chief executive and has blended functions. The President is authorized by the constitution to give ordinances in emergencies as his main legislative function. He can also grant, suspend and dismiss punishments or any sentence, he is performing the judicial function in appointing of the judges in the Supreme Court. This shows that there is no absolute implementation of the principle of separation of power.
The Parliament of India is the supreme legislative body in India. The Parliament formulates the law in India. It has two houses – the council of states or The Rajya Sabha and the house of the commons or The Lok Sabha. The houses are headed by the President of India. The Supreme Court of India is the judicial branch of the three organs of the government.
The Judiciary is vested with the power to safeguard the rights of the people as per the Constitution of India. The existence of all the checks and balances would make sure that the organs would not exceed the constitution limits The laws framed by the legislature can be repealed by the Supreme Court of India if it is found inconsistent with the Constitution on India. Parliament can impeach judges of Supreme Court and High Courts of states for their incompetence and mala fides or bad faith. The President can set aside the laws made by the legislative body if it is not under the values set by the constitution of India. These Checks and balances become preventive measures against abuse of power and corruption.
In conclusion, the theory of separation of power is a radical concept at that time is not attainable. The complete separation of powers is not desirable nor is it realistic. The government functions due to the mutual relation between the three organs of the government so complete separation would not benefit the government. The complete separation also leads to conflict and confusion. The theory’s main central idea was to protect the liberty of the people but the liberty of the people is done by protecting the fundamental rights of the people, the protection of the human rights to the citizens, independence of the judiciary and keeping the spirit of democracy.