Principle of Separation of Power - Daily Current Affair Article

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Recently, both houses of the Maharashtra legislative assembly have decided that they will not respond to any notice sent by the judiciary in the Arnav Goswami case as there has been a breach of parliamentary privileges. Thus a situation of conflict has arisen in the legislature and judiciary, the two major organs of government.

Introduction:-

  • Firstly, Aristotle divided the power of government into three divisions, namely the Assembly, Magistracy, and Judiciary, although it was not a smooth and definition of separation of power. The organized definition of the principle of separation of powers was given by the philosopher Montes. It is a mechanism useful for the good governance of the state.
  • This principle is based on the "Principle of Trias Politica" which divides the power of government into three parts viz. the legislature, executive, and judiciary. This principle can save the state from being totalitarian and protect individual freedom in front of the power of the state. The United States of America was the first country to accept the Separation Principle of Power.

Segregation of power in India

  • Constitutional supremacy in India exhibits segregation of power. Although there is no direct provision for separation of power in the Constitution of India, but the separation of power is seen in India by the various articles of the Constitution and the interpretations of the court.
  • It is clearly stated in the Indian constitution that all subjects can be discussed in the Parliament but the conduct of the judge in the discharge of his duties will not be discussed in the Parliament or the legislature.
  • Judicial interference is prohibited in violation of parliamentary privileges described in Articles 105 and 194 of the Indian Constitution.
  • An MP cannot be compelled to appear as evidence during the session of Parliament.
  • Even 40 days before the commencement of the session of Parliament and 40 days after they cannot be imprisoned in civil cases.
  • There is no interference of legislature or executive in the appointment of judges.
  • Salary, allowances, pension of judges cannot be changed during the tenure. Along with this, salary is spent from the Consolidated Fund of India, whose expenditure is not voted on in Parliament.
  • In India, the parliamentary form of government and the unifying and independent judiciary together is an example of separation of power.
  • The concept of the basic structure presented by the Judiciary indicates segregation of power. In addition, the separation of power is also a part of the basic structure.

Flexibility in the Separation of power of India-the reason of the conflict

  • The constitution does not explicitly describe the separation of power, as a result of which the three powers often interfere in each other's jurisdiction. There may be reasons for this:
  • While the highest institution of lawmaking in India is the Parliament (legislature), the same constitution has given the Supreme Court the custody of the interpretation of laws by making it the custodian of the constitution.
  • Article 13 mentioned in Part 3 of the Constitution of India makes it clear that the law violating the Fundamental Rights shall be void. In which the work of law-making is with the legislature and the work of testing its validity is with the judiciary.
  • There is no complete division of legislature and executive in India. Members of the legislature become ministers and perform executive roles.
  • The decisions of the Supreme Court and the High Court function as law.

Separation of Power and Democracy

  • The root of democracy is individual freedom and the root cause of the separation of power principle is to protect individual freedom.
  • It prevents Power (the legitimacy of governance) from being autocratic.
  • It promotes decentralization. Decentralization is one of the fundamental pillars of democracy.
  • The principle of separation of power reduces the workload thus increasing efficiency. It also improves good governance.
  • Different types of qualifications are required to perform various functions related to the government. Separation of power also filled this requirement
  • By adopting the power of separation, the three organs will not be burdened with each other's work. The establishment of ideals like justice, freedom, equality will pave the way.

The conclusion

Although the separation of power into a practically complete form is not possible,but here we have to understand that the meaning of the power division principle is not to keep the relation of the three parts to each other, this would be a narrow interpretation of this principle. Hence the principle of division of power is much broader than this. The meaning of the division of power is that the three organs of the government will have to move towards the establishment of social, political, and economic justice in the country, avoiding undue interference in each other's territory.

General Studies Question Paper 2
  • Polity

Mains Question:-

  • Recent times have seen a situation of judicial confrontation with the executive and the legislature, that weaken democracy. In the light of the statement, discuss the need for separation of power theory in a democracy.