CONCEPT OF SEPARATION OF POWERS, HISTORICAL BACKGROUND AND ORIGIN

TOPIC- CONCEPT OF SEPARATION OF POWERS, HISTORICAL BACKGROUND AND ORIGIN

SHORT NOTES

MEANING OF SEPARATION OF POWERS

The very theme behind the separation of powers is that when a single person or group has got large amount of power then it becomes dangerous to citizens.

The separation of powers is a method by which large the amount of power in any group's hands is removed, making it more difficult to abuse

CONCEPT OF SEPARATION OF POWERS

For the preservation of the political liberty of the individuals and democracy, it becomes necessary in a state to establish special organs for the exercise of powers. The powers of the government are divided between its organs in accordance with the nature of powers to be exercised. In a state it has been classified as the power to:

Enact laws i.e., powers of the Legislature.

Interpret laws i.e. powers of the Judiciary.

Enforce laws i.e. powers of the Executive.

According to this theme, these three powers and functions of the government must, in a free democracy, always be kept separate and be exercised by three separate organs of the government.

Thus, legislature cannot exercise executive or judicial power; the executive cannot exercise legislative or judicial and the judiciary cannot exercise legislative or executive power of the government

NECESSARY OF SPECIAL ORGANS

For the preservation of the political liberty of the individuals and democracy, it becomes necessary in a state to establish special organs for the exercise of powers

SEPARATION OF POWERS

This doctrine brings about that each organ shall not encroach upon or interfere with the powers and independence of other organs of government.

If any organ encroaches into the territory of the other organ, it shall be checked by another organ of the government.

Thus, no new organ is created over and above the existing organs of government, to check encroachment.

CARL J. FRIEDRICH, A GERMAN-AMERICAN POLITICAL THEORIST

Separation of powers requires the existence of a written Constitution to define the formal powers of each organ.

The powers shall be so defined and divided to create a system of checks and balances of powers among the organs.

WADE AND PHILLIPS

The same persons should not form part of more than one of the three organs of the

Government,

One organ of the government should not control or interfere with the exercise of its function by another organ

One organ of the government should not exercise the functions of another

HISTORICAL BACKGROUND AND ORIGIN

ARISTOTLE

The three organs of the government are deliberative, executive and judicial.

FRENCH PHILOSOPHER JEAN BODIN

Judicial functions must be performed by the independent Magistrate, free from the influence of the Monarch.

BRITISH POLITICAL THINKER JOHN LOCKE

Political power was to be divided among several bodies.

The executive and federative powers can be combined but the union of executive and legislative organs shall be prohibited to protect the political liberty of people.

According to him, an ideal form of government is civil government with limited powers.

Reference ncert book

INDEPENDENCE OF JUDICIARY

INDEPENDENCE OF JUDICIARY

Article 50 of the Indian Constitution lays the rule of independence of judiciary. Independence of judiciary mean the power of upholding without fear or favour, the rule of law, personal freedom and liberty, equality before law and impartial and effective judicial control over administrative and executives actions of the government.

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Judicial independence has institutional and individual components.

INSTITUTIONAL INDEPENDENCE

For there to be institutional independence, the judiciary must not be subject to executive or other interference (e.g., from a private or public organization, a national or international organization, or a person); it must be insulated from this external pressure. The judiciary must also be insulated from internal pressure. Judges must not be pressured by colleagues or those inside the judicial system. The judge should be guided only by the law and his or her solemn oath.

INDIVIDUAL INDEPENDENCE

Individual independence means that judges should be personally independent in carrying out their duties. Ensuring that the terms and conditions of their judicial service are secure is one step toward achieving individual independence. Another vital step is ensuring that adjudication is unbiased

SIGNIFICANCE OF INDEPENDENT STATUS OF JUDICIARY

1.         Role as the watch-dog in a democracy.

Judiciary emerges as a mediator when any organ of the government exercises 'excess power' which tends to violate the larger societal or individual interest.

E.g.  An accused cannot be forced by the police during interrogation into giving statement pointing to his/her guilt. This right has been constitutionally guaranteed to the accused under Article 20(3) of the Constitution, which states:

"No person accused of any offence shall be compelled to be a witness against himself".

2   To ensure constitutionally guaranteed freedoms

     E.g.  Freedom to speak in public or peacefully assemble

3   Judiciary acts as a guardian of fundamental rights

 

Our Constitution grants us unique rights such as:

Civil and political rights- e.g. the right to life; right to freedom of discrimination based on         religion, race, caste, gender or place of birth.

Economic, social and cultural rights- e.g. freedom to practice any religion; protection of   interests of minorities.

4.         Fair trial to the accused

In the domain of criminal law as well, independence of judiciary is linked to the granting of a fair trial to the accused. This becomes extremely important even when the accused are foreign nationals or persons who have committed crimes against the state, e.g. terrorists.

5.         Vital for the respect of due process of governance and rights granted to average citizens.

Due process of law means the State must respect all the legal rights that are owed to a person and confirm to the norms of fairness, liberty, fundamental rights etc. That could only be possible through an independent and impartial judiciary.

So, in grave political circumstances, the rights of citizens should not be compromised and this could only be possible through an independent and impartial judiciary.

CONSTITUTIONAL FRAMEWORK FOR THE INDEPENDENCE OF JUDICIARY

1.      The Constitution recognises that vast powers enjoyed by the courts, especially the

Supreme Court cannot be curtailed by the Parliament.

2.      Independence of judges is crucial to ensuring independence of judiciary. So, once appointed, judges are provided with a security of tenure till they reach a retirement age.

3.      Supreme Court judges and high court Judges are not allowed to practice as advocates in the same or equivalent courts, after their retirement

4.      Judges cannot be easily removed from their office except for proven misbehaviour and incapacity.

5.      The salaries and allowances of judges are fixed and not subject to vote of the legislature

6.      The conduct of judges of both the Supreme Court and High Courts cannot be discussed in Parliament or state legislature, except when a motion for removal of a judge is being presented to the President

7.      Supreme Court of India has been authorized to have its own establishment and to have complete control over it (to make appointments of officers and staff of the court and determine their service conditions.)

SALIENT FEATURES OF INDIAN JUDICIARY (LEGAL STUDIES CLASS 12 CBSE)

SALIENT FEATURES OF INDIAN JUDICIARY (MODULE -2)

SHORT NOTES

Common law

Under common law system, judiciary can make laws through judicial decisions of courts which become binding precedents for all subordinate courts in the hierarchy.

CIVIL LAW

Under civil laws system only the legislature or executive has the power to create laws and rules

British tradition of 'common law'

Under this system the  decisions orders judgments  developed by the judges help in the creation and development of laws and legal principles and  which becomes binding precedents for all subordinate courts in the hierarchy.

Adversarial Model

•       role of lawyers representing the party becomes vital

•       adversarial systems used in common law jurisdictions such as England

•       It is not open to the judge in an adversarial system to enquire beyond the facts and evidence that are presented by the opposing lawyers

•       His/her role is largely passive; he is an impartial referee who advises the jury on matters of law

INQUISITORIAL MODEL

•       Judges are more pro-active in adjudicating the matter.

•       the inquisitorial system being prevalent in mainland Europe

•       The role of the judge in an inquisitorial system which is based, as the name suggests, on an inquiry into the case

•       The judge is not limited to hearing the submissions of the parties but can direct the lawyers to address specific points or to call particular witnesses.