BACKGROUND Introduction The proverbial saying ‘power corrupts and absolute power corrupts absolutely’ is the best known quotation of the 19th century British politician Lord Acton
BACKGROUND
Introduction
The proverbial saying ‘power corrupts and absolute power corrupts absolutely’ is the best known quotation of the 19th century British politician Lord Acton. It conveys the idea that the degree of power is indirectly related to the moral compass. Lord Acton in a letter to Bishop Mandell Creighton in 1887 wrote, “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men”.
The proverb is of sense that greater the power, lesser is the moral sense and it can be supported with the various real- life examples.
History
The fundamental pattern of governance across countries is the separation of powers. It is a pure model of democratic societies and is understood under three branches: Judiciary, Legislative and Executive.
The concept of separation of powers, also known as trias politica, first came up in ancient Greece and then became commo place in the Roman Republic. Aristotle in his book ‘The Politics’ talks about three elements in every constitution, the deliberative: discusses everything in common importance, the official and the judicial element.
The appearance of the Parliament, the Council of the King and the courts during the reign of Edward I (1272-1307) marked the advent of the separation of powers. The ‘Montesquieu’s tripartite system’ was promoted by Baron Monstequieu, a French Enlightenment political philosopher. The Monstesquieu’s tripartite system describes the division of political power into the executive, the legislature and the judiciary. Quoting Montesquieu, “”the independence of the judiciary has to be real and not apparent merely”. “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…Again; there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; because the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be and end to everything, if the same man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes”
The separation of power is the distribution of power between the three pillars of democracy and the functions of each and the implications that they have. It also refers to the relationship shared among these pillars. India is a quasi- federal state and its interesting to look at whether the distribution of power is pure or over- lapping.
The fusion of power is the opposite of the separation of power, and is a characteristic of parliamentary democracies. In parliamentary systems, the legislative and the executive branches are connected. The executive (prime minister and cabinet) is drawn from the legislature that is the parliament. This forms the principle of responsible government.
THEORY OF SEPARATION OF POWERS
The theory of separation of powers formulates:
(1)
(2)
(3)
All the powers of the government have been conceived as falling under (1) law making, (2) law application and (3) law adjudication.
The legislative function:
It is the law making body and is involved with making of new laws and altering or repealing of old ones. It enacts general rules, determines the structures and regulates.
The executive function:
The executive is the administrative body and is involved with formulating and implementation of government policies. The executive body has become extremely wide and comprises not only of the elected members but also the public officials and authorities.
The judicial function:
The judiciary is the body of law adjudication. It is the body that adjudicates upon conflicts between the states, the centre and the states, individuals, individuals and the state institutions according to the law.
THE NEED FOR THE SEPARATION OF POWERS
All the powers of the government have been conceived as falling under (1) law making, (2) law application and (3) law adjudication. These keep checks and balances on each other as power can only be countered by power. Le pouvoir arrête le pouvoir- power halts power
INDIAN CONTEXT
The Indian constitution is a written one and is the bulkiest in the world. The Indian constitution is quasi federal in nature and discusses the relations between the government and its subjects and between the three branches, namely, the executive, the legislature and the judiciary.
India has a parliamentary form of government and a clear demarcation exists between the head of the state and the head of the government. The head of the state is the President and the head of the government is the Prime Minister.
· The EXECUTIVE consists of the president, vice president and the cabinet ministers and pass the laws made by the legislation.
· The LEGISLATURE consists of the Lok Sabha and the Rajya Sabha and are responsible for making laws.
· The JUDICIARY consists of the Supreme Court, the High Courts and the other subordinate courts and solve conflicts between Executive and Legislature, other public related matters or conflicts.
As India is a federal state, the functions and powers are divided between the centre and the states and the President is the head of the state and the executive and the Governor is the executive at the state level.
After independence, the constituent assembly, responsible for the making of the Indian constitution was influenced by various characteristics of the existing constitutions across the countries and even incorporated a lot of the same in the Indian constitution. The Indian federalism is influenced by Indian federalism is influenced by the American, Canadian and Australian federalism, procedure of constitutional amendment is adopted from American system, and the parliamentary form of government follows British practice, centre –state financial relation from Australian constitution and directive principle of state policy from Irish constitution.
The separation between the executive and the judiciary was not adopted in the absolute form but as a directive principle of state policy, when the constitution was first framed. But, it was later inserted into the constitution at the time of amendment procedure by Article 40-A. Mr. K T Shah reasoned that, “if you maintain the complete independence of all the three, you will secure a measure of independence between the Judiciary, for example, and the Executive, or between the Judiciary and the Legislature. This, in my view, is of the highest importance in maintaining the liberty of the subject, the Civil Liberties and the rule of law. If there was contract between the Judiciary and the Legislature, for instance, if it was possible to interchange between the highest judicial officers and the membership of the legislature, then, I am afraid, the interpretation of the law will be guided much more by Party influence than by the intrinsic merits of each case. The Legislature in a democratic assembly is bound to be influenced by Party reasons rather than by reasons of principle.”
This view was contested by Shri K. Hanumanthaiya, he argued, “if there is separation- not separation but Prof. Shah wants complete separation – then conflicts are sure to arise between these Departments of the Government and main reason is that this house is wedded to parliamentary system of democracy and this view clause is out of place in such a constitutional structure.”
The Indian constitution has not adopted the absolute separation of power but has it as a directive principle of state policy.
It has been held by the Supreme Court of India that the
