Separation of Power in The Constitution of India

Separation of Power

“Separation of Power” is a doctrine that has govern the minds of many people. Ancient philosophers, political theories and political scientists, founders of constitutions. The judges and academics have all had reason to consider this doctrine over the centuries.”

These are particular points of separation of different powers, between the various organs of state executive council, legislature and judiciary.

The theory of separation of power refers mainly to the three forms of Government
power:-

• The same person should not be a part of more than one of the three forms of government.
• One organ should not interfere with any other organ of the government.
• One organ should not perform the functions assign to any other organ.

In this project report I research comparing this theory in different countries such as
USA, UK and India. Which deals with various aspects related to the doctrine of separation of power. In this case I briefly explain the meaning and its advantage and disadvantage. For better understanding, I am providing current position in the USA, UK and India. According to the Indian context I am dealing with the various constitutional provisions of the constitution, and the legal response, related cases of this doctrine. I finally come to a conclusion and give a brief description of this doctrine. Finally, I put the idea and suggestion so you can understand this doctrine.

Separation of Power – Definition

Definition by Aristotle

There is no definitive explanation for this doctrine because everyone interprets it according to his own ideas. It is impossible to find a definitive origin but we see for the first time Aristotle saying about the doctrine of the separation of powers in his book “Politics” is as follows:

“There are three elements in each constitution where every legislator is honest look for the benefits of it. If these are well organize, and the differences in the constitutions are bound to correspond to the differences between the three parts. The first is conversation, discussing every important thing; second is officials; third is judicial element. ”

In 1689, the English political theorist John Locke envision a threefold division of power in the book “The Second Treatise of Government” as:

“It can be a great temptation to infirmity human. The same person to be strong to make rules, to be in the hands of the authority to issue it. Where it may free themselves from the rules they make.”

Definition by Montesquieu

One who said about this doctrine was “Montesquieu” who describe the separation of
power in his book “The Spirit of Laws” in 1748 by:

“When the power of the law is combine with the power of an individual or a body of the magistrates, there is no freedom. One might fear that the same king or the senate make cruel rules will bring them out cruelly. And there is no freedom if the power of the judiciary does not separate from the power of the law. If it were integrated into the jurisdiction of the law, the power over the life and liberty of the citizen shall be negligent, and for the judge shall be lawful. While combine with administrative power, a judge can have the power of an oppressor. Everything would be lost if the same man or the same body rule over people. Thus, it use these three powers: law making, executing public resolution, and judgments of human cases or disputes.”

Also read : Laws under Hindu Marriage Act 1955

Advantage

There are various benefits to adopting this teaching system;

1. The efficiency of organs of state is increase due to the division of labor and therefore time consumption decreases.
2. As professionals will handle the issues of their parts so the level of cleanliness as well goodness increases.
3. There is a division of labor and that is why the division of skills and work occurs.
4. Due to the division of labor there are no excess residues in the system and no one interrupt other workplaces.
5. As the splits are remove so there is no competition in between different organs.

Disadvantage

As there are advantages attached to this doctrine, there are some possible disadvantages also due to this doctrine;

1. As I have said it will increase efficiency but it also seems to result in a decline due to the conflict. If we do not follow the doctrine in its strict sense, then the organs may strive to dominate each other.
2. There is also competition between human organs to make them appear larger than any other organ.
3. It is also possible to delay the process because there will not be any supervisor over the others, so the work of the members can be negligent.