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Doctrine of Separation of Powers - Administration Law

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The doctrine of separation of powers is a libertarian doctrine based on the need to seek a tripod balance among competing arms of government. It is assumed that due to complementation, a system of checks and balances would allow power not to be concentrated in one arm of the government. However, in many States, particularly in those that leapfrogged from non-democratic systems to democracy, the different arms begin to compete against each other rendering the exercise of checks and balancing difficult. In the case of Jacob Zuma and the state capture allegations, it is without doubt that the judiciary encroached into the powers vested in the Executive arm. The question of why the judiciary would do such a thing lies not in the merit of the allegations, but in the possible vested interests within the judiciary. In many cases, members of the judiciary have made public comments against corruption in South Africa. These comments have bordered closely to being political statements. It may, thus, be concluded that the South African judiciary is not devoid of political interest. The Separation Of Powers Doctrine

Introduction The division of power is based on two methods, i. Government powers have traditionally been classified as legislative law-makingexecutive law-enforcement and judiciary interpretation of laws and adjudication.

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In modern political thinkers it was Bodin who first advocated the idea of separation of executive and judicial powers in the interest of better administration of justice. Locke also advocated the separation of powers and recognized the importance of judicial function to be just The Separation Of Powers Doctrine impartial.

However, ideas of these great thinkers were developed and https://amazonia.fiocruz.br/scdp/essay/pathetic-fallacy-examples/the-dependency-on-fossil-fuel-for-energy.php into a coherent theory by the French philosopher Montesquieu who gave the doctrine of tripartite division of governmental functions with mutual checks and balances.

He was of the opinion that it is not the machinery of government or political institutions which make the people free. It is the spirit or the manner in which the government organs function that secure freedom or liberties of people.

Montesquieu was deeply impressed by the The Separation Of Powers Doctrine freedom and liberty present in the English society and while analyzing the English Legal system he observed that the stability and liberties enjoyed was derived from their adherence to the principle of separation of powers. The doctrine of separation of power as laid down by Montesquieu was to safeguard individual liberty. Moreover, there is no liberty if the power of the judiciary is not separated from the legislature and executive. Had judiciary been joined with the legislative then the life and liberty of the Thd would be subject to arbitrary control because the judge would then be the legislature; had it been clubbed with the executive then the judge might behave with violence and oppression. Montesquieu vehemently opposed the concentration of government powers, legislative, executive and judicial, in the hand of one person or in the same body of person which would be dangerous to individual liberty.

There could be no protection of the individual freedom as the legislature, the prosecutor and the judge Selaration would be same and hence there can be no check against abuse of executive authority, legislative tyranny or judicial misbehavior.

He therefore, advocated that the three functions of the government should be The Separation Of Powers Doctrine to three different departments, each separately and independently performing its own distinct function. In the Indian Constitutionwhich provide for parliamentary form of government strict separation of the Legislature and the Executive is not possible as the Cabinet consist of persons who are Members of Parliament. Under the Indian Political System there is no rigid separation of powers. The Indian Constitution had the privilege to see the working and taking advantage of other democratic constitutions with their operations.

Under Articles Articles 53 1 and 1the Constitution of India has vested the executive power in the Union and the State with the President and the Governor. However, there is no explicit provision of vesting the legislature and judicial powers in a particular organ. In fact, the power to amend the Constitution is regarded as part of the constituent power conferred on Parliament. In Kesavananda Bharati v. Some of the Judges mentioned a few basic features by way of illustration: Supremacy of The Separation Of Powers Doctrine Constitution, Democratic Republican form of government, Secular character of the Constitution, separation of powers among the legislature, the executive and judiciary, the federal character of the Constitution, rule of law, equality of status and of opportunity.

Subsequently, power of judicial review has been declared as a basic feature of the Constitution in L. Chandra Kumar v.

Union of India. The Supreme Court has since struck down quite a few amendments to the Constitution, made by Parliament as violative of the basic structure of the Constitution. Therefore, the Judiciary is independent in its field and there can be no interference either by the executive or the legislature. The Separatio of the Supreme Court are appointed by the President in consultation with the CJI and judges of the Supreme Court the Supreme Court has power to make Rules for efficient conduction of business. In fact, it is noteworthy that Article 50 of the Constitution puts an obligation over the state to separate the judiciary The Separation Of Powers Doctrine the executive.

Similarly, there are certain provisions in the constitution which provides for powers, privileges and immunities to the Members of Parliament from judicial scrutiny into the proceedings of the house.

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Such provisions are thereby making legislature independent, in a way. A landmark decision in this regard was the case of Keshav Singh, which was a special reference case, where he was committed to incarceration on the behest of contempt of the Uttar Pradesh State Legislative Assembly. A petition was filed and the Legislative Assembly took a serious view of the matter and passed a resolution that Keshav Singh, his Advocate who go here the High Court and the two Judges who entertained the petition and granted bail had committed contempt of the Assembly and all of them should be produced before it in custody.

Subsequently when the matter reached the Supreme Court, where they clarified that once a court is satisfied about the existence and the extent https://amazonia.fiocruz.br/scdp/essay/benedick-and-beatrice-argument-quotes/vygotsky-theory-social-learning-theory-and-attachment.php privilege and its breach it should decline to interfere with the privileges of the House.

However, the two judges in this case were not guilty of The Separation Of Powers Doctrine.

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The Constitution provides for the conferral of executive power on the President. The powers and functions of the President have been powers enumerated in the Constitution itself. The President and the Governor are immune of civil and criminal liabilities.]