Separation of Powers Between Legislature, Executive and Judiciary

The separation of powers is often seen as a key feature of democratic societies because it helps to ensure that power is distributed among different groups and individuals, and that no single group or individual has too much control over the government. This can help to protect individual rights and prevent abuses of power, and is an important check on the authority of any government.

Origin of the Concept of Separation of Powers

This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he described the three agencies of the government as The deliberative, The Magisterial and The Judicial. Even John Locke in his "Two Treatises on Civil Government" categorized the powers of the Government into three parts namely: executive, legislative and federative.

However, it was 18th-century French philosopher Baron Montesquieu who made the doctrine a highly systematic and scientific one, in his book De l'esprit des lois (The Spirit of Laws).

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Montesquieu’s Doctrine of Separation of Power

Focal point of his doctrine was protection of persons’ liberty which would be endangered if legislative, executive and judicial functions were given to the same body. Montesquieu observed:

"When the legislative and executive powers are united in the same person, there can be no liberty, because apprehensions may arise, the same monarch or senate will enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judicial power is not separated from the legislative and the executive powers. If it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. If it joined with the executive power, the judge might behave with violence and oppression."

The doctrine of separation of power is strictly followed under the US Constitution. However, owing to certain inherent defects in the doctrine itself, many countries do not follow it strictly. The Indian Constitution has adopted limited separation of powers.

Defects in strict Enforceability of Doctrine of Separation of Power

1. It is not easy to draw a demarcating line between one power and another with mathematical precision.
2. If this doctrine is strictly followed, certain actions would become impossible. For instance, if the legislature is limited to only making laws, it would have no power to punish individuals who violate its privileges. Additionally, it would be unable to delegate legislative functions, even when it lacks expertise on specific subjects and the executive branch is better equipped to handle them. Similarly, courts would not be able to establish procedural rules for handling cases, as that would involve a form of rule-making beyond their judicial role.
3. The modern State is a welfare State and it has to solve complex socio-economic problems and in this state of affairs also, it is not possible to stick to this doctrine. Strict separation of powers is a theoretical absurdity and practical impossibility.

Modern interpretation of the doctrine of separation of powers

The modern interpretation of the doctrine of separation of powers means that discretion must be drawn between "essential" and "incidental" powers and one organ of the government cannot usurp or encroach upon the essential functions belonging to another organ, but may exercise some incidental functions thereof.

Separation of Powers in India

Unlike in the US, in India, the concept of separation of powers is not adhered to strictly. The Indian Constitution adopts a functional separation rather than a rigid one.

Under the Indian Constitution, executive powers are with the President, legislative powers with Parliament, and judicial powers with Judiciary.

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 and is a part of the basic structure of the Constitution. But if we study the constitutional provisions carefully, we would see that the doctrine of separation of powers has not been accepted in India in its strict sense.

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Constitutional Provisions Related to Separation of Powers

1. Article 50 - Directs the state to separate the judiciary from the executive in public services.
2. Article 53 & Article 154 - Vests the executive power of the Union and the States in the President and Governor, respectively.
3. Article 121 & Article 211 - Prohibits courts from questioning the validity of legislative proceedings.
4. Article 122 & Article 212 - Prohibits courts from questioning the validity of legislative proceedings.

Exceptions to Separation of Powers in India

1. Legislature's role in executive functions: The Prime Minister and Council of Ministers are part of both the legislature and the executive.
2. Executive's legislative functions: The President and Governors under Article 123 and 213 respectively have ordinance-making powers.
3. Executive's Judicial Function - The President and Governor under Article 72 and 161 respectively have been conferred with pardoning powers. Furthermore, under Article 103 President decides disputes regarding disqualification of members of any House of Parliament.
4. Judiciary’s legislative role: Courts frame their own procedural rules and engage in judicial law-making through precedents.
5. Judicial function exercised by Parliament - Parliament can decide the question of breach of its privilege and, if proved, can punish the person concerned under Article 105.
6. Executive or Administrative functions of Judiciary - The High Court has supervisory powers over all subordinate courts and tribunals and also the power to transfer cases.

Checks and Balances

Although there is no strict separation of powers, the Indian Constitution provides a system of checks and balances:

1. Judicial Review: The judiciary can strike down unconstitutional laws and executive actions.
2. Legislative Oversight: The legislature exercises control over the executive through parliamentary procedures such as question hours, debates, and committees.
3. Executive responsible to Legislature - Council of Minister is accountable to Lok Sabha for its acts.
4. Legislature can remove the President, Judges, and certain officials through Impeachment.

In Ram Jawaya Kapoor v State of Punjab (1955), Justice Mukherjee observed that:

"The Indian Constitution has not indeed recognised the doctrine of separation ofpowers in its absolute rigidity but the functions of the different parts or branches of the government have beensufficiently differentiated and consequently it can be very well said that our Constitution does not contemplateassumption by one organ or part of the state of functions that essentially belong to another."

In Indira Nehru Gandhi v Raj Narain (1975),

"Hon'ble Justice Chandrachud observed: "The American Constitution provides for a rigid separation of governmental powers into three basic divisions the executive, legislative and judicial. It is essential principle of that Constitution that powers entrusted to one department should not be exercised by any other department. But the principle of separation of powers is not a magic formula for keeping the three organs of the State within the strict confines of their functions."

In this case, Justice Ray held that under our Constitution separation of power is adopted only in broad sense.
In SC Advocate on Record Association v UOI (2016), 99th Constitutional amendment which introduced NJAC (National Judicial Appointment Committee) by replacing collegium system for appointment of Judges of Supreme Court was challenged.

The Supreme Court held that:

1. Separation of powers is an essential feature and is a part of basic structure of the Constitution,
2. Separation of powers in our Constitution, however, is not as rigid as in the US,
3. There is no violation of separation of powers as soon as there is an overlap of the function of one branch of government with another branch of government. But if one branch takes over an essential function of another branch, there is violation of the doctrine of separation of powers.
4. Appointment of judges is a core function or power vested in the judiciary and cannot be impinged upon either by the executive or by the legislature.

To conclude, we can say, while India does not follow a strict separation of powers, the Constitution ensures a functional division with checks and balances to maintain accountability and prevent abuse of power. This flexible approach allows for coordination and efficiency in governance while safeguarding democracy and fundamental rights.

 

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