Doctrine of Separation of power: Administrative Law Notes

Doctrine of Separation of power: Administrative Law Notes- Prolawctor

Introduction

The doctrine of Separation of Power is of ancient origin. The history of origin of this doctrine is traceable to Aristotle. In the 16th and 17th Centuries, French philosopher John Boding and British Politician Locke respectively had expounded the doctrine of separation of powers.

But it was Montesquieu, French jurist, who for the first time gave it a systematic and scientific formulation in his book ‘De L’ esprit de lois’ (1748) (The spirit of the laws).

Nature and Meaning of Doctrine of Separation of power

The separation of powers is based on the principle of trias politica which means separation between three independent powers in nation i.e. Legislature, Administration and Judiciary. The doctrine of separation of powers means that none of the government, i.e., the legislative, executive and judicial should ever exercise the powers of the other. It means that the three departments of government are to be separated and distinct. They are to be independent of one another, and each can exercise only one type of authority, legislative, executive or judicial.

Doctrine of sepration of power is based on the philosophy of trias politica. This philosophy is based on three principle which are:

  • One organ should not form part of other 2 organ (Judiciary cannot be a part with executive and legislature).
  • One organ should not interfere in working of other organ (Executive cannot interfere in legislature work)
  • One organ should not exercise the function of the other organ. (Legislature cannot perform duties of Judiciary)

Purpose of Doctrine of Separation of power

  • Smooth functioning of the system
  • Restrict the power of state
  • To safeguard the interest of individuals
  • Cheques & Balances
    Cheques: One organ is answerable/accountable to the other organ
    Balances: The distribution of power must be equal

In the British Constitution the Parliament is the Supreme legislative authority. At the same time, it has full control over the Executive. The harmony between the Legislator and the (Executive) is secured through the Cabinet. The Cabinet is collectively responsible to the Parliament. The Prime Minister is the head of the party in majority and is the Chief Executive authority. He forms the Cabinet. The Legislature and the Executive are not quite separate and independent in England, so far as the Judiciary is concerned its independence has been secured by the Act for Settlement of 1701 which provides that the judges hold their office during good behaviour, and are liable to be removed on a presentation of addresses by both the Houses of Parliament. They enjoy complete immunity in regard to judicial acts.

Position in India : Constitutional provisions.

There are no separate provisions regarding the Doctrine Separation of Powers has been given our Constitution. But there are some directive principles are given in the constitution as in part-IV and Part- V and our constitution separating the judiciary from executive as, “the state shall take steps to separate judiciary from the executive the public services the state,” and except this there is no formal and dogmatic division powers. India, not only functional overlapping there but also the personal overlapping prevailing.

Judiciary

Under Article-142 and Article-145 our constitution, the has the power declare void the laws passed legislature and actions taken the executive they violate any provision of the constitution law passed by legislature case executive actions. Even the power amend the constitution Parliament subject the scrutiny the Court. The Court can declare any amendment void changes the basic structure the constitution.[Keshavananda Bharti State Kerla, (1973) SCC 225, AIR 1973 SC 1461.) many cases courts have issued directions for the Parliament make policies.

Executive

The President India who the supreme executive authority India exercise law making power form ordinance making power under Article-123, also the Judicial powers under Article-103(1) and the consulting power the India under Article-143 and also the pardoning po Article The executive also affecting functioning the judiciary making appointments to the office of Chief Justice of India and other judges.

Legislature

The Council of Minister is selected from the legislature and this Council is responsible for the legislature. The legislature exercising judicial powers in cases of breach of its privileges, impeachment of President under Article-61 and removal of judges. The legislative body has the punitive powers under Art 105(3).

In State of Bihar v. Bihar Distillery Ltd., (AIR 1997 SC 1511) the Supreme Court has held that the judiciary must recognize the fundamental nature and importance of the legislature process and must accord due regard and deference to it. The Legislative and Executive are also expected to show due regard and deference to the judiciary. The Constitution of India recognizes and gives effect to the concept of equality between the three organs of the Government. The concept of checks and balance is inherent in the scheme.

Conclusion – In brief we can say that the Doctrine of Sepraton of power; is followed in US with a sprit, never followed in UK purely, and India has followed it with large exception.

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