• LAWGIC STRATUM

TRIAS POLITICA (SEPARATION OF POWERS)

Author – Mohanapriya. R



Introduction:


Trias Politica plays a crucial role in separating the powers among the branches of governments, ensuring that no branches would ever become too powerful to control. The term "triaspolitica" was coined in the 18th century by Charles-Louis de Secondat, baron de La Brède et de Montesquieu[1]. Separation of powers means dividing the powers and government responsibilities among the three branches namely the legislature, the executive, and the judiciary. They perform their functions independently without interference mainly to avoid any kind of conflict.


Aims of Separation of Powers:

  • Separation of powers tries to terminate arbitrariness and despotism.

  • It aims to promote a responsible and self-governing form of government.

  • It prevents the abuse of authority in the organs of the government.

  • It empowers all the branches to specialize in their particular field to enhance the efficiency of the government.

  • Trias Politica maintains a balance between the organs by allocating the powers among them, which avoids tyranny.


Branches of Separation of Powers:


Ø Legislative - The paramount function of the legislature is to make laws for effective governance of the country, which is called a rule-making body[2]. The parliament holds the power of making rules and laws and has the authority of amending the existing rules and regulations.

Ø Executive – It is responsible for the way of governing the state by implementing and enforcing the law made by the legislature. This branch consists of the President and the Bureaucrats.

Ø Judiciary- Judiciary applies the laws made by the legislature to solve disputes within the state or internationally, and aims to safeguards the rights of the individuals.


Separation of Powers and Indian Constitution:


Indian Constitution is bound by separation of powers, where the following provision clarifies the existence of the doctrine of separation of powers:


  • Article 53(1) and Article 154 of the Indian Constitution states that the Executive powers of the Union and the States vest in the President and Governor which can be exercised by him or through his subordinates.

  • Article 122 and Article 212 ensure that there will be no interference of the judiciary in the legislature, by stating the courts not to inquire in the proceedings of Parliament, and the State Legislature.

  • Article 105 and Article 194 describe that the MPs and MLAs cannot be called by the court, for whatever they speak in the session.

  • Article 50 encourages the separation of the judiciary from the executive.

  • Article 245 of the Indian Constitution gives power to Parliament and State Legislature, for making and amending laws for the whole country and the states respectively.

  • Article 121 and Article 211 of the Indian Constitution states that no judicial conduct of any judge of the Supreme Court or High Court shall be discussed in Parliament or State Legislature.

  • Article 123 authorizes the President to issue ordinance when both the houses are not in session, and Article 213 authorizes the Governor to issue ordinance when the state legislature is not in session.

  • Article 356 of the Indian Constitution lays the provision of Presidential Rule in case of state emergency.

  • Article 73 explains the powers of the executive shall be co-existent with the legislature.

  • Article 74 states that the council of ministers shall aid the President in the exercise of his executive functions, and are responsible to the House of the People according to Article 75(3) of the Indian Constitution.

  • Article 66 states that the election of the Vice-President to be done by the elected members of both the houses.

  • Article 145 allows the Supreme Court to make laws with the approval of the President for the court proceedings.

  • Article 124 of the Indian Constitution gives power to the President to appoint the judges of the Supreme Court.

  • Article 72 empowers President to grant a pardon or suspend the sentence of any person who is convicted by the Supreme Court of India.

  • Article 32, Article 226, and Article 136 of the Indian Constitution provide the power of judicial review to the Supreme Court to strike down any law made by the Parliament which is found to be violative of fundamental rights.


Judicial Approach Towards TriasPolitica:


In Ram JawayaKapur v. State of Punjab[3], the court has interpreted the judgment with relation to the doctrine of separation of powers, where the Indian Constitution has not acknowledged this theory but distinguished the branch’s functions and power. The Constitution works in a flexible manner scrutinizing the needs of the country, so the executive can exercise the law-making power only when delegated by the legislature but limits the power of the organs.


In Asif Hameed v. State of Jammu and Kashmir[4], SC observed that the Constitution has not recognized the separation of powers but all the organs must function within their respective field as specified by the constitution.


In A. K. Gopalan v. State of Madras[5], the court stated that the Constitution has imposed limitations on all the organs, but our constitution prefers the supremacy of legislature to that of the judiciary, and the court has no power to question the policy of the law made by the legislature.


Criticisms:


Any steps taken to separate the function of these organs into a watertight compartment, will lead to inefficiency in the government because it is difficult to differentiate the functioning of these organs. This doctrine intends to protect the freedom and liberty of the individuals which is unfeasible by the strict enforcement of separation of powers. The state works for the welfare and prosperity of the people, so it has to solve the issues of society.


Conclusion:


The object of separation of powers is to prevent the concentration of unchecked power and to provide for checks and balances which make sure that the three branches’ powers interact in an equitable and balanced way to prevent abuses of power and avoid autocracy[6]. The separation of powers is a crucial element of the Rule of Law and is enshrined in the Constitution.


References:

[1]Separation of powers, https://www.ncsl.org/research/about-state-legislatures/separation-of-powers.aspx [2]https://www.parlament.gv.at/ENGL/PERK/PARL/POL/ParluGewaltenteilung/index.shtml [3]Rai Sahib Ram JawayaKapur And Ors. vs The State of Punjab, https://indiankanoon.org/doc/1318432/ [4] In Asif Hameed v. State of Jammu and Kashmir, https://indiankanoon.org/doc/1225520/ [5] A. K. Gopalan v. State of Madras, https://indiankanoon.org/doc/1857950/ [6]https://www.investopedia.com/terms/s/separation-powers.asp

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