This article is written by Richa Goel. In this article, of Banasthali Vidyapith has discussed the separation of power and its applicability in India and other countries.

“If the legislative and executive authorities are one institution, there will be no freedom. There won’t be any freedom anyway if the judiciary body is separated from the legislature and executive”- Charles de Montesquieu

Introduction

The separation of powers is imitable for the administration of federative and democratic states. Under this rule the state is divided into three different branches- legislative, executive and judiciary each having different independent power and responsibility on them so that one branch may not interfere with the working of the others two branches. Basically, it is the rule which every state government should follow in order to enact, implement the law, apply to specific case appropriately.  If this principle is not followed then there will be more chances of misuse of power and corruption If this doctrine is followed then there will be less chance of enacting a tyrannical law as they will know that it will be checked by another branch. It aims at the strict demarcation of power and tries to bring the exclusiveness in the functioning of each organ.

Background

The term “separation of powers” or “trias –politica “ was initiated by Charles de Montesquieu. For the very first time, it was accepted by Greece and then it was widespread use by the Roman Republic as the Constitution of the Roman Republic. Its root is traceable in  Aristotle and Plato when this doctrine became the segment of their marvels. In 16th and 17th-century British politician Locke and Justice Bodin, a French philosopher also expressed their opinion regarding this doctrine. Montesquieu was the first one who articulated this principle scientifically, accurately and systemically n his book  “ Esprit des Lois” (The Spirit Of Laws) which was published in the year 1785.

Meaning

The definition of separation of power is given by different authors.  But in general, the meaning of separation of power can be categorized into three features:

  • Person forming a part of on organs should not form the part of other organs.
  • One organ should not interfere with the functioning of the other organs.
  • One organ should not exercise the function belonging to another organ.

The separation of power is based on the concept of trias politica. This principle visualizes a tripartite system where the powers are delegated and distributed among three organs outlining their jurisdiction each.

Three Tier Machinery of  State Government

It is impossible for any of the organs to perform all the functions systematically and appropriately. So for the proper functioning of the powers, the powers are distributed among the legislature, executive and judiciary. Now let’s go into the further details of the functioning of each organ.

  • Legislative

The main function of the legislature is to enact a law. Enacting a law expresses the will of the State and it also acts as the wain to the autonomy of the State. It is the basis for the functioning of executive and judiciary. It is spotted as the first place among the three organs because until and unless the law is framed the functioning of implementing and applying the law can be exercised. The judiciary act as the advisory body which means that it can give the suggestions to the legislature about the framing of new laws and amendment of certain legislation but cannot function it.

  • Executive

It is the organs which are responsible for implementing, carrying out or enforcing the will of the state as explicit by the constituent assembly and the legislature. The executive is the administrative head of the government. It is called as the mainspring of the government because if the executive crack-up, the government exhaust as it gets imbalanced. In the limited sense, executive includes head of the minister, advisors, departmental head and his ministers.

  • Judiciary

It refers to those public officers whose responsibility is to apply the law framed by the legislature to individual cases by taking into consideration the principle of natural justice, fairness.

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Significance

As it is a very well known fact that whenever a large power is given in the hand of any administering authority there are higher chances of maladministration, corruption and misuse of power. This doctrine helps prevent the abuse of power.  This doctrine protects the individual from the arbitrary rule. The government is the violator and also protects individual liberty.

Summarily, the importance can be encapsulated in the following points:

  • Ending the autocracy, it protects the liberty of the individual.
  • It not only safeguards the liberty of the individual but also maintains the efficiency of the administration.
  • Focus on the requirement of independence of the judiciary
  • Prevent the legislature from enacting an arbitrary rule.

Constitutional Status of Separation of power in India

Going through the provisions of Constitution of India one may be ready to say that it has been accepted in India. Under the Indian Constitution:

Legislature

Parliament ( Lok Sabha and Rajya Sabha)

State legislative bodies

Executive

At the central  level- President

At the state level- Governor

Judiciary Supreme Court, High Court and all other subordinate courts

The Parliament is competent enough to make any law subject to the conditions of Constitution and there are no restrictions on its law-making powers. The president power and functions are given in the Constitution itself (Article  62 to Article 72).  The judiciary is self –dependent in its field and there is no obstruction with its judicial functions either by Legislature or the Executive. The High Court under Article 226 and Article 227  and Supreme Court under Article 32 and Article 136 of Constitution are given the power of judicial review and any law passed by the legislature can be declared void by the judiciary if it is inconsistent with Fundamental Rights (Article 13). By going through such provisions many jurists are of opinion that doctrine of separation of powers is accepted in India.

Before looking into the case laws, let us understand what the meaning of the doctrine of separation of power is in a strict and broad sense.

The doctrine of separation of power in a rigid sense means that when there is a proper distinction between three organs and their functions and also there should be a system of check and balance.

The doctrine of separation of power in a broad sense means that when there is no proper distinction between three organs and their functions.

In the case of  I.C  Golakhnath vs  State of Punjab,  the Constitution brings in actuality the distinct constitutional entities i.e namely, the Union territories, Union and State. It also has three major instruments namely, judiciary, executive and legislature. It demarcates their jurisdiction minutely and expects them to exercise their function without interfering with others functions. They should function within their scope.

If we go through the constitutional provision, we can find that the doctrine of separation of power has not been accepted in a rigid sense in India. There is personnel overlapping along with the functional overlapping. The Supreme Court can declare any law framed by the legislature and executive void if they violate the provisions of the Constitution.

Executive also has an impact on the functioning of the judiciary as they appoint the judges and Chief justice. The list is so exhaustive.

In the case of  Indira Gandhi vs Raj Narainthe court held that  In our Constitution the doctrine of separation of power has been accepted in a broader sense. Just like in American and Australia Constitution where a rigid sense of separation of power applies is not applicable in India.

Justice Chandrachud also expressed his views by stating:

“The political purpose of the doctrine of separation of power is not widely recognized. No provision can be properly implemented without a check and balance system. This is the principle of restraining which has in its precept, innate in the prudence of self- preservation that discretion is better than its valor.”

In Ram Jawaya vs The  State of PunjabJustice Mukherjee observed:

“In India, this doctrine has been not be accepted in its rigid sense but the functions of all three organs have been differentiated and it can be said that our constitution has not been a deliberate assumption that functions of one organ belong to the another. It can be said through this that this practice is accepted in India but not in a strict sense. There is no provision in Constitution which talks about the separation of powers except Article 50 which talks about the separation of the executive from the judiciary but this doctrine is in practice in India. All three organs interfere with each other functions whenever necessary.”

Although, there is an explicit provision in Constitution just like American Constitution that executive power is vested in President under Article 53(1) and in Governor under Article 154(1) but there is no provision which talks about the vesting of legislative and judiciary power in any organ.  We can conclude that there is no rigid separation of power.

At the first instance, it appears that our Constitution is based on this doctrine itself as the judiciary is self-sufficient and there is no interference either by executive or legislature. Court also prohibits the administration of judiciary is not to be discussed in the parliament. Power of judicial review and to declare any law as void is given to the Supreme Court. The judges of Supreme Court is appointed by President in consultation. Chief Minister and judges of the supreme court. The Supreme court make the rules and regulations for the effective conduct of business.

However, Article 50 of the Constitution of India talks about the separation of the executive from the judiciary as being a Directive Principle of State Policy it is not enforceable. Certain privileges, power, immunities are given to the Member of Parliament under Article 105. this provision makes the legislature independent. The executive power is conferred on President and Governor they are being exempted from civil and criminal liabilities.

But, if we read carefully it is clear that doctrine is not accepted in a rigid sense. The executive is a portion of the legislature and the executive is accountable for its conduct to the legislature and also its derive its authority from the legislature. Since India has a parliamentary form of government should a mutual connection and coordination between the legislature and executive. As executive power is vested in the president but in actuality, the real head is Prime Minister of India along with Council of Minister and president is only a nominal head. Article 74(1) talks that executive head has to conduct in conformity with the aid and advice of Cabinet.

Ordinarily, all the legislative power is vested in the legislature but in certain circumstances, the president may be empowered to exercise the legislative power. For example, the president can issue ordinance under Article 123 when the parliament is not in session, making the rules when there is an emergency. Sometimes the president may also exercise judiciary power. When a president is being impeached, both houses take active participation and finalize the charges.

Judiciary also performs the administrative actions while formulating the regulations  and giving guidance for the subordinate court as well as perform legislative powers by framing the rules regulating their own procedure

So it is presumed from the provisions of the constitution that India being a parliamentary form of government does not follow the absolute separation there is an amalgamation of the powers where the connections between the different wings are inevitable and it can be drawn from the constitution itself. Every organ performs all types of functions in one or other form subject to the check and balance by other organs. All three organs are interdependent because India has a Parliamentary democracy. This does not mean that it is not accepted in India it has been accepted up to a certain extent.

But when it is expressly provided that one organ shall not perform functions of the other, then it is prohibited. In the Delhi laws case, it was stated that the legislature should exercise all the powers of legislation only in extraordinary circumstances like when parliament is not in session or emergency. We can say that the legislature is created by the Constitution to enact the laws.

In India, there is no separation of power but there is a separation of powers. Hence, in India, the people are not stuck by the principle by its rigidity. For example, the cabinet minister exercises both the executive and administrative functions. Article 74(1) states that it is mandatory for the executive head to comply with the advice of the cabinet ministers. In Ram Jawaya vs the State of Punjab, it was held that the executive is a part of the legislature and is accountable.

If we talk about the amending power of the Parliament under Article 368, it has been subject to the concept of the basic structure held in case of  Kesavananda Bharati vs State of Kerala.

In this case, it was held that the Parliament couldn’t amend the provision in such a way that violated the basic structure.

And if it is made in violation of basic structure then such amendment will be declared as unconstitutional null and void.

Going through this case law regarding the Supreme court judgment it can be observed that the basic structure cannot be amended and strict applicability of doctrine can be seen.

Although strict separation of power is not followed in India like the American Constitution, the system of check and balance is followed. However, no organs are to take over the essential functions of other organs which is the part of the basic structure, not even by amending and if it is amended, such amendment will be declared as unconstitutional.

Constitutional Status in Other Countries

  • Australia

No strict separation of power between the executive and legislative but judiciary is independent. Basically, the government is divided into three branches and it is judiciary who will impliedly define the separation of power between legislative and executive.

  • Denmark

The government is divided into three branches:

Legislature Parliament
Executive Prime Minister, Cabinet, Government Department, Civil service
Judiciary Department, High court and other subordinate courts

There is a no sharp demarcation of powers between legislative and executive as compared to the United States but the judicial power has been distinct from other powers.

  • France

The government is divided into three branches:

Legislature senate (upper house) and national assembly (lower house). If a dispute arises, the decision of the lower house is final.
Executive President, prime minister and cabinet minister. PM is accountable to the National Assembly.
Judiciary Includes constitutional court.

The Constitution of France provides for the separation of powers proclaims France as “attachment to the rights of man” and the principle of national sovereignty as declared by the declaration of 1789.

  • United Kingdom
Legislature Parliament
Executive Prime Minister, Cabinet, Government Department, Civil service
                       Judiciary                       Supreme Court

It has the weak separation of power which means that the doctrine of separation of power is used in the broad sense. Because the functions of all three organs overlap with each other and also work together.

  • United States

The doctrine of separation of power is applied in the strict sense.

The powers are vested in different entities. Article 1 section 1 states that all legislative powers shall be conferred on the  Congress of the United States.

Article II Section 1 talks about all the executive powers that shall be conferred in President of the United States of America.

Article III Section 1 states that judicial power shall be conferred on the Supreme Court and other courts which the Congress may establish from time to time.

The word  “shall” is used which means that it is mandatory and it has to be followed.

Conclusion

“Power corrupts and absolute power tends to corrupt absolutely” – Lord Action.

Exercising the doctrine of separation power cannot be applied in the strict sense in any contemporary countries like The United States, Nepal, France etc. But still, this doctrine has relevancy nowadays. Our government is an organized system and it is very difficult to divide into watertight compartments.

For the smooth functioning of any government,  cooperation and coordination among all three wings of the government are necessary. Professor Garner said that “this doctrine is impracticable as working principle of Government. It is difficult to divide the functions of each organ on an accurate basis”.

In my opinion, this doctrine has a great significance as it protects the liberty of the individual from the arbitrary rule and prevents the organs from usurping the essential functions of other organs.

It is applicable in almost all countries up to a certain extent.

References
  1. https://www.lawctopus.com/academike/doctrine-of-separation-of-powers/
  2. http://www.legalservicesindia.com/article/1617/Separation-of-Powers-and-Its-Development-with-Special-Reference-to-India.html
  3. https://www.heritage.org/political-process/report/what-separation-powers-means-constitutional-government

 

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