a. The Preamble of the Constitution
b. Directive Principle of State Policy
c. The Seventh Schedule
d. The conventional practice
Answer: b
Explanation:
The French Jurist Montesquieu, in his book L. Esprit Des Lois (Spirit of Laws) published in 1748, for the first time enunciated the principle of separation of powers.
Montesquieu’s doctrine, in essence, signifies the fact that one person or body of persons should not exercise all the three powers of the Government, viz. legislative, executive and judiciary. In other words, each organ should restrict itself to its own sphere and restrain from transgressing the province of the other.
“When the legislative and executive powers are united in the same person, or in the same body or Magistrate, there can be no liberty. Again, there is no liberty if the judicial power is not separated from the Legislative and Executive power. When it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. When it joins with the executive power, the judge might behave with violence and oppression. There would be an end of every thing were the same man or the same body to exercise these three powers.
The doctrine of separation of powers implies:
(i) The same person should not form more than one organ of the Government.
(ii) One organ of the government should not exercise the function of other government organs.
(iii) One organ of the Government should not encroach on the function of the other two organs of the Government.
For the most part of colonial India, the judicial and executive wings of administration were fused – Indians had experience of how this compromised judicial independence. Constituent Assembly members recounted that the separation of the executive and judiciary was a long-standing demand of the freedom movement. This demand was made at the very first meeting of the Congress in 1885 and thereafter in a range of Congress resolutions.
Part IV of the Constitution contains the Directive Principles of State Policy, which act as fundamental principles to guide the functioning of the State in its goal of establishing an economic and social democracy.
ARTICLE 50 UNDER DIRECTIVE PRINCIPLES OF STATE POLICY PROVIDED FOR Separation of judiciary from executive
The doctrine of separation of powers has no place in strict sense in Indian Constitution, but the functions of different organs of the Government have been sufficiently differentiated so that one organ of the Government could not usurp the function of another.
In Kesavananda Bharti v. State of Kerala, Chief Justice Sikri observed: “Separation of powers between the legislature, the executive and the judiciary is a part of the basic structure of the Constitution; this structure cannot be destroyed by any form of amendment.”
Hence, option b is correct.
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