Separation of Powers and the idea of democracy

Doctrine of separation of powers deals with the mutual relations among the three organs of the government namely legislature, executive and judiciary.There are different approaches regarding types of separation of powers. Important approaches that are more relevant and needs special mention include , Firstly the CLASSICAL  APPROACH is traditional view as originaly put forwarded by the Montensque which vigorously advocated for a “strict or pure or total or complete or absolute” separation of powers and personnel between three organs of the state i.e. the Executive, Legislature and Judiciary. Power being diffused between three separate bodies exercising separate functions with no overlaps in function or personnel.Practically this strict Seperation of Power is not possible to implement but this provides for Zero interference of any authority in to the domain of other authority regarding any of the matters related to appointment,working or regulation. 

Second approach is MODERN (CONTEMPORARY) APPROACH which rests on the fact that a complete separation of the three organs may lead to constitutional deadlock. Thus, a complete separation of powers is neither possible nor desirable. This approach as mentioned above points out practical difficulties in the application of Montesquieu’s strict doctrine and thus advocates for a ‘mixed government’ or ‘weak separation of powers’ with ‘checks and balances’ to prevent abuses. Constitution of USA is classic example of this;where seperation of powers with robust checks and balances is followed in letter and spirit due to presence of strong and robust institutions. 

Third type of approcah is MARXIST-LENINIST APPROACH where seperation of power exists only in theory While in practice Marxist-Leninist theory rejects the modern approach of the separation of powers as it ignores the class nature of society. It advocates division of functions in exercising state power is essential while maintaining the unity of state power.. So in this approach all organs of power including judiciary are extension of party appratus and are committted to the ideals of revolution. 

SEPARATION OF POWERS IN INDIA 

Though there is no strict separation of powers under constitution, both in principle and practice;The Constitution of India embraces the idea of separation of powers in an implied manner. Article 50 of the constitution lays down that State shall take steps to separate the judiciary from the executive. This is for the purpose of ensuring the independence of judiciary. Also Article 122 and 212 provides validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court. This ensures the separation and immunity of the legislatures from judicial intervention on the allegation of procedural irregularity. Judicial independence is protected as there is no interference of executive in the matters of appointment and transfers of judges to the higher judiciary and also Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be discussed in the Parliament and the State Legislature, ( Article 121 and 211 of the Constitution). Articles 53 and 154 respectively, provide that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability. Article 361 declared that the President or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office. 

Judiciary on separation of powers: 

Inspite of all above provisions in India the seperation of powers is issue contested in the supreme court and various judgements of the court throw light on it.. 

1.re Delhi Laws Act case Supreme Court implied that all the three organs of the State, i.e., the Legislature, the Judiciary, and the Executive are bound by and subject to the provisions of the Constitution, which demarcates their respective powers, jurisdictions, responsibilities and relationship with one another.

 2.In Golaknath Vs State of Punjab Supreme court observed Constitution brings into existence different constitutional entities, namely, the union, the states and the union territories. It creates three major instruments of power namely, the legislature, the executive and the judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. 

3.In Kesavananda Bharati case Supreme Court again reaffirmed the doctrine of separation of powers. 

4. In Indira Nehru Gandhi Vs Raj Narain case it was observed, that in the Constitution of India unlike that of USA and Australia, there is separation of powers in a broad sense only with fine check and balance.

Although strict separation of power is not followed in India like the American Constitution, the system of check and balance is followed. However, no organs are to take over the essential functions of other organs which is the part of the basic structure, not even by amending and if it is amended, such amendment will be declared as unconstitutional.