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This article is written by Neha Gururani, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed the doctrine of separation of powers, its relation with administrative law and the relevance in the modern era.

Introduction

The concept of separation of powers is the rudimentary element for the governance of a  democratic country. This principle corroborates fairness, impartiality and uprightness in the workings of a government. Although it is not followed in its strict sense yet, most of the democratic countries have adopted its diluted version under their respective constitutions.

Meaning

The concept of separation of powers refers to a system of government in which the powers are divided among multiple branches of the government, each branch controlling different facet of government. In most of the democratic countries, it is accepted that the three branches are the legislature, the executive and the judiciary. According to this theory, the powers and the functions of these branches must be distinct and separated in a free democracy. These organs work and perform their functions independently without the interference of one into others in order to avoid any kind of conflict. It means that the executive cannot exercise legislative and judicial powers, the legislature cannot exercise executive and judicial powers and the judiciary cannot exercise legislative and executive powers.

The Historical Evolution

The doctrine of separation of powers emerged in the ancient era. Aristotle, in his book ‘Politics’, discussed the concept of separation of powers stating that every constitution should have a heterogeneous form of government consisting of mainly three branches: the deliberative, public officials and the judiciary. A similar structure of government was observed in the Roman Republic setting off the principle of checks and balances in the country.

Further, in the 17th century during the arrival of Parliament in England, this theory of three branches of government was reiterated by John Locke, a British Politician in his book ‘Two Treatises of Government’ but with some different view. According to him, the three branches neither should have equal powers nor work independently. In his opinion, the legislative branch must be supreme out of all the three and other branches should be controlled by the monarch. His theory was based on the system of government which was prevailing in England at that time i. e. coexistence of both a democratic as well as an autocratic form of government.

According to Wade and Phillips, the principle of separation of powers meant three things:

  1. One person should not be made part of more than one branch of the government.
  2. There should not be any interference and control of any organ of the government by the other.
  3. No organ of the government should exercise the functions and powers of the other organ.

However, in the 18th century, the term ‘trias politica’ or the doctrine of separation of powers was theorized meticulously by a French jurist, Baron de Montesquieu. He put more emphasis on the independence of the judicial branch. He described that rather being ostensible, the judiciary must be authentic in nature. In his viewpoint, one organ or one person should not discharge the functions of all the other organ and the reason was to safeguard and protect the freedom of the individuals and avoidance of tyrannical rule. In his book De L’Esprit des Lois (The Spirit of Laws, 1748), he propounded that:-

  • The Executive should not exercise the legislative or judicial powers because this may threaten the freedom and liberty of individuals.
  • The Legislative should never exercise the executive or judicial powers as this may lead to arbitrariness and hence, end the liberty.  
  • The Judiciary should not exercise the executive or legislative powers because then a judge would behave like a dictator.

Objectives of Separation of Powers

The following are the fundamental objectives of the doctrine of separation of powers:-

  1. Firstly, it aims to eliminate arbitrariness, totalitarianism and tyranny and promote an accountable and democratic form of government.
  2. Secondly, it prevents the misuse of powers within the different organs of the government. The Indian Constitution provides certain limits and boundaries for each domain of the government and they are supposed to perform their function within such limits. In India, the Constitution is the ultimate sovereign and if anything goes beyond the provisions of the constitution, it will automatically be considered as null, void and unconstitutional.
  3. Thirdly, it keeps a check on all the branches of the government by making them accountable for themselves.
  4. Fourthly, separation of powers maintains a balance among the three organs of government by dividing the powers among them so that powers do not concentrate on any one branch leading to arbitrariness.
  5. Fifthly, this principle allows all the branches to specialize themselves in their respective field with an intention to enhance and improve the efficiency of the government.

Elements of Separation of Powers

Legislative

The legislative organ of the government is also known as the rule-making body. The primary function of the legislature is to make laws for good governance of a state. It has the authority of amending the existing rules and regulations as well. Generally, the parliament holds the power of making rules and laws.

Executive

This branch of government is responsible for governing the state. The executives mainly implement and enforce the laws made by the legislature. The President and the Bureaucrats form the Executive branch of government.

Judiciary

Judiciary plays a very crucial role in any state. It interprets and applies the laws made by the legislature and safeguards the rights of the individuals. It also resolves the disputes within the state or internationally.

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Separation of Powers in Practice

U.K. Constitution

The United Kingdom practices the unitary parliamentary constitutional monarchy. The concept of separation of powers is applied in the UK but not in its rigid sense because the UK has an unwritten constitution. The Crown is the head of the state whereas the Prime Minister is recognised as the head of the government. The executive and the legislature are somehow interconnected to one another.

The executive powers are exercised by the Crown through his government. Thus, the Crown is the nominal head and the real executive powers vest in the Prime Minister and the other Cabinet Ministers. The UK parliament is bicameral and divided into two houses – The House of Commons and House of Lords. The Parliament is the sovereign rule-making body in the UK. The Prime Minister and the other cabinet ministers are also a part of The House of Commons. The government is answerable to the Parliament. Practically, the executive is controlled by the House of Commons. The Judiciary, however, is independent of executive control. But the judges of the Supreme Court can be removed on the address of both the houses if found with any charge of corruption.

Thus, we can conclude that the UK constitution has incorporated the separation of powers just to keep checks and balances among the three organs of the government but there exist some kind of interference of one organ in the other.

U.S. Constitution

The US has a written constitution and governed by the Presidential form of government. The cornerstone of the Constitution of the United States is the doctrine of separation of powers. This concept is well-defined and clear under the American Constitution.

  • Article I – Section 1 of the American Constitution states that –

“ All the legislative powers are vested in Congress.”

  • Article II – Section 1 of the American Constitution states that –

“ All the executive powers are vested in the President.”

  • Article III – Section 1 of the American Constitution states that –

“ All the judicial powers are vested in the federal courts and the Supreme Court.”

The President and his ministers are the executive authority and they are not members of the Congress. The ministers are accountable to the President only and not to the Congress. The tenure of the President is fixed and independent of the majority in Congress.

Congress is the sovereign legislative authority. It consists of two houses- Senate and House of Representative. The impeachment of the President can be done by Congress. The treaties entered by the President are to be approved by the Senate. The Supreme Court of the USA is independent. It may declare any action of the executive as well as the legislature as unconstitutional if found so. Thus, it appears as if the powers of the three organs exist in a watertight compartment but actually it is not so.

  1. President interferes in the functioning of Congress by exercising his veto power. He also makes the appointment of the Judges thus, interfering in judicial powers.
  2. Similarly, Congress interferes in the powers of the Courts by passing procedural laws, making special courts and by approving the appointment of the judges.
  3. The judiciary, by exercising the power of judicial review interferes in the powers of Congress and the President.

In Panama Refining Company v. Ryan[1], Justice Cardozo observed that:-

“ the doctrine of separation of power is not a dogmatic concept. It cannot be imposed with strictness. There must be elasticity in its application with respect to the needs of the government. Therefore, a practical approach to this theory is required.”

Australian Constitution

Australia is governed by a federal parliamentary constitutional monarchy system. The Australian Constitution had borrowed the concept of separation of power from the U.S. Constitution. The first three chapters of the Australian Constitution defines the three different organs of the government- the legislative, the executive and the judiciary. The legislative branch includes the Parliament of Australia, the executive comprises of the Queen, Governor-General, Prime Minister and other ministers.

Australia has a bicameral parliament consisting of the Queen (represented by the governor-general), the Senate and the House of Representatives. The executive powers vest in the Governor-General who is advised by the Federal Executive Council. The judicial power lies in the hands of the federal courts and the High Court of Australia which is the supreme judicial authority.

Like the U.S. and U.K., Australia also does not have complete separation of powers. Though, a system of checks and balances has been evolved. Some roles and powers of the three organs overlap-

  • The judges, Prime Minister and other ministers are appointed by the Governor-General.
  • The Prime Minister and other ministers are members of the parliament as well as the executive.

It was held by the High Court of Australia in the case of Victorian Stevedoring v. Dignan[2], that-

“ It was not at all possible to maintain the consistency of the British tradition of strict classification of the organs of the government. The legislative and the executive branch cannot work independently. A responsible government can’t be established by the strict separation of legislature and executive. The legislature can delegate its lawmaking power to the executive whenever required.”

Indian Constitution and Separation of Power

Like the United Kingdom, India also practices the parliamentary form of government in which executive and legislature are linked to each other. So, the doctrine of separation of powers is not implemented in its strict sense. However, the composition of our constitution creates no doubt that the Indian Constitution is bound by the separation of powers. There are various provisions under the Indian Constitution that clearly demonstrate the existence of the doctrine of separation of powers. This principle is followed both at the centre and the state level.

Provisions that Substantiate Separation of Power

  • Article 53(1) and Article 154 of the Indian Constitution clearly say that the Executive powers of the Union and the States are vest in the President and Governor respectively and shall only be exercised directly by him or through his subordinate officers.
  • Article 122 and Article 212 of the Indian Constitution state that the courts cannot inquire in the proceedings of Parliament and the State Legislature. This ensures that there will be no interference of the judiciary in the legislature.
  • Article 105 and Article 194  of the Indian Constitution specify that the MPs and MLAs cannot be called by the court for whatever they speak in the session.
  • Article 50 of the Indian Constitution encourages the separation of judiciary from the executive in the states.
  • Article 245 of the Indian Constitution gives authority to Parliament and State Legislature for making laws for the whole country and the states respectively.
  • Article 121 and Article 211 of the Indian Constitution state that the judicial conduct of any judge of the Supreme Court or High Court shall not be discussed in Parliament or State Legislature.
  • Article 361 of the Indian Constitution specifies that the President and the Governor are not accountable to any court for exercising their powers and performance of duties in his office.

Overlapping Provisions

  • Article 123 of the Indian Constitution allows the President to issue ordinance when both the houses are not in session.
  • Article 213 of the Indian Constitution gives power to the Governor to issue ordinance when state legislative assembly is not in session.
  • Article 356 of the Indian Constitution lays the provision of Presidential Rule in case of state emergency.
  • Article 73 of the Indian Constitution specifies that the powers of the executive shall be co-extensive with that of the legislature.
  • Article 74 of the Indian Constitution states that the council of ministers shall aid the President in the exercise of his executive functions.
  • Article 75(3) of the Indian Constitution makes the Council of Ministers collectively responsible to the House of the People.
  • Article 61 of the Indian Constitution lays the provision of Impeachment of the President by passing a resolution from both the houses in order to remove the President.
  • Article 66 of the Indian Constitution states that the election of Vice-President is done by the electoral members of both the houses.
  • Article 145 of the Indian Constitution allows the Supreme Court to make laws with approval of the President for the court proceedings and the practices.
  • Article 146 of the Indian Constitution lays the provisions for the appointment of the servants and officers of the Supreme Court by the Chief Justice of India with consultation from President and the Union Public Service Commission.
  • Article 229 of the Indian Constitution lays the provision for the appointment of the servants and officers of the High Courts with the consultation of the Governor and the State Public Service Commission.
  • Article 124 of the Indian Constitution gives the President the power to appoint the judges of the Supreme Court.
  • Article 72 of the Indian Constitution empowers President to grant a pardon or suspend the sentence of any person who is convicted by the Supreme Court of India.
  • Article 32, Article 226 and Article 136 of the Indian Constitution provide the power of judicial review to the Supreme Court to strike down any law made by the Parliament or any administrative action which is found to be unconstitutional.

Judicial Approach towards Separation of Power in India

The court has interpreted the applicability of the doctrine of separation of power in India in many case laws.

“ The Constitution of India has not acknowledged the doctrine of separation of power emphatically but the functions and powers of all the organs have been adequately distinguished. Thus it would not be wrong to say that Indian constitution does not behold assumptions rather it works in a flexible manner considering the needs of the country. So, the executive can exercise the law-making power only when delegated by the legislature and it is also empowered to exercise judicial powers within the limits. But on an all, no organ should exercise its power beyond the provision of the constitution.”

“ A rigid sense of separation of powers which has been given under the American and Australian constitution does not apply to India.”

Beg J. further added that:-

“ The separation of power is a part of the basic structure of the constitution. So, the schemes of the constitution cannot be changed even after restoring Article 368 of the Indian Constitution.”

“ The three organs of the government have to exercise their functions keeping in mind certain encroachments assigned by the constitution. The constitution demarcates the jurisdiction of the three organs minutely and expects them to be exercised within their respective powers without overstepping their limits. All the organs must function within the spheres allotted to them by the constitution. No authority which is created by the constitution is supreme. The constitution of India is sovereign and all the authorities must function under the supreme law of the land i.e. the Constitution.”

“ Although the constitution has imposed some limitations on the three organs of the government, it has left our parliament and state legislature supreme in their respective fields. In the main, subject to the limitations, our constitution has preferred the supremacy of legislature to that of the judiciary and the court has no authority to question the wisdom or policy of the law duly made by the appropriate legislature and this is the basic fact which the court must not outlook.”

“ Though the constitution has not recognized the doctrine of separation of powers in its absolute rigidity, the drafters of the constitution have diligently defined the powers and functions of various organs. The legislature, executive and judiciary have to function within their own domain prescribed by the constitution. No organ may arrogate the functions allotted to another.”

Separation of Powers: A Barrier to Administrative Law

Administrative law is a branch of public law that determines the organisation, powers and duties of administrative authorities. The principle of separation of power creates a demarcation among the three organs of the government. But in the present scenario, administrative law is antithetical to this principle. With the emerging pattern of globalized interdependence, the administrative agencies are not just exercising the administrative functions but also practises quasi-legislative and quasi-judicial powers, thus, violating the principle of separation of powers.

Contemporarily, it is a compulsive necessity to delegate the additional legislative and judicial powers to the administrative agencies to establish efficient and adroit governance and to ensure proper enforcement of the laws. The creation of administrative tribunals and delegation legislation took place with the aim to reduce the load of the legislation and judiciary and to expedite the lawmaking and justice giving process with expertise. This cannot be achieved with strict implementation of the doctrine of separation of powers. Therefore, the separation of powers acts as a limitation on administrative law.

The relevance of separation of powers in the Modern Era

Although, the doctrine of separation of powers does not have the rigid applicability that does not imply that it has no relevance in the current scenario. The core objective of the doctrine of separation of powers is to keep checks and balances among the three organs of the government which is an essential factor to run a government dynamically. The logic behind this doctrine is not the strict classification rather it is the avoidance of concentration of powers to a specific person or a body. This theory is not operative in its absolute sense but yes, it is very advantageous if applied correlatively. Thus, not impenetrable barriers and unalterable frontiers but mutual curtailment in the exercise of powers by the three organs of the state is the spirit of the doctrine of separation of powers.

Criticism

Every doctrine has some effects and defects. The separation of powers might have proved to be flawless theoretically but it cannot be applied comprehensively in real life situations. There are certain drawbacks and limitations to it.

  1. It is extraordinarily difficult to distinguish the powers of the legislature, executive and judiciary precisely. A smooth and stable government can exist only if there is cooperation among the three organs. Any attempt made to separate these organs into watertight compartments may lead to failure and inefficiency in the government.
  2. If this concept is adopted in its totality, then it will become impossible to take certain actions. Consequently, neither the legislature can delegate the law making power to the executive which may have expertise in the subject matter, nor the courts can make laws related to the functioning of courts and proceedings.
  3. In the present scenario, a state works for the welfare and prosperity of the people. It has to resolve the complex issues of society. In such circumstances, the principle of separation of power seems to be impossible. The imposition of this doctrine in its rigid conception will not lead to the effectuation of the objectives of the modern state. Thus, separation of power is theoretically improbable and practically impossible.
  4. Montesquieu, by propounding this theory aimed to protect and safeguard the freedom and liberty of the individuals which is impossible by the strict enforcement of separation of powers.

Conclusion

The doctrine of separation of powers must be interpreted in a relative form. In the era of liberalisation, privatisation and globalisation, separation of power has to be expounded in a wider perspective. It should not be curb to the principle of restraint or strict classification only but a group power exercised in the spirit of cooperation, coordination and in the interest of the welfare of the state. Though this doctrine is unfeasible in its rigid perception nevertheless its effectiveness lies in the prominence on those checks and balances which are necessary in order to avert maladroit government and to prevent abuse of powers by the different organs of the government.

References

  1. 293 U. S. 388 (1935)
  2. (1931) HCA 34
  3. AIR 1955 SC 549
  4. AIR 1975 SC 2299
  5. AIR 1967 SC 1643
  6. 1950 AIR 27
  7. AIR 1989 SC 1899
  8. Administrative Law by I. P. Massey
  9. The Constitution of India by P. M. Bakshi
  10. http://www.legalservicesindia.com/article/1878/Administrative-Law-Separation-of-Powers.html
  11. https://www.lawctopus.com/academike/doctrine-of-separation-of-power/

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