Separation of Power

Wednesday, 17 June 2015 19:17

Hamdardvir Singh Boparai

Separation of powers
Introduction
- Power corrupts & absolute power tends to corrupt absolutely
- Madison - 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.

- In every government, there are three sorts of power

Legislature Law making body
Executive Execute those laws, make peace or war, send or receive embassies , establishes public security
Judiciary Punishes criminals or determine disputes that arise
Government's role is to protect individual rights, but governments have historically been the major violators of these
rights . Hence, number of measures are derived to reduce this likelihood

- Separation of power is one such concept

Basic State is not a single entity but composite of different governmental functions ie legislative, executive &
Assumption judicial carried out independently of each other
Why done so? If law makers would also be administrators & dispensers of law & justice , people will be left without
remedy in case any injustice is done because there would be no superior authority

Origin of Idea
- Origin of idea can be traced to Aristotle
- Cicero : power to be vested in people & authority in state
- Locke & Bodin : executive & legislative power should be separate for the sake of liberty as liberty is likely to suffer when same
human being makes the law & execute them
- Baron de Montesquieu in his book 'The Spirit of laws' - Chief propounder in modern times
- 16-18th century Europe , Doctrine was used in a number of countries to justify a compromise between bourgeoisie, which
had won control over the legislature and judiciary, and the feudal-monarchical circles that had retained executive power.

Various Approaches
Mainly three different approaches to Doctrine of Separation of Power
- Traditional /Classical Approach
- Modern /Contemporary Approach
- Marxist-Leninist Approach

Traditional - Presented by Montesquieu

approach - Strict or pure or total or complete or absolute Separation of Power
- According to him concentrated power is dangerous & leads to despotism
- If separate powers are placed in different hands , no individual or group of individuals can monopolise
political power
- SoP constitutes
Institutional separation Need to have three major institutions or organs in a state i.e.
of powers Legislature, Executive and Judiciary.
Functional separation Functions to be performed by them ie law making , enforcement. &
of powers interpretation -should be completely demarcated
Separation of personnel No member should be member of more than one organ
Limitation of State organs should not appoint or elect members for each other
appointing powers

Modern Approach Problems with previous approach

- In diverse and complex nature of modern state , process of law making, administration &
adjudication cant be demarcated clearly
- Impractical to expect each branch of government can raise its own finances
- Earlier theory is based on assumption that all three organs are of equal importance but it is not
actually the case

This approach advocates for weak separation of powers with checks & balances to prevent abuses
- Primary functions of the state should be allocated clearly and there should be checks to ensure
that no institution encroaches significantly upon functions of the other

Marxist- Leninist - Rejects the theory

Approach - Because this concept ignores the class nature of society

Doctrine of separation of power in India

- In India, there is Weak Separation of Powers with check and balance
- There is no strict separation of powers under constitution both in principle & in practice . There are significant functional
overlaps between different organs of Government
- In India all three organs ie executive , legislature and judiciary are present but each organ while performing its activities tends
to interfere in sphere of working of other because strict demarcation of functions is not possible
- In India, none of the three organs of Government, Legislative Executive and Judicial, can exercise any power which properly
belongs to either of the other two. Significance of word properly is- it means there is broad division of powers where
function is exclusively conferred on that particular organ of state though there may be some overlap in regard to fringe
areas of topics so entrusted

Constitutional Provision
Term separation of powers is nowhere mentioned in constitution but there are provisions recognising this doctrine
Art 50 DPSP - state shall take steps to separate judiciary from executive
Art 112 & Validity of proceedings in Parliament & State Legislature cant be called into question in any court
212
Art 121& 211 Judicial conduct of the judges of SC & HC cant be discussed in Parliament & State Legislature
Art 53 & 154 Executive power of union and state shall be vested with President & Governor & they are immune from civil
and criminal liability
Art 361 President & Governor is not answerable to any court for exercise of powers & duties

Functional overlap
Judicial functions by
other organs
Legislature - Impeachment of President , removal of judges of SC & HC
- Amending a law declared ultra vires by court & revalidating it
- Can impose punishment for exceeding freedom of speech in parliament
Executive - Make appointment of CJ & Judges of SC & HC
- Tribunals & other quasi judicial bodies are part of executive

Legislative functions by Executive - Ordinance making power of President & Governor

other organs - Also exercise this power through delegated legislation
Judiciary - Some of its judgements have power of law until law is made in that aspect by
government (eg Vishakha judgement for woman at working place)
- Make laws regulating its conduct & rules regarding disposal of cases

Executive functions by Legislature - Head of each government ministry is member of legislature

other organs - CoM on whose advice President & Governor act are integral part of legislature
Judiciary - Higher judiciary given power to supervise functioning of subordinate courts

Besides this , also lacks separation of personnel among departments

Judicial Pronouncements on this doctrine

Since constitution has not demarcated the boundaries clearly , by judicial pronouncements passed from time to time ,
boundaries of applicability of the doctrine have been demarcated

Delhi Laws Act - First time observed by the SC that except where the constitution has vested power in a body, one
Case organ should not perform functions which essentially belong to other
- By a majority of 5:2, the Court held that the theory of separation of powers although not mentioned,
is part and parcel of our Constitution
Keshavanand - Question placed before the SC - extent of the power of the legislature to amend the Constitution
Bharti Case - It was argued that Parliament was supreme and represented the sovereign will of the people. If
peoples representatives in Parliament decided to change a particular law to curb individual freedom or
limit the scope of judicial scrutiny, judiciary had no right to question whether it was constitutional or
not.
- However, the Court did not allow this argument and instead found in favour of the appellant on the
grounds that the doctrine of separation of powers was a part of the basic structure of our
Constitution.
Indira Nehru - In the Indian Constitution, there is separation of powers in a broad sense only. A rigid separation of
Gandhi vs Raj powers as under the American Constitution or under the Australian Constitution does not apply to
Narain India
- But there would be adherence to fine check & balance while doing so

Checks & Balances

- Arose as an outgrowth of classical theory of separation of power
- To ensure that power is not used in abusive manner
- One department is given certain powers by which it may definitely restrain others from exceeding constitutional authority.

Indian constitution & Checks & Balance

- Judges of SC & HC are appointed by executive but they can be removed from office if they are impeached by Parliament =>
helps judiciary to function without fear
- Executive is responsible to Parliament in day to day functioning & govt is bound to lay down power if house adopts a motion
expressing no confidence in govt
- Judiciary keeps check on laws made by parliament & actions taken by executive whether they conform to constitution or not
using judicial review

Judicial Review
- It is necessary to have machinery to decide on the interpretation of constitutional provisions or as to what constitution says
& means & to resolve dispute between different organs of government & state . In democracy , Apex court is given such
power
- Judicial review is powerful weapon to restraint unconstitutional exercise of power by legislature & executive . However
only check on judicial power is self imposed discipline of judicial restraint

Examples of self restraint & not curtailing other's power

Madhu Holmagi v. Union of India, wherein one Advocate filed a public interest litigation challenging the Agreement 123
i.e. Indo-US nuclear treaty proposed to be entered by the Indian government, petitioner contended that court must have to
scrutinize the all documents relating to the agreement 123 and must have to prevent the Indian government from entering in
to the nuclear deal. In this court dismissed the petition because question raised by the petitioner is a question of policy
decision, which is to be decided by the parliament and not by the judiciary.

Separation of Powers in other Countries

USA
- More rigid separation of power than other democracies
- Congress has legislative powers only , executive power is vested in President of USA & SC holds Judiciary
- Checks and balances allow one branch to limit other eg power of congress to alter composition & jurisdiction of federal
courts , president can veto any law passed by legislature which again can be overturned by legislatute, congress may
refuse to give concurrence treaty concluded by President & Judiciary has power to declare an act of congress or
president invalid

England
- Very weak separation of powers
- Executive forms subset of legislature as was to lesser extent judiciary until SC was established in UK
- PM who is chief executive sits in house of commons etc etc

Others
- Australian Consti & French Constitution too have very rigid sepration of powers