INTRODUCTION

‘If the legislative and executive authorities are one institution, there will be no freedom. There won’t be any freedom anyway if the judiciary body is separated from the legislature and executive’ – Charles de Montesquieu

The concept of ‘doctrine of separation of powers’ or ‘trias politica’ was first introduced by a French philosopher, Charles de Montesquieu. According to him, there should be a three-tier machinery of the government i.e. legislature, executive and judiciary.

The idea behind this doctrine was that each organ/branch should have its own set of functions and responsibilities and must not overlap with the functioning of other organs. This would ensure that one organ doesn’t acquire too much power to pass tyrannical laws and would prevent misuse of power.  Montesquieu asserted that in order to effectively promote liberty in its true sense, the three powers should function independently.

It is believed that in order to maintain a stable political system, power needs to be balanced off amongst the various government bodies. The principle of separation of power tries to establish mutual relationship among the organs of the government while ensuring exclusiveness in their functioning. Thus, a strict demarcation of power is sought to be achieved by applying this principle. However, a strict demarcation of powers is not a very feasible idea and thus, the system of ‘checks and balances’ was introduced in the modern day approach towards the separation of power doctrine.

In India, the doctrine of separation of powers has acquired a contemporary approach and doesn’t follow strict separation of powers both in principle and practice.

Even though three organs of government (legislature, executive and judiciary) exist in India and have their own specific functions, they tend to overlap each other’s powers while working in their own ambit. This overlapping of powers is also recognized by the constitution of India.

Many countries follow the separation of power principle in current times; however, not all countries follow it in its strict sense. Around forty state constitutions specify the division of the government into three branches: legislature, executive and judiciary.

EVOLUTION

Montesquieu published a book in 1747, called ‘De L’esprit des Lois’ (The spirit of the laws) in relation with the doctrine of separation of powers.

The origin of the concept of separation of power can be traced back to ancient Greece. In 384-322 BC, Aristotle in his book, Politics, stated that there are three elements in each constitution and the balance between these reflect the balance of the Constitution. According to him, these three elements were the deliberative, the official and the judicial element.[1] He focused on the Constitutional forms of city-states of ancient Greece.

From Greece, it became widespread in the Roman Republic and derived its place in the initial Constitution of the Roman Republic. According to Polybius, the Roman Senate, Consuls and the Assemblies showed an example of a mixed government[2].

Later, during the reign of Edward I (1272-1307), this concept emerged in England, however, took force much later in time. In England, the three divisions were in the form of Parliament, the Council of King and the Courts. In the 16^th and 17^th century, a British politician, John Locke, expressed his views on the doctrine of separation of powers. However, Montesquieu was the first person to articulate this principle systematically, accurately and scientifically.

During the English Civil War, the composition of the English system of government was viewed as the division of powers between the King, the House of Lords and the House of Commons, where the king exercised the executive powers while the other two had control over the legislative powers.

In 1653, English General Sir John Lambert wrote one of the first documents that proposed a tri-partite system of separation of powers and was adopted as the Constitution of England for few years. A further development was observed with the separation of judicial powers from the other to branches. This was executed by giving juridical powers to the Crown to prosecute.

Montesquieu promoted the ‘tripartite system’ in England from 1729-1731. He tried to ascribe the tri-partite system (division of political power between legislature, executive and judiciary) to the British model of separation of power between the Monarch, Parliament and the Courts. However, the close knit connection between the executive and legislative branch led to its failure. From there, the doctrine of separation of powers became widespread due to the colonialism effect of Britain.

John Calvin (1509–1564), a French theologian, suggested setting up of different political institutions that complement and control each other through the system of checks and balances, to ensure a democratic setup and reduce the threats of misuse of political power.[3] Another French philosopher, Justice Bodin also presented his views on the doctrine of separation of powers.

Countries like USA did not have a model of strict separation of powers until the 18^th century. While some states of the USA like New Jersey showed a mixture of powers, the others like North Carolina and Georgia had clear and distinct separation of powers. However, in present times, the doctrine of separation of powers is applied in the strict sense.

Various countries like Uzbekistan have incorporated the concept of separation of powers between legislature, executive and judiciary in their Constitutional structure.

India also incorporated this feature as a part of their Constitution while framing the Constitution in the 20^th century.

Whereas, some countries like China reflect separation of powers in more than three branches. China has five branches of government, namely, the Legislative Yuan, Executive Yuan, Judicial Yuan, Control Yuan and Examination Yuan. This however does not signify a better political system in China as compared to other countries like Uzbekistan or UK.

 MEANING OF THE CONCEPT OF SEPARATION OF POWERS

The concept of separation of power reflects the principle propounded by Lord Acton that says that, ‘power corrupts and absolute power corrupts absolutely’. The reason why the doctrine of separation of power came into existence was that if more and more power is vested in the hands of a single person or a single body then that power becomes highly vulnerable to misuse. Thus, division of power ensures that no organ is able to pass arbitrary decisions by misusing the power.

This doctrine has been defined by various authors over the period of time. However, a general meaning that can be derived is categorized into three features as mentioned below:

a.      One person shall not be a part of more than one organ

b.     One organ should not interfere with the functioning of other organs

c.      One organ shouldn’t encroach on the functions of other organs i.e. it should not exercise the functions of other organs

The concept of separation of powers is based on a tripartite system, in which powers are distributed among the three organs of the government. These powers highlight the jurisdiction of each organ and each organ has to work within the boundaries outlined by their jurisdiction.

The three-tier mechanism of government as prescribed by this doctrine is explained below;

i.                 Legislative

The legislative organ is primarily responsible for enacting laws that express the ‘will of the state’. It wouldn’t be wrong to say that the legislative organ frames the basis of the structure and the functioning of executive and judiciary is dependent on it as until a law is framed, its implementation and application is not possible. The judiciary, in some cases, might act as an advisory body to the legislature but cannot control or function it.

ii.               Executive

The executive branch is in charge of implementation and enforcement of laws framed by the legislature. It also acts as an administrative head of the government and is the impetus of the government. An imbalanced executive can exhaust the government and might lead to its collapse.

iii.             Judiciary

The judiciary is vested with the power to apply the laws and ensure that they are being enforced in a proper manner. The foundation stones of the judiciary are the principles of natural justice, liberty and fairness. The judiciary is often kept independent from the other two organs in order to uphold the principle of a fair judiciary that is free from any sort of bias.

SIGNFICANCE

As mentioned earlier, the highlight of the doctrine of separation of powers is the division of power in order to prevent misuse and abuse of power by one organ.

While introducing the concept of separation of powers, it was widely believed that it would reduce the possibilities of corruption and other forms of maladministration. It plays a vital role in the formation of a balanced government.

The significance of the doctrine of separation of powers can be encapsulated in the following points:

·       Curbs arbitrary rule

·       Protects individual liberty, even in the cases where the government is the violator

·       Puts an end to autocracy

·       Efficiency in the administration is ensured as the power is divided among various individuals

·       Exhibits a ‘government of law’ that doesn’t work according to the whims and fancies of certain people who are in the position of power

·       Independence of judiciary leads to the establishment of a free and fair justice delivery mechanism

 AMERICAN MODEL OF THE SEPARATION OF POWERS

As Jefferson quoted, ‘The concentration of legislative, executive and judicial powers in the same hands in precisely the definition of despotic Government’.

The Founding Fathers of the United States of America (USA) believed that the American states had suffered a highly due to the broad abuse of power by the British Parliament and the Monarchy during colonialism. Thus, a new concept of the system of checks and balances was introduced as a hard-learned lesson from the colonialism.

As a remedy to this abuse of power, they decided to limit the powers of the federal government through different strategies. The branches of the federal government are divided by the exercise of different functions. The executive and the legislative branch were separated in origin by way of separate elections while the judiciary was kept independent.[4]

In USA, the doctrine of separation of powers is applied in a strict sense as the word ‘shall’ is used in the Constitution which implies that it is mandatory to follow the separation of powers in a strict sense.[5]

The works of Montesquieu inspired a number of statutes and legal documents of USA. Some of the most prominent ones are ‘Declaration of the Rights of Man’ and ‘The Constitution of the United States of America’.

Three departments have been established under the Constitution of USA to ensure adequate division of powers. These are:

a.      The United States Congress, comprising of the House of Representatives and the US Senate, with legislative power[6]

b.     The President with the executive power[7]

c.      The Supreme Court of the United States of America along with other US Federal and District Courts, established by law, with judicial power[8]

The case of Madbury v. Madison[9] is often highlighted when it comes to the development of the doctrine of separation of powers in USA. This case established the system of judicial review in USA.

Even though the application of the doctrine of separation of powers in USA is followed in a strict sense, some exceptions to this are seen in the form of the system of checks and balances. These checks and balances include the power of the President to veto a bill passed by the Congress, approval of Senate in the treaty-making powers and the power of judicial review.[10]

Hence, it is true that the application of this theoretical maxim was a difficult task but USA has observed a significant development in the past few years. The efficiency of this maxim when applied, gives rise to the administrative system of the United States of America, keeping in mind the practical implications of the same.

 SEPARATION OF POWERS – INDIAN PERSPECTIVE

The Indian adaptation of the separation of powers model is a classic example of application of the doctrine with various modifications. In India, the focus is laid on ‘separation of functions’ rather than ‘separation of powers’.

The basic postulate under the Indian Constitution is that the legal sovereign power has been distributed between the legislature to make the law, executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution.[11] Each branch in India has some overlapping powers that ensure harmonious working between all three organs in a democratic manner;

1.     Executive function of the legislative organ – election of President by forming an electoral college

2.     Judicial function of the legislative organ – impeachment of President and Vice President of India, Judges of Supreme Court and High Court and the Chief Election Commissioner

3.     Legislative function of the executive branch – the legislature can delegate its law-making power to the executive branch by way of delegated legislation

4.     Judicial functions of the executive branch – the authority of the president to grant pardon, suspend or lessen the punishment of a person convicted by the courts. Tribunals (quasi-judicial bodies) also exercise judicial functions.

5.     Legislative power of the judiciary – the India judiciary is not only a redressal forum but is also responsible for interpreting the meaning of laws enacted by the legislature which includes expanding the scope of such laws and rights. Judicial precedents also hold a binding value on the lower courts and can be equaled to laws.

6.     Executive powers of the judiciary – the power of judicial review enables the judiciary to review any action of the executive and issue directions in case of dispute. The Supreme Court can also exercise advisory jurisdiction.

The Indian Constitution has expressly adopted some Articles in relation with the doctrine of separation of powers as listed below:

a.      Article 50 – separation of judiciary from executive

b.     Article 122 and 212 – validity of Parliamentary proceedings cannot be questioned in Courts

c.      Article 121 and 211 – conduct of judges cannot be discussed in the Parliament or State Legislature except for the procedure of impeachment

d.     Article 361 – President or Governor are not answerable to courts for exercise of their powers

e.      Articles 53 and 154 – President and Governor enjoy immunity from civil and criminal liability

While applying the doctrines of constitutional limitation and trust in the Indian scenario, a system is created where no organ can usurp the functions or powers assigned to another organ by express or necessary provision, neither can they divest themselves of essential functions which belong to them as under the Constitution.

Apart from this, the Indian constitution has a well established system of checks and balances that prevents capricious and arbitrary use of power.

The essence of the Constitution of India is that it produces a system which is the result of amalgamation of the principle of separation of powers with the doctrine of parliamentary sovereignty in a manner to give effect to both, yet without the rigidity of the two systems. The Parliamentary democracy is cemented as the corner stone of constitutional edifice in preference to the Presidential system of governance.

Therefore, axiomatically it can be said that Indian Constitution does not contemplate separation as embodied in the ‘pure doctrine’, it rather perceives and accords to it in its central sense and not in its literal sense, rather in its purposive sense, i.e. non conferment of unfettered powers in a single body of men and to motivate checks and balances.

In the Constituent Assembly Debates of 1948, a clear vision of the ideal of separation of powers and the reasons for adoption of this ideal is obtained. The development of this doctrine in India has a deep connection with the bitter past experiences, like that of England, where the concentration of all power in the name of one, known as the king, had many evils culminating in a Civil War.

Thus, a common view of the importance of separation of powers in order to ensure Civil Liberties and the Rule of Law[12] was derived. Furthermore, the normative nature of the doctrine, in euphemistic parlance, can be understood as being committed to the achievement of political liberty, as essential part of which depends upon restraining the power of the government and providing for checks and balances.[13]

Judicial Pronouncements in India and Separation of Power Theory

‘The executive is derived from the legislature and is dependent on it, for its legitimacy’, was the observation made by the Hon’ble Supreme Court in the case of Ram Jawaya v. State of Punjab[14].

In the case of I.C. Golakhnath v.  State of Punjab, the Constitution brings in actuality the distinct constitutional entities i.e. namely, the Union territories, Union and State. It also has three major instruments namely, judiciary, executive and legislature.

In the landmark judgment of Keshavananda Bharati[15], the amending power of the Parliament was curtailed in matters of the basic structure of the Constitution. Any alteration to this was prohibited by resorting to Article 368 of the Constitution.

This principle was later reiterated in the case of Indira Nehru Gandhi v. Raj Narain (1975) [16], where the court was of the view that adjudication of a dispute is a judicial function and parliament can never be competent to exercise this function.

Another interesting case is the Swaran Singh case (1998)  where the Supreme Court declared the Governor’s pardon of a convict unconstitutional.

CRITICAL ANALYSIS

The doctrine of separation of powers clearly runs on the lines that a single person or body should not be conferred with the responsibility of all the powers of the government. It acts as a safeguard against tyranny or oppression that might arise as a result of arbitrary decision making.

The essence of this doctrine is derived from the ‘Doctrine of Non-Delegation’ which states that one branch of the government must not delegate its power to another by authorizing the other entity to exercise its own functions or powers.

This doctrine reflects both explicit and implicit forms in the Constitution of countries that impose a strict structural Separation of Powers.

The following interpretations can be drawn from the critical analysis of the doctrine of separation of power:

·       It is highly utopian to imagine a democratic system exercising absolute structure of Separation of Powers. At the same time, complete absence of a structure of separation of powers in a democratic system is also not possible. Thus, a middle way is created in the form of ‘check and balances’ to apply this doctrine into practice.

·       The powers, functions and responsibilities of various organs of the government and mutually inclusive and thus tend to overlap and intersect each other. This often creates confusion in proper allocation of responsibility.

·       There exists an inherent competition among the organs of the government due to the complex nature of powers and responsibilities and this might end up leading to conflicts among the organs in many cases.

·       Important information obtained through this analysis is that the extensive application of this doctrine into our political, social and legal structure is a constantly evolutionary process and is not finite.

·       The modern day states are very different from the state that used to exist few decades ago. They have witnessed drastic changes from being minimal, non-interventionist states to welfare states. This had lead to increase in the number of roles that the state has to cater to.

·       These multifarious roles include protector, arbiter, controller and provider. This omnipresent nature has diversified the functions and has increased interdependence within the organs.

·       This has also developed a key notion of essential and incidental functions of each organ. The primary aim of this distinction is to prevent encroachment of an organ into the essential sphere of activity of the other.

·       The judicial review power acts as a preventive measure to strengthen the foundations of democracy and prevent the administrators and law-makers to exercise their whims and caprices, turning it into a despotic regime.

·       However, the power of judiciary to review shouldn’t be exercised arbitrarily too. An important aspect in this regard is that the power of judicial review doesn’t establish the judiciary as a ‘super-legislature’ or a ‘super-executive’ as stated by Sir A.K. Aiyar.

Hence, it wouldn’t be wrong to say that the doctrine is undesirable and impractical when applied in strict sense. However, this does not render the doctrine invalid and the logic behind the doctrine stills holds immense value. The polarity between various organs is meant to avoid absolutism and bring-in stability.

Thus, a balance between the doctrine of separation of powers and the doctrine of checks and balances should be established for better outcomes.

CONCLUSION

Thus, it can be concluded that the above discussion of the doctrine does not tilt in favor of the ‘pure doctrine’ of Separation of Powers. The principle of the doctrine of separation of power has been accepted by most of the Constitution in a modified and broader sense and has been accepted as an idea functional separation of powers, rather that inculcating the idea of structural separation.

The goals of a democratic country are enshrined in their Constitution and the state machinery is set in a way that it reflects upon those goals. By providing absolute power to a small group of people, the idea of arbitrary rule and tyranny comes into the picture. Thus, separation of powers is very essential to ensure democratic governance in a state. However, this should not be interpreted in a sense that the doctrine of separation of powers is applied strictly or rigidly.

Constitutionalism, the philosophical concept of the constitution also insists on limitations being placed upon governmental power to secure basic freedoms of the individual. Hence, the conclusion drawn out of the study is that there is no strict separation of powers but the functions of the different branches of the government should be sufficiently differentiated in order to cater to the needs of the society.

All three branches of the government; the legislature, executive and judiciary constitute the powerful ideology of effective political system in a country and its importance can be observed while monitoring the political system and advocating new measures when the rights of people are threatened.