The Separation of Powers is a model for governance of a state. Constitutions with Separation of powers are found worldwide. Let’s start with the basics.
Broadly, there are three functions of a government.
- The law-making function i.e. Legislative function.
- The Executive function which is the function to enforce the law or put the law into operation.
- The Judicial function which means the function to interpret the law if it has been broken.
In the early times, all the power would vest in one monarch or king. The same king would make the law, enforce the law and decide the punishment for violation of the law. He was one in all in and all in one. A lot of the affairs would run on whims and fancies of the king.
In the sixteenth century, Montesquieu, a French scholar came up with a theory that concentration of power in one person would result in tyranny. If the monarch had all three powers in his hand, people’s liberty would suffer. He said the solution would be the separation of governmental functions. This implies that the three functions should not be concentrated in a single entity and should be separated into three different and independent organs of the government.
The theory means that none of the three organs of the Government can exercise any power which properly belongs to either of the other two. There there is a system of checks and balances where one organ keeps a check on the other two organs by making sure that they don’t misuse the power. If there is the separation of powers and functions without overlaps, the organs of the government can exist in harmony, and government can run smoothly.
The functioning of the constitutional bodies in India is based on the theory of separation of powers. In India, the Parliament is the legislative organ. Its function is to make laws. The Parliament cannot enforce laws nor can it encroach upon the function of the judiciary and act as a court.
The Executive organ is the President and the Council of Ministers with the Prime Minister at its head. The executive is responsible for enforcing the laws made by the legislature. It can neither venture into making laws neither can it encroach upon the function of the judiciary.
The Judicial organ is the Supreme Court. Its function is to interpret the laws made by the legislature and the decide upon the actions taken by the executive. It acts as a check on the arbitrary exercise of power. The Judiciary cannot usurp the function of the legislature and start making laws not can it take administrative decisions like the executive.
India being a federal nation, a similar model of separation of powers exists at the state level. We have the State legislature which consists of the legislative assembly and the legislative council. The State Executive which consists of the Governor and the Council of Ministers and the State Judiciary which consists of the High Courts and the lower judiciary.
The Doctrine of Separation of Powers has been adopted in most of the democratic countries including India. What the doctrine means is that no organ should usurp the functions and powers of the other organs. But applying the doctrine in a strict manner is not ideal as no organ of the government can work with absolute independence. The three organs of the government should work in co-ordination with each other if the government functioned smoothly.