Doctrine of Separation of Powers - Indian Perspective
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Transcript of Doctrine of Separation of Powers - Indian Perspective
ADMINSTRATIVE LAW
Doctrine of Separation of Powers
The Indian Perspective
Srinivas Atreya519
July 2011
Introduction
“The legislative department shall never exercise the executive and judicial powers, or
either of them; the executive shall never exercise the legislative and judicial powers, or either
of them; the judiciary shall never exercise the legislative and executive power, or either of
them; to the end that it may be a government of law and not of men”
- The State Constitution of Massachusetts
The separation of powers, in practice if not in form, is considered to be a
prerequisite for the effective functioning of a democracy. It’s a paradoxical concept that like
the ‘rule of law’ that has superficial simplicity as well as a deeper complexity. Broadly
speaking, it is based on the idea that governmental powers are divisible into three
categories – executive to promulgate laws, legislative to make laws and judicial to apply
and interpret the laws. The idea of separation of functions stems from the legal conclusion
that if the law-makers should also be the administrators and dispensers of law and justice,
then the people at large will be left without a remedy, for there will be no superior
authority in case any injustice occurs. In essence, the principle of separation of powers
deals with the mutual relations among the three organs of the government, namely
legislature, executive and judiciary.
The doctrine attempts to bring exclusiveness in the functioning of the three organs and
thus a strict demarcation of power is the aim sought to be achieved as the it signifies the
fact that one person or body of persons should not exercise all the three powers of the
government. However in practice, 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.
The Theory of separation of powers was propounded and popularized by the French
political analyst Montesquieu. Published in 1748, his work on the theory titled ‘Esprit des
Lois’ (The Spirit of the Laws), extensively discussed the doctrine and gave it a systematic
and scientific design. The inspiration of this doctrine may have originated in the
Aristotelian era and was consequently explored by the 16th and 17th century political
philosophers John Bodin and John Locke.
According to Montesquieu’s conception of the doctrine of separation of powers no one
person or body should be vested with all three types of powers and there must be a
division of functions on the basis that the legislature should make laws but not administer
or enforce them, the executive must administer the made laws but neither influence the
legislature in the making of the laws nor stand in judgment of the same and the judiciary
must determine rights and uphold justice without taking over the functions of law-making
or administration. It was further explicated that such separation is necessary in order to
ensure that justice does not become arbitrary and capricious.
It is interesting note that the value of this doctrine lies in that it attempts to preserve
human liberty by avoiding the concentration of powers in any one person or body of
person. Montesquieu propounded this theory after careful consideration and study of
numerous crucial event and factors. First, he learnt from the historical trends of the
despotic Tudors and the absolutist Stuarts that freedom could not be secured if the
executive and legislative powers were held in the same hands. Having personally
experienced the tyrannies in monarchical France, he felt that such a combination of powers
would lead to the enacting of oppressive laws which the executive would administer to
attain its own ends. Montesquieu also carefully followed the events unfolding on the other
side of the channel prior to determining what he thought was the best course of action. In
England, the inception of the Magna Carta and the Act of Settlement, drastically curtailed
the powers of the monarch vesting them instead with Parliament and Courts.
Though, there was no clear separation of powers, the positive effect of the reduced
prerogative powers of the King cemented Montesquieu’s belief that the secret to liberty is
the separation and functional independence of the three departments of Government.
“All would be lost”, he wrote, “If the same man or the same ruling body, whether of nobles
or the people, were to exercise these three powers, that of law making, that of executing
public resolutions and that judging crimes and civil causes”
In the modern era, it is widely accepted that for a political system to be stable, the
receptacles of power need to be balanced off against each other. In this regard the doctrine
of separation of powers can be put into applied for different purposes. It may be used in
support of a principle of allocation of functions to the most appropriate body in the State,
whether a tribunal, a court, an elected assembly or a body of elected or appointed officials.
On the other hand, the separation of powers may also be invoked in support of
arrangements for preventing the abuse of power in situations where public powers are
distributed amongst different institutions in such a manner that each has the necessary
freedom for its own actions and simultaneously possess a concurrent capacity to check the
actions of other power-holding bodies in the event of a misuse of their power – a system of
checks and balances. The doctrine enables the creation of a merged and balanced
government, with safeguards to check excesses no matter where they arise. As stated by
Vile, this “diffusion of authority among different centers of decision-making is the
antithesis of totalitarianism and absolutism”.
Whether accepted by express provision or necessary implication, the doctrine of
separation of powers, in its essence, has become an integral part of the governmental
structures of numerous states. In theory, the doctrine of separation of powers has been
traditionally supposed to require a threefold classification of functions and corresponding
institutions. But as a result of being placed in the context of the diverse and complex nature
of a modern state, where the process of law making, administration and adjudication are
neither clearly demarcated nor assigned to separate institutions, even the previously
existent boundaries of separation are becoming more blurred. As this is a matter of
allocating functions and powers in such a way that they can be operated with the greatest
possible effectiveness, the need for absolute separation has been upstaged by the need for
efficient, regulated and non-arbitrary governmental administration.
As stated by Madison, “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”. And it is in the
prevention of this tyranny that the doctrine of separation of power holds its greatest
importance.
In order to understand the development and practical implications of the Doctrine of
Separation of Power, it is essential to understand this juristic conception in light of the
Constitutions and Administrative setups of the United States of America and the United
Kingdom which are more or less the inspiration to the Indian conception of the doctrine.
It is in the Constitution of the United States of America that Montesquieu’s doctrine of
separation of powers has found its highest recognition. The Constitution accepts the
separation in explicit terms and specifically provides for the division of functions and
powers amongst the three organs of government as a part of its basic structure. Article I of
the US Constitution assigns legislative power to the Congress while Articles II and III vest
executive and judicial powers in the President and the Courts of America respectively. In
other words, this implies that as per the constitutional plan, the constitution of the US is
desirous of a system of organization characterized by the independence of power and
action of the Congress, the President and the Courts respectively. However, the practical
implementation of such independent functioning has proven unsuccessful and the actual
position is quite different.
Louis Leventhall Jaffe has aptly summed up the practical interpretation of the doctrine in
the US by stating that
“The separation of powers principle is a fundamental and valid dogma of the US
constitution, the primary purpose of which is the preservation of political safeguards
against the capricious exercise of power. The logic behind such division is the logic of
polarity and not strict classification. In many crucial instances where there is pressure for
the transfer of old, or for the creation of new functions the logical implications become
conflicting and it should be kept in mind that the purpose of the said division is not to
externally stratify the governmental arrangements.”
Separation of Powers in India
The Constitution of India embraces the idea of separation of powers in an implied manner.
Despite the absence of an express provision recognizing the doctrine of separation of
powers in its absolute form, the Constitution does make the provisions for a reasonable
separation of functions and powers between the three organs of Government. Though the
executive power of the Union and of the States is vested by the Constitution in the
President and Governor by Articles 53(1) and 154(1) respectively, there is no
corresponding provision vesting legislative and judiciary provisions in any particular
organ. However, the powers and function of each must be found from the Constitution
itself. Thus subject to exceptional provisions like Articles 123, 213 and 357, it is evident
that the Constitution intends that the powers of legislation shall be exercised exclusively by
the legislature. Similarly, the judicial powers can be said to vest with the judiciary.
Applying the doctrines of constitutional limitation and trust within this scenario, a system
is created where 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.
In reality however, there is no absolute separation of functions between the three organs of
Government. The President being the head of the Union exercises his powers
constitutionally on the aid and advice of the Council of Ministers. On the other hand, he is
given exclusive legislative powers for the making and promulgation of ordinances even
during the course of recess of Parliament. He is further empowered to make laws for the
State after emergency has been declared under Article 356 of the Constitution and
exercises purely legislative functions as provided under Articles 372 and 372-A. The
President is also assigned judicial functions to the extent of deciding cases of
disqualification of the House of Parliament as also granting pardon in exceptional
circumstances. Similarly, parliament is also granted judicial functions in that they can
consider the questions of breach of any parliamentary privileges and where the breach is
established they have the power to punish for contempt. Also, in the event of impeachment
of the President, one of the Houses acts as the prosecutor and the other as investigator in
order to determine whether the charges are sustainable or not as under Article 61 of the
Constitution. In a further example of the merger of functions, the High Court’s within a
certain marginal sphere perform functions that are administrative in nature. Their power
of supervision over subordinate Courts as provided under Article 227 demonstrates a
function that is administrative rather than judicial. They also possess legislative powers to
the extent that they are allowed to frame rules for their efficient functioning.
Besides the functional overlapping, the Indian system also lacks the separation of
personnel amongst the three departments. An inevitable part of a Parliamentary system of
government, this can be seen under Article 75(5) of the Constitution which states that a
person in order to be a member of the Council of Ministers must necessarily be a member
of either House of Parliament.
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. Though such a system appears dilatory of the doctrine of separation of powers,
it is essential in order to enable the just and equitable functioning of such a constitutional
system. The constitution within its articles provides for a machinery of legislative
impeachment of judges and executive officers, executive control over the appointment of
judges and the power to veto legislation made by parliament and most importantly, confers
the judiciary with the power of judicial review over legislation and executive action.
Through the conferment of the said powers, a mechanism for the control over the exercise
of constitutional powers by the respective organs is established. The constitution creates a
system consisting of the three organs of Government and confers upon them both exclusive
and overlapping powers and functions where in essence there is separation of functions
rather than powers. This is illustrated in the case Ram Jawaya v. State of Punjab1
The debate about the doctrine of separation of powers, and exactly what it involves in
regard to Indian governance, is as old as the Constitution itself. It was extensively debated
in the Constituent Assembly. It also figured in various judgments handed down by the
Supreme Court after the Constitution was adopted. It is through these judicial
pronouncements, passed from time to time, that the boundaries of applicability of the
doctrine have been determined.
In the re Delhi Laws Act case, it was for the first time observed by the Supreme Court that
except where the constitution has vested power in a body, the principle that one organ
should not perform functions which essentially belong to others is followed in India. By a 1 AIR 1955 SC 549
majority of 5:2, the Court held that the theory of separation of powers though not part and
parcel of our Constitution, in exceptional circumstances is evident in the provisions of the
Constitution itself. In the decision given by Justice Kania, he opined that “Although in the
constitution of India there is no express separation of powers, it is clear that a legislature is
created by the constitution and detailed provisions are made for making that legislature
pass laws. Does it not imply that unless it can be gathered from other provisions of the
constitution, other bodies-executive or judicial-are not intended to discharge legislative
functions?”
In essence, this judgment implied 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. Also, that it can be assumed that none of the organs of the
State, including the judiciary, would exceed its powers as laid down in the Constitution.
While there was a broad agreement on the principles put forth by this judgment, in
practice, from time to time, disputes continued to arise as to whether one organ of the State
had exceeded the boundaries assigned to it under the Constitution.
This question of what amounts to an excess, was the basis for action in the landmark
Kesavananda Bharti2 case of 1973. The question placed before the Supreme Court in this
case was in regard to the extent of the power of the legislature to amend the Constitution as
provided for under the Constitution itself. It was argued that Parliament was “supreme”
and represented the sovereign will of the people. As such, if the people’s representatives in
2 AIR 1973 SC 1461
Parliament decided to change a particular law to curb individual freedom or limit the scope
of judicial scrutiny, the judiciary had no right to question whether it was constitutional or
not. However, the Court did not allow this argument and instead found in favor of the
appellant on the grounds that the doctrine of separation of powers was a part of the “basic
structure” of our Constitution. As per this ruling, there was no longer any need for
ambiguity as the doctrine was expressly recognized as a part of the Indian Constitution,
unalterable even by an Act of Parliament. Thus, the doctrine of separation of powers has
been incorporated, in its essence, into the Indian laws.
The doctrine of separation of powers was further expressly recognized to be a part of the
Constitution in the case of Ram Jawaya Kapur v. State of Punjab, where 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.
However, it was after the landmark case of Indira Nehru Gandhi v. Raj Narain3 that the
place of this doctrine in the Indian context was made clearer. In this, the election of Mrs.
Indira Gandhi, who was the Prime Minister of India, was challenged in the Allahabad High
Court on the grounds of violation of the election code and misuse of power during her
election campaign. The Allahabad High Court found the claim into alleged violations by the
appellant to be valid and hence cancelled her candidature. Subsequently, a cross-appeal
was filed in the Supreme Court of India. However, before the case could be heard by the
apex court, Mrs. Indira Gandhi exerted influence over the legislature and implemented the
3 AIR 1975 SC 1590
Constitution (Thirty-ninth Amendment) Act, 1975, with the aim of negating the ongoing
judicial process.
The amendment contained the following highly controversial features:
1. First, Article 71 was substituted by a new Article 71 which stated that subject to the
provisions of the Constitution, Parliament may by law regulate any matter relating
to or connected with the election of a President or Vice-President including the
grounds on which such election may be questioned.
2. The second was the insertion of Article 329-A, clause (4) of which directly
concerned the appeals stating that no law made by Parliament before the
commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far
as it relates to election petitions and matters connected therewith, shall apply or
shall be deemed ever to have applied to or in relation to the election the Prime
Minister or the Speaker of the Lok Sabha.
3. The fifth clause of Art. 329-A, provided that any appeal or cross appeal against any
such order of any court as is referred to in Clause (4) pending immediately before
the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before
the Supreme Court shall be disposed of in conformity with the provisions of Clause
4. Finally, the sixth clause of Art. 329-A which stated that the provisions of Article 329-
A would supersede the effect of any other provision of the Constitution implying
that this Article 329-A was superior to the entire Constitution itself.
The question of constitutionality of the said constitutional amendments was brought
before the Court, which held them to be violative of the basic structure of the Constitution.
Further, on the matter of the legislatures’ declaration of validity of the election, the
Supreme Court that, the adjudication of a specific dispute is a judicial function which
parliament even under its constitutional amending power, cannot exercise. Therefore, the
amendment was held to be ultra-vires on the basis that when the constituent body declared
the validity of the election of P.M., it discharged a judicial function, which according to the
principle of separation, should not have been done.
The basic structure doctrine as laid down in Kesavananda Bharti was once again called to
use in the more recent case of I.R. Coelho v. State of Tamil Nadu4. The State had passed a
law creating 69% of reservations in educational institutions, far exceeding the accepted
limit of 50%. In order to protect the said provision from being struck down on the grounds
of being unconstitutional, it was placed under the Ninth Schedule, which was said to be
outside the scope of judicial review. The matter placed before the Court, was a questioning
of the validity of the Ninth Schedule itself, on the grounds that it was not in consonance
with the basic structure of the Constitution. The Court took cognizance of the said
argument and held the Ninth Schedule as being violative of this doctrine and hence even
matters placed under the said Schedule shall henceforth be open to judicial inquiry.
Thereby, this previously protected portion of the Constitution was also brought under the
ambit of the Basic structure theory and the Golden triangle comprising of Art.14, 19 and 21,
making laws placed under it amenable to judicial review.
It is one thing to discuss the usage of the doctrine of separation of powers in normal
governance and entirely another to examine it under the unique circumstances of a
national emergency. In such a period, the likelihood of any organ trying to exceed its power 4 AIR 2007 SC 8617
increases greatly as many of the checks and balances become suspended. However, it is
commonly agreed that even during emergency, the doctrine must continue to be in force.
This scenario was the matter of debate in the case of Rameshwar Prasad v. State of Bihar5,
where the Court was required to determine whether the imposition of Art. 356 in the State
without proper consultation with State authorities or considering the Governor’s report,
amounts to an excessive use of legislative power. Finding that the Central Legislature had
sought to step into the shoes of the State Legislature and thereby usurp the power
completely to itself, in the given case, the Court held there to be a clear violation of the
doctrine of separation of powers. India’s Executive had been found to have committed a
constitutional misdemeanor, for which it needed to apologize to the court and the
parliament and then ask the latter to renew it confidence. If confidence was not renewed,
the government would fall and a new government would have to be formed.
Similarly in Asif Hamid v. State of Jammu & Kashmir6, it was held that the Legislature,
executive and judiciary have to function within their own sphere as demarcated under the
constitution and no organ can usurp the functions assigned to another. The functioning of
the democracy depends upon the strength and independence of each of its organs and
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.
5 AIR 1958 Pat 210, 1957 (5) BLJR 437, 1958 CriLJ 5516 AIR 1989 SC 1899
This was earlier applied in Golaknath v. State of Punjab7 in which the policy of the
government to distribute land under the land reforms scheme was challenged before the
Supreme Court on the ground of violation of fundamental rights. Justice Subba Rao held
that such distribution of land was unconstitutional but applied the decision prospectively
and stated that it is not practically possible to collect the land which was already
distributed to the farmers. It was further opined that the in the interest of the welfare of
the state it was desirable in the interest of justice to apply the decision with prospective
effect and held that after the date of this decision the government couldn’t acquire the
property of any person and parliament didn’t have the power to amend the fundamental
right. The Supreme Court has over the years by the use of doctrine of prospective
overruling has attempted to balance the share of power between judiciary and other
organs of the government.
It is crucial to understand that the doctrine of separation of powers has come a long way
from its theoretical inception. Today, the doctrine in its absolute form is only recognized in
letter as it is unfeasible and impractical for usage in the operation of a government. With
the passage of time, States have evolved from being minimal and non-interventionist to
being welfare oriented thereby playing the multifarious roles of protector, arbiter,
controller and provider to the people. In its omnipresent role, the functions of the State
have become diverse and its problems interdependent hence, any serious attempt to define
and separate the functions would only cause inefficiency in the government.
In reality, the status of modern state is a lot more different than what it used to be. It has
evolved a great deal from a minimal, non-interventionist state to an welfare state, wherein 7 1967 AIR 1643 1967 SCR (2) 762
it has multifarious roles to play, like that of a protector, arbiter, controller, provider. This
omnipresence of the state has rendered its functions becoming diverse and problems,
interdependent and any serious attempt to define and separate those functions would
cause inefficiency in government. Hence, a distinction is made between ‘essential’ and
‘incidental’ powers of an organ. According to this differentiation one organ can’t claim the
powers essentially belonging to other organ because that would be a violation of the
principle of separation of powers. But, it can claim the exercise of the incidental functions
of another organ. This distinction prevents encroachment of an organ into the essential
sphere of activity of the other.
The modern day interpretation of the doctrine does not recognize the division of
Government into three water-tight compartments but has instead provided for the crossing
of rights and duties in order to establish a system of checks and balances. It has been found
that the mere separation of powers between the three organs is not sufficient for the
elimination of the dangers of arbitrary and capricious government as even after the
division of functions, if an authority wielding public power, is provided an absolute and
sole discretion within the body in the matters regarding its sphere of influence, there will
be a resultant abuse of such power. Therefore, a system of checks and balances is a
practical necessity in order to achieve the desired ends of the doctrine of separation of
powers. Such a system, contrary to popular notion, is not dilatory to the doctrine but
necessary in order to strengthen its actual usage. It is however, essential to continuously
question whether powers have been appropriately allocated and whether the checking
mechanisms set up both between and within different branches of State sufficiently
safeguard against the misuse of the powers so granted.
It is the exercise of incidental powers only which has made executive grow everywhere in
this social welfare state. It has assumed a vital role but, it has not usurped any role from
any other wing. It just happened that the other two organs, namely, judiciary and
legislature, became unsuitable for undertaking the functions of this welfare state and as a
consequence the functions of the executive increased. As controller and provider, the
judicial processes were very time consuming and the legislature was overburdened with
work. Therefore, it was in natural scheme of things which made the administrators end up
performing a variety of roles in the modern state including those of legislature and
judiciary too, to an extent.
Further, the check of the adjudicators over functioning’s of the other two has been
regarded as an ‘essential’ feature of the basic structure theory. The judicial review power is
a preventive measure in a democratic country which prevents administrators and law-
makers to exercise their whims and caprices on the lay man and turn it into a despotic
regime. There have been cases where the judiciary has dictated the ambit of their power to
the implementers and the mode to exercise it. Not even the representatives of people are
immune to the power of the courts. Two recent Supreme Court judgments- on the cash-for-
query case and on the Ninth Schedule – have once again brought the powers and roles of
the legislature and the judiciary into focus. In the case of the former, the court upheld the
Lok Sabha’s decision to expel members of Parliament, who were caught on camera taking
bribes, but clearly rejected the contention that it cannot review parliament’s power to
expel MPs and claimed for itself the role of final arbiter on decisions taken by the
legislature. The judgment on the Ninth Schedule has curtailed Parliament’s power to keep
certain progressive laws outside judicial Review.
In the other case, I.R. Coelho vs. State of Tamil Nadu, the Supreme Court took the help of
doctrine of basic structure as propounded in Kesavananda Bharati case and said that Ninth
Schedule is violative of this doctrine and hence from now on the Ninth Schedule will be
amenable to judicial review which also forms part of the basic feature theory. The basic
structure theory and the Golden triangle comprising of A.14, 19, and 21, will now be the
criterion in scrutiny of the Ninth Schedule.
In a democratic country goals are enshrined in the constitution and the state machinery is
then setup accordingly. And here it can be seen that constitutional provisions are made as
such to support a parliamentary form of government where the principle can’t be followed
rigidly. The S.C. rulings also justify that the alternative system of checks and balances is the
requirement, not the strict doctrine. Constitutionalism, the philosophical concept of the
constitution also insists on limitations being placed upon governmental power to secure
basic freedoms of the individual. Hence, the conclusion drawn out of the study is that there
is no strict separation of powers but the functions of the different branches of the
government have been sufficiently differentiated.
It is evident that governments in their actual operation do not opt for the strict separation
of powers because it is undesirable and impracticable, however, implications of this
concept can be seen in almost all the countries in its diluted form. The discrepancies
between the plan and practice, if any, are based on these very grounds that the ideal plan is
impractical for everyday use. Otherwise, the doctrine is itself a part of the founding
structure of the Constitution of all democratic nations. India in particular, relies heavily
upon the doctrine in order to regulate, check and control the exercise of power by the three
organs of Government. Whether in its theoretical conception or its practical usage, the
Doctrine of Separation of Powers is essential for the effective functioning of a democracy.
References
Books
Bakshi, P.M., ‘The Constitution of India’, Universal Law Publishing Co. Pvt. Ltd., 2005. Massey, I.P., ‘Administrative Law’, Eastern book Company, Lucknow, Sixth Edition,
2005 Jain, M.P., ‘Treatise on Administrative Law’, Wadhwa and company Law Publishers,
Agra, Edition 1996
Articles
Baron de Montesquieu, Charles-Louis de Secondat (Stanford Encyclopedia of Philosophy) Plato.stanford.edu. Retrieved 2008-10-29.
lawiki.org law — Separation of Powers: the reality". lawiki.org. Retrieved 2010-09-16.
Cheryl Saunders. "Separation of Powers and the Judicial Branch" C.K.Thakwani, “Lectures on Administrative Law”,4th edn,Eastern Book
Company,2007 Sidhant M, “Separation of Powers: Constitutional Plan and Practice”, Legal Services
India (http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html) Separation of Powers-Indian Context by Deepak Miglani