By Yashu Bansal, Chanakya National Law University, Patna
Editor’s Note: This note explains the doctrine of separation of powers given by French scholar Montesquieu in the eighteenth century. It deals with the doctrine under the Constitutions of the United States and United Kingdom, and also analyses how the doctrine has been expounded by the judiciary in India.
“Power corrupts and absolute Power tends to corrupt absolutely”.
It is widely accepted that for a political system to be stable, the holders of power need to be balanced off against each other. The principle of separation of powers deals with the mutual relations among the three organs of the government, namely legislature, executive and judiciary. This doctrine tries to bring exclusiveness in the functioning of the three organs and hence a strict demarcation of power is the aim sought to be achieved by this principle. This doctrine signifies the fact that one person or body of persons should not exercise all the three powers of the government.
The theory of Doctrine of Separation of Power was first propounded by Montesquieu, a French scholar in and 1747 published in his book ‘Espirit des Louis’ (The spirit of the laws). Montesquieu found that if the power is concentrated in a single person’s hand or a group of people then it results in a tyrannical form of government. To avoid this situation with a view to checking the arbitrariness of the government he suggested that there should be clear-cut division of power between the three organs of the state i.e. Executive, Legislative and the Judiciary.
Further Montesquieu explained the doctrine in his own words:
“When the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not separated from the legislative and executive powers. Where 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. Where it joined with the executive power, the Judge might behave with violence and oppression. There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”
The theory of separation of powers signifies three formulations of structural classification of governmental powers:
- The same person should not form part of more than one of the three organs of the government. For example, ministers should not sit in Parliament.
- One organ of the government should not interfere with any other organ of the government.
- One organ of the government should not exercise the functions assigned to any other organ.
Separation of Powers under Different Constitutions
Despite the safeguards it gives against tyranny, the modern day societies find it very difficult to apply it rigidly. In principle they go for separation of powers and dilution of powers simultaneously.
The doctrine of separation finds its home in U.S. It forms the basis of the American constitutional structure.
Article I, section 1 vests all legislative power in the Congress,
Article II, Section 1 vests all executive power in the President of the United States, and
Article III, Section 1 vests all judicial power in the Supreme Court.
The framers of the American Constitution believed that the principle of separation of powers would help to prevent the rise of tyrannical government by making it impossible for a single group of persons to exercise too much power. Accordingly, they intended that the balance of power should be attained by checks and balances between separate organs of the government. This alternative system existing with the separation doctrine prevents any organ to become supreme.
Despite of the express mention of this doctrine in the Constitution, the U.S. incorporates certain exceptions to the principle of separation with a view to introduce a system of checks and balances. For example, a bill passed by the Congress may be vetoed by the President in the exercise of his legislative power. Also treaty-making power is with the President but it is not effective till approved by the Senate. It was the exercise of executive power of the senate due to which U.S. couldn’t become a member to League of Nations. The Supreme Court has the power to declare the acts passed by Congress as unconstitutional.
England follows a parliamentary form of government where the Crown is the nominal head and the real legislative functions are performed by the Parliament. The King though an executive head, is also an integral part of the legislature and all his ministers are also members of one or other of the Houses of the Parliament. Furthermore, the Lord Chancellor is at the same time a member of the House of Lords, a member of the government, and the senior most member of the judiciary.
The judiciary is independent but judges of the superior courts can be removed on an address from both house of Parliament. The House of Lords combines judicial and legislative functions. Legislative and adjudicatory powers are being increasingly delegated to the executive. The resting of two powers in a single body, therefore denies the fact that there is any kind of separation of powers in England.
On a casual glance at the provisions of the Constitution of India, one may be inclined to say that that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution, executive powers are with the President, legislative powers with Parliament and judicial powers with judiciary.
The President’s function and powers are enumerated in the Constitution itself. Parliament is competent to make any law subject to the provisions of the Constitution and there is no other limitation on it legislative power. The Judiciary is independent in its field and there can be no interference with its judicial functions either by the Executive or by the Legislature. The Supreme Court and High Courts are given the power of judicial review and they can declare any law passed by the Parliament or the Legislature unconstitutional. Taking into account these factors, some jurists are of the opinion that the doctrine of Separation of Powers has been accepted in the Indian Constitution.
If we study the constitutional provisions carefully, it is clear that the doctrine of Separation of Powers has not been accepted in India in its strict sense. In India, not only there is functional overlapping but there is personnel overlapping also.
The Supreme Court has power to declare void the laws passed by the legislature and the 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. The executive can affect the functioning of the judiciary by making appointments to the office of Chief Justice and other judges. One can go on listing such examples yet the list would not be exhaustive.
Separation of Powers and Judicial Pronouncements in India
The first major judgment by the judiciary in relation to Doctrine of separation of power was in Ram Jawaya v state of Punjab[i]. The court in the above case was of the opinion that the doctrine of separation of power was not fully accepted in India. Further, the view of Mukherjea J. adds weight to the argument that the above-said doctrine is not fully accepted in India. He states that:
“The Indian Constitution has not indeed recognized the doctrine of separation of powering its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another”.
Then in Indira Nehru Gandhi v. Raj Narain[ii], where the dispute regarding Prime Minister’s election was pending before the Supreme Court, it was held that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise. So, the main ground on which the amendment was held ultra vires was that when the constituent body declared that the election of Prime Minister wouldn’t be void, it discharged a judicial function that according to the principle of separation it shouldn’t have done. The place of this doctrine in the Indian context was made a bit clearer after this judgment.
The Supreme Court in Keshvananda Bharti v Union of India[iii] was of the view that amending power was subject to the basic features of the Constitution. And hence, any amendment tampering these essential features will be struck down as unconstitutional. Beg, J. added that separation of powers is a part of the basic structure of the constitution. None of the three separate organs of the republic can take over the functions assigned to the other. Hence this further confirmed the opinion of the court in relation to the doctrine of separation of power.
The doctrine of separation of powers in the strict sense is undesirable and unpractical and therefore till now it has not been fully accepted in any of the country, but this does not mean that the doctrine has no relevance in the world of today. The logic behind this doctrine is still valid. The logic behind the doctrine is of polarity rather than strict classification, meaning thereby that the centre of authority must be dispersed to avoid absolutism. Hence the doctrine can be better appreciated as a doctrine of ‘check and balance’.
Edited by Kudrat Agrawal
[i] AIR 1955 SC 549.
[ii] 1975 Supp SCC 1.
[iii] (1973 ) 4 SCC 255.