OVERVIEW
Government has three functionary bodies, often called three wings of the government, namely, Legislature – the law making body, Executive – the executor or implementer of laws, Judiciary – the interpreter of law. They are all interlinked organs of government. Judiciary interprets the laws made by the legislature and implemented and enforced by the executive. These organs function independently under the system of Separation of Powers as first theorized by Montesquie.
The doctrine of separation of powers basically refers to a principle of division of powers and responsibilities among the legislative branch, executive branch and judicial branch. The founding fathers of Indian Constitution were influenced by French philosopher Baron de Montesquieu regarding separation of powers. The purpose of such division of powers is to keep a check on arbitrary use of powers by any organ of the government. The basic objective is to prevent concentration of power. India follows federal system of governance whereby two sovereign powers – the national government and state governments are created. Separation of powers aims to put internal limits within the government. There is overlapping of governmental powers and responsibilities. In some of the cases Judiciary undertakes the work of legislature and the executive. For example, while interpreting the statutes, judiciary may resort to filling in the gaps for finding intention of the parliament behind making of such statutes. Indian courts have given judgements in various cases upholding the doctrine of separation of powers.
It must be kept in mind that this doctrine is not rigidly followed in India. The Keshavananda Bharati case holds a very important place in this regard. The question involved herein was that whether the parliament had unrestricted amending powers under article 368 of Indian constitution and how much could actually be amended. It was held by the Supreme Court (apex court of country) that parliament cannot amend the basic structure of the constitution which included separation of powers in this case.” There are certain principles within the framework of Indian constitution which are inviolable and hence cannot be amended by parliament. These principles were commonly termed as basic structure.
“In India Nehru Gandhi v. Raj Narain, the Supreme Court upheld the basic structure as well as doctrine of separation of powers, making it a landmark case in our country. The issue involved in this case was regarding prime minister’s elections and purpose of 39th amendment of constitution. the supreme court held ”clause 4 of the constitution 39th amendment act ,1975 as unconstitutional and void on the ground that it denied right to equality provided under article 14. Parliament in no way can usurp the role of judiciary. In this case, separation of powers was given due importance. The supreme court added the feature of free and fair elections to the list of basic features led down in previous case”.
Conclusion
In modern society, doctrine of separation of powers cannot be applied strictly. In India, governance by way of parliamentary system requires a lot of co-operation amongst the three organs in order to function smoothly.
Independence of judiciary, judicial review and activism are some of the concepts which have come up through separation of powers. Judicial activism has been a great tool to keep check on legislature and for dispensing justice to the needy. To ensure that in no circumstances the liberty of common man is being compromised, judiciary is separated from other organs. Doctrine of separation of powers is of utmost importance and has acted as guiding principle. It has been included in our basic structure doctrine which can be known from judgements of various cases. It has been moulded from time to time to suit the needs of a modern all pervasive state .
