Separation of Power in India

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SYMBIOSIS LAW SCHOOL, PUNE

Legal research and methodology

“SEPARATION OF POWER IN INDIAN CONTEXT”
“FUNCTIONAL OVERLAPPING”

Submitted by: Prashant Kumar Singh, LL.M. 1st yr. Roll No. 35, SLS, Pune

Separation of powers in Indian context:
1-“Doctrine of separation of powers is structural rather than functional.” 2-In India not only there is a ‘functional overlapping’ but there is ‘personnel overlapping’ also. Abstract:
The Supreme Court applies the structural provisions of the Constitution by relying on an Overarching framework of “separation of powers.” In Indian Constitution, there are mentioned provisions in relation to separation of power but there is functional overlapping. These theories rely on a freestanding separation of powers principle derived from the structure of the document as a whole, both contradict the idea that the Indian Constitution is a “bundle of compromises” that interpreters must respect if they are to show fidelity to the Constitution making process. The historical record reveals that the founding generation had no single baseline against which to measure what “the separation of powers” would have required in the abstract.

Doctrine of Separation of Powers in India:
Development:
In India, the doctrine cannot claim any historical background. The legislature did not appear as a body separate from the executive till the middle of 19th century. The doctrine of separation of powers has not been accorded a constitutional status. It was only after the independence that a constituent assembly was constituted to draft a constitution for the country. There was a proposal to incorporate the doctrine in to the constitution but it was turned down. The doctrine of separation of power is not followed strictly. Apart from the directive principle of state policy laid down in article 50 which talks about separation of judiciary from the executive, the constitutional scheme does not embody any formalistic division of powers. In India, there are three main categories of governmental functions: i. Legislative

ii. Executive
iii. Judiciary.
Importance:
According to the theory of Separation of Powers, these three departments of the Government must in a free democracy, always be kept separate by three separate department of the Government. The function of the legislature is to make laws while the function of the executive is to execute them and that of the judiciary is to enforce and interpret them. None of these three departments should interfere with exercise of the functions of the other departments. One department should not exercise the functions of another department.

The theory signifies the following three different things:
1. That the same person should not form more than one of the three departments of the government; 2. That one department of the government should not interfere with any other department; 3. That one department of the government should not exercise the functions assigned to any other department. Thus the doctrine lays emphasis on the separation both at the functional as well as personal level. In an ideal set-up the separation in both these aspects should be clear and complete. According to Montesquieu, “If the executive and the legislature are the same body of person there would be a danger of the legislature enacting tyrannical laws which the executive will administer to attain for its own ends. He further said that if one person or body of persons could exercise both the executive and judicial powers...
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