Introduction
It is widely held across all nations of the world that for a stable and an efficiently functioning government, the holders of power need to be balanced off against one another. And this realization gave birth to the theory of separation of powers which deals with mutual exclusiveness of the three organs of the government i.e. legislature, executive and judiciary. The rationale behind this doctrine is to prevent absolutism and guard against tyrannical and arbitrary powers of the State by diffusing governmental authority. The immortal theory of separation of powers between the three institutions of a legislature, an executive and a judiciary which form a foundation stone of modern representative democracy, was developed by French philosopher Montesquieu replacing the older theory of mixed constitution or mixed regime which goes back to Plato. And even though the doctrine of separation of powers was not given a constitutional status, but it can be evidently inferred that the entire Constitution was drafted keeping this doctrine in mind. As rightly said by Lord Acton, “Power corrupts and absolute Power tends to corrupt absolutely.”
American Model: The rise and fall of separation of powers
The term “Separation of Powers” or “trias politician” was first coined by Montesquieu in his publication, Spirit of the Laws, which heavily inspired the Constitution of the United States. The onset of American Revolution marked the death of feudalism and thus, killing off the idea of mixed regime. The American Revolution was founded on the principle that all men are equal. So, at the beginning of the 17th century, there was an effort made to fill this void and replace mixed regime with a system where many ruled and all the power was not concentrated in any one specific institution enabling it to abuse that power. John Adams in the 1780s successfully convinced American to incorporate the doctrine of separation of powers and bicameralism as he believed this would ensure a stable modern democratized version of the mixed regime. In the year 1787, there was a fundamental separation of legislative, executive and judicial powers but it was subjected to certain exceptions to ensure a system of checks and balances, where,
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- President and Governors would replace the King via Article 2 of the Constitution,
- Senate would replace the House of Lords and popularly elected House of Representatives would replace the House of Commons via Article 1,
- Supreme Court and the federal courts would replace the Privy Council via Article 3.
a. General Overview
The US Constitution is an extremely concise document which broadly lays down the functions, powers and duties of the three organs of the government in the first three articles therein. Article I establishes the US Federal Legislature, called the Congress, Article II establishes the Executive under the leadership of the President of the United States (“POTUS”), and Article III established the United States Supreme Court (“SCOTUS”). These Articles, however, are not simply put. Rather, they are layered with numerous sections within them to provide for a wide array of powers and duties of the three organs of the government. It is thus said that the US Constitution is an example of a framework entailing strict SOP. Further, SOP is implicit in the US Constitution, as it is explicit in the text of the document itself.
The US Constitution is also an ideal example of how the notion of checks and balances in a government works. All organs of the government have a certain say, or a role, in the other – which makes the organs’ functions slightly overlapping. This is perhaps why Max Farrand called the US Constitution a “bundle of compromises”. For example, the Congress may pass a law, but the POTUS may go ahead and use his pocket veto powers to not let it come into force; or the impeachment process of the POTUS is conducted by the Congress if there is an allegation levelled against him or her “Treason, Bribery, or other high Crimes and Misdemeanours”. These examples are depictions of how one organ of the government keeps a check on the other, and how their functions are often intertwined.
b. Principle of Checks and Balances
The aforementioned flow chart delineates how functioning and powers of one organ are kept in check by another so that no organ can might run amok with its power and misuse them. Thus, in Panama Refining Company v. Ryan, commenting on the feasibility of the doctrine J. Cardaza said:
“The separation of powers doctrine is not a doctrinaire concept to be made use of with dogmatic rigor. There must be reasonable approximation, there must be some elasticity of adjustment in response to the practical necessities of government which is not able to foresee today the development that will take place tomorrow in their nearly infinite variety.”
Indian Model: A General Overview
a. Constitutional Provisions enabling separation of powers
Article 53 empowers the President with the executive powers of the Union and under Article 154 the Governor is vested with execution powers although, they exercise their powers with the aid and advice of the council of ministers at the Centre delineated in Article 74 and at the State, as the situation may demand. The President and Governor both exercise the power of ordinance making under the constitution thus performing legislative functions.
By the virtue of Article 356 the President is given emergency powers to makes laws for a State, after the dissolution of the State Legislature, following the imposition of the President’s Rule. Under Article 103 President has the power to disqualify any member of the house and he also has the power to appoint the judges of the Supreme Court, while the parliament has been given the power to impeach the judges. The President has been assigned the power to determine a disputed question of the age of any judge of Supreme Court or any High Court for the purpose of set restrain from the judicial service.
The Union Council of Ministers stands responsible to the Lok Sabha by the virtue of Article 75. Lok Sabha also has the powers to start impeachment proceedings against the President via Article 61 and the judges of the Supreme Court.
The judicial function carried out by the Parliament is too substantial in some specific aspects. The Judiciary can take into consideration the question of breach of any of the known parliamentary privilege, and in a case where the charge is established, it has the power to punish for their contempt. The High Courts in certain marginal aspects carry out such functions which are administrative rather than judicial. Article 227 empowers the High Courts to supervise over other subordinate courts which is more of the administrative nature than judicial. The legislative power of the High Courts and the Supreme Court includes their power to form rules which is fairly wide in nature.
Delegated Legislation authorises the Executive in India to legislate in the name of administrative adjudication of the right of individual citizens, the administrative agencies, which are domestic and statutory tribunals which have been constituted and to perform judicial function.
b. practical application and Judicial interpretation of the doctrine
The following cases delineate the prevailing stance of doctrine of separation of powers in our country. There have been several landmark judgements passed which have changed the face of the doctrine.
The only sustainability of the separation doctrine is in the sense that any one organ should not assume the essential functions of the other organ. This view was held by Supreme Court in Ram Jawaya Kapur v. State of Punjab, it was laid down that Constitution has indeed not acknowledged the doctrine of separation of powers in its complete rigidity but the powers and functions of the different branches of the government have been systematically differentiated and thus, it is evident that our Constitution does not assume functions that belong to another, by one organ or part of the State.
Following the articulation of basic structure doctrine and essential features of Constitution in the case of Kesavananda Bharti v. State of Kerala, the separation of powers is reproached as a tectonic basis of the constitutional framework and no amendment can destroy it.
The separation doctrine puts relatively less emphasis on structural pattern, and tries to effect increasingly functional division. In re Delhi Laws Act case, Hon’ble Kania, CJ., observed that although in the Indian Constitution there is no explicit separation of power, it is evident that the Constitution created a legislature and there exist detailed provisions for making that legislature pass laws. Is it then inaccurate to say that under the Constitution the duty to make laws, the duty to exercise its own wisdom, judgment and nationalism in making law is fundamentally cast on Legislature? Is it not implied that unless it can be inferred from other provisions of the Constitution, other branches executive or judicial are not required to dispense legislative functions?
Therefore, the functions of different organs are distinctly designated so that one organ does not usurp the functions of the other organ. In Indira Nehru Gandhi v. Raj Narain, Ray CJ., further observed that separation of powers exists in the Constitution in a broader sense. The separation of power doctrine is also embodied in the basic structure doctrine and none of the pillars of the country can take over the other functions, even through amendments under Article 368. Chandrachud, J., reiterated this view and held that this doctrine fundamentally establishes a means to ensure checks and balances in a political setup. For examples the Parliament should shy away from the functions of the Judiciary and the latter should revere the opinion of the Courts.
Just a casual glance at the basic provisions of the Constitution of India, one may be inclined to acknowledge that the broad division of the power of state doctrine has been accepted under the Constitution of our country. In Golaknath v. State of Punjab, it was observed that different Constitutional entities are brought into existence by the Constitution, namely, the Union and the States and the Union Territories. It creates three major institutions of power, specifically, the Legislature, Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their bounds. They should function within the spheres that are allotted to them by the Constitution. This view was further reiterated in the judgement of Bandhuva Mukti Morcha v. Union of India.
Crucial functions were defined in the case of Mallikarjuna v. State of Andhra Pradesh, when the Andhra Pradesh Administrative Tribunal sent directions to the State Government to come up with a pragmatic and rational method to determine the seniority among the veterinary surgeons in the matters of promotions to next rank of Assistant Director of Veterinary Surgeons. The Supreme Court quashed the aforementioned direction and stated that the power under Article 309 of the Constitution to frame rules is a legislative power which needs to be exercised by the President or the Governor of the State as the situation may demand. The High Court or Administrative Tribunals are not entitled to issue a mandate to the State Government to legislate on any matter. In this manner the principle of restraint prevents any one organ of the State from becoming superior to another or others in action.
Similarly, in Supreme Court Employees’ Welfare Association v. Union of India, it was held that no court can direct an executive authority to enact a law which it has been empowered to do under the delegated legislative authority and neither can the court issue a direction to a legislature to enact some specific law.
Conclusion
It is illusory to believe that the three institutions will work without certain overlaps. There is no democratic government that can strive to be stable with an absolute separation of powers or with an absolute lack of separation of powers. The power and duties vested in the Government are too interrelated and complex to be compartmentalized which makes way for a perpetual state of inherent competition and conflict among the branches of the government. The contemporary interpretation of the separation doctrine is not limited to being mere theoretical philosophy but a more feasible work a day principle. Thus, the doctrine of “separation of powers” is not a doctrinaire concept to be made use of with punctilious precision. There must be reasonable conjecture, there must be elasticity of adaptation in response the practical necessities of government which cannot foresee today the development of tomorrow in their nearly infinite variety
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