Separation Of Judiciary From Executive

“With power there comes corruption and with absolute power there comes absolute corruption”. In almost every democratic state which makes itself bound by legal provisions and principles, have also insisted upon the division of power between the organs of the state in order to avoid arbitrariness and smooth functioning of the various systems in the society.

Since the strict separation of power is undesirable as well as impractical also, yet the implications of this concept though in diluted form can be hence seen in almost all the countries including India where there is a direct concept about the separation of power between the legislature, the judiciary as well as the executive which aims to achieve a strict demarcation of the power in the democracy. Montesquieu (a French scholar) found that if the power is concentrated in a single person‟s hand or a group of people then it results in a tyrannical form of government. In order to overcome this hurdle and to ensure that a fair system of administration works in the state.  Separation of power between the Executive, Legislative and the Judiciary was thought upon. The principle of separation of power would thus control the arbitrary action of each wing of the democracy and maintain a line of fair working in the democracy.

According toJustice Mukherjea” in the matter of Ram Jawaya v. State of Punjab4”, it was being observed that “It can in all likelihood be said that our Constitution (Indian Constitution) does not consider supposition, by one organ or a piece of the State, of capacities that basically fit in with another. The official for sure can practice the forces of departmental or subordinate enactment when such powers are designated to it by the governing body. It can likewise, when so enabled, exercise legal capacities in a restricted manner.

It is to be understood that if there is a same person who has been given the power under each organ of the democracy say he is the one who is making a law that is he becomes a part of the legislature, he is the one who is in the process of the implementation of the law that is the executive and to have a check and balance upon those acts, ordinances, laws which are being made by him as a legislature, he is the person who keeps a check and balance upon those legislative acts. If such a scene is being depicted in the democratic state, it will lead to arbitrariness and dis functioning of the democracy in most misappropriate manner, in order to avoid such a situation the concept of the separation of power plays a very vital role. The concept of “Separation of Powers” as explained by Wade and Philips has some different principals such as: The Judiciary should be independent of the Executive or that Ministers should not be responsible to Parliament; and that one organ of the Government should not exercise the functions of another, e.g. the Ministers should not have legislative powers.

Thus, it can be inferred from the above explanation that these organs of the government are allowed to exercise their functions but within certain limits. These principles are not a kind of special provisions that need a special place in any of the specific statue or the Constitution Of India. Instead Separation Of Power should be considered as a basic Natural Law Principle and at the same time the basic principle of the Indian Constitution, failing which the basic rights implanted in the constitution would go in waste.

Pranav Arooa


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