— Contributed by Deepak Miglani Legal Buddy

Separation of powers, a term coined by French political Enlightenment thinker Baron de Montesquieu, is a model for the governance of democratic states. There are three distinct activities in every government through which the will of the people are expressed. These are the legislative, executive and judicial functions of the government. Corresponding to these three activities are three organs of the government, namely the legislature, the executive and the judiciary. The legislative organ of the state makes laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the breach of law. Each organ while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the general public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs.

In Ram Jawaya v. Punjab , the Hon'ble Supreme Court observed that we follow a separation of functions and not of powers. And hence, we don't abide by the principle in its rigidity. An example of it can be seen in the exercise of functions by the Cabinet ministers, who exercise both legislative and executive functions. A. 74(1) wins them an upper hand over the executive by making their aid and advice mandatory for the formal head. The executive, thus, is derived from the legislature and is dependant on it, for its legitimacy.

      On the question that where the amending power of the Parliament does lies and whether A. 368 confers an unlimited amending power on Parliament, the S.C. in Kesavananda Bharati held that amending power was now subject to the basic features of the constitution. And hence, any amendment tampering these essential features will be struck down as unconstitutional. Beg, J. added that separation of powers is a part of the basic structure of the constitution. None of the three separate organs of the republic can take over the functions assigned to the other. This scheme cannot be changed even by resorting to A. 368 of the constitution . There are attempts made to dilute the principle, to the level of usurpation of judicial power by the legislature.

In a subsequent case law, S.C. had occasion to apply the Kesavananda ruling regarding the non-amend ability of the basic features of the constitution and a strict adherence to doctrine of separation of powers can be seen. In Indira Gandhi Nehru v. Raj Narain , where the dispute regarding P.M. election was pending before the Supreme Court, it was held that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise . So, the main ground on which the amendment was held ultravires was that when the constituent body declared that the election of P.M. won't be void, it discharged a judicial function which according to the principle of separation it shouldn't have done. The place of this doctrine in Indian context was made a bit clearer after this judgment.In nutshell we can say that the Separation of Power is a method of removing the amount of power in any group's hands, making it more difficult to abuse.

For any query:-
legalbuddy@milagrow.in