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By Yashmita
Editors Note: The doctrine of separation of powers is essentially what fortifies the
three pillars of democracy. Without such a demarcation, the point of such offices
and such pillars is redundant, and the nation might as well be a dictatorial state, with
all three pillars working in collusion. This paper compares the doctrine
of separation of powers in India, the U.S.A. and England, and the reiteration of this
demarcation in the three nations by the judiciary.
INTRODUCTION
Meaning
The doctrine of Separation of Powers emphasizes the mutual exclusiveness of the three organs
of government, viz., legislature, executive and judiciary. The main underlying idea is that each of
these organs should exercise only one type of function. There should not be concentration of all
the functions in one organ otherwise it will pose a threat to personal freedom, for; in that case, it
could act in an arbitrary manner. It could enact a tyrannical law, execute it in a despotic manner
and interpret it in an arbitrary manner without any external control. The purpose underlying
separation doctrine is to diffuse governmental authority so as to prevent absolutism and guard
against tyrannical and arbitrary powers of the state, and to allocate each function to the
institution best suited to discharge it. The rationale underlying the doctrine that been that if all
power is concentrated in one and the same organ, there would rise the danger of state
absolutism endangering the freedom of the people. However, it needs to be appreciated that in
considering this doctrine, we have moved from the discipline of law to that of political theory.
The separation of powers is a doctrine not a legal principle.[i]
Origin
There is an old adage containing a lot of truth that power corrupts and absolute power
corrupts absolutely. To evolve effective control mechanism, man had been looking for devices
to contain the forces of tyranny and authoritarianism. Separation of Powers was conceived to
be one such device.
It may not be possible to state precisely the origins of the doctrine of separation of powers.
However, if we look to the writings of the Greek philosopher Aristotle, it is possible to discern a
rudimentary separation of powers doctrine. Thus in his Politics, Aristotle remarked that:
There are three elements in each constitution in respect of which every serious lawgiver must
look for what is advantageous to it; if these are well arranged, the constitution is bound to be
well arranged, and the differences in constitutions are bound to correspond to the differences
between each of these three elements. The three are, first the deliberative, which discusses
everything of common importance; second, the officials . . .; and third, the judicial element.
The English political theorist, JohnLocke (1632-1704), also envisaged a threefold classification
of powers. Writing in The Second Treatise of Government (1689), Locke drew a distinction
between three types of power: legislative, executive and federative. . In Lockes analysis, the
legislative power was supreme and although the executive and federative powers were distinct,
the one concerned with the execution of domestic law within the state and the other with a
states security and external relations, he nevertheless took the view that they are always
almost united in the hands of the same persons. Absent from his classification is any mention
of a separate judicial power. Moreover, the proper exercise of these powers is achieved not
through separation but on the basis of trust i.e., that a community has entrusted political power
to a government. Thus, Lockes analysis does not, strictly speaking, amount to the exposition of
a doctrine of the separation of powers.[ii]
The doctrine saw its full expansion in the hands of Charles Louis de Secondat, otherwise known
as Baron de Montesquieu (1689-1755). He felt that the history of despotic Tudors and
absolutist Stuarts, showed that freedom was not secured, if the executive and the legislative
powers were held in the same hands. He deduced his ideas of separation of powers from his
observations and ideas of the relations between the Stuart King and the Parliament. He thought
that Parliament would never be arbitrary, and the denial of legislative power to the King alone
could make the rule by extemporary decrees impossible. Montesquieu having experienced the
tyrannies in the monarchical France, must have watched the conditions on the other side of the
Channel with envy. In the second half of the 17th century, he would not fail to notice that the
Englishmen stood under the warm sunshine of the Magna Carta. Having lost his legislative and
tax powers to the Parliament, the English King was left with no prerogative. Parliament made
the laws. His Majestys Government was, even though the cabinet system was not yet
developed, administering the laws passed by Parliament. By the end of the century the judges,
like the Great Coke, could not be dismissed by the King at his will, because the Act of
Settlement gave them tenure during good behavior as distinguished from tenure during the
pleasure of His Majesty. Montesquieu concluded that the secret of the Englishmens liberty was
the separation and functional independence of the three departments of the Government from
one another.[iii]
In his book, De LEsprit des Lois (The Spirit of the Laws) 1748, Montesquieu stated:
When legislative power is united with executive power in a single person or in a single body of
the magistrates, there is no liberty, because one can fear that the same monarch or senate that
makes tyrannical laws will executive them tyrannically. Nor is there liberty if the power of judging
is not separate from legislative power and from executive power. If it were joined to legislative
power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be
the legislator. If it were joined to executive power, the judge could have the force of an
oppressor. All would be lost if the same man or the same body of principal men, either of
nobles, or of the people, exercised these three powers: that of making the laws, that of
executing public resolutions, and that of judging the crimes or the disputes of individuals.[iv]
from the executive, the constitutional scheme does not embody any formalistic and dogmatic
division of powers.[v]
As a general provision, Parliament is entrusted to make the law for the union. Executive is
entrusted with duty of implementation of law and judiciary is also considered to be independent
under the constitutional scheme in India. However, there are many exceptions which negate the
application of this doctrine.[vi]
Constitutional Provisions
Under Article 53 the executive powers of the union are vested with the President and under
Article 154 the Governor is vested with execution powers but they do exercise their powers with
the aid and advice of the council of ministers at the Centre (Article 74) and at the State, as the
case may be. Both President and Governor exercise the power of ordinance making under the
constitution thus performing legislative functions. President makes laws for a State, after the
dissolution of the State Legislature, following the imposition of the Presidents Rule (Article 356).
President has the power to disqualify any member of the house under Article 103. The judges of
the Supreme Court are appointed by the President, while the parliament has the power to
impeach the judges. The President has the power to decide a disputed question of the age of a
judge of Supreme Court or any High Court for purpose of set restrain from the judicial service.
The Union Council of Ministers is responsible to the Lok Sabha (Article 75). This house has the
powers to start impeachment proceedings against the President (Article 61) and the judges of
the Supreme Court. The members of Council of Ministers will be members of either house of
Parliament under Article 75(5) which means there is overlapping of personnel also.[vii]
The judicial function of Parliament is too substantial in certain respects. It can consider the
question of breach of any known parliamentary privilege; and in a case where the charge is
established have power to punish for their contempt.
The High Courts in certain marginal spheres perform such functions which are administrative
rather than judicial. Their power of supervision over other subordinate courts under Article 227 is
more of the administrative nature than judicial. When under Article 228 they have power to
make transfer of cases, they exercise administrative control over the State district courts as well.
The legislative power of the High Courts and the Supreme Court includes their power to frame
rules which is fairly wide.
The Executive in India is authorized to legislate in the name of delegated legislation. In the name
of administrative adjudication of the right of individual citizens, the administrative agencies,
which are statutory tribunals and domestic tribunals have been constituted and perform judicial
function.[viii]
Therefore, the functions of different organs are clearly earmarked so that one organ does not
usurp the functions of another. In Indira Nehru Gandhi v. Raj Narain [AIR 1975 SC 2299], Ray
CJ., also observed that in the Indian Constitution there is separation of powers in broad sense
only. Beg, J., has observed that basic structure also embodies the separation of powers
doctrine and none of the pillars of the Indian Republic can take over the other functions, even
under Article 368. Chandrachud, J., reiterated this view and held that this doctrine is useful as a
means of checks and balances in a political setup. For examples the judiciary should shy away
from the politics of the Parliament and the latter should revere the opinion of the Courts.[xii]
On a casual glance at the provisions of the Constitution of India, one may be inclined to say that
the doctrine of broad division of the power of state has been accepted under the Constitution of
India. In Golaknath v. State of Punjab [AIR 1967 SC 1643], Subba Rao, CJ., 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 Bandhuva Mukti Morcha v. Union of India [AIR 1984 SC 802], Pathak J., said:
The Constitution envisages a broad division of the power of state between the legislature, the
executive and the judiciary. Although the division is not precisely demarcated, there is general
acknowledgment of its limits. The limits can be gathered from the written text of the
Constitution, from conventions and constitutional practice, and from an entire array of judicial
decisions.[xiii]
Essential functions were defined in Mallikarjuna v. State of Andhra Pradesh [AIR 1990 SC 1251],
when the Andhra Pradesh Administrative Tribunal directed the State Government to evolve
proper and rational method of determination of seniority among the veterinary surgeons in the
matters of promotions to next higher rank of Assistant Director of Veterinary Surgeons. The
Supreme Court quashed the aforesaid direction and observed that the power under Article 309
of the Constitution to frame rules is the legislative power which has to be exercised by the
President or the Governor of the State as the case may be. The High Court or Administrative
Tribunals cannot issue a mandate to the State Government to legislate on any matter. In this
way the principle of restraint prevents any organ of the State from becoming superior to another
or others in action.
Similarly, in Supreme Court Employees Welfare Association v. Union of India [AIR 1990 SC
334], it was held that no court can issue a direction to a legislature to enact a particular law
neither it can direct an executive authority to enact a law which it has been empowered to do
under the delegated legislative authority.[xiv]
cabinet is collectively responsible to the Parliament. The President has a fixed tenure of office
and does not depend on majority support in the Congress. Before the expiry of his term, he can
be removed only by the extremely cumbersome process of impeachment. Nor can the
President dissolve the Congress whereas in India, Prime Minister has the power to seek
dissolution of the Parliament. The executive therefore is not in a position to provide effective
leadership to the legislature and it is not always that the Congress accepts the programme and
the policy proposed by the executive. The independence of the Supreme Court is
constitutionally guaranteed.[xix]
become impossible. For practical reasons therefore the doctrine of separation has to be diluted
somewhat to accommodate the growth of administrative process.[xxii]
Delegated Legislation
The American Administrative Law has certain distinctive features which are a product of
separation doctrine. A significant breach of the doctrine occurred when the courts concede the
legislative power could be conferred on administrative authorities, and thus, the system of
delegated legislation came in vogue. But, in a bid to reconcile the separation doctrine, the
courts laid down that Congress cannot confer an unlimited legislative power on an
administrative authority, that the Congress must not give up its position of primary legislator and
that the Congress should therefore lay down the policy which the delegate is to follow, while
making the rules.[xxiii] J. Mukherjee in re Delhi Laws Act [Supra] case observed:
The position in America is that despite the theory that legislature would not delegate its power
to the executive a host of rules and regulations are passed by non-legislative bodies, which
have been judicially recognized as valid.[xxiv]
SEPARATION
ENGLAND
OF
POWERS
IN
Maitland traces the doctrine of Separation of Powers in England to the reign of King Edward I
(1239-1307). He observes that all the three elements were present in the form of Parliament,
Kings Council and Courts of Law.
Viscount Henry St. John Boling Broke (1678-1751) in his book Remarks on the History of
England advanced the idea of separation of powers. He laid emphasis on balance of powers
within the constitution because an imbalance would destroy it. He asserts that for protection of
liberty and security in a state, equilibrium is needed between the Crown, the Parliament and the
people.
Although Motesquieu derived the concept of his doctrine of separation of powers from the
British Constitution, as a matter of fact at no point of time this doctrine was accepted in its strict
sense in England. On the contrary, in reality, the theory of integration of powers has been
adopted in England. It is true that the three powers are vested in three organs and each has its
own peculiar features, but it cannot be said that there is no sharing out of the powers of the
government. Thus, the King, though an executive head is also an integral part of the Legislature.
Similarly, all his Ministers are also members of one or the other Houses of the Parliament. The
Lord Chancellor is head of judiciary, Chairman of the House of Commons (Legislature), a
member of the executive and often a member of the cabinet. The House of Commons ultimately
controls the Legislative. The judiciary is independent but the judges of the superior courts can
be removed on an address from both Houses of Parliament.[xxv]
In England, S.O.P has historical relevance only. Daniel Ullman says, England is not the classic
home of the separation of powers. Each power there has taken on a character of its own, while
at the same time preserving the features of the others. The position has been summed up by
the Donoughmore Committee in the following words:In the British Constitution there is no such thing as the absolute separation of legislative,
executive and judicial powers. In practice it is inevitable that they overlap. In such Constitutions
as those of France and the United States of America, attempts to keep them rigidly apart have
been made, but have proved unsuccessful. The distinction is nonetheless real and important.
One of the main problems of modern democratic State is how to preserve the distinction whilst
avoiding too rigid an insistence on it, in the wide border land where it is convenient to entrust
minor legislative and judicial functions to executive authorities.[xxvi]
The U.K. does have a kind of separation of powers, but unlike United States it is informal. Black
Stones theory of Mixed Government with checks and balances is more relevant to the U.K.
Separation of powers is not an absolute or predominant feature of the U.K. Constitution. The
three branches are not formally separated and continue to have significant overlap.
The U.K. is becoming increasingly concerned with the Separation of powers, particularly
because of Article 6 of the European Convention on Human Rights which protects the right to
fair trial. The Constitutional Reforms Act, 2005 reforms the office of Lord Chancellor and the
Law Lords will stop being in the legislature. Section 23 of the Act provides for establishment of
Supreme Court of United Kingdom. The Supreme Court whose powers have been separated
from the powers of Parliament has become functional since October, 2009. Section 61 of
Constitutional Reforms Act, 2005 provides for Constitution of Judicial Appointments
Commission, for appointments of Judges in the Supreme Court as well as the court of appeal.
Thus by and large independence of Judiciary has been ensured by the Constitutional Reforms
Act, 2005.[xxvii]
On numerous occasions, senior judges have expressed the opinion that the U.K. Constitution is
base on a separation of powers. Thus in Duport Steels Ltd. v. Sirs (1980), Lord Diplock stated
that:
At a time when more and more cases involve the application of legislation which gives effect to
policies that are the subject of bitter public and parliamentary controversy, it cannot be too
strongly emphasized that the British Constitution, though largely unwritten, is firmly based in the
separation of powers; Parliament makes the laws, the judiciary interprets them.[xxviii]
CONCLUSION
The modern interpretation of the doctrine of separation of powers is not a mere theoretical
philosophers conception. It is a practical work-a-day principle. The division of Government into
three branches does not imply, as its critics would have us think, three water-tight
compartments. The machinery and procedure of legislative impeachment of executive officers
and judges, executive veto over legislation and appointment of judges and judicial review of
legislation and executive action are essential features of any sound constitutional system. It is
said that instead of applying the doctrine in a strict sense of the functional machinery and
procedures of the Government, the doctrine should be deemed to require a system of checks
and balances among the three departments of the Government while opposing the
concentration of governmental powers in any of the three departments.
ENDNOTES
[i] Commentary: Jain M.P & S.N Jain, Principles of Administrative Law, Wadhwa & Company
Nagpur, 2007, pp 31,32.
[ii] Parpworth Neil, Constitutional & Administrative Law, Oxford University Press United
Kingdom, 2012, pp 18,19.
[iii] Jain Kagzi M.C., The Indian Administrative Law, University Law Publishing Co. Pvt. Ltd.,
2002, pp 15,16.
[iv] Supranote 2, pp 19,20.
[v] Massey I.P, Administrative Law, Eastern Book Company, Lucknow, 2012, p 40.
[vi] Kumar Devinder, Administrative Law, Allahabad Law Agency, Faridabad, 2007, p 19.
[vii] Id, p 20.
[viii]Supra note 3, p 19.
[ix]Supra note 5, p 40.
[x]Supra note 3, p 20.
11 Jain M.P & S.
N Jain, Principles of Administrative Law, Wadhwa & Company, Nagpur, 2007, p 26.
[xii] Kesari U.P.D, Lectures on Administrative Law, Central Law Publications, Allahabad, 2005,
pp 23,24.
[xiii] Upadhaya J.J.R, Administrative Law, Central Law Agency, Allahabad, 2006, p 40.
[xiv]Ibid, p 42.
[xv]Supra note 1, p 31.
[xvi]Ibid, p 32.
[xvii]Supra note 3, p 16.
[xviii] Supra note 1, p 32.
[xix]Ibid.
[xx]Ibid, p 32,33.
[xxi]Supra note 13, p 39.
[xxii]Supra note 1, p 33.
[xxiii]Ibid.
[xxiv]Supra note 13, p 39.
[xxv]Ibid.
[xxvi]Supra note 3, p 16.
[xxvii]Supra note 11, p 25.
[xxviii]Supra note 2, pp 26,27.
"
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