Separation of Powers

Separation of Powers

Introduction

The doctrine of separation of powers is of ancient origin which talks about that one organ of the government has power to work in his field only, not in other. In the 16th and 17th centuries, French Philosophers John Bodin and British politician Locke respectively had expounded the doctrine of separation of powers. But it was Montesquieu who for the 1st time gave it a formulation in his book ‘Esprit des Lois (The Spirit of the Laws) published in the year 1748.

Meaning

There are 3 organs of the government:

            i.          The Legislative;

           ii.          The Executive;

         iii.          The Judicial.

The theory of separation of powers means that all the 3 organs of the government should work in their respective spheres, and discharge their functions separately. Accordingly, one organ cannot exercise the powers of other organs.    

Montesquiue’s theory

According to this theory, powers are of three kinds: Legislative, executive and Judicial power and that each of these powers should be vested in a separate and distinct organ, for if all these powers, or any two of them are United in the same organ or individual, there can be no liberty. There would be end of everything if the same man or the same body were to exercise those three powers, that of enacting laws, executing the public resolutions and of trying the causes of individuals.

According to Wade and Philips[1] separation of powers may mean three different things:

        i.          It's not justified for the same people to be in more than one part of the government. For example, ministers shouldn't also be members of parliament;

      ii.          It is imperative that each branch of government refrain from controlling or impeding the functions of another branch. For instance, the judiciary must operate independently of the Executive, and ministers should not be accountable to Parliament.; and

    iii.          Each branch of government must refrain from assuming the functions of another. For example, ministers should not wield legislative authority.

Criticism

1.     Overlapping of organs - The assumption behind the doctrine of separation of powers is that, all the three organs of government are divisible from each other but the fact is that, it is not so in reality. There is overlapping with each other. Friedmann and Benjafield believe that each of the three roles of the government has parts of the other two roles. Trying to strictly separate these roles doesn't work well and can make the government work less effectively.[2]

2.     Practical difficulties in its acceptance – It's not possible to put all the power in one part of government. The organ that makes laws also checks on the organ that enforces them. And the courts not only decide legal cases but also have some say in making rules.

3.     Adherence to it not possible in welfare states - the modern state is a welfare state and it has to solve many complex socio-politico-economic problems of a country. In this state of affairs, it is not possible to stick to this doctrine of separation of powers. As Justice Frankfurter says: “Enforcement of rigid conception of separation of powers would make modern Government impossible.”[3]

4.     Organic separation - Basu[4] believes that nowadays, the idea of separating powers in government means there's a natural division. He thinks it's important to understand the difference between important powers and less important ones. According to him, one part of the government shouldn't take over the important jobs of another part, but it can help with less important tasks. So, he doesn't think strict separation of powers is a good idea because it's too hard to do in real scenerio. But he still thinks it's valuable because it reminds us to have systems in place to stop the government from abusing its power.[5]

Doctrine of Separation of powers in Indian context

In India, the idea of separating powers between different branches of the government isn't officially part of the constitution. Back when the constitution was being written, there was a suggestion to include this idea, but it was deliberately rejected and left out. Other than Article 50, which says that the judiciary should be separate from the executive branch, there isn't a strict division of powers laid out in the constitution. The main idea behind the separation of powers is that each branch of government shouldn't take over the main responsibilities of the others.

       i.          Parliamentary executive – Although, according to article 53, the executive power of the Union is vested in President, the constitution provides for parliamentary executive. Acc. to Article 74, the Council of Ministers with the prime minister at the head to aid and advise the President in the exercise of his functions. Acc. to Article 75, the Council of Ministers including the Prime Ministers are members of the parliament and collectively responsible to the House of People.

     ii.          Broad Division of Functions - On a casual glance at the provisions of constitution of India, it can also have said that the doctrine of broad division of power of state has been accepted under the constitution of India.

In the case of Golaknath vs. State of Punjab, Chief Justice Subba Rao remarked that the Constitution establishes distinct entities, including the Union, the States, and the Union Territories. It establishes three primary branches of authority: The Legislature, the Executive, and the Judiciary. The Constitution precisely delineates their jurisdictions and expects each to operate within its designated boundaries, without exceeding their prescribed limits. They are required to function within the realms allocated to them.

In Bandhuva Mukti Morcha vs. Union of India,[6] 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 acknowledgement of its limits. The limits can be gathered from the written text of the Constitution, from conventions and constitutional practice, and from judicial decisions.

   iii.          Functional Overlapping - It is clear from the constitutional provisions that the doctrine of separation of powers has not been accepted in India. The President of India in whom the executive authority of India is vested exercises legislative power in the shape of ordinance making power and also the judicial powers under Article 103 (1) and Article 217.

The supreme Court has the power to declare the laws passed by the legislature and the actions taken by the executive, void, if they violate any provision of the Constitution.  Even the power to amend the constitution by the Parliament is subject to judicial review. The court has power to declare any constitutional amendment void if it violates the basic structure of the Constitution.[7]

The legislature exercises not only legislative powers but also judicial powers in the cases of breach of its privilege, impeachment of the President and removal of the judges.

     iv.          Separation of powers as a basic structure – In the case of Indira Nehru Gandhi vs. Raj Narain,[8] Justice Beg remarked that the concept of Separation of Powers is an inherent aspect of the fundamental framework of the constitution. Each of the three distinct branches of the Republic is tasked with specific functions that cannot be assumed by another. This constitutional arrangement remains unalterable, even though the amending process outlined in Article 368 of the Constitution.

   v.          System of checks and balances – If the doctrine of separation of powers in its classical sense cannot be applied to any modern government, this does not mean that the doctrine has no significance. It has not lost its political significance in the sense that it results in central authority to avoid absolutism and there must be a check on the power of all the organs of the government.

The Supreme Court has observed in Asif Hamid vs State of J & K,[9] that “Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. Although the exercise of powers by the legislature and executive branches is subject to judicial review, our own exercise of power relies solely on self-imposed discipline through judicial restraint.”

Conclusion

The doctrine of separation of powers is a great concept, which results in that the all three organs should not interfere in the working of other organ, all the organs discharge their duties in their respective spheres and it protects the rights of individual as if one organ violates any rights then it can be enforced by the another organ i.e. judiciary. It also maintains the efficiency of the administration, independence of judiciary and prevents legislature from enacting an arbitrary rule.     

References

[1] Constitutional Law, 1960 pp. 22-34.

[2] Principles of Australian Administrative Law, 36 (1962).

[3] Ibid.

[4] Administrative Law, 1986 p. 24.

[5] Indian Law Institute, Cases and materials on Administrative Law in India, 1966 p. 71

[6] AIR 1984 SC 802.

[7] Keshvananda Bharti vs. State of Kerala, AIR 1973 SC 1461. 

[8] AIR 1975 SC 2299.

[9] AIR 1989 SC 1899.