Editors Note: The doctrine of separation of powers is essentially what fortifies the three pillars of democracy. Without such a demarcation, the point of such offices and such pillars is redundant, and the nation might as well be a dictatorial state, with all three pillars working in collusion. This paper compares the doctrine of separation of powers in India, the U.S.A. and England, and the reiteration of this demarcation in the three nations by the judiciary.
The doctrine of Separation of Powers emphasizes the mutual exclusiveness of the three organs of government, viz., legislature, executive and judiciary. The main underlying idea is that each of these organs should exercise only one type of function. There should not be concentration of all the functions in one organ otherwise it will pose a threat to personal freedom, for; in that case, it could act in an arbitrary manner. It could enact a tyrannical law, execute it in a despotic manner and interpret it in an arbitrary manner without any external control. The purpose underlying separation doctrine is to diffuse governmental authority so as to prevent absolutism and guard against tyrannical and arbitrary powers of the state, and to allocate each function to the institution best suited to discharge it. The rationale underlying the doctrine that been that if all power is concentrated in one and the same organ, there would rise the danger of state absolutism endangering the freedom of the people. However, it needs to be appreciated that in considering this doctrine, we have moved from the discipline of law to that of political theory. The separation of powers is a doctrine not a legal principle.[i]
There is an old adage containing a lot of truth that “power corrupts and absolute power corrupts absolutely”. To evolve effective control mechanism, man had been looking for devices to contain the forces of tyranny and authoritarianism. “Separation of Powers” was conceived to be one such device.
It may not be possible to state precisely the origins of the doctrine of separation of powers. However, if we look to the writings of the Greek philosopher Aristotle, it is possible to discern a rudimentary separation of powers doctrine. Thus in his Politics, Aristotle remarked that:
There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these three elements. The three are, first the deliberative, which discusses everything of common importance; second, the officials . . .; and third, the judicial element.
The English political theorist, JohnLocke (1632-1704), also envisaged a threefold classification of powers. Writing in The Second Treatise of Government (1689), Locke drew a distinction between three types of power: legislative, executive and federative. . In Locke’s analysis, the legislative power was supreme and although the executive and federative powers were distinct, the one concerned with the execution of domestic law within the state and the other with a state’s security and external relations, he nevertheless took the view that ‘they are always almost united’ in the hands of the same persons. Absent from his classification is any mention of a separate judicial power. Moreover, the proper exercise of these powers is achieved not through separation but on the basis of trust i.e., that a community has entrusted political power to a government. Thus, Locke’s analysis does not, strictly speaking, amount to the exposition of a doctrine of the separation of powers.[ii]
The doctrine saw its full expansion in the hands of Charles Louis de Secondat, otherwise known as Baron de Montesquieu (1689-1755). He felt that the history of despotic Tudors and absolutist Stuarts, showed that freedom was not secured, if the executive and the legislative powers were held in the same hands. He deduced his ideas of separation of powers from his observations and ideas of the relations between the Stuart King and the Parliament. He thought that Parliament would never be arbitrary, and the denial of legislative power to the King alone could make the rule by extemporary decrees impossible. Montesquieu having experienced the tyrannies in the monarchical France, must have watched the conditions on the other side of the Channel with envy. In the second half of the 17th century, he would not fail to notice that the Englishmen stood under the warm sunshine of the Magna Carta. Having lost his legislative and tax powers to the Parliament, the English King was left with no prerogative. Parliament made the laws. His Majesty’s Government was, even though the cabinet system was not yet developed, administering the laws passed by Parliament. By the end of the century the judges, like the Great Coke, could not be dismissed by the King at his will, because the Act of Settlement gave them tenure during good behavior as distinguished from tenure during the pleasure of His Majesty. Montesquieu concluded that the secret of the Englishmen’s liberty was the separation and functional independence of the three departments of the Government from one another.[iii]
In his book, De L’Esprit des Lois (The Spirit of the Laws) 1748, Montesquieu stated:
When legislative power is united with executive power in a single person or in a single body of the magistrates, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will executive them tyrannically. Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor. All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.[iv]
SEPARATION OF POWERS IN INDIA
In India, the doctrine of Separation of Powers has not been accorded a constitutional status. Apart from the directive principle laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers.[v]
As a general provision, Parliament is entrusted to make the law for the union. Executive is entrusted with duty of implementation of law and judiciary is also considered to be independent under the constitutional scheme in India. However, there are many exceptions which negate the application of this doctrine.[vi]
Under Article 53 the executive powers of the union are vested with the President and under Article 154 the Governor is vested with execution powers but they do exercise their powers with the aid and advice of the council of ministers at the Centre (Article 74) and at the State, as the case may be. Both President and Governor exercise the power of ordinance making under the constitution thus performing legislative functions. President makes laws for a State, after the dissolution of the State Legislature, following the imposition of the President’s Rule (Article 356). President has the power to disqualify any member of the house under Article 103. The judges of the Supreme Court are appointed by the President, while the parliament has the power to impeach the judges. The President has the power to decide a disputed question of the age of a judge of Supreme Court or any High Court for purpose of set restrain from the judicial service.
The Union Council of Ministers is responsible to the Lok Sabha (Article 75). This house has the powers to start impeachment proceedings against the President (Article 61) and the judges of the Supreme Court. The members of Council of Ministers will be members of either house of Parliament under Article 75(5) which means there is overlapping of personnel also.[vii]
The judicial function of Parliament is too substantial in certain respects. It can consider the question of breach of any known parliamentary privilege; and in a case where the charge is established have power to punish for their contempt.
The High Courts in certain marginal spheres perform such functions which are administrative rather than judicial. Their power of supervision over other subordinate courts under Article 227 is more of the administrative nature than judicial. When under Article 228 they have power to make transfer of cases, they exercise administrative control over the State district courts as well. The legislative power of the High Courts and the Supreme Court includes their power to frame rules which is fairly wide.
The Executive in India is authorized to legislate in the name of delegated legislation. In the name of administrative adjudication of the right of individual citizens, the administrative agencies, which are statutory tribunals and domestic tribunals have been constituted and perform judicial function.[viii]
Judicial Opinion of the Doctrine of Separation of Powers
There have been several landmark judgements that have changed the face of the doctrine of separation of powers in India. These are discussed in this section.
The only validity of the doctrine of separation of powers is in the sense that one organ should not assume the essential functions of the other. This was the view of Supreme Court in Ram Jawaya Kapur v. State of Punjab [AIR 1955 SC 549], it was held that the
“…Constitution has not indeed recognized the doctrine of separation of powers in 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.”[ix]
Since after the Kesavananda Bharti v. State of Kerala [AIR 1973 SC 1461], and the judicial articulation of the doctrine of basic structure and essential features of the Constitution therein, the separation of powers is spoken as a structural basis of the constitutional framework and cannot be destroyed by any amendment.[x]
The doctrine puts less and less emphasis on organizational pattern, and seeks to effect increasingly functional division. In re Delhi Laws Act case [AIR 1951 SC 332], Hon’ble Kania, CJ., observed that.
“Although in the Constitution of India. . . . . . there is no express separation of power, it is clear that a legislature is created by the Constitution and detailed provisions are made for making that legislature pass laws. Is it then too much to say that under the Constitution the duty to make laws, the duty to exercise its own wisdom, judgment and patriotism in making law is primarily cast on Legislature? 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?”[xi]
Therefore, the functions of different organs are clearly earmarked so that one organ does not usurp the functions of another. In Indira Nehru Gandhi v. Raj Narain [AIR 1975 SC 2299], Ray CJ., also observed that in the Indian Constitution there is separation of powers in broad sense only. Beg, J., has observed that basic structure also embodies the separation of powers doctrine and none of the pillars of the Indian Republic can take over the other functions, even under Article 368. Chandrachud, J., reiterated this view and held that this doctrine is useful as a means of checks and balances in a political setup. For examples the judiciary should shy away from the politics of the Parliament and the latter should revere the opinion of the Courts.[xii]
On a casual glance at the provisions of the Constitution of India, one may be inclined to say that the doctrine of broad division of the power of state has been accepted under the Constitution of India. In Golaknath v. State of Punjab [AIR 1967 SC 1643], Subba Rao, CJ., observed:
“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.”
In Bandhuva Mukti Morcha v. Union of India [AIR 1984 SC 802], Pathak J., said:
“The Constitution envisages a broad division of the power of state between the legislature, the executive and the judiciary. Although the division is not precisely demarcated, there is general acknowledgment of its limits. The limits can be gathered from the written text of the Constitution, from conventions and constitutional practice, and from an entire array of judicial decisions.”[xiii]
Essential functions were defined in Mallikarjuna v. State of Andhra Pradesh [AIR 1990 SC 1251], when the Andhra Pradesh Administrative Tribunal directed the State Government “to evolve proper and rational method of determination of seniority among the veterinary surgeons in the matters of promotions to next higher rank of Assistant Director of Veterinary Surgeons”. The Supreme Court quashed the aforesaid direction and observed that the power under Article 309 of the Constitution to frame rules is the legislative power which has to be exercised by the President or the Governor of the State as the case may be. The High Court or Administrative Tribunals cannot issue a mandate to the State Government to legislate on any matter. In this way the principle of restraint prevents any organ of the State from becoming superior to another or others in action.
Similarly, in Supreme Court Employees’ Welfare Association v. Union of India [AIR 1990 SC 334], it was held that no court can issue a direction to a legislature to enact a particular law neither it can direct an executive authority to enact a law which it has been empowered to do under the delegated legislative authority.[xiv]
SEPARATION OF POWERS IN USA
If the Rule of Law as enunciated by Dicey affected the growth of Administrative Law in Britain; the doctrine of ‘Separation of Powers’ had an intimate impact on the development of Administrative Law in the U.S.A. As Davis points out “probably the principal doctrinal barrier to the development of the Administrative process has been the theory of separation of powers”. The truth is that while the doctrine of separation has affected the character of the American Administrative Law, the doctrine itself has been affected by the newly emerging trend in favour of Administrative Law.[xv]
The doctrine of separation forms the basis of American constitutional structure. Articles I, II and II delegate and separate powers and also exemplify the concept of separation of powers. Art. I vests legislative power in the Congress; Art. II vests executive power in the President and Art. III vests judicial power in the Supreme Court.[xvi]The ideal of separation, both functional and personnel is yet unrealized but nearest approximation is reached in the State Constitution of Massachusetts in the U.S. It is said therein, that-
… The legislative department shall never exercise the executive or judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative or executive powers, or either of them; to the end it may be a government of law and not of men.[xvii]
Presidential Form of Government
The form of government, characterized as presidential, is based on the theory of separation between the executive and the legislature. The President is both the head of the state as well as its chief executive. He appoints and dismisses other executive officers and thus controls the policies and actions of government departments. The persons in charge of the various departments, designated as the Secretaries of State, hold office at his pleasure, are responsible to him and are more like his personal advisors. The President is not bound to accept the advice of a Secretary and the ultimate decision rests with the President. Neither the President nor any member of the executive is a member of the Congress and a separation is maintained between the legislative and executive organs. This system of government is fundamentally different from the parliamentary system prevailing in India.[xviii]
In U.S.A., the President is not in theory responsible to the Congress unlike India where the cabinet is collectively responsible to the Parliament. The President has a fixed tenure of office and does not depend on majority support in the Congress. Before the expiry of his term, he can be removed only by the extremely cumbersome process of impeachment. Nor can the President dissolve the Congress whereas in India, Prime Minister has the power to seek dissolution of the Parliament. The executive therefore is not in a position to provide effective leadership to the legislature and it is not always that the Congress accepts the programme and the policy proposed by the executive. The independence of the Supreme Court is constitutionally guaranteed.[xix]
Principle of Checks and Balances
The U.S. Constitution however incorporates some exceptions to the doctrine of separation with a view to introduce the system of checks and balances. For instance, a bill passed by the Congress may be vetoed by the President and, to this extent the President may be said to be exercising a legislative function. Again, appointment of certain high officials is subject to the approval of the Senate. Also, treaties made by the President are not effective until approved by the Senate; to this extent, therefore, the Senate may be deemed to be exercising executive functions. The Congress continuously probes into executive functioning through its various committees, and also has the power to tax and sanction money for governmental operations. The Supreme Court has the power to declare the Acts passed by the Congress unconstitutional. But the judges of the Supreme Court are appointed by the President with the consent of the Senate. This exercise of some part of the function of one type by an organ of the other type is justified on the basis of the theory of checks and balances. It means that the functioning of one organ is checked in some measure by the other organ so that no organ mat run amok with its powers and misuse the same.[xx] Thus, in the case of Panama Refining Company v. Ryan [(1935)293 U.S. 388(400)], commenting on the practicality of the doctrine J. Cardozo said:
“The doctrine of “separation of powers” is not a doctrinaire concept to be made use of with pedantic rigor. There must be sensible approximation, there must be elasticity of adjustment in response the practical necessities of government which cannot foresee today the development of tomorrow in their nearly infinite variety.”[xxi]
Administrative Growth and Separation of Powers
Administrative law and separation doctrine are somewhat incompatible, for modern administrative process envisages mingling of various types of functions at the administrative level. Had the doctrine of separation been applied strictly in the U.S.A., the growth of administrative process would have been extremely difficult and modern government might have become impossible. For practical reasons therefore the doctrine of separation has to be diluted somewhat to accommodate the growth of administrative process.[xxii]
The American Administrative Law has certain distinctive features which are a product of separation doctrine. A significant breach of the doctrine occurred when the courts concede the legislative power could be conferred on administrative authorities, and thus, the system of delegated legislation came in vogue. But, in a bid to reconcile the separation doctrine, the courts laid down that Congress cannot confer an unlimited legislative power on an administrative authority, that the Congress must not give up its position of primary legislator and that the Congress should therefore lay down the policy which the delegate is to follow, while making the rules.[xxiii] J. Mukherjee in re Delhi Laws Act [Supra] case observed:
“The position in America is that despite the theory that legislature would not delegate its power to the executive a host of rules and regulations are passed by non-legislative bodies, which have been judicially recognized as valid.[xxiv]”
SEPARATION OF POWERS IN ENGLAND
Maitland traces the doctrine of Separation of Powers in England to the reign of King Edward I (1239-1307). He observes that all the three elements were present in the form of Parliament, King’s Council and Courts of Law.
Viscount Henry St. John Boling Broke (1678-1751) in his book “Remarks on the History of England” advanced the idea of separation of powers. He laid emphasis on balance of powers within the constitution because an imbalance would destroy it. He asserts that for protection of liberty and security in a state, equilibrium is needed between the Crown, the Parliament and the people.
Although Motesquieu derived the concept of his doctrine of separation of powers from the British Constitution, as a matter of fact at no point of time this doctrine was accepted in its strict sense in England. On the contrary, in reality, the theory of integration of powers has been adopted in England. It is true that the three powers are vested in three organs and each has its own peculiar features, but it cannot be said that there is no ‘sharing out’ of the powers of the government. Thus, the King, though an executive head is also an integral part of the Legislature. Similarly, all his Ministers are also members of one or the other Houses of the Parliament. The Lord Chancellor is head of judiciary, Chairman of the House of Commons (Legislature), a member of the executive and often a member of the cabinet. The House of Commons ultimately controls the Legislative. The judiciary is independent but the judges of the superior courts can be removed on an address from both Houses of Parliament.[xxv]
In England, S.O.P has historical relevance only. Daniel Ullman says, “England is not the classic home of the separation of powers. Each power there has taken on a character of its own, while at the same time preserving the features of the others.” The position has been summed up by the Donoughmore Committee in the following words:-
“In the British Constitution there is no such thing as the absolute separation of legislative, executive and judicial powers. In practice it is inevitable that they overlap. In such Constitutions as those of France and the United States of America, attempts to keep them rigidly apart have been made, but have proved unsuccessful. The distinction is nonetheless real and… important. One of the main problems of modern democratic State is how to preserve the distinction whilst avoiding too rigid an insistence on it, in the wide border land where it is convenient to entrust minor legislative and judicial functions to executive authorities.”[xxvi]
The U.K. does have a kind of separation of powers, but unlike United States it is informal. Black Stones theory of ‘Mixed Government’ with checks and balances is more relevant to the U.K. Separation of powers is not an absolute or predominant feature of the U.K. Constitution. The three branches are not formally separated and continue to have significant overlap.
The U.K. is becoming increasingly concerned with the Separation of powers, particularly because of Article 6 of the European Convention on Human Rights which protects the right to fair trial. The Constitutional Reforms Act, 2005 reforms the office of Lord Chancellor and the Law Lords will stop being in the legislature. Section 23 of the Act provides for establishment of Supreme Court of United Kingdom. The Supreme Court whose powers have been separated from the powers of Parliament has become functional since October, 2009. Section 61 of Constitutional Reforms Act, 2005 provides for Constitution of Judicial Appointments Commission, for appointments of Judges in the Supreme Court as well as the court of appeal. Thus by and large independence of Judiciary has been ensured by the Constitutional Reforms Act, 2005.[xxvii]
On numerous occasions, senior judges have expressed the opinion that the U.K. Constitution is base on a separation of powers. Thus in Duport Steels Ltd. v. Sirs (1980), Lord Diplock stated that:
“At a time when more and more cases involve the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasized that the British Constitution, though largely unwritten, is firmly based in the separation of powers; Parliament makes the laws, the judiciary interprets them.”[xxviii]
The modern interpretation of the doctrine of separation of powers is not a mere theoretical philosopher’s conception. It is a practical work-a-day principle. The division of Government into three branches does not imply, as its critics would have us think, three water-tight compartments. The machinery and procedure of legislative impeachment of executive officers and judges, executive veto over legislation and appointment of judges and judicial review of legislation and executive action are essential features of any sound constitutional system. It is said that instead of applying the doctrine in a strict sense of the functional machinery and procedures of the Government, the doctrine should be deemed to require a system of checks and balances among the three departments of the Government while opposing the concentration of governmental powers in any of the three departments.
Edited By Drishti Das
[i] Commentary: Jain M.P & S.N Jain, “Principles of Administrative Law”, Wadhwa & Company Nagpur, 2007, pp 31,32.
[ii] Parpworth Neil, “Constitutional & Administrative Law”, Oxford University Press United Kingdom, 2012, pp 18,19.
[iii] Jain Kagzi M.C., “The Indian Administrative Law”, University Law Publishing Co. Pvt. Ltd., 2002, pp 15,16.
[iv] Supranote 2, pp 19,20.
[v] Massey I.P, “Administrative Law”, Eastern Book Company, Lucknow, 2012, p 40.
[vi] Kumar Devinder, “Administrative Law”, Allahabad Law Agency, Faridabad, 2007, p 19.
[vii] Id, p 20.
[viii]Supra note 3, p 19.
[ix]Supra note 5, p 40.
[x]Supra note 3, p 20.
11 Jain M.P & S.
N Jain, “Principles of Administrative Law”, Wadhwa & Company, Nagpur, 2007, p 26.
[xii] Kesari U.P.D, “Lectures on Administrative Law”, Central Law Publications, Allahabad, 2005, pp 23,24.
[xiii] Upadhaya J.J.R, “Administrative Law”, Central Law Agency, Allahabad, 2006, p 40.
[xiv]Ibid, p 42.
[xv]Supra note 1, p 31.
[xvi]Ibid, p 32.
[xvii]Supra note 3, p 16.
[xviii] Supra note 1, p 32.
[xx]Ibid, p 32,33.
[xxi]Supra note 13, p 39.
[xxii]Supra note 1, p 33.
[xxiv]Supra note 13, p 39.
[xxvi]Supra note 3, p 16.
[xxvii]Supra note 11, p 25.
[xxviii]Supra note 2, pp 26,27.