SEPARATION OF POWER

CONTENTS

• Introduction

• Historical Background

• Significance of the doctrine

• Separation of Powers in India

• Constitutional provisions that provide for the separation of powers.

• Judicial Pronouncements Upholding Separation of Powers Doctrine

• Relation between various Organs in India

• Functional overlap

• System of checks and balances

• Scenario in India

• Separation of power in other countries

• Conclusion

Montesquieu stated that

“When the legislative and executive powers are united in the same person, or in the same body of magistrates there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were joined to the executive power, the judge might behave with violence and oppression”.

The separation of powers, sometimes vaguely used interchangeably with the ‘Trias politica’ principle is a model for the governance of a state. The dogma of separation of powers considers the idea that the governmental functions must be based on a tripartite division of legislature, executive and judiciary. The three organs should be separate, distinct and independent in its own sphere so that one does not intrude the territory of the other.

Three features of this doctrine.

• Each organ should have different persons in capacity, i.e., a person with a function in one organ should not be a part of another organ.
• One organ should not interfere in the functioning of any other organ of the government.
• One organ should not exercise a function of another organ (they should stick to their mandate only).

• This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he described the three agencies of the government as General Assembly, Public Officials and Judiciary.
• Under this modelin the Ancient Roman Republic the state is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches.
• The modern design of the principle of separation of powers was elaborated in constitutional theory of John Locke (1632-1704).
• He wrote in his second treaties of Civil Government as follows: ‘It may be too great a temptation for the humane frailty, apt to grasp at powers, for the same persons who have power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from the law, both in its making and execution to their own private advantage’.
• In modern times, it was 18th century French philosopher Montesquieu who made the doctrine a highly systematic and scientific one, in his book De L‘ Espirit des Lois (The Spirit of Laws).
• His work is based on an understanding of the English system which was showing a propensity towards greater distinction between the three organs of government.
• The American politician James Madison, better known as the ‘Father of the American Constitution’ also believed the same and articulated the following, “The accumulation of all powers, legislative, executive and judicial, in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.”

The main objective of the doctrine is to prevent the abuse of power within different spheres of government. Different spheres of government should act within their boundaries.

Whenever there is a concentration of power in one centre/authority, there is bound to be greater chances of maladministration, corruption, nepotism and abuse of power. This principle ensures that autocracy does not creep in to a democratic system. It protects citizens from arbitrary rule. Hence, the importance of the Separation of Powers doctrine can be summed up as follows:

1. Keeps away autocracy
2. Safeguards individual liberty
3. Helps create an efficient administration
4. Judiciary’s independence is maintained
5. Prevents the legislature from enacting arbitrary or unconstitutional laws
6. Helps maintain Constitutional Balance between the 3 organs of the state

The doctrine of separation of powers is a part of the basic structure of the Constitution, although not specifically mentioned. The legislature cannot pass a law violating this principle. The functions of the three organs are specifically mentioned in the Constitution.

According to Dicey, the doctrine rests on ‘the necessity of preventing the government, the legislature and the courts from encroaching upon one another’s province’.

In India, a separation of functions rather than of powers is followed.

Today, most of the constitutional systems do not have a strict separation of powers between the various organs in the classical sense because it is impractical.

Indian Constitution doesn’t explicitly mention the doctrine of Separation of powers. However the theory is present in a functional manner implicitly.

1. Article 50: This article puts an obligation over the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable.
2. Article 123: The President, being the executive head of the country, is empowered to exercise legislative powers in certain conditions.
3. Articles 53 and 154 respectively, provide that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.
4. Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.
5. Articles 122 and 212: The courts cannot inquire the validity of the proceedings of the legislatures. This ensures the separation and immunity of the legislatures from judicial intervention on the allegation of procedural irregularity.
6. Article 361: The President and Governors enjoy immunity from court proceedings.

• Kesavananda Bharati Case (1973): In this case, the SC held that the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic features will be declared unconstitutional. It is also agreed that all the three organs of the State, i.e., the Legislature, the Judiciary, and the Executive are bound by and subject to the provisions of the Constitution, which demarcates their respective powers, jurisdictions, responsibilities and relationship with one another. It also stated the separation of power is part of the basic structure.
• Indira Gandhi Vs Raj Narain Case (1975): In this case, the SC held that the adjudication of a dispute is a judicial function and parliament cannot exercise this function. It was observed by Chandrachud J.: “That in the Indian Constitution, there is separation of powers in a broad sense only. A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India.”
• In I.C.Golak Nath v. State of Punjab, it was perceived: “The Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them.” It said that Ninth Schedule violates this doctrine and hence the Ninth Schedule was made amenable to judicial review which also forms part of the basic structure theory.
• Ram Jawaya v. State of Punjab: The Court held that though the doctrine of separation of powers is not expressly mentioned in the Constitution it stands to be violated when the functions of one organ of Government are performed by another.

India, since it is a parliamentary form of government, therefore it is based upon intimate contact and close co-ordination among the 3 Organs.

1. It’s quite evident from the constitutional provisions themselves that India, being a parliamentary democracy,
2. Rather it is based upon fusion of powers, where a close co-ordination amongst the principal organs is unavoidable and the constitutional scheme itself mentions it.
3. Every organ of the government is required to perform all the three types of functions.
4. Each organ is, in some form or the other, dependent on the other organ which checks and balances it.

A) Relationship between Legislature and Judiciary

Even though the functions of the executive and the judiciary are well-defined in the Constitution, the system of checks and balances ensures that each one can impose checks on the other.

• The judiciary can strike down laws that it considers unconstitutional or arbitrary. The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
• The judiciary has the power of judicial review over the actions of the executive and the legislature.There have been instances where the courts have issued laws and policies through judgements. For example, the Vishakha Guidelines where the SC issued guidelines on sexual harassment.
• The legislature, on its part, has protested against judicial activism, and tried to frame laws to circumvent certain judgements.
• According to Article 122 of the Indian Constitution, the Court shall not call validity of any proceedings in Parliament in question on the basis of any alleged irregularity of procedure.
• Article 212 provides that the Court should not investigate into the proceedings of the Legislature.
• If the judiciary oversteps its mandate and crosses over into the territory of the legislature or the executive, it is called judicial overreach.
• The legislature can also alter the basis of the judgment while adhering to the constitutional limitation.

B) Relationship between Legislature and Executive

• The Constitution states that the executive branch of the State (Council of Ministers) shall be collectively responsible to the Legislature (Lok Sabha). This implies that the Parliament should supervise the work of the government and hold it accountable for its actions.
• In a parliamentary form of government, the executive is not separated from the legislature in that the members of the council of ministers are members of the legislature.
• Legislators exercise their check over the executive many a times through their power to head executive boards and agencies of various descriptions, the capacity to contribute in executive committees which award contracts or select beneficiaries of various welfare schemes. Such as Parliamentary committee on Public undertaking, Estimates Committee etc.
• The executive loses power when it loses the confidence of the legislature. The executive/council of ministers is dismissed if it loses the legislature’s confidence before its tenure is over. So, the legislature controls the executive through a vote of no-confidence.
• The head of government and head of state are different. The head of the government is the Prime Minister while the head of state is the President.
• The parliament makes laws in general broad terms and delegates the powers to the executive to formulate detailed policy and implement them.
• Article 74(1) make it clear that the executive head has to act in accordance with the aid and advice given by the cabinet.
• Certain constitutional provisions also provide for Powers, Privileges and Immunities to the MPs, Immunity from judicial scrutiny into the proceedings of the house, etc. Such provisions are thereby making legislature independent.

C) Relationship between Executive and Judiciary

There are several provisions in the Constitution which makes the judiciary independent.

• Article 50 of the Constitution provides that “The State shall take steps to separate the judiciary from the executive in the public services of the State.”
• It is believed that for a democracy to remain efficient and effective, the judiciary must be independent.
• The judiciary is said to be the guardian of the constitution.
• The judiciary also performs some executive functions.
• It can review the actions of the executive and declare them void if found unconstitutional
• The appointments of the judges are made by the executive.
• The President and the Governors also enjoy the power to pardon, reprieve, etc. These are direct judicial functions.
• Under the system of administrative adjudication, the executive agencies have the power to hear and decide cases involving particular fields of administrative activity.

Each organ while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the general public.

Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs.

1. The legislature besides exercising law-making powers exercises judicial powers in cases of breach of its privilege, impeachment of the President (under Article 61) and the removal of the judges.
2. The executive may further affect the functioning of the judiciary by making appointments to the office of Chief Justice and other judges.
3. The legislative body has the punitive powers under Article-105(3).
4. Legislature can impose punishmentfor exceeding freedom of speech in the Parliament; this comes under the powers and privileges of the parliament. But while exercising such power it is always necessary that it should be in conformity with due process.
5. The heads of each governmental ministry is a member of the legislature, thus making the executive an integral part of the legislature.
6. The council of ministers on whose advice the President and the Governor acts are elected members of the legislature. 74(1) makes it clear that the executive head has to act in accordance with the aid and advice given by the cabinet.
7. Under Article-142 and Article-145 of our constitution, the SC has the power to declare void the laws passed by legislature and actions taken by the executive if they violate any provision of the constitution or the law passed by the legislature in case of executive actions.
8. Even the power to amend the constitution by Parliament is subject to the scrutiny of the Court. The Court can declare any amendment void if it changes the basic structure of the constitution
9. The President of India who is the supreme executive authority in India exercise law making power in the form of ordinance making power under Article-123, also the Judicial powers under Article-103(1) and Article-217(3)
10. The president has the consulting power to the SC of India under Article-143 and also the pardoning power in Article-72 of the Constitution. The executive also affecting functioning of the judiciary by making appointments to the office of Chief Justice of India and other judges.
11. The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre and in the States respectively, the authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution.
12. The executive also exercises law making power under delegated legislation.
13. The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial functions. Administrative tribunals which are a part of the executive also discharge judicial functions.
14. The higher judiciary is conferred with the power of supervising the functioning of subordinate courts. It also acts as a legislature while making laws regulating its conduct and rules regarding disposal of cases.

There is a system of checks and balances wherein the various organs impose checks on one another by certain provisions. Checks and balances ensure that no one organ becomes all-too powerful. The Constitution guarantees that the discretionary power bestowed on any one organ is within the democratic principle.

• The aim of checks and balances is to safeguard that different branches of government control each other internally (checks) and serve as counter weights to the power possessed by the other branches (balances).
• The objective of separation of functions and employees is to limit the power; to make the branches of government accountable to each other.
• To prevent one branch from becoming supreme, protect the “opulent minority” from the majority, and to induce the branches to cooperate, government systems that employ a separation of powers need a way to balance each of the branches.

The system of checks and balances is one of the most striking aspects of Indian constitutional scheme. The three organs can practically not be segregated into three incontrovertible compartments due to their interdependence on each other to ensure effective governance.

1. India relies heavily upon the doctrine in order to regulate, check and control the exercise of power by the three organs of Government.
2. Under the system of checks and balances, one department is given certain powers by which it may restrain the others from exceeding constitutional authority. It may object or resist any encroachment upon its authority, or it may question, if necessary any act or acts which unlawfully interferes with its sphere of jurisdiction and authority.
3. The Indian Constitution provides for a scheme of checks and balances between the three organs of government namely, the legislature, the executive and the judiciary, against any potential abuse of power.
4. The judges of the Supreme Court and the High Courts in the States are appointed by the executivee. the President acting on the advice of the Prime Minister and the Chief Justice of the Supreme Court. But they may be removed from office only if they are impeached by Parliament. This measure helps the judiciary to function without any fear of the executive.
5. Similarly, the executive is responsible to Parliament in its day to day functioning. While the President appoints the leader of the majority party or a person who he believes commands a majority in the Lok Sabha (House of the People or the Lower House) a government is duty bound to lay down power if the House adopts a motion expressing no confidence in the government.
6. The judiciary keeps a check on the laws made by Parliament and actions taken by Executives, whether they conform to the constitution or not, using the tool of Judicial Review.
7. The most noticeable example of a check is the power of the judiciary to appraise executive conduct and ordinary laws for the compliance with the Constitution and the Bill of Rights.
8. Article 144 of the Constitution declares that all authorities, civil and judicial, shall come to the aid of the Supreme Court.
9. Article 141 is to the effect that the law declared by the Supreme Court is binding on all courts within the territory of India.
10. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive.

However, the only check on judicial power is the self-imposed discipline of judicial restraint. Therefore this doctrine cannot be liberally applied to any modern government, because neither the powers can be kept in water tight compartments nor can any government can run on strict separation of powers.

A) United States of America

The United States Constitution has a more rigid separation of powers than the Constitutions of other democracies.

1. In the United States Constitution, Article 1 Section I gives Congress only those “legislative powers herein granted” and proceeds to list those permissible actions in Article I Section 8, while Section 9 lists actions that are prohibited for Congress.
2. The vesting clause in Article II places no limits on the Executive branch, simply stating that, “The Executive Power shall be vested in a President of the United States of America.
3. The Supreme Court holds “The judicial Power” according to Article III, and it established the implication of Judicial review in Marbury v. Madison.
4. Checks and balances allow for a system based regulation that allows one branch to limit another, such as the power of Congress to alter the composition and jurisdiction of the federal courts.
5. The following illustration where there are checks and balances:

B) United Kingdom

1. Although the doctrine of separation of power plays a role in the United Kingdom’s constitutional doctrine, the UK constitution is often described as having “a weak separation of powers”.
2. In the United Kingdom, the executive forms a subset of the legislature, as did—to a lesser extent—the judiciary until the establishment of the Supreme Court of the United Kingdom.
3. The Prime Minister, the Chief Executive, sits as a member of the Parliament of the United Kingdom, either as a peer in the House of Lords or as an elected member of the House of Commons (by convention, and as a result of the supremacy of the Lower House, the Prime Minister now sits in the House of Commons) and can effectively be removed from office by a simple majority vote.
4. Until 2005, the Lord Chancellor fused the Legislature, Executive and Judiciary, as he was the ex officio Speaker of the House of Lords, a Government Minister who sat in Cabinet and was head of the Lord Chancellor’s Department which administered the courts, the justice system and appointed judges, and was the head of the Judiciary in England and Wales and sat as a judge on the Judicial Committee of the House of Lords, the highest domestic court in the entire United Kingdom, and the Judicial Committee of the Privy Council, the senior tribunal court for parts of the Commonwealth.
5. In 2005, the Constitutional Reform Act separated the powers with Legislative functions going to an elected Lord Speaker and the Judicial functions going to the Lord Chief Justice. The Lord Chancellor’s Department was replaced with a Ministry of Justice and the Lord Chancellor currently serves in the position of Secretary of State for Justice.

1. Applying the doctrines of constitutional limitation and trust in the Indian scenario, a system is createdwhere none of the organs can usurp the functions or powers which are assigned to another organ by express or necessary provision, neither can they divest themselves of essential functions which belong to them as under the Constitution.
2. Further, the Constitution of India expressly provides for a system of checks and balances in order to prevent the arbitrary or capricious use of power derived from the said supreme document.
3. Such a system of the doctrine of separation of powers is essential in order to enable the just and equitable functioning of such a constitutional system.
4. By giving such powers, a mechanism for the control over the exercise of constitutional powers by the respective organs is established. This clearly indicates that the Indian Constitution in its plan does not provide for a strict separation of powers.
5. It creates a system consisting of the three organs of Government and confers upon them both exclusive and overlapping powers and functions. Thus, there is no absolute separation of functions between the three organs of Government.

The principle of separation of powers is an inseparable fragment of the development of democracy. Democracy edicts a system in which every inhabitant can, without fear of revenge, breathe, express himself, and follow his or her interests. The Legislature, the Judiciary and the Executive are the supports of democracy. No democracy indeed anticipates conferment of absolute power in any single authority. According to Lord Acton: “Power corrupts and absolute power tends to corrupt absolutely”.