Published On: 8th September, 2024
Authored By: Abdelrahman Waleed Salama
British University In Egypt
Abstract:
In this article, the principle of separation of powers is examined in an in-depth and careful manner. This theory is related to and has relevance to democratic actions in the modern era by preventing the unification of legislative, executive, and judicial powers under one authority.
The article then moves on and examines the history of this theory of separation of powers, which goes back to the ideas of Plato, Aristotle, and the influential French philosopher Montesquieu.
The article then moves on to applying this principle, which is the separation of powers in different countries, focusing on the United Kingdom and the United States and focusing more on India. The focus is on the extent to which these countries adhere to the principles of separation of powers, and a look is taken at the successes and challenges that these countries faced in their application of that theory.
Finally, consideration of India’s application of this theory is supported by judicial precedents.
Introduction:
The idea related to the operation of power when powers are not granted to a single authority, but rather are branched, is at its best and achieves sound democratic ideas. While many countries have accepted this idea, it is not strictly adhered to. Initially, this idea was dealt with in the United States of America. In India, this idea developed greatly in the 17th century. The 3 powers of the government that the thinkers mentioned were the ability to make laws, execute them, and comprehend them.[1]
We find that democratic and developed countries work with this system, which is the separation of powers, without taking a careful and careful look at the constitutional and legal systems of those countries. to the extent that this became an enshrined human rights provision in their constitution.[2] If the separation of powers is regarded as one of the foundations of the modern state, then it also represents the true essence of democracy. Because that approach does not aim to consolidate the three authorities under the control of one authority, it is regarded by those countries as a means of introducing democracy.[3] This principle also means the cooperation and integration of each authority with the other within the narrowest limits and in a way that achieves the common good and not absolute separation.[4]
There are three main types of authority:
-judicial authority
-Executive authority
-legislative authority
Principles of separation of power:
The concepts of politics are followed by the ideas of separation of powers. The idea of this ideology is to stop authorities from abusing their power. Based on this idea, no department of the government can exercise its authority above what has been given to it. This concept is founded on the following four principles:
Three structural organs make up the government according to the exclusivity principle.
The functional principle, which demarcates the boundaries of devices, states that no device may perform the duties of another device.
The principle of checks and balances assumes that these agencies should implement mutual checks and balances to ensure that the activities and responsibilities carried out are consistent with the Constitution.
The principle of mutuality seeks to promote harmony rather than conflict, cooperation rather than confrontation, and engagement rather than alienation.[5]
Historical background about the principle of separation of power:
Based on the modern jurists, theorists, and social scientists, this idea originated during the time of Plato and Aristotle. Aristotle introduced the idea of separation of powers, which Montesquieu elaborated on it. It addressed the constitutional relationships that exist between the legislative, executive, and judicial departments of government. The father of the theory of separation of powers is regarded as being Montesquieu. In his work De L’Espirit’ des Lois (The Spirit of Laws), published in 1748, French jurist Baron De Montesquieu first established the separation of powers idea. He is considered a current proponent of this theory because of this.
In essence, Montesquieu’s philosophical approach is that the legislative, executive, and judicial branches of government should not be controlled by a single person or group of people. As stated in various ways, each body or organ would have to keep itself within its designated area and refrain from invading the jurisdiction of the other.
For Montesquieu, “There is no freedom can appear when the executive and legislative powers are integrated inside one individual, or a single entity, or Magistrate.” Once more, if the judicial authority is not kept separate from the legislative and executive branches, then there is no liberty. When the subject’s life and liberty are united with legislative authority, the judge becomes the legislator, leaving the subject vulnerable to arbitrary control. When combined with the executive power, the judge may act unjustly and aggressively. If these three powers were to be utilized by the same man or the same body, everything would eventually come to an end. The mutual restrictions that Montesquieu referred to as “checks and balances” constituted his “separation”. It is not that the three organs’ separate tasks shouldn’t ever connect instead they must work together in harmony. “It cannot occur for that situation to arise which Locke and Montesquieu regarded as an extinction of liberty-the monopoly, or disproportionate accumulation of power in one sphere” if this restriction is recognized and kept. Well-known English jurist Blackstone supported Montesquieu’s theory. He says that “whenever the same individual or entity has the authority to establish and enforce the Law, there will be no liberty.[6]
Position of the principle in different countries:
The notion of the separation of powers has been found to have a place in the legal and constitutional systems of many nations in the age of the modern legal system. While it is difficult to address every concept found in every country’s legal and constitutional structure, the coming will clarify a few significant nations.
Montesquieu’s “Separation” took the form of mutual restraints to be known as “checks and balances”. The
the limitation is respected and preserved, “it is impossible for that situation to arise which Locke and
POSITION IN ENGLAND:
In the United Kingdom, The legislative branch consists of the “House of Commons,” the “House of Lords,” and the “Crown.” The legislature is tasked with the main responsibility of enacting laws. The executive branch in the United Kingdom is made up of the Crown and the Government, which consists of the Prime Minister and Cabinet members. Policies are formulated and implemented by the executive. The judiciary is comprised of the judges in the law courts, the judicial officers sitting on tribunals, and the lay magistrates in the magistrates’ courts. Senior court appointments are made by the Crown.[7] As the head of state, the monarchy plays an essential role in the legislative of England. Among his ministers are members of one or more Houses of Parliament. This ideology conflicts with the notion that a person should not serve in more than one branch of government. The House of Commons is the English body that supervises the executive branch.
Despite the House of Lords is considers the nation’s highest court with regards to the judiciary, in practice, judicial functions are performed by those appointed expressly for this reason, also known as Law Lords and other holders of judicial positions. Therefore, It may draw the inference that the idea of the separation of powers is not always present in the British Constitution. “In the British Constitution there is nothing known as the absolute separation of legislative, executive, and judicial powers,” the Donoughmore Committee noted correctly. But times have changed, and the 2005 Constitutional changes the Act that includes measures to strengthen the concept of checks and balances and prevent the misuse of power. This concept also affects the UK’s increased independence abilities.
POSITION IN USA:
The concept of separation of powers is mentioned in passing in the Federal Constitution of the USA, but on the other hand, the fact that it is not expressly addressed in it. Madison, the Federalist, declared that ” It is fair to say that the exact meaning of tyranny is the concentration of all authority legislative, executive, and judicial one hand, a small group of people, or many people and no matter of whether those powers are hereditary, self-appointed, or elective..” Madison drew his logical conclusions from Montesquieu. Hamilton had similar ideas in 1788. The distribution of powers between the legislative, executive, and judicial powers is stated by the American Constitution.
“The parliament of the USA shall have the legislative powers herein granted,” stated In Section 1 of Article 1.[8]
Article II, Section 1, stated that “the executive power is to lie in a President of the United States of America.”[9]
Based on Section 1 of Article II, “The judicial power of the United States, shall be vested in one Supreme Court and in such inferior courts.”[10]
THE POSITION IN INDIA:
There are three primary powers in the nation of India, and They are all managed by various and different institutions. Making laws is the responsibility of the legislative while enforcing the law is the responsibility of the executive branch., The judicial branch is responsible for enforcing the law, while the executive branch is in charge of maintaining it. The primary issue that pops up is whether these organs should be strictly separated whether they should rely on one another or remain independent in their abilities.. The Indian Constitution has provisions that differentiate between the roles of the various government agencies, but there are also better rules that give meaning to the separation of powers completely. This concept is adopted implicitly even if it’s not expressly stated in India or acknowledged in any legal framework. It has defined the roles of each organ of the government.[11]
The Indian constitution created distinct roles for the various branches of government, as follows:
-Article 50 guarantees the court’s independence. The parliament and state legislatures are not the proper venues for debating judicial conduct, as specified by Articles 121 and 211. The executive branch is headed by the president and the governor of each state, respectively, as stated in Articles 53 and 154.
-The legislative authority may overlap with the judiciary in specific cases, such as in cases where the president of the country is removed. In this case, the president of the Supreme Court and the judges are appointed by the executive authority, which has a great ability to influence how the authority that concerns the judiciary works.
-When the legislature is not in session and legislation is urgently needed, the executive may use its authority. This is provided under Article 123 to promulgate an ordinance.
Practical application of separation of power in India:
There is no division of authority other than the judiciary separation allowed by Part IV of the Constitution’s guiding principles. Following the adoption of the constitution, the Supreme Court issued a number of rulings that drew boundaries by interpreting the theory of separation of powers.
In Keshvananda Bharti Sripadagalvaru and Ors. v. State of Kerala and Anr. The question arose as to how far the legislature might modify the constitution. It was argued that even in cases when a legislation change made by parliament violates the constitution, the judiciary should not become involved. The court concluded, however, that the reasoning was imprecise and that the separation of powers theory formed the fundamental framework of the Constitution and could not be broken. This has always been a fundamental component of the Constitution, and the courts, the legislature, and the executive branch are all required to abide by the provisions that define the roles and responsibilities of these three branches.[12]
Furthermore, the court concluded in Ram Jawaya Kapur v. State of Punjab that although the constitution does not express the theory of separation of powers, the duties of one organ should not be carried out by the other. These organs ought to use their authority beyond what the constitution specifies.[13]
Even though Article 368 allows for constitutional revision, it was noted in the Indira Nehru Gandhi v. Raj Narain case that the fundamental framework of the document cannot be altered. The court also noted that India’s interpretation of the concept is more liberal than the UK’s and USA’s, which adhere to it strictly.[14]
“No other authority can be above the Indian Constitution; it is the supreme law of the land.” The law of the land shall govern the distinct powers that each of the three organs has to perform its tasks. As was noted in the Golak Nath v. State of Punjab case, all organs should function in accordance with the legislation of the nation.
Strict adherence to the theory of separation of powers is impractical. Interdependence is present. It is evident from the court rulings that India upholds the theory of separation of powers to a large extent.[15]
Conclusion:
The principle of separation of powers has proven its effectiveness and success, and it is an important principle and is considered an integral part of the democratic thought of some countries. The origins of this idea can be traced back to the influential writings of political philosophers such as Montesquieu, who realized the dangers inherent in unifying the legislative, executive, and judicial powers under the control of one hand.
In the end, the principle of separation of powers is the obstacle to the usurpation or control of power on one hand, as was the case in the past. For example, the judge is the opponent and the arbitrator at the same time. This principle preserves the ideas of a free society and this principle remains a beacon by which developing countries that want to begin to implement its democratic ideas because this principle will be decisive in confronting the idea of the complexities of governance and will serve as a sustainable thing through which democracy can be achieved, regardless of the surrounding or existing circumstances.
Reference(s):
[1] Devanshi Sharma, SEPARATION OF POWERS IN INDIA, Jindal Global Law School, O.P. Jindal. Global University, p.1
[2] Hisham Jalil Ibrahim, The Principle of Separation of Powers and its Relation to Judicial Independence in Iraq (Nahrain University, Iraq, 2012) 1
[3] Fathi Ibn Abdel Aal, The Relationship between the Executive Authority and the Judicial Authority and its Impact on Judicial Independence in Palestinian Legislation Compared to Islamic Legislation (Unpublished Master’s thesis, Islamic University of Gaza) 1
[4] Majid Ragheb Al-Hilou, Political Systems and Constitutional Law (New University House, Alexandria, 2014) 43
[5] Ibid- Devanshi Sharma, SEPARATION OF POWERS IN INDIA,p.2
[6] Chopra, Surabhi, ‘Principle of Separation of Power in India: An Overview’ (2023) 25(3) International Journal of Legal Studies, p. 3 and 4
[7] Ibid- p.4
[8] US Const art I, section 1.
[9] US Const art 2, section 1
[10] Ibid
[11] Ibid- Devanshi Sharma, SEPARATION OF POWERS IN INDIA,p.2,3
[12] Kesavananda Bharati Sripadagalvaru v State Of Kerala And Anr (AIR 1973 SC 1461, 1973 4 SCC 225) (Supreme Court of India, 24 April 1973).
[13] Rai Sahib Ram Jawaya Kapur And Ors v The State Of Punjab (AIR 1955 SC 549, [1955] 2 SCR 225, 57 PUN LR 444) (Supreme Court of India, 12 April 1955).
[14] Indira Nehru Gandhi (Smt.) v Raj Narain & Anr (AIR 1975 SC 1590, 1975 SCC (2) 159) (Supreme Court of India, 24 June 1975)
[15] I.C. Golaknath and Ors. v State of Punjab and Anrs (1967 AIR 1643, 1967 SCR (2) 762) (Supreme Court of India, 27 February 1967).
