The Doctrine Of Separation Of Power In The Constitution Of India

The doctrine of separation of powers was first formulated by the French political philosopher and jurist Montesquieu (1689-1755). He observed that if all the three powers namely legislative, executive and judicial, accumulated in the same hands, a Government seeking to act despotically could pass laws according to its wishes, administer them without regard to the rights of the individual and judge them corruptly; for laws when enforced by the same body that enacts them result in arbitrary rule and make, the judge a legislator rather than an interpreter of the law. The separation of powers, is also known as trias politica. The Doctrine of Separation of Power is the forerunner to all the constitutions of the world which came into existence since

WHAT IS SEPARATION OF POWERS?

Separations of powers in India is depicted in the Constitution of India as the provisions relating to executive, legislature and the judiciary are dealt with in separate chapters in Part V and Part VI of the Constitution. The provisions relating to legislature, executive, judiciary are given in different parts in our constitution, thus providing for an implied separation of powers. The legislature performs the law making function, the executive implements the law and the judiciary keeps an eye on both legislature and executive.

According to Article 50 the State shall take steps to separate the judiciary from the executive. This is ensures the independence of judiciary. Article 122 and 212 facilitates the Parliament and the legislatures from being questioned in any Court about the legislative proceedings. This ensures the separation and immunity of the legislatures from judicial intervention on grounds of procedural irregularity. Judicial conduct of a judge of the Supreme Court and the High Courts cannot be discussed in the Parliament and the State Legislature, according to Article 121 and 211 of the Constitution. The executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability according to Articles 53 and 154 respectively. Thus, these provisions depict the separation that is coloured clearly in the Indian

JUDICIAL INTERPRETATIONS

The India Government has three wings that are the legislative, executive and judiciary and Article 50 of Indian constitution lays down the separation of judiciary from the executive. But the Indian constitution does not bestow the doctrine of the separation of power in a very strict sense.

The executive power of the union and of a state is vested by our constitution in the President and the Governor, respectively, by Arts. 53(1) and 154(1), but there is no agreeing provision in the Indian Constitution vesting the legislative and judicial powers in any particular organ. Therefore, it has been held that there is no rigid separation of powers under the Indian Constitution.

In Indira Nehru Gandhi v/s Raj Narain, C.J. Ray, has observed that in the Indian constitution there is separation of powers in a broad sense. A rigid separation of powers as under the American constitution or under the Australian Constitution does not apply to India.

In the case of Kesavananda Bharati v/s State of Kerala, regarding the separation of power Justice Beg added that separation of powers is a part of the basic structure of the constitution. None of the three separate organs of the Republic of India can take over the function assigned to the other. The scheme of the constitution cannot be changed even by restoring to Article 368 of the