June 18, 2021

Separation of Power and it’s Application in India

administrative law

Introduction

Why does any concept comes into existence ? One of the reasons being the flaws in the existing system. Same is the case with the Theory of Separation of Powers. As we already know, Monarchy existed in many nations as the most preferred form of the government for a very long time but due to arbitrariness and abuse of power. Head of the state had all the powers who were not answerable to anyone. The entire control mechanism of the state being in single hands, it was quite difficult to protect the rights of the citizens. Therefore, to eliminate such dominance of power and to prevent suppression of the citizens by those leading the state, theory of separation of powers was brought into existence.

How the Doctrine of Separation of Power Came into Existence?

Aristotle originated the principle of separation of powers. Aristotle first mentioned the idea of the mixed government or hybrid form of the government in his book ‘The Politics’ which he wrote on various constitutional forms that existed in the Ancient Greece.

John Locke developed the principles on which theory of separation of powers is based upon. In his work ‘Two Treatise of Government’ where he defined three branches of government as ‘legislative’, ‘executive’ and ‘federative’ which he considered as unequal, legislative branch being the supreme one. His model corresponded with the dual form of the government.

Montesquieu, finally, profounded the theory of separation of powers. Charles-Louis de Secondat, Baron de La Brède et de Montesquieu was an 18th century French social and political philosopher. The term ‘trias politica’ or ‘separation of powers’ was coined by Montesquieu who articulated this principle scientifically, accurately and systemically in his famous book, ‘The Spirit of the Laws’. Under his model, the political mechanism of the state is divided into Legislative, Executive and Judiciary. He asserted, for the most effective liberty, these three powers must be separate and should act independently. Montesquieu envisioned the principle of three branches of the government keeping the following conditions in mind :

• The same person should not form a part of more than one of the three organs of the government.

• One organ of the government should not interfere with any other organ of the government.

• One organ of the government should not exercise the functions assigned to any other organ.

Meaning of Separation of Powers

As is evident from the name itself, theory of three branches of the government divides the entire governance mechanism into three different organs to reduce the arbitrariness by the people running the state. The division is also necessary as it is impossible for any one organ to perform all the roles and responsibilities systematically and appropriately. Under this theory, the state is divided into the three branches – Legislative, Executive and Judiciary as given by Montesquieu. Each organ has it’s own independent working, separate set of rules and guidelines to follow and has no power to interfere with the working of the another organ.

Connection of Separation of Powers to the U.S. Constitution

The doctrine of separation of power in India has been adopted from the Constitution of United States. This doctrine finds its home in the U.S. where the doctrine is being adopted in the strict sense. The makers of the American Constitution believed the adoption of this principle is necessary so as to prevent the rise of tyrannical government. Three departments have been established under the Constitution of USA to ensure adequate division of powers which are as follows :

• Article I, section 1 vests all legislative power in the Congress,

• Article II, section 1 vests all executive power in the President of the United States, and

• Article III, section 1 vests all judicial power in the Supreme Court.

Marbury v. Madison is arguably the most important case in United States Supreme Court history specially, when it comes to the development of the doctrine of separation of powers in U.S. This case established the system of judicial review in the U.S. under Article III of the Constitution. Until this case, it was unclear which branch of government had the final say in what is, and is not, a constitutional law.

William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia but whose commission was not subsequently delivered filed a petition in the Supreme Court to force Secretary of State James Madison to deliver the documents, but the court, with John Marshall as Chief Justice, denied Marbury’s petition, holding that the part of the statute upon which he based his claim, the Judiciary Act of 1789, was unconstitutional. The landmark decision has helped in defining the “checks and balances” of the US government back then.

Principle of Check and Balances

System of Check and Balances is the natural extension of theory of separation of powers. The intention behind a system of separated powers is to prevent the concentration of power by providing for checks and balances. The second and the third conditions envisioned by Montesquieu, as mentioned earlier, depict the same concept of checks and balances. The concept says that each organ of the government has the power to check the functioning of the another organ whenever any organ unduly performs the roles allotted to it or tries to intervene in the functioning of any other organ and can prevent it from doing so. Said in simpler words, basically, each branch has power to limit or check the other two branches, which creates a balance between the three separate branches of the state.

  Application of Separation of Powers in India

 Looking at the provisions of the Constitution of India, it is evident that the Doctrine of separation and power has been accepted in India but unlike U.S., India has accepted it in rigid sense instead of strict sense. Meaning to say, in India, there is a proper distinction between three organs and their functions. In India, not only there is functional overlapping but there is personnel overlapping also.

There is a Excellent system of checks and balances as provided in the constitution over each pillar of our democracy to curb the illegal and arbitrary exercise of powers.

The basic principle under the Indian Constitution is that the legal sovereign power has been distributed between three organs of the governance as follows:

Legislative – The role of this organ of the government is to frame laws and regulations for citizens and other organs to follow which expresses the ‘the will of the state’. Legislature is given is the first place among the three organs because until and unless the law is framed the functioning, implementing and applying of the law cannot be exercised. Therefore, the role of legislature of the basis of the working of the other two organs, thereby, depicting the interdependence of the organs.

In India, legislature organ comprises of two bodies : (a) Parliament which includes Raj Sabha and Lok Sabha, which lays down the laws at the central level for the nation and (b) State Legislative bodies which frames the laws at the state level, each for it’s own state.

Executive – The main function of the executive is to implement, carry out and enforce the will of the State. The executive is the administrative head and the impetus of the government. It is called as the mainspring of the government because if the executive crack-up, it might lead to the collapse of the government.

In Indian executive mechanism, (a) President is the head of the executive at the central level whereas, (b) Governor is the head of the executive at the state level. Moreover, Indian executive also includes head of the minister, advisors, departmental head and his ministers.

Judiciary – Laws framed by legislative are to be applied by the Judiciary taking into consideration principles like Natural Justice, Liberty and Fairness. Moreover, Judiciary also ensures that the laid rules and regulations are being enforced in a proper manner.

Indian judiciary system comprises of (a) Supreme Court as the apex court of the country, (b) High Courts as the highest most courts their respective states and (c) Subordinate courts at various levels in the district as per the needs of the governance.

Articles associated with Separation of Powers

Articles which have expressly adopted the doctrine of separation of power in the Constitution of India have been talked of below :

Article 52 to 78 : Chapter I of the Part V of the Indian Constitution talks about the executive organ of the government at the union level. These articles lay down all the necessary rules and regulations to be followed by the President, Vice-President, Council of Ministers, the Attorney-General for India and whereabouts of the conduct of the government business.

Article 79 to 123 : Chapter II of the Part V of the Constitution states the laws that are to be followed by the Parliament at the legislative level like who can be the officers of the Parliament, conduct of Parliamentary business, disqualifications of the members, powers, privileges and immunities to the members, legislative procedure to be followed and so on that are to abided by at the central level.

Article 124 to 147 : Chapter IV of the Part V of the Constitution discusses the guidelines that are to be followed by the Judiciary at the union level like establishment and constitution of the Court, appointment of judges, their qualifications and disqualifications, other civil and judicial authorities and alike.

Article 153 to 167 : Chapter II of the Part VI of the Constitution tells about the executive organ of the government at the state level. Laws have been laid down that are to be followed by the Governor, Council of Ministers, Advocate-General for the State and about the conduct of the government business.

Article 168 to 213 : Chapter III of the Part VI of the Constitution talks about the Legislative organ of the government at the state level. These articles include regulations regarding constitution of the State Legislative, appointment, qualifications, disqualifications, powers, privileges, immunities to the officers of the State Legislature, legislative procedures to be followed.

Article 214 to 237 : Chapter V and VI of the Part VI of the Constitution lays down laws regarding the Judiciary at the state level. These articles talk about the constitution of the High Courts and the Subordinate Courts in the state, appointment of the judges, powers, authorities and so on.

Judicial Pronouncement Involving Separation of Powers

Application of the Doctrine of Separation of Power has been discussed in ‘n’ number of cases. Some of the landmark Judicial Pronouncement given in the Indian cases have been discussed below :

• The first judgement that involved the Doctrine of separation of power was in the case of Ram Jawaya v State of Punjab. The court observed that the Doctrine of separation of power is accepted in India neither fully nor in strict sense. Observing this, Justice Mukherjee said :

The Indian constitution has not indeed recognized the doctrine of separation of powering 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”.

• In the case of I.C. Golakhnath v.  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. The Court 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 the landmark case of Keshvananda Bharti v Union of India, the. Court has the views that the amending power is subjected to the basic features of the constitution. Therefore, any kind of alteration to the basic structure was prohibited and would be considered unconstitutional. Justice Beg observed that the separation of powers is the part of the basic structure of the Constitution and thereby confirming the relation to the Doctrine.

• The issue of whether the legislature can undertake judicial functions was addressed in the case of Indira Nehru Gandhi v. Raj Narain,  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.

Conclusion

The Modern State has transformed from Police State to Welfare State. Earlier the State functions were confined to defense, administration of justice or maintenance of law and order. With the gradual change in time, state undertook the responsibility to provide social security and social welfare for the common man, regulate industry, trade etc with a view to protecting as well as promoting public interest. Thus, with such a workload it is not possible for the State to stick to the doctrine of Separation of powers. Theory of Separation of power cannot be practically possible in reality.

It is rightly said by Madison that, “The accumulation of all powers, legislative, executive and judicial, in the same hands of one, a few or many, and whether hereditary, self appointed or elective, may justly be pronounced the very definition of tyranny”.

From this it can be concluded that the doctrine of separation of powers in the strict sense is undesirable and impracticable and therefore till now it has not been fully accepted in any of the country. In theory under the Constitution of United States of America the doctrine of separation of power has been strictly adopted but there also gradually the Supreme Court is relaxing the policy. In India also on casual viewing of the Constitution it can be said that India has adopted the doctrine of separation of power but in reality it is not so. The three organs in some or the other way perform the task of other. For e.g. the legislature delegate some powers to executive, thus executive the function of the legislature, in the same way the Parliament other than making laws also have judicial power which it can exercise when its contempt take places.

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Author Details: Shree Gupta (University of Lucknow)

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