SEPARATION OF POWERS BETWEEN VARIOUS ORGANS and DISPUTE REDRESSAL MECHANISMS AND INSTITUTIONS AND INSTITUTIONS
The three organs of the government which we know as the executive, the judiciary and legislature represent the people and their will in our country and are responsible for the smooth running of a democratic government in our society.
The legislature is the law-making body, the executive is responsible for the enforcement of all such laws and the judiciary deals with the cases that arise from a breach of law. Thus they are all interlinked organs of the government and their roles and functions tend to overlap with each other, as it isn’t possible to separate the three from each other completely.
This has been the cause for not only serious political debate in our country but has raised many philosophic and jurisprudential debates among legal scholars and the law fraternity. Whether there should be a complete separation of powers or a well co-ordinated system of distribution of powers thus becomes the focal point of contemplation.
The French scholar Montesquieu pointed out as early as in the sixteenth century that placing power in the hands of only one organ or group in a government entails tyranny. Thus to check this problem he felt that the solution would be to vest power in three distinct organs of the government, namely, the legislature, the executive and the judiciary. This would allow each organ to be independent of the other such that no encroachment or overlapping of powers may exist and a harmony may be reached which would aid the smooth running of the government.
These words state the Doctrine of Separation of Powers as given by Montesquieu, “There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing laws, that of executing public resolutions, and of trying the causes of individuals.”
This doctrine stands testimony to Montesquieus belief that powers of the executive and the legislature if vested in the same hands would result in a situation of arbitrariness and despotism, for the executive will be enabled with the power of having any laws it wishes, to be passed, alternatively if the judiciary and legislature or executive were not separated then the common man would have no defence against the state. These Montesquieu saw as a serious threat to the liberty of the people and in order to preserve them extolled the theory of separation of powers.
The American politician. James Madison, better known as the ‘Father of the American Constitution’ also believed the same and articulated the following, “The accumulation of all powers, legislative, executive and judicial, in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.”
The system of government is largely credited to James Madison and is sometimes called the Madisonian model. Madison set forth his belief in the need for balanced government power in The Federalist, No. 51 However, the concept of separation of powers did not originate with Madison. It is often attributed to the French Philosopher Baron Montesquieu, who described it in 1748. At the Constitutional Convention of 1787, Madison played a leading role in persuading the majority of the Framers to incorporate the concept into the Constitution.
TRADITIONAL (CLASSICAL) APPROACH
The Doctrine of Separation of Powers, was proposed by Montesquieu, in his work, De l’espirit des lois, although the first thought of separating the legislative power was proposed by John Locke, into: discontinuous legislative power, continuous legislative power and federative power.
In 1787, the founding fathers of the United States of America, incorporated this principle into their constitution. Montesquieu proposed the basic principle to be that the same person should not form part of more than one of the three organs of the government. Ideally, that means that Ministers should not be elected. This is one principle that is different between the Indian and United States government, where the Secretaries to the President are non-legislative appointees.
Accumulation of power in any more than one of the branches of the government, would amount to the base of tyrannical rule, whether self-appointed or elected.
The Indian Constitution has not expressly recognized the Doctrine of Separation of Powers, but there is also the assumption that one wing of the government will not interfere with the other. Cases like I.R Coelho v. State of Tamil Nadu and Indira Gandhi v. Raj Narain, observed the separation of powers was limited, unlike the United States. However, none of the three separate organs of the Republic can take over the functions assigned to the other, even by resorting to Article 368.
Power corrupts and absolute Power tends to corrupt absolutely.” The separation of powers is based on the principle of trias politica. The Doctrine of Separation of Power is the forerunner to all the constitutions of the world, which came into existence since the days of the “Magna Carta”. Though Montesquieu was under the erroneous impression that the foundations of the British constitution lay in the principle of Separation of Power, it found its genesis in the American Constitution.
Montesquieu had a feeling that it would be a panacea to good governance but it had its own drawbacks. A complete Separation of power without adequate checks and balances would have nullified any constitution. It was only with this in mind the founding fathers of various constitutions have accepted this theory with modifications to make it relevant to the changing times.
The Doctrine of “Separation of Powers”, a vintage product of scientific political philosophy is closely connected with the concept of “judicial activism”. “Separation of Powers” is embedded in the Indian Constitutional set up as one of its basic features. In India the fountain-head of power is the Constitution. The sovereign power has been distributed among the three-wings:
The tripartite model of governance has its origin in Ancient Greece and Rome. Though the doctrine is traceable to Aristotle but the writings of Locke and Montesquieu gave it a base on which modern attempts to distinguish between legislative, executive and judicial power is grounded. The doctrine may be traced to ancient and medieval theories of mixed government, which argued that the processes of government should involve the different elements in society such as monarchic, aristocratic, and democratic interests.
The first modern formulation of the doctrine was that of the French writer Montesquieu in De l’esprit des lois (1748), although the English philosopher John Locke had earlier argued that legislative power should be divided between king and Parliament.
Locke distinguished between what he called:
1. Discontinuous legislative power
2. Continuous executive power
3. Federative power
He included within ‘discontinuous legislative power’ the general rule-making power called into action from time to time and not continuously. ‘Continuous executive power’ included all those powers, which we now call executive and judicial. By ‘federative power’ he meant the power of conducting foreign affairs. Montesquieu’s division of power included a general legislative power and two kinds of executive powers; an executive power in the nature of Locke’s ‘federative power’ and a ‘civil law’ executive power including executive and judicial power.
It was Montesquieu who for the first time gave it a systematic and scientific formulation in his book ‘Esprit des Lois (The Spirit of the laws) published in the year 1748. Locke and Montesquieu derived the contents of this doctrine from the developments in the British constitutional history of the 18th Century. In England after a long war between the Parliament and the King, they saw triumph of Parliament in 1688, which gave Parliament legislative supremacy culminating in the passage of Bill of Rights.
This led ultimately to a recognition by the King of legislative and tax powers of the Parliament and the judicial powers of the courts. At that time, the King exercised executive powers, Parliament exercised legislative powers and the courts exercised judicial powers, though later on England did not stick to this structural classification of functions and changed to the parliamentary form of government.
Most of the constitutions today specify that government be divided into three branches: legislative, executive and judicial. The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.
While separation of powers is key to the workings of most of today’s governments, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers.
Governmental powers and responsibilities intentionally overlap; they are too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government. Throughout American history, there also has been an ebb and flow of preeminence among the governmental branches. Such experiences suggest that where power resides is part of an evolutionary process.
Marxist- Leninist Approach
Marxist-Leninist theory rejects the theory of the separation of powers because it ignores theclass nature of society. The existence in a socialist state of state bodies with different jurisdiction means that a certain division of functions in exercising state power is essential while maintaining the unity of state power.
Doctrine of Separation of Powers in India
On a glance at the provisions of the Constitution of India, one may be inclined to say that that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution, executive powers are with the President, legislative powers with Parliament and judicial powers with judiciary.
The President’s function and powers are enumerated in the Constitution itself. Parliament is competent to make any law subject to the provisions of the Constitution and there is no other limitation on it legislative power. The Judiciary is independent in its field and there can be no interference with its judicial functions either by the Executive or by the Legislature. The Supreme Court and High Courts are given the power of judicial review and they can declare any law passed by the Parliament or the Legislature unconstitutional. Taking into account these factors, some jurists are of the opinion that the doctrine of Separation of Powers has been accepted in the Indian Constitution.
If we study the constitutional provisions carefully, it is clear that the doctrine of Separation of Powers has not been accepted in India in its strict sense. In India, not only there is functional overlapping but there is personnel overlapping also. The Supreme Court has power to declare void the laws passed by the legislature and the actions taken by the executive if they violate any provision of the Constitution or the law passed by the legislature in case of executive actions. The executive can affect the functioning of the judiciary by making appointments to the office of Chief Justice and other judges. One can go on listing such examples yet the list would not be exhaustive.
Separation of Powers and Judicial Pronouncements in India
The first major judgment by the judiciary in relation to Doctrine of separation of power was in Ram Jawaya v state of Punjab[i]. The court in the above case was of the opinion that the doctrine of separation of power was not fully accepted in India. Further the view of Mukherjea J. adds weight to the argument that the above said doctrine is not fully accepted in India. He states that: “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”.
Then in Indira Nehru Gandhi v. Raj Narain[ii], where the dispute regarding Prime Minister’s election was pending before the Supreme Court, it was held that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise. So, the main ground on which the amendment was held ultra vires was that when the constituent body declared that the election of Prime Minister wouldn’t be void, it discharged a judicial function that according to the principle of separation it shouldn’t have done. The place of this doctrine in Indian context was made a bit clearer after this judgment.
The Supreme Court in Keshvananda Bharti v Union of India[iii] was of the view that amending power was subject to the basic features of the Constitution. And hence, any amendment tampering these essential features will be struck down as unconstitutional. Beg, J. added that separation of powers is a part of the basic structure of the constitution. None of the three separate organs of the republic can take over the functions assigned to the other. Hence this further confirmed the opinion of the court in relation to the doctrine of separation of power.
The doctrine of separation of powers in the strict sense is undesirable and unpractical and therefore till now it has not been fully accepted in any of the country, but this does not mean that the doctrine has no relevance in the world of today. The logic behind this doctrine is still valid. The logic behind the doctrine is of polarity rather than strict classification, meaning thereby that the centre of authority must be dispersed to avoid absolutism. Hence the doctrine can be better appreciated as a doctrine of ‘check and balance’.
Separation of Powers
Though, just like the American constitution, in the Indian constitution also, there is express mention that the executive power of the Union and of a State is vested by the constitution in the President and the Governor, respectively, by articles 53(1) and 154(1), but there is no corresponding provision vesting the legislative and judicial powers in any particular organ. It has accordingly been held that there is no rigid separation of powers.
Although prima facie it appears that our constitution has based itself upon doctrine of separation of powers. Judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or the legislature. Constitution restricts the discussion of the conduct of any judge in the Parliament. The High Courts and the Supreme Court has been given the power of judicial review and they can declare any law passed by parliament as unconstitutional. The judges of the Supreme Court are appointed by the President in consultation with the CJI and judges of the Supreme Court . The Supreme Court has power to make Rules for efficient conduction of business.
It is noteworthy that Article 50 of the constitution puts an obligation over state to take steps to separate the judiciary from the executive. But, since it is a Directive Principle, therefore it is unenforceable.
In a similar fashion certain constitutional provisions also provide for Powers, Privileges and Immunities to the MPs, Immunity from judicial scrutiny into the proceedings of the house , etc. Such provisions are thereby making legislature independent, in a way. The Constitution provides for conferment of executive power on the President. His powers and functions are enumerated in the constitution itself. The President and the Governor enjoy immunity from civil and criminal liabilities.
But, if studied carefully, it is clear that doctrine of separation of powers has not been accepted in India in its strict sense. The executive is a part of the legislature. It is responsible to the legislature for its actions and also it derives its authority from legislature. India, since it is a parliamentary form of government, therefore it is based upon intimate contact and close co-ordination among the legislative and executive wings. However, the executive power vests in the President but, in reality he is only a formal head and that, the Real head is the Prime minister along with his Council of Ministers.
The reading of Art. 74(1) makes it clear that the executive head has to act in accordance with the aid and advice given by the cabinet.
Generally the legislature is the repository of the legislative power but, under some specified circumstances President is also empowered to exercise legislative functions. Like while issuing an ordinance , framing rules and regulations relating to Public service matters , formulating law while proclamation of emergency is in force . These were some instances of the executive head becoming the repository of legislative functioning. President performs judicial functions also. On the other side, in certain matters Parliament exercises judicial functions too.
It can decide the question of breach of its privilege , and in case of impeaching the President; both the houses take active participation and decide the charges Judiciary, in India, too can be seen exercising administrative functions when it supervises all the subordinate courts below . It has legislative power also which is reflected in formulation of rules regulating their own procedure for the conduct and disposal of cases So, it’s quite evident from the constitutional provisions themselves that India, being a parliamentary democracy, does not follow an absolute separation and is, rather based upon fusion of powers, where a close co-ordination amongst the principal organs is unavoidable and the constitutional scheme itself mentions it.
The doctrine has, thus, not been awarded a Constitutional status. Thus, every organ of the government is required to perform all the three types of functions. Also, each organ is, in some form or the other, dependant on the other organ which checks and balances it. The reason for the interdependence can be accorded to the parliamentary form of governance followed in our country. But, this doesn’t mean that this doctrine is not followed in India at all.
Except where the constitution has vested power in a body, the principle that one organ should not perform functions which essentially belong to others is followed. This observation was made by the Supreme Court in the re Delhi Laws Act case, wherein, it was held by a majority of 5:2, that, the theory of separation of powers is not part and parcel of our Constitution. But, it was also held that except for exceptional circumstances like in A. 123, A. 357, it is evident that constitution intends that the powers of legislation shall be exercised exclusively by the Legislature. As Kania, C.J., observed-
Although in the Constitution of India there is no express separation of powers, it is clear that a legislature is created by the constitution and detailed provisions are made for making that legislature pass laws. Does it not imply that unless it can be gathered from other provisions of the constitution, other bodies-executive or judicial-are not intended to discharge legislative functions?
In essence they imported the modern doctrine of separation of powers. While dealing with the application of this doctrine, it is quintessential to mention the relevant cases which clarify the situation further.
Overlap of powers
There are no separate provisions regarding the Doctrine of Separation of Powers has been given in our Constitution. But there are some directive principles are given in the constitution as in Part-IV and Part-V and Articale-50 of our constitution is separating the judiciary from executive as, “the state shall take steps to separate judiciary from the executive in the public services of the state,” and except this there is no formal and dogmatic division of powers.
In India, not only functional overlapping is there but also the personal overlapping is prevailing.
Under Article-142 and Article-145 of our constitution, the SC has the power to declare void the laws passed by legislature and actions taken by the executive if they violate any provision of the constitution or the law passed by the legislature in case of executive actions. Even the power to amend the constitution by Parliament is subject to the scrutiny of the Court. The Court can declare any amendment void if it changes the basic structure of the constitution. In many cases courts have issued directions for the Parliament to make policies.
The President of India who is the supreme executive authority in India exercise law making power in the form of ordinance making power under Article-123, also the Judicial powers under Article-103(1) and Article-217(3), he has the consulting power to the SC of India under Article-143 and also the pardoning power in Article-72 of the Constitution. The executive also affecting functioning of the judiciary by making appointments to the office of Chief Justice of India and other judges.
The Council of Minister is selected from the legislature and this Council is responsible for the legislature. The legislature exercising judicial powers in cases of breach of its privileges, impeachment of the President under Article-61 and removal of judges. The legislative body has the punitive powers under Article-105(3). In the words of Gledhill, “constitution of India has not ceremoniously wedded with Doctrine of Separation of Powers, however, it is whenever possible followed the doctrine of separation of powers.”
There are many cases in which SC has given judgements on basis of the facts related to those cases but we can understand the position of this doctrine in India by seeing some landmark opinions given by the Supreme Court in following cases;
In Ram Jawaya v. State of Punjab:
C.J. Mukerjee, said and held: “Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our constitution does not contemplate assumption by one organ or part of the State of Functions that essentially belong to another.”
In Indira Nehru Gandhi v. Raj Narain:
C.J. Ray said and held: “In the Indian constitution there is separation of powers in a broad sense only. A rigid separation of powers as under the US constitution or as under Australian constitution does not apply to India.” J. Beg added: “Separation of powers is the part of the basic structure of constitution. None of the three separate organs of the republic can take over the functions assigned to the other. This scheme of the constitution cannot be changed even by restoring to Article-368 of the constitution.”
Position in the United States
The framers of constitution of USA believed that only by allocating the three basic functions of the government; legislative, executive and judicial, in to three separate, coordinate branches could power be appropriately dispersed. Thus the US Constitution allocates the three powers in separate branches. The first three article of their constitution, known as the distributive articles, define the structure and powers of the congress (legislative body), executive and the judiciary.
They were aware of the Montesquieu’s idea about separation of powers and the fact that the new constitution adopted was based on separation of powers. Yet they were equally aware that in most states the legislature dominated the executive and judiciary. The system of checks and balances created by the framers and ensures that Congress can not dominate the executive and judicial branches of the national government. Moreover, constitutional limitations are not to be defined entirely independently of majoritarian preferences.
The Supreme Court of the US has not been given power to decide political questions, so that the Court may not interfere with the exercise of powers of the executive branch of the government.
The President of USA interferes with the exercise of the powers by the Congress through the exercise of Veto power. He also exercises the law making with the use of his treaty making power. The President also interferes with the functioning of the Supreme Court through the exercise of his power to appoint judges.
In the same manner the Congress interferes with the powers of the President through vote on budget, approval of appointments by the senate and the ratification of the treaty. The Congress also interferes with the working of courts by passing procedural laws, creating special courts and by approving the appointment of judges.
In this turn, the judiciary interferes with the powers of the Congress and the President through the exercise of its power of judicial review. It is correct to say the SC of USA made more amendments to US Constitution than the Congress itself.
Position in the UK:
A separation of powers in the purest form is not and never has been a feature in functioning of the organs of government in UK and since UK has no written constitution so there is no written document regarding this matter. An examination of the three powers reveals that in practice, they are exercised by persons or bodies which exercise more than one such power.
There are too many examples of overlap between three functions of the government. We can see the several examples as follows;
• Law Lords sit on the appellate committee of the House of Lords and the judicial committee of the Privy Council as well as in the House of Lords as a legislative body;
• Parliament exercises a legislative function and to lesser extent a judicial function is that it is responsible for the regulation of its own internal affairs;
• Government ministers are member of the executive who exercise a legislative function not only in Parliament but also in delegate legislation;
• In addition to exercise the judicial function, courts legislate in the sense that they develop principles of the common law;
• Magistrates exercise administrative as well as judicial functions in that they grant licenses.
Of all instances of overlap, however, it is the position of Lord Chancellor which is most commonly cited in support of the argument that there is no separation of powers in UK as the office of Lord Chancellor has existed for many centuries and occupies the unique position as the incumbent is a member of all three branches of the government with dominating powers in hand. The judiciary is the weakest among all organs in UK.
In this sense, therefore it can be said that there is partial separation of powers in UK. But, O. Hood Phillips and Jackson have said, “there is not and ever has been a strict separation of powers in the UK constitution.”