This article is written by Arushi Chopra, from Symbiosis Law School, Noida. The article deals with the doctrine of separation of power and comparative study of separation of power in India and USA.
Table of Contents
Introduction
In constitutional democracies like India and US, a constitution can be construed to be a power limiting document in its ultimate analysis. It is an organic document which seeks to uphold natural justice and keep a check on the government to ensure that the country does not slip into a tyrannical structure. From the perspective of constitutionalism, the ultimate sovereignty lies with the people and the government exercises this sovereign power on behalf of the people. This spirit of constitutionalism can be ensured by the process of separation of power with respect to the three primary functions of the government i.e. making the laws, executing the laws and interpreting the laws.
Doctrine of separation of power
The idea behind doctrine of separation of power had been in the limelight since the ancient period. The Greek philosopher Aristotle and John Locke had provided details of a utopian society realising separation of power in their respective accounts. The true spirit and significance of the idea was provided by Sir Montesquieu in “The Spirit of Laws”. The doctrine of separation of power essentially entails that the three functions of the government introduced earlier in the article are kept separate. Digging deeper into this concept, the doctrine can be construed to be entailing two important principles without which realising the essence of the doctrine would be an impossible task. First of all, the departments which undertake the functions should be fundamentally separate and independent in its functioning. Secondly, the same persons should not be made a part of two departments.
Ideally, separation of power should be followed absolutely and should not be dispensed with at any cost so as to maintain the spirit of constitutionalism. However, pragmatically absolute isolation of the three departments is not possible and some degree of overlap between the departments becomes necessary in modern democracies. For this very reason, the doctrine of checks and balances comes into picture.
Doctrine of checks and balances
This principle ensures that one department does not function in a tyrannical and unruly fashion for, if this is the case, the balance maintained in the government might get disturbed leading to institutional crisis in the long run. The doctrine is instilled in such a way in the constitutional and political frameworks of the various countries that a scrutiny is kept on each department of the government and at the same time it is ensured that the independence of each of the departments is maintained.
The philosophical and fundamental basis upon which the principle of checks and balances is developed is that though all departments functioning in the country are performing different functions per se but in essence all departments are functioning for the governance of the country. Thus, in order to achieve effective governance, it becomes essential to ensure that the departments do not work in isolation and work in the same direction to achieve the objective.
It is also contended that the separation of power works best if it is coupled with this principle as both can together ensure that there is no holding of power in one department only. If each department is cooperative and careful in its decision making, tyranny and arbitrary system of governance can be abolished from its roots. The inherent advantages of coupling the two doctrines together is the reason due to which all the major constitutional democracies in the world are following the same.
Separation of power in India
It was held in the case of Bandhuva Mukti Morcha v. Union of India [AIR 1984 SC 802] that the Indian Constitution does not explicitly provide for separation of power for all departments per se but it can be implied from the very structure on which the constitution is made. Thus, it has also been included as a basic structure enunciated in case of Kesavananda Bharati vs State of Kerala AIR 1973 SC 1461.
Article 50 of the Indian Constitution is the only article that explicitly provides for separation of powers with respect to the executive and judiciary. However, the rule regarding separating powers and functions of legislature is nowhere mentioned in this provision and in fact the constitution is silent in this regard.
From the provisions of the Constitution, it can be understood that the legislative power resides in both the houses of the parliament as provided under Article 79 and the state legislative bodies as provided under Article 168. The executive power lies with the president as the head at central level under Article 53 and the Governors at various state levels under Article 154 and the judicial power lies with the Supreme Court of India, the various High courts and also the subordinate courts.
In Ram Jawaya v. State of Punjab AIR 1955 SC 549, it was held that executive can be construed to be a part of the legislature and is accountable to it insofar as some functions are concerned. The president is only considered to be a nominal head and the real authority resides with the prime minister.
Practical applicability of the doctrine in India
The separation of powers doctrine is not effective in India in the rigid sense but in a much broader sense and can be implied from the Constitution of India. In Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549, it was held that the only validity of the doctrine in the Indian Constitution is the separation of essential functions of the departments. There are frequent overlaps in the functions and membership in the three organs.
The Parliament also undertakes some judicial functions which are in violation of doctrine of separation of power if it is looked at in the rigid sense. It is to be noted that these judicial functions to be undertaken by the legislative body is laid in the Constitution of India. The legislature also acts as a judicial body in some circumstances like in case of impeachment of the president as has been provided under Article 61.
“When a president is to be impeached for violation of the Constitution, the charge shall be preferred by either house of the parliament.”
The issue of whether the legislature can undertake judicial functions was addressed in the case of Indira Nehru Gandhi v. Raj Narain 1975 AIR 1590 where it was held that two important conditions need to be fulfilled by legislature when they are performing judicial functions. Firstly, the power should be expressly provided to the parliament and second, the due process of law during discharging the function must be upheld.
Coming to the executive department, though the separation of executive from the judiciary has been provided, a thorough reading through the text of the Indian Constitution makes it clear that the president can assume the functions and responsibilities of both legislature and judiciary in some specific cases. Referring to the legislative power, the Constitution of India has expressly provided this power to the president in Article 123 and that to the Governor under Article 213. This power to make laws can be exercised by the executive at the time of recess of the parliament when an emergency is declared.
The executive can also exercise legislative powers through delegated legislations. The rule regarding delegated legislation and its applicability was decided in Delhi Laws Act, 1912, re 1951 SCR 747 where it was held that due to the very reason that the Constitution had expressly provided for legislative procedure and entrusted it with the parliament, the makers had given a trust to the legislative department that the lawmaking function would be carried by them alone. However, this extends only to essential legislative functions and these cannot be delegated. Other ancillary law making functions can be delegated by the legislatures. With regards to performing judicial functions by executive, it is well established that tribunals and quasi-judicial bodies that are executives perform functions of interpreting the laws.
There exists a certain degree of overlapping with regards to the legislative and executive powers which is, in certain circumstances, assumed by the judiciary. Article 141 and 142 provides power to the Supreme Court of India to make laws or pass a decree to ensure complete justice for the people which is fundamentally the function of the legislature and executive departments.
Separation of personnel
As has been highlighted earlier, the doctrine of separation of power entails two important features – there should be no overlap between the departments, and same persons should not be a part of more than one department. It has already been established that in India, certain degree of overlapping in the functioning of the departments of government is pertinent and has been duly provided in the Constitution. The principle of separation of personnel is violated in case of India with regards to the president of India who is a part of both the legislation and the executive body.
Doctrine of checks and balances
India has adopted the doctrine and all the departments work in cooperation with one another for the smooth governance of the country. The doctrine of judicial review is one of the prime instruments for conducting checks and balances. The Supreme Court of India has the power of judicial review and can check for laws to be consistent with the fundamental rights as provided under Article 32 and 136. The apex court can check for the laws made by the legislature to not be violating the basic structure of the Constitution. The quasi-judicial functions performed by the bodies like tribunals can also be checked by the higher courts. In all the above given instances, the judiciary is keeping a check on the other departments of the government.
The constitution of India makes sure that there are adequate checks on the judiciary to ensure that no arbitrary actions are undertaken by this department. The executive keeps a check on the judiciary by being a part of appointments of judges. However, a balance is sought in this regard to ensure that the judiciary remains independent in its functioning and does not end up becoming puppets in the hands of the other departments. The judges can accordingly not be appointed by the executive without seeking opinion from the collegium of judges. The judges are also provided their payment of salaries and pensions directly from the consolidated fund of India. The President who is considered to be the nominal head of India has to function under the advice of the council of ministers who are a part of the legislature.
Separation of powers in the Constitution of USA
Theoretically, the USA encompasses rigid separation of powers but practically the doctrine is coupled with the doctrine of checks and balances in a bid to produce effective and efficient governance.
The Constitution of the US expressly provides for three departments of the government and the functions performed by each of these departments. Article I of the Constitution provides for power of the legislature and it is provided that Congress holds all the legislative powers in the country. Similarly, Article II provides for executive powers to be vested with the president and Article III provides for judicial powers to be vested in the apex court i.e. the Supreme Court and the other lower courts.
Delegated legislations
Delegated legislations are considered by some to be faulty in its functioning as they undermine the spirit of separation of powers. This is because, if other departments and their constituent bodies frame laws under delegated legislations, it would create functional overlap between the departments and this would be against the principle of separation of power.
The constitution of the USA applies separation of power somewhat more strictly than that in India. Thus, in theory the legislature cannot delegate its rule making power to any other department or its constituents. However, there have been many instances where the congress has delegated its rule making power and the rules thus framed are upheld by the apex court.
Doctrine of checks and balances
One of the significant features of the Constitution of USA is that though the separation of power doctrine is implicit in the political philosophy of the constitution and the basis for its establishment, the rule of checks and balances is so embedded in the constitution so as to make it an inseparable structure of the document.
Thus the checks kept on one department by the others has very well been established in the constitution. The power to legislate by the Congress is kept under check by the executive i.e. the President by exercising his veto power to legislate in certain matters. The President can also call on Congress meets at his disposal. The provision of judicial review, which like in India, can be implied from the text of the constitution, also keeps a check on the Congress and in this regard the apex court can declare any law to be unconstitutional and hence void.
In America the president is considered to be the real head of the executive. The president has a fixed tenure and can be removed only through a difficult process of impeachment. The president is not answerable to congress and the president is not required to consider the decisions of the secretary and in this sense is different from India. However, this should not be construed to mean that the president has absolutely unlimited powers and there is absolutely no check kept on the President by the other departments. The rules framed by the president can be checked for constitutionality and any rule inconsistent with the constitution can be declared to be unenforceable by the apex court. The Congress also keeps a check on the executive by deciding upon the payment to be received by the personnel of the executive and framing rules for functioning of the executive. This in no way implies that the Congress can frame arbitrary and unreasonable rules with respect to the executive department and its functioning. This power is limited by the judiciary which can declare any rule made by the Congress or the executive to be unconstitutional.
Though judicial independence is kept in consideration, some checks are kept on this department. The Congress encroaches upon the judicial decisions in accordance with the constitution. The phrase “with such exceptions, and under such regulations as the Congress shall make” in Article III Section 2 of the constitution of USA evidences for the same. Also the Congress has the power to make inferior courts and also specify their jurisdiction and with this power not vested within the judiciary, a check is maintained as per Article III Section 1.
Observation and conclusion
By going through the different provisions of the respective constitutions of India and USA, it can be observed that though both the countries do not provide for absolute and rigid separation of power, the separation of power applied by the Constitution theoretically in the US is stricter than that applied in India.
Though the Constitutions of both the countries do not explicitly provide for separation of power in all the departments, it can very well be implied from the various provisions of the constitution.
The fundamental difference which becomes evident in the operation of the doctrine in both the countries is the leadership exercised on the president and the executive. In the USA, the control of executive over legislature and vice-versa is relatively less effective than in India. In the USA, the president can be construed to be a real executive head and there is the existence of the presidential form of government. This essentially implies that in theory, the president is independent in its functioning and is not accountable to the legislature insofar as the action is within the constitutional boundaries. The power of judicial review to the acts of the president is nevertheless available to the Supreme Court. Likewise, the legislature is also independent in its functioning from the executive and the president does not have the power to dissolve a presiding congress.
A distinction in this regard has to necessarily be made with regards to the Indian scenario and the control of legislature over the executive and vice-versa. In India, the president can only be considered to be the nominal head. The president has to make decisions under the aid and advice of the council of ministers who are a part of the legislature. Also, the prime minister, who may be construed to be the real head can dissolve a parliament.
Another pertinent difference that arises in the structure of the two countries is that in the USA, there is absolute separation of personnel between all the three departments which has been guaranteed by the constitution. On the other hand, the Indian Constitution provides for no such separation per se. Also, there is some overlap of personnel in the legislature and executive prevalent in India.
Therefore, it can be pointed out that though there remain fundamental similarities in the operation of the doctrine in India and USA, there are certain differences which cannot be overlooked. The structure adopted by both the countries is often criticised. However, it is pertinent to note that both the countries have adopted the practice which would be best for them keeping in mind the social and historical conditions that the countries had been through.
References
[1] Charles de Secondat; B. de Montesquieu (1748), ‘The Spirit of Laws’, trans. Thomas Nugent, viewed 27 October 2020, <https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/montesquieu/spiritoflaws.pdf>
[2] Rai U., ‘Constitutional Law – I: Structure’, Eastern Book Company, viewed 26 October 2020, EBC Reader Database
[3] Sencha J., ‘Doctrine of Separation of Power – Comparative Study between USA and India’, Vol 6, Legal voice of India, viewed 28 October 2020, <http://thelegalvoiceofindiaiil.org/volume-6/doctrine-of-separation-of-powers-comparative-study-between-usa-india/>
[4] ‘Separation of Powers’, Legal Information Institute, Cornell Law School, viewed 29 October 2020, < https://www.law.cornell.edu/wex/separation_of_powers>
[5] Singh MP, ‘Comparative Constitutional Law’, ed. 2, Eastern Book Company, viewed 29 October 2020, EBC Reader Database
[6] The Constitution of United States of America, viewed 27 October 2020, https://www.senate.gov/civics/resources/pdf/US_Constitution-Senate_Publication_103-21.pdf
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