INDIAN LEGAL SYSTEM

Internal Assessment –1

Submitted By

Borra Bharath Krishna

PRN: 22010324013

Pritha Dutta
PRN: 22010324037

Bytaru Samanvita
PRN: 22010324045

Anoush Kazi
PRN: 22010324026

Ritusri Muralikrishnan
PRN: 22010324014

BBA-LLB – Division-C

Under Guidance of

Dr. Ganesh Kumar

Date: 11-11-2022
LEGAL KEYWORDS:

Trias-Politica

Quasi-judicial

Tripartite System

Impeachment

Amendment

Tribunals

Reprieves

Respites

Jurisdiction

Rigid

Esprit de Lois
Introduction

History has repeatedly shown that when one person or group has unrestrained power, others
usually experience repression or have their rights constrained. The division of power helps the
Government to protect the will of the people and protect the interests. Tasks, decisions, and control
are divided among numerous groups rather than being held centrally in an organizational structure
that adheres to the Separation of powers.

The powers of the state are separated into three distinct components: the legislative, Executive,
and judicial. Each has different, independent powers and responsibilities. The Government must
create correctly, carry out, and apply the legislation to a given scenario. If ignored, there will be
increased corruption and abuse of power opportunities. If this attitude is followed, there will be less
likelihood of enacting an unjust law because they will be aware that another branch will review it. It
attempts to provide exclusivity to the operation of each organ and strives for a clear division of
authority.

Since it is not feasible, most constitutional systems today do not contain a rigid distribution of
powers among the several organs. Despite not explicitly recognizing the theory of the Separation of
powers in its complete form, the Constitution does contain provisions for a fair distribution of duties
and power among the three branches of Government.

However, the three characteristics that define the Separation of powers can be broadly
characterized as follows:

• A person who is an organ of one should not be an organ of another.

• The operation of one organ should not affect the operation of the others.

• No organ should do a task that belongs to another organ.

The trias-politica theory serves as the foundation for the division of powers. This idea depicts a
tripartite structure where authority is distributed among three organs, each having defined
jurisdiction.
  Historical Background of the Separation of power

The Spirit of Law is a book that was a treatise by the eminent French philosopher Montesquieu,
who first introduced the concept of Separation of powers in 1748. The French lawyer Montesquieu
has given a proper and vital definition. For the first time, Montesquieu covered the idea and its form
in-depth in his work "Esprit de Lois." According to the Separation of power theory, "no person or
body should be vested with all three types of powers." The division of powers serves as a model for
how a nation should be governed, and it is up to the country to follow this model to accomplish its
objectives. The Trias Politica model is another name for the division of power between the organs
of the Government. There are primarily three main organs in any state and which are

Legislative power, the authority to carry out national law, and the authority to carry out civil
law. Function differentiation Legislators should enact laws but do not have the power to make the
law legal in nature.

The executive branch mainly carries out the laws and regulations passed by the legislature, but it
is not allowed to direct or judge the legislation itself.

The Judiciary's job is to uphold justice and judge what is right without taking on any legislative
or administrative duties.

Montesquieu said that Separation of powers is necessary to prevent justice from being irrational,
capricious, or impetuous., According to Montesquieu, "if the powers and functions of the law-
making body and the law-executing body are merged, then there cannot be freedom since there may
be concerns that a similar king or separate might make oppressive laws." Suppose the Judiciary is
not apart from other organs, i.e., the law-making body and the law-executing body.

In 1787, The United States of America was the first country to include the separation of powers
provision in its Constitution as it was the first country to opt written Constitution
 Analysis of the Theory of Separation of powers

The spirit of law says that one individual should not hold all the authority. On the other hand,
asserting that there must be limits to lead is not incorrect. That restriction is Separation. Everyone
agrees that there must be a balance between those in positions of power competing for a stable
political system. There are three branches of Government, i.e., legislative, Executive, and Judiciary.
Their interactions are the subject of the principle of Separation of powers. This philosophy
emphasizes clearly defined lines of authority. This idea denotes that none of the three governmental
functions should be exercised or held by a single individual or group of people. Three branches of
Government, i.e., legislative, Executive, and Judiciary, reflect the people and their will in the
nation. They are also in charge of ensuring that the nation's democratic administration runs
smoothly. Legislative bodies create laws, the law executing branch is responsible for enforcing
them, and the Judiciary adjudicates legal disputes resulting from law violations. As a result, they are
all connected to government agencies, so their responsibilities often overlap. The theory of
Separation of powers fits into this category since it seeks to do away with these overlaps. Each
organ produces interference while doing its job since a precise division of roles is unachievable in
their interactions with the public. As a result, these organs may overlap duties while acting as their
subordinates. The most important question at hand is how these three state organs should relate to
one another, namely whether there should be complete power separation or if there should be
cooperation between them all.

 Separation of powers- Organs of Government

The theory of Separation of powers and the rules of the theory is a model used for governing a
state. This theory is also known as the 'Trias Politica' doctrine. This theory envisages a tripartite
system, where all three organs have different powers and jurisdictions. This Separation of powers
prevents the concentration of power on one organ. The three organs of the Government include:

1. Legislature:
The primary function of this organ is to enact the state's laws. It acts as the first step because the
law cannot be implemented until it is enacted. It is the stepping stool for the functioning of the
Executive and Judiciary.
 2. Executive:
This organ of the Government has the duty of implementing and enforcing the laws and policies
passed by the legislative branch. The Executive is also known as the administrative head of the
country. It does not have the power to pass or interpret any laws.

3. Judiciary:
This branch is responsible for interpreting laws passed by the legislation and applying those
interpretations to cases brought in front of them. Thus, the Judiciary is also responsible for
resolving disputes.

The main objective of this principle is to prevent the abuse of power. It is well known that when
much power is given to one administering authority, there are high chances of inappropriate use of
power and corruption. So, this principle helps not to exercise arbitrary rules.

 Merits of Separation of power

1. Safeguarding rights and freedoms:

The supers protect individual liberties and rights from tyranny and persecution.

2. Increasing efficiency of the Government:

The government agencies get in-depth knowledge about the problems they are in charge of
and become more efficient as the authority is distributed among them. There are usually
too many tasks associated with governance for one part of the Government to handle.
Therefore, the principle of the division of powers helps to reduce the pressure on each
branch of Government.

3. Promotes governmental order: A set of duties are given to all three branches of
Government. A precise application of the idea would guarantee that each plays their
respective role to ensure that the state is orderly.
  Demerits of Separation of power

1. Improper reading of the British System: By the time Montesquieu drafted his thesis on
the division of powers, the Cabinet system of Government already existed. At the time,
Britain did not have a strategy for replacing forces. Instead, the emphasis was on who
was in charge of what. After witnessing the British people enjoying their freedom,
Montesquieu wrongly assumed that there existed a separation of powers in Britain. He
misunderstood British politics.

2. Not fully attainable: This theory is not valid. While the Executive only has a minimal
role in regulation, the legislature also has some judicial responsibilities. For instance, the
legislature can be impeached, a judicial process.

3. Administrative Complications: Administrative challenges come from the Separation of

powers. Making the Government's organs cooperate, coordinate, and live harmoniously
becomes challenging. The effective operation of modern governments necessitates
"coordination" of authorities rather than a strict division of powers.

 Separation of power in the Indian context

In India, the principle of 'Trias Politica' is followed in an implied manner. It does not strictly
adhere to the rules of the principles. The organs' functions overlap because a strict distinction of
powers is impossible and impractical.

Various provisions of the Indian Constitution are proof that the Constitution aims to rest powers
of legislation exclusively with the legislative. The Union Legislature of India is the Parliament that
constitutes two bodies: Lok Sabha and Rajya Sabha. It can pass laws, declare wars, appoint the
heads of the executive branch, and sometimes appoint judges.

Similarly, the judicial powers lie with the Judiciary. The Judiciary is an independent and
impartial organ of the Government and has no interference from the other organs. The Judiciary
includes the various courts of India, out of which the Supreme Court is the most powerful. The
Judiciary has the role of inspecting the laws passed by the legislature. It has no function of enacting
the laws or enforcing them.
 The President and the Governor hold the Union and state executive powers, respectively. It can
refuse laws, command the military, make verdicts, execute orders, elect judges, and grant remission
to convicted criminals.

1. Constitutional provisions of India regarding the Separation of powers

The Parliament has no restriction on its law-making powers, and it is powerful enough to make
any law subject to the conditions of the Constitution. Article 62 and 72 in the Constitution mentions
the President's powers and functions. Under Articles 226 and 227, the High Court and under
Articles 32 and 136 of the Constitution, the Supreme Court get the ability of judicial review, which
gives them the right to declare any law passed by the Legislature void if it is inconsistent according
to Article 13. The Constitution of India has the following Constitutional Provisions that lays down
the functional Separation of the organs:

 Article 50: Under this article, the state is obliged to separate the Judiciary from the
Executive. This is to ensure the Independence of the Judiciary. Nevertheless, it is not enforceable,
as it falls under the Directive Principles of State Policy.
 Articles 122 and 212: Under these articles, the validity of proceeding in the Legislatures
and the Parliament cannot be questioned in any Court. This is to separate the legislatures from
judicial intervention.
 Articles 121 and 211: These articles provide that the judicial conduct of any judge of the
Supreme Court or High Court cannot be discussed in the Parliament and the State Legislature. Only
in cases of impeachment can they do so.
 Articles 53 and 154 show that the President and the Governor get the Union and State
executive power. They are immune from any civil and criminal liabilities.
 Article 361: The Governor and the President enjoy immunity from any court proceedings
and are not answerable to them for exercising their powers and duties.
 2. Functional overlap in Indian perspective

Since the doctrine in India is not followed strictly, some functional overlap exists between
the government branches. The following are some of the functional overlappings that are observed:

 Besides having law-making powers, the legislature can exercise judicial powers in cases of breach
of its privilege, impeachment of the President, and removal of the judges.
 The legislature can discharge the functions of the Judiciary when it is discharging the role of
disqualifying its members and impeachment of the judges.
 The head of different ministries is a legislature member. Hence the Executive becomes an integral
part of the legislature.
 The legislature and the Executive both hold the power to disintegrate the Government with a vote of
no confidence.
 The Executive shares its capabilities with the Judiciary, the authority to commute sentences,
reprieves, respites, or pardons for those guilty of crimes.
 The Executive can pass a law with the same force as the law passed by the legislation.
 The tribunals and other quasi-judicial bodies, which are a part of the Executive, also carry out
judicial functions.
 Under Article 142, the Supreme Court can serve as an executive to ensure full justice.

 Global Perspective

The doctrine of Separation of power is very explicitly stated in the Constitution of the USA. The
legislation consists of congress, including the senate and house of representatives. The Executive
consists of the President, and the Judiciary consists of the supreme court and other federal courts.
The President is elected once in four years, and the Constitution decides his powers. The President
is responsible for ensuring the country's laws are being executed correctly and for appointing and
removing executive officers. The President and his secretaries cannot be members of congress. The
members of the congress are only eligible to join the Government when they resign their
membership. This is done to maintain the Separation between the Executive and legislative
branches of Government. If the President commits illegal acts, he can be removed from office
through impeachment; otherwise, he is considered irremovable. An example would be President
Nixon resigning over the Watergate Controversy. The Supreme Court judges are separate from the
President and congress after the appointment and can also be removed through impeachment. 
 On the other hand, Australia does not have a proper separation of power because the Parliament,
Executive, and Judiciary sometimes play each other's roles. The Executive and the Parliament
include both the prime minister and the minister. The governor-general, included in the Parliament
and the Executive, appoints the PM and the H.C. judges. 

The United Kingdom is often referred to as having "a weak separation of powers." They have not
explicitly mentioned the Separation of powers in the Constitution. Nevertheless, Separation of
powers exists in the U.K. in various forms. The ministers who are a part of the Executive can also
make decisions in the Judiciary. The Parliament's definition is very similar to the description of the
Judiciary, and the PM and minister's role is very similar to that of the Executive.

 Relevant Cases Laws

1. Kesavananda Bharati v/s State of Kerala

Kesavananda Bharati headed one of the many properties of religious institutions that
were affected due to The Kerala Land Reforms Act 1963. He then went on to challenge
the Act in 1970. While the proceeding we still held in court, the Parliament passed the
29th amendment Act, 1972. Some of the land reforms were included in the ninth
schedule by the Act. This Act increased the problems faced by these religious
institutions, due to which Kesavananda Bharati and Nani Palkhivala challenged the 29th
amendment and the 24th and 25th amendments. The main issue here is can the
Parliament amend the fundamental rights; if yes, then to what extent? According to the
respondents, they had the unlimited power to amend the fundament rights. The supreme
court held that the Parliament has absolute power, but it cannot violate the basic
structures of the Constitution—one of the structures listed by Beg. J is the Separation of
power. He stated that the three organs could not fulfill each other's functions.     

2. Indira Gandhi v. Raj Narain 

Indira Gandhi and Raj Narain were contesting for the seat of Raebareli, Utter Pradesh.
When Raj Narain lost the elections, he challenged the elections before the Allahabad
High Court, accusing Indira Gandhi of using corrupt practices to win the elections. The
 court decided in favor of Raj Narain. She then appealed to the supreme court, and since
the supreme court was on vacation, she was given a conditional stay. Furthermore, she
immediately declared an emergency due to internal disturbances. During the Emergency,
the 39th amendment was passed. This amendment introduced Article 392A to the
Constitution. This article states that the results of the elections of the PM cannot be
challenged by any court, barring the supreme court's jurisdiction from looking into the
polls. Later, due to the Kesavananda Bharati case, the supreme court declared clause 4 of
Article 392A of the constitution void, stating that free and fair elections come under the
basic structure of the Constitution. They found the 39th amendment to be violative of the
Separation of power. 

CONCLUSION

In any modern nation, including France, the United States, Nepal, and others, the theory of
Separation of powers cannot be strictly enforced. This philosophy is still relevant today,
nevertheless. It would be complicated to divide our Government into watertight compartments
because it is a well-organized structure. Furthermore, the Separation of power is the central and
essential part of a democratic country, and we all know that most of the world's governments
currently follow a democracy, which leads to the importance of the Separation of powers.

All three branches of the Government must work together in harmony for any government to run
well. According to Professor Garner, this idea is unworkable as a guiding principle for Government.
Each organ's functions are difficult to categorize precisely.

The three branches of Government must work together in harmony for liberty to exist in the
country, but as security and welfare concerns have grown, more power has been given to the
Executive. In a perfect society, the individual's freedom, welfare, and the state's security should all
be given equal weight. This would, without a doubt, require a strong government, a system of
checks and balances, and the Separation of powers in the organs of the Government so that the
Government can be stable and work on the will and interest of the public.