Separation of Power has long been a contentious issue. In government, it is significant. Another point of contention is whether or not it is included in our constitution. The main goal of this research paper is to define separation of powers. Why is it significant? What kinds of constitutions exist, and which one do we have? Does our constitution contain a checks and balances system? What is the significance of the judiciary's independence?

How is Montesquieu's theory of the separation of powers used in the US, and most importantly, is it enshrined in our constitution or not? Since the goal of this research is to educate and raise awareness among regular persons who believe that law is complicated and not for the average person, extremely plain English is employed.

Introduction
Any democratic form of administration must adhere to the principle of separation of powers. This system divides the state into three main divisions: the legislative, executive, and judicial branches. Each of these bodies has the authority to carry out specific functions that have been delegated to it. These divisions are also referred to as government organs.

As a result, no one branch or institution can grow to be so powerful as to rule the system entirely thanks to the tasks allocated to each organ and their institutions in a way that allows each of them to check the exercise of power by the others. Understanding the significance of the three governmental bodies is crucial before beginning the analysis. Laws are created by the legislative branch, implemented by the executive branch, and interpreted by the judicial branch.

Evolution of Doctrine of Separation of Powers

Humanity's history has seen the negative effects of having too much power in one person's hands. Kings frequently used their authority to oppress the populace. Magna Carta is the turning point in human history where King John's power was constrained. People were so oppressed by King John's cruelty that they decided to take action and created the first historical document, known as Magna Carta, which contained certain fundamental laws and principles to safeguard both the interests of the people and the king. King John signed the Magna Carta on June 15, 1215, in front of witnesses.

It was the first document in human history to declare that the king and his government were not above the law. The Magna Carta was intended to prevent the king from abusing his power and to set limits on the king's authority by establishing the rule of law as power in and of itself.

Aristotle was the first to propose the idea of the separation of powers. Aristotle was the first to divide governmental responsibilities into three categories: deliberative, official, and judicial. Aristotle's theory of the separation of powers was elaborated by Viscount Henry St. John Bolinbroke, who contended that achieving and maintaining equilibrium between the people, the monarch, and parliament is essential to protecting security and freedom within the state.


While residing in the United Kingdom in the year 1748, French jurist Baron Montesquieu, also known as the modern exponent of the power of separation theory, wrote a book titled "In the spirit of law" in which he discussed the concept of separation of powers and emphasised the significance of the independence of the judiciary to safeguard democracy.

Montesquieu divided governmental authority into three categories: legislative, executive, and judiciary. He asserted that these three powers should remain distinct at all times since there can be no liberty if all three or even just two of them are combined. If one person or one entity had the ability to use these three powers, Montesquieu predicted the end. Right now, all democracies make use of some variation of Montesquieu's theory of separation of powers. 

The phrase "separation of powers" can only be described in one sentence in plain English: "All three branches of government (legislature, judicial, and executive) should act separately without interfering with each other's functions."

Types of Constitutions (Written and Unwritten)

There are two categories of constitutions: those that are written and those that are not. The United States of America has the first written constitution, and amending a written constitution is quite difficult. An unwritten constitution is one that is relatively adaptable and can be revised in light of prior rulings, cultures, traditions, etc.

In the constitution of the United Kingdom, changes are fairly simple to make. For instance, if a straightforward law is approved, parliament will amend the constitution, demonstrating the flexibility of the unwritten constitution. If we take a glance at the American constitution, we can see that changing it is a very tough undertaking that requires the consent of all parties before it can be changed. The written constitution of America is fairly strict.

Thus, it can be claimed that the unwritten constitution is flexible while the written constitution is strict. However, it is clear that the Indian Constitution is a blend of rigour and flexibility. Article 368 of the Indian Constitution contains provisions for constitutional modifications. The Indian Parliament has the authority to change the constitution pursuant to Article 368.

Application of Montesquieu's Theory in United States of America

The United States constitution was drafted on Montesquieu's theory of the separation of powers. This philosophy was fully adopted by the drafters of the American constitution. The oldest written constitution is that of the United States. We can observe that at the very beginning of the American constitution, all the powers connected to the administrative, legislative, and judicial functions are vested in different entities.

In the USA, the president is granted executive authority. According to Section 1 Article 1 of the American Constitution, Congress is given legislative authority, the President of the United States of America is given executive authority, and Section 1 Article 3 of the American Constitution grants the Supreme Court and other national courts with judicial authority. Because the US constitution is so rigid and firmly adheres to the theory of separation of powers, it is highly challenging to modify any element of the document. Since it was written, this constitution has only been altered 27 times.

The United States of America's Constitution underwent its most recent amendment in 1992. The presidential system of governance is used in America. The American Constitution can be characterised as strictly federal. The fifty separate states that make up the United States agreed to its constitution. Each state and the federal government in America have their own constitutions, and no one interferes with the duties of the other. In a nutshell, it may be claimed that the United States of America strictly adheres to dual federalism, with direct popular election of the President.

Separation of Powers in India

The largest constitution in the world is that of India. Separation of powers is a principle that the architects of the Indian constitution beautifully included. The largest obstacle India had after becoming an independent democracy was writing a new constitution. India faced several challenges after becoming an independent democracy in the year 1947. Should we have a complete separation of powers or not? was a key topic of discussion during the constitution assembly.

Constitutional Debates on Separation of Powers

Separation of powers between the executive and judicial branches was chosen as a guiding concept of state policy when India's constitution was being drafted. However, as the process for amending the constitution began, many members questioned why there wasn't a clear division of powers between the three branches of the government during the constitution assembly deliberations. Article 41-A was added to the constitution to completely separate the three organs' powers, according to Prof. K. T. Shah (a member of the constitution assembly).

In addition to agreeing with Prof. K. T. Shah, Mr.Kazi Sayed Karimuddin stated that a non-parliamentary system of administration should be used instead of a parliamentary one.Political opponents are neglected, silenced, and ignored under a parliamentary form of government, according to Mr. Kazi Sayed Karimuddin. He also noted that our people are not prepared to deal with the opposition in the nation under a parliamentary system of government, and that if we choose it, there would be a serious conflict between the three branches of the government.

While the constitution assembly was debating Prof. K. T. Shah's recommendations, Shri K. Hanumanthaiya provided a very different perspective. He stated that while we can debate the benefits and drawbacks of both systems, we have already agreed that the parliamentary system is best for the nation. He also added that there are many good reasons why the parliamentary system appears to be more adaptable to Indian conditions.

He made a really great argument by stating that having a harmonic governmental structure is considerably preferable to having a conflicting trinity. He claimed that the proposed new amendment was completely inappropriate for our current system of government.

The Honourable K. Santhanam provided further clarification on this matter by pointing out how, to a large part, the division of powers enshrined in the American constitution is an illusion. He added that although it is often believed that the Supreme Court in America is entirely independent of the executive branch, it has occasionally been seen that presidents have tried to influence the court by selecting justices who align with their own political beliefs.

He continued by saying that if there was a disagreement between the president and the supreme court, the president merely needed to wait until the judge retired, designate someone to fill the vacancy, and then get all judgments rendered in his favour. Political opponents are neglected, silenced, and ignored under a parliamentary form of government, according to Mr.Kazi Sayed Karimuddin.

He also noted that our people are not prepared to deal with the opposition in the nation under a parliamentary system of government, and that if we choose it, there would be a serious conflict between the three branches of the government. The Honourable Shri K. Santhanam said that the president only has the authority to appoint judges who will adhere to his ideas, even though he must first obtain the Senate's approval.

The Hon. Dr. B. R. Ambedkar discussed the state of affairs in the United States of America. Many Americans, he claimed, are unhappy with the way the American constitution is currently written, which adheres rigorously to the division of powers between the executive and judicial branches. The total separation of powers between the judicial and executive has been embraced as a guiding principle of state policy, he added, adding that this separation of powers is accepted even under parliamentary governance.

By examining the arguments, it can be concluded that the majority of the members opposed the total separation of powers' introduction and the conversion of the parliamentary system to a presidential one. Prof. K.T. Shah's primary concern was that, in the absence of a clear separation of powers between the executive and judiciary, executives would abuse their authority to influence the judiciary. However, many members of the constitution assembly allayed his concerns. Therefore, it can be said that we have followed the theory of separation of powers to some extent.

Separation of Judiciary from Executive

The judiciary must be free to operate independently and without interference from anything or anyone in the country since it is the only means for the average citizen to get justice. The judiciary also protects citizens' fundamental rights and guards against the abuse of power by other organs. Simply put, the judiciary might be thought of as the people's and the law's guardian angel.

Any nation with a separate judiciary from the president or the legislative is certain to have an impartial judicial system. Any nation's judicial system can function more effectively for its residents if the judiciary is kept independent from other government institutions. If the judiciary is kept separate, even the president finds it very difficult to influence it.

The judiciary's primary duty is to uphold the constitution. The separation of the judiciary from the executive is vital because it prevents the government's organs from having too much authority over the judiciary. If something is against the constitution, the judiciary can reject it without being under any pressure from the executive or legislative.

Indian Government Structure

The head of the state and the head of the government are completely separated under India's parliamentary system of governance. The president of India serves as both the head of state and the head of the government, along with the prime minister. The President, Rajyasabha, and Loksabha make up the legislative branch. The judiciary is entirely distinct from these two bodies. The president is accountable to the courts despite serving as the head of state. Which demonstrates that the judiciary has greater authority than the legislative and executive branches.

The president of India is a member of both the legislative and executive branches of government, as seen in the above diagram, but the judiciary is totally independent and has no overlaps with any other organs. The separation of powers is adhered to very carefully in the American constitution, as evidenced by the fact that the president is not answerable to any other body. However, this cannot be implemented in India due to the possibility of executive branch abuse of power and manipulation by the president.

By ensuring complete independence of the judiciary, the architects of the Indian Constitution demonstrated that no one is above the law. Instead of rigidly enforcing separation of powers, the designers of the Indian constitution have purposefully divided the duties of the various government organs.

By doing this, the Indian constitution has achieved coordination between the various government organs, preventing any one organ from usurping another. The Indian Constitution's Article 50, which states that the judiciary and executive branches must be kept separate, has made this possible.

The State must take action to keep the executive and judicial branches apart in its public services. Therefore, it is justifiable that we adopted the parliamentary form of government only after Prof. K.T. Shah's concerns about the separation of the executive and judicial branches of government were completely addressed.

System of Checks and Balances

It is a common misconception among authors that India has not embraced the checks and balances system that America has, however this is untrue. As of right now, we are aware that our constitution is a hybrid of a few other nations' constitutions, and we have taken the best elements from those other constitutions.

How then can we assert that a system of checks and balances does not exist? The Indian Constitution's drafters actually had a finely designed system of checks and balances, and they had incorporated it. For instance, as soon as our constitution was adopted, Article 13 declared all measures that violated or interfered with basic rights to be unconstitutional.

The Supreme Court is given authority under Articles 32 and 136, and the High Courts are given authority under Articles 226 and 227 to conduct judicial reviews of any act of the country's administrative or legislative branch. Inferring from these examples that there is no oversight of the courts is false. Every judge of the Supreme Court must be appointed by the president, according to Article 124(2) of the Indian Constitution.

While you might assume that the president can be cunning and choose judges who will support his agenda, Article 124(2) also mandates that the Chief Justice of India must always be consulted when choosing Supreme Court judges. Additionally, the president has the authority to oust any judge from their position, but he can only do so after receiving written notification from the speaker from at least 100 Loksabha members or 50 Rajyasabha members.

The Supreme Court is given authority under Articles 32 and 136, and the High Courts are given authority under Articles 226 and 227 to conduct judicial reviews of any act of the country's administrative or legislative branch. Inferring from these examples that there is no oversight of the courts is false. Every judge of the Supreme Court must be appointed by the president, according to Article 124(2) of the Indian Constitution.

While you might assume that the president can be cunning and choose judges who will support his agenda, Article 124(2) also mandates that the Chief Justice of India must always be consulted when choosing Supreme Court judges.

It is obvious from the aforementioned clauses that the Indian Constitution has a system of checks and balances.

Conclusion
When it came to the application of the separation of powers in the Indian Constitution, a few members of the constitution assembly expressed concern that we were not using a complete separation of powers and that, as a result, the independent Indian judicial system would be vulnerable to manipulation by other government organs and that only the wealthy would be able to afford the luxury of justice.

However, it was made clear during the argument that the judiciary would be autonomous. Additionally, the court would have manipulated even if we had chosen the presidential form of government. In conclusion, we can say that while the division of powers was established by the Indian constitution, the separation of powers was not adopted rigidly.