This article is written by Avani Laad.

Introduction

Lord Acton, the ‘magistrate of history’, has rightly aphorized- “Power corrupts and absolute Power tends to corrupt absolutely”. In the context of governance, it indicates that absolute power conferred upon a single authority is inclined to yield arbitrariness. The concept of separation of power provides a bulwark against this corruption and entails the apportionment of power and delineation of boundaries between three distinct branches of the government, as opposed to concentrating power in a single person or group of persons. 

Being an ancient doctrine and not a legal principle, separation of powers has undergone evolution to reach the state in which it exists today. Under the modern view, the legislative, the executive and the judiciary have been generally accepted to constitute these three wings of the Government and different powers, functions and responsibilities are equally and independently accorded to each of them. The legislative corresponds to the making of laws, rules and regulations and their amendment. The executive corresponds to the enforcement and implementation of the laws so made. The judiciary corresponds to the application of the laws and the protection of the rights of individuals. A pure form of this theory consists of the following features-

1. Division of Governmental functions between the Legislature, Executive and Judiciary.
2. Independence in the exercise of functions of these branches in a way that no organ encroaches the functions of another.
3. Separate and distinct individuals in all branches with no person being a member of more than one branch.

Thus, in essence, this doctrine prescribes that the legislature cannot exercise executive or judicial powers, the executive cannot exercise legislative or judicial powers, and the judiciary cannot exercise legislative or executive powers.

Different constitutional systems showcase different variations and forms of this theory, suited to their specific requirements. Thus, the doctrine is not rigid in nature and can be flexibly moulded to fit into the unique situations of different states. Nonetheless, in all its many forms, the spirit of this theory remains intact and is commonly shared by most modern democracies – that all power should not be conferred upon a single institution and should be divided within multiple institutions.

To know more about the separation of powers and its relevance in brief, please refer to the video below:

Evolution

Origins – Aristotle

The first allusion to this doctrine can be found in the 4th Century B.C. under Aristotle’s treatise called ‘Politics’. In the treatise, Aristotle propounds that every constitution consists of three agencies, namely, the deliberative, the magistracies and the judiciary. Around the same time, the Roman republic also observed a somewhat similar form of political structure wherein the public assemblies, senate and public officials constituted the three branches of their government and functioned on a system of checks and balances. The fall of the Roman empire saw the fragmentation of Europe into nation states, where the political system mostly concentrated all the power upon a single entity, that is, the ruler.

John Locke

In the 17th Century, England witnessed the emergence of the Parliament, and a semblance of the tripartite governmental structure was expounded by the British politician John Locke in his book titled ‘Two Treatises of the Government’. Locke described the three powers as being legislative, executive and federative, but did not envision a coequal or independent distribution of functions among them. Rather, he regarded the legislative as the supreme branch, while the executive and federative branches were only concerned with the internal and external affairs of the country respectively, operating under the control and authority of the King. His theory was more in consonance with the prevailing dual form of government in England at that point of time, which fixated upon the Parliament and the King. Furthermore, Locke’s theory evidences a noticeable absence of the mention of the judiciary as a separate branch of the government. It regards the judicial functions under the ambit of ‘Executive functions’, thereby bestowing the same to the control of the King. Therefore, it has been pinpointed that Locke’s theory, in a strict sense, does not truly qualify as an explication of the doctrine of separation of powers.

Fortesquie, a political thinker of the same time as Locke, emphasized upon the independence of the judiciary from the clutches of the King and to some extent, influenced the demand for the same through his writings. Nonetheless, the 17th and 18th century saw a flurry of scattered expositions on the separation of powers until a concrete and influential expansion of the theory emerged through Montesquieu.

Montesquieu

Baron-de-Montesquieu is a French philosopher credited with expounding a systematic and holistic theory of separation of powers in his book De L’Esprit des Lois (The Spirit of the Laws) in 1748. His theory of separation of powers was inspired by his observations of the English system which had by then acquired a higher degree of distinction between its three branches. Montesquieu’s idea of separation of powers laid great emphasis on the concept of ‘political liberty’. According to him, political liberty could be safeguarded only when the government is such that citizens do not fear one another, which in turn can only be ensured when there is no abuse of power by the Government. This also meant that for preventing this abuse of power the Government should be structured in a manner that balances and checks power against power.

Montesquieu divided governmental power into the categories of legislative, executive and judicial and outlined how liberty is affected if these powers are vested upon the same person, leading to tyranny. Unlike Locke, he did not overlook the role of the independence of the judiciary and instead deemed it as the most important of all. Moreover, he took Locke’s ideas of legislative, executive and federative functions and modified them for the sake of political liberty, considering the judiciary as a branch separate from the broadly categorized executive in Locke’s theory. 

Other notable writers that contributed to this doctrine are Sir Blackstone and James Madison. Their writings on the theory were in line with Montesquieu’s model.

American model

The doctrine of separation of powers is considered as the foundation of the American Constitutional structure. Albeit an explicit mention of the doctrine per se is not present within the American Constitution, the first three Articles implicitly incorporate the theory by laying down the functions and powers of the three branches of its Government – the Congress, the President and the Supreme Court. Article I bestows all legislative powers to the Congress; Article II bestows all executive powers upon the President; and Article III vests all judicial powers in the Supreme Court. However, even the American model does not follow the theory in a rigid or inflexible manner, and instead follows a system of checks and balances to provide a safeguard against the misuse of powers by a single branch and for keeping them within the scope of their authorities. The various aspects of the model followed in USA are discussed as follows – 

Separate Institutions and functions

The first three Articles of the American Constitution expressly lay down the separate powers of the three institutions and accord core functions to them, satisfying the requirement of having separate institutions and functions.

Separate personnel

The American model ensures that the personnel in all the branches are distinct from each other. It specifically prohibits the inclusion of individuals in more than one institution. Under Section 6 of Article 1, it is prescribed that a member of Congress cannot simultaneously be a member of any other branch of the government and vice versa.

Principle of Checks and Balances

While the branches of the government are found to be separated from each other, they are not insulated from each other. In other words, the American Model does not allow for powers of one branch to be unilateral. Instead, it embodies the principle of checks and balances to prevent the centralization of power through separation by overlapping responsibility between the branches. 

The President is empowered to veto legislation passed by the Congress, thereby exercising legislative functions (Article 1, Section 7). Further, any Treaty made by the President is subject to the ratification of the Senate, indicating legislative check on an executive function. Furthermore, Congress is vested with the authority to impeach the President, Vice-President and other high-ranking civil officials under certain conditions (Article 2, Section 4).

The Supreme Court is empowered to render unconstitutional any act of the executive or legislative. This power of ‘judicial review’ under Article III of the American Constitution was first recognized by the Supreme Court in the landmark case of Marbury v. Madison and it helped strengthen the system of checks and balances in the American Model. A check on judicial authority is maintained by bestowing the power of appointment of federal judges upon the President subject to the consent of the Senate (Article 2, Section 2). Moreover, Congress also exercises judicial function by having the authority to establish inferior federal courts (Article 3, Section 1). 

Therefore, an overlap or intermix of functions is apparent under the American Model. This feature of checks and balances was necessary, as a strict adaptation of the doctrine could have impeded the growth of administrative law in the country. As pointed out by J. Cardozo, the concept of separation of powers should be applied flexibly and in consonance with the practical needs of the government. Thus, the doctrine both intimately impacted and was impacted in turn by the development of Administrative Law in the USA. 

Critical analysis: The Indian perspective– Constitutional provisions

The Indian Constitution does not expressly mention the theory of separation of powers. In fact, the Constituent Assembly Debates indicate that separation of powers in its rigid or literal sense was never intended to be adopted by the constitution makers at all. This was evident when the insertion of a new Article 40-A, that prescribed a complete separation of powers between the three branches, to the Constitution was proposed by Prof. K T Shah in the Constituent Assembly. This proposition was declined by the Assembly, which took into account the agreed Parliamentary-government structure of India and vouched for a harmonious system as opposed to a three-fold conflict. Dr. B.R Ambedkar, while acknowledging the separation of the executive from the judiciary, emphasized upon the importance of interdependence between the executive and legislature for the proper functioning of their complicated duties in the government. 

Nonetheless, it cannot be denied that the Indian political structure somewhat draws inspiration from Separation of powers and represents it in some form. It sufficiently differentiates the composition and functions of its three branches. The doctrine is considered as a salient feature of the Indian Constitution and has been held to comprise its basic structure. Thus, to better understand the position of India as regards this doctrine, the provisions of the Constitution that lean towards and against the pure theory of separation of powers are discussed as follows –

Provisions leaning towards a pure separation of powers

Distinct institutions and core powers

It is unrefuted that the Indian structure establishes three distinct institutions of legislative, executive and judiciary in the Parliament, President and the Supreme Court at the Central level and the State Legislature, Governor and High Courts at the state level respectively. Under Articles 53(1) and 154 of the Constitution, the executive powers of the Union and States have been expressly vested in the President and the Governor respectively. These provisions state that they can exercise the same either directly or through their subordinate officers. Further, Article 245 vests the Central and State lawmaking authority to the Parliament and State Legislatures respectively, empowering the Parliament to make laws for the whole country. Furthermore, Article 50 categorically prescribes the separation of the executive from the judiciary under the Indian governmental structure. Hence, an apparent demarcation between the three branches and their functions is found to be broadly laid out under the Constitution.

Autonomy and independence

As regards the independence and autonomy of these organs, the Constitution does seem to fulfill them to a certain extent. For example, Articles 122 and 212 of the Constitution avert the Courts from inquiring into the proceedings of the Parliament and State legislatures respectively. Further, Articles 105 and 194 confer judicial immunity to the MPs and MLAs from anything spoken during their sessions. Similarly, under Article 361, the President and Governor are also not accountable to the Courts for exercise of their powers and duties in the office. Furthermore, the Supreme and High Court judges are also immune from a scrutiny of their conduct in the Parliament or State Legislature (Articles 121 and 211). Thus, the Indian structure is found to seemingly accord a degree of autonomy – void of encroachment – to its organs in specified circumstances.

Provisions leaning against a pure separation of powers

Overlapping personnel

There are numerous provisions under the Indian Constitution that militate against the pure doctrine and instead observe a system of interdependence and overlap with the objective to provide for checks and balances.  This overlap is found to be of the highest degree between the legislature and the executive. The Indian governmental structure is such that there is a commonality of personnel between the two organs, with the Union Council of Ministers being members of both the Parliament (Article 75) as well as the executive (Article 74). Even the President is regarded as part of the Legislature along with the Houses of the Parliament (Article 79). 

Overlapping powers

There is also a commonality of powers between the two organs, with the powers of the executive prescribed as co-extensive to that of the legislature (Article 74). The executive exercises legislative powers when it comes to the President’s authority to issue ordinances when the Houses of the Parliament are not in session, which is considered equivalent to a Parliamentary Act (Article 123). The President’s assent is required for the passing of bills proposed by the legislature (Article 111). The President also exercises legislative functions during the proclamation of State Emergency (Article 356), where he has the authority to make laws for the state upon the dissolution of the State Legislature. Moreover, the very concept of delegated legislation is based on the conferment of legislative powers to the executive. This delegation is carried out in the name of administrative adjudication of the rights of the citizens and is implicitly allowed by the Constitution (Articles 372 and 13). The Council of Ministers is also collectively responsible to the Lok Sabha, indicating another overlap between the two organs (Article 75). Hence, it has been said that there is a fusion between the executive and the legislative in India, but without any friction occurring between them.

The relationship between the executive and judiciary only exhibits a minute overlap of powers.  The President is empowered to grant pardon, reprieve, respite or remise to the sentence of any person convicted by Supreme Court of India, representing a judicial power (Article 72). The President also performs a judicial act in resolving disputes relating to the age of judges of the courts as regards their retirement from judicial office (Articles 124(2)(a) and 217(3)). On the other hand, the judiciary exercises executive functions under Article 227 of the Constitution wherein the High Courts have been granted the power of supervision over subordinate courts. Further, they carry out other administrative functions such as the transfer of cases under Article 228.

The Parliament also performs judicial functions such as punishing its members or outsiders for contempt or breach of parliamentary privilege. The judiciary, on the other hand, performs legislative functions in laying down rules and procedures for court proceedings and practice (Article 145).

Checks and Balances

An interesting feature of this deviation from the original theory is that the organs have been conferred with certain powers that seemingly encroach upon each other’s respective spheres. This is provided to keep a check on their activities and to prevent unilateral action by one organ. But at the same time, a balance is maintained between such powers, to prevent usurpation of one organ by another. The Parliament has the authority to initiate impeachment proceedings against the President and exercises a check on his activities (Article 61). The Parliament and President together have the power to remove judges of the Supreme Court (Article 124) and High Courts (Article 217) and the President further possesses the power to appoint the judges of the High Courts and the Supreme Court (Article 124 and 217). Most importantly, the power of judicial review possessed by the Courts under Articles 32, 226 and 136 reflects a paradigm of checks and balances, as it allows the Courts to strike down the laws of the Parliament or actions of the executive that are adjudged unconstitutional. In this way it ensures that the organs function within their constitutional limits and safeguards the rights of the citizens against arbitrary action.

Therefore, from the above analysis of the constitutional provisions associated with the doctrine, it is evident that a broad set of domains delineating the powers and functions of the three branches has been set out under the Indian Constitutional structure. In addition, however, there is also a shift from the general principles of the theory by adopting a unique system best suited to the country’s governmental scenario, without departing from the original premise of the doctrine – eliminating possession of unfettered power to a single body of men. 

Critical analysis – Practical application

The practical application of the doctrine in India is found to realize it in a purposive sense, as opposed to a literal sense. It abides by the basic philosophy of the doctrine but modifies its features to complement India’s unique governmental structure. As substantiated in the landmark case of Ram Jawaya Kapur v. State of Punjab, India’s constitutional structure sufficiently differentiates the functions and branches of the Government to prevent the assumption of functions of one organ by another. In one of the earliest cases that touched upon this subject – In the Re Delhi Laws Act case – it was highlighted how the British Parliamentary system adopted by India entails the responsibility of the executive to the legislature as its essential feature, and does not strictly follow the doctrine. Chief Justice Kania, however, stated that despite there not being any express separation of powers in the Indian Constitution as in the USA or Australia, there is still an implied acceptance of the same. A detailed assessment on this doctrine was carried out in the case of Indira Gandhi Nehru v. Raj Narain, wherein a parliamentary amendment was deemed unconstitutional by the Supreme Court, on account of it breaching separation of powers, as it had the effect of invalidating a court order, which is a primarily judicial function. The Court held that India recognizes separation of powers in a broad sense by demarcating spheres of judicial and legislative functions, and these spheres cannot be encroached by the other as the doctrine constitutes the basic structure of the Constitution. This position of there being a broad form of separation existing in the Indian structure, was further affirmed in other cases that conceptualized the presence of constitutional limits to the powers of each branch, which cannot be overstepped.

The view of the courts substantially clarifies India’s position on the doctrine. It confirms the acceptance of the doctrine in India by way of a personalized version. This version of the doctrine is observed to make a distinction between the powers exercisable by an organ into an essential and an incidental power. An organ cannot claim power over the exercise of the essential functions of another but may validly exercise the incidental functions of another organ. The contrasting duality of these two categories of powers also portrays the duality of this version, with the essential powers corresponding to the pure form of the doctrine and the incidental powers deviating from it to exhibit the principle of checks and balances.

Judicial Review vis-à-vis the Doctrine

As regards the power of judicial review, it has, in its modern exercise, often been questioned as being antithetical to separation of powers and the extent of its exercise has been argued to infringe India’s model of the doctrine by surpassing the intended constitutional limits. It is important to note, however, that judicial review ensures the supremacy of the people and not the judiciary, as pinpointed by Alexander Hamilton. Judicial review as granted by the Indian Constitution enables the judiciary to act as a protector of the Constitution and the rule of law, both of them being underlying values of separation of powers. It does not oppose the doctrine but emanates from it, as a means to enforce the same where it is infringed.

In the Keshav Singh case, the Supreme Court upheld the independence of the judiciary and pronounced the scope of judicial review. Commenting on the extent of judicial review of Legislative affairs in light of the doctrine, the Supreme Court pronounced that only in matters of ‘irregularity of procedure’ would the Legislative proceedings be immune from judicial interference, and that their ‘illegality’ is subject to judicial review. The special role of the Courts as enforcers of the rule of law, also allows them to safeguard the rights of individuals in the absence of legislation or executive action, so as to fill the void in law for the meantime as a constitutional obligation. For example, in the Vishakha case, the Court laid down a set of procedural guidelines pertaining to sexual harassment at workplace consistent with CEDAW, to fill the gap of legislation in that regard. Thus, judicial review complements and furthers the principle of checks and balances, thereby furthering the concept of separation of powers as understood in India and has rightly been accorded to comprise basic structure of the Constitution.

Modern view and the way forwards 

In Bhim Singh v. Union of India and Ors., the Supreme Court displayed an interesting take on the doctrine, stating that modern governance does not have any place for a strict separation of powers. Rather, separation of powers has the aim of achieving the maximum extent of accountability of each instrument, and functional overlap does not infringe the doctrine if the constitutional accountability is maintained. This view is correct, as it falls in line with the present needs and emphasizes the impracticality of the strict version of the doctrine in the modern scenario. The emergence of the field of administrative law calls for increased harmonious integration of the functions of the instruments through administrative tribunals and delegated legislation, so as to reduce the burden on the prime organs of the State. Strict implementation of the doctrine would encumber the objectives of expediency and efficacy sought to be achieved through the function of administrative authorities and would act as a limit on administrative law. Thus, strict implementation of the doctrine is undesirable. The way forward consists of a practical approach that is in touch with the felt necessities of time.

India’s model of separation of powers

Conclusion

Separation of powers is a doctrine founded upon the distribution of governmental powers among distinct institutions. This doctrine evolved with the changing views of various theorists and is applied uniquely in different jurisdictions. India’s application of this doctrine leans away from its strict form, and instead reflects a purposive adaptation of this theory coupled with the principle of checks and balances. This is in consonance with the modern view of this doctrine that highlights the need of straying away from its pure form and implementing it in a flexible and broad manner.

References

• M. J. C. Vile, Constitutionalism and the separation of powers (1967)

• C.K. Takwani, Lectures on Administrative Law, 31 (2008).

• Shashank Krishna, Separation of Powers in the Indian Constitution & Why the Supreme Court was Right in  Sir Ernest Barker, Politics 73 (8 ed. 1958) New York.

• Sam J. Ervin Jr., Separation of Powers: Judicial Independence, 108 Law and Contemporary Problems Vol. 35 (1970)

• Parpworth Neil, Constitutional & Administrative Law 18, 19 (10th ed. 2012) Oxford University Press

• Montesquieu, The Spirit of Laws (Nugent) 152 (1748).

• Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

• Intervening in the “Jharkhand” Imbroglio, 13 Student Bar Review Vol. 18, No. 2 (2006)

• Upadhaya J.J.R, Administrative Law, 40 (2006).

• Basu, D.D., Administrative Law (6 ed. 2004).

• Jain Kagzi M.C., The Indian Administrative Law 15,16 (2002).

• P.Puneeth, Administrative Law, 5 XLIII Annual Survey of Indian Law (2007).

• Constitutional Assembly Debates, vol.7 958.

• Constitutional Assembly Debates, vol.7 956.

• Kumar Devinder, Administrative Law 20 (2007).

• D.N.Saraf, Limit of Judges Domain: Some Policy Considerations, 30(1) J. of Indian L. Inst. 46 (1988)

• Re Delhi Laws Act, AIR 1951 SC 332.
• Jaffe L.L & Nathan N.L., Administrative Law (1961).

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