Open Access Research Article
SEPARATION OF POWER – AN INDIAN PERSPECTIVE
Published Paper
Article Details
SEPARATION OF POWER – AN
INDIAN PERSPECTIVE
Authored by - Md. Bilal
LL.M 1st SEM
Roll No. 412
Centre for Post Graduate Legal
Studies,
Chanakya National Law University,
Patna Towards Partial Fulfilment of
Requirements of Masters of Laws (LL.M)
2022-23
Acknowledgement
A work is never a work of an individual. I owe a sense of gratitude to the intelligence and co-operation of those
people who had been so easy to let me understand
what I needed from time to
time for completion of this internship report.
I convey
my sincere gratitude
to my mentor Prof. Dr.
F. Peter Ladis. of centre for post graduate legal studies, Chanakya
National Law University, Patna. Without his kind direction and proper guidance this
internship would have been a little
success. In every phase of the project his supervision and guidance shaped
this report to be completed perfectly.
Last
but not the least I would like to forward my gratitude to all the people who always endured me and stood by me and
without whom I could not have been envisaged the completion of my project.
TABLE OF CONTENTS
|
Chapter
|
Name of Chapter
|
|
1.
|
Introduction
·
Aim & Objectives
·
Hypothesis
·
Research Questions
·
Research Methodology
·
Review of Literature
·
Limitation of Research
|
|
2.
|
Separation of powers
·
The evolution
·
Theories and Doctrine
·
The Need
·
Constitutional status
and practice pre 2014
|
|
3.
|
1
Majoritarianism and Separation of Powers
2
Testing the water:
position post 2014 in India
3
Judicial response and way forward
|
|
4.
|
Conclusion & Suggestions
|
|
5.
|
References/ Bibliography
|
CHAPTER.1
1.1
INTRODUCTION
1 Parliamentary democracy was identified by our
Founding Fathers to be the most suitable system
of governance, as they perceived that only a democratic set up based on
Parliamentary system with a federal
structure would be able to solve effectively the myriad socio-economic problems that the nation faced at the time
of independence and would be able to deal with our vast array of diversity
on all fronts of our national existence. One of the
characteristic features of several
Constitutional systems across the world is the doctrine of separation of powers, providing for the functions of the
three primary organs of the State — the Executive, the Legislature and the judiciary
to be carried out by separate bodies. The system envisages an Executive with governing powers; an
elected Legislature with the three main functions of representing popular will, enforcing the accountability of the
Government and making laws; and the
judiciary, to administer civil and criminal justice both between private
persons and as between private
persons and the State. It also entails that none of these organs should be vested with absolute or unbridled powers,
so that no organ or individual assumes powers of despotic proportions The principle of detachment of abilities, is a basic piece of the development of a majority rule government
itself, The tenet, which accommodates governing rules among the organs of the State, is one of the most trademark
highlights of our Constitutional
plan. Our incredible chiefs who outlined our Constitution had the option to anticipate that unreasonable powers,
whenever vested with any of the three organs of State, might actually lead.
Our Constitution makers ensured that the rights of the people
were preserved and protected effectively against any Legislative or Executive
excesses. Our Constitutional set up has enabled the judiciary to set aside not
only laws passed by the Parliament but also executive actions which are held to be not in consonance with the rights
of the citizens under our Constitution
and its several provisions. Our Constitution contemplates that the Courts will interpret and scrutinise the
Constitutionality or validity of laws and executive actions but not will decide what the law should he nor
matters of policy nor will usurp the functions of the executive. It was explicitly stated in the Constituent Assembly
by many leading members that the doctrine
of judicial independence was not to enable
the judiciary to function as a kind of a
‘super Legislature’ or a ‘super Executive.’ In this context, all should be
reminded of the wise and profound
observations of Pandit
Jawaharlal Nehru in the
Constituent Assembly.
1 Sri Somnath
Chatterjee, Former Speaker Loksaba, "Separation of Power and Judicial
Activism", AIR, 2013 Journal p. 97 (Date 21/08/2022 time 6:56 pm)
By its very representative character, in a democracy, no
organ other than the legislature is better placed to understand the people’s priorities. It is expected
of the people’s representative
bodies to voice people’s problems their demands, their urges and aspirations, and, n the ultimate analysis, to protect
and promote their fundamental democratic rights. The inalienable Constitutional right of the Legislature to
scrutinise and oversee the functioning of the
Executive arises from this basic premise and it has been specifically provided
that the Council of Ministers in the
Centre shall be responsible to the House of People, which is the directly elected body. There are similar
provisions in the Constitution which provide that the State Government are responsible to the Legislative Assemblies in the State. The responsibility
for identifying and defining people’s rights and for providing statutory
sanction for them and for giving
the general direction and momentum to the institutions for social engineering in our democracy has thus been
thoughtfully bestowed by our Founding Fathers
on our Parliament and our State Legislatures, which represent the people
of India as a whole, or the States,
respectively.
Montesquieu
Baron-de-Montesquieu 2is a French philosopher
credited with expounding a systematic and holistic
theory of separation of powers in his book De L’Esprit des Lois (The Spirit of
the Laws) in 1748. His theory of
separation of powers was inspired by his observations of the English system which had by then acquired
a higher degree of distinction between its three branches. Montesquieu’s idea of separation of powers laid great
emphasis on the concept of ‘political
liberty’. According to him, political liberty could be safeguarded only when
the government is such that citizens
do not fear one another, which in turn can only be ensured when there is no abuse of power by the
Government. This also meant that for preventing this abuse of power the Government should be structured in a manner
that balances and checks power against
power.
Montesquieu divided governmental power into the categories of
legislative, executive and judicial
and outlined how liberty is affected if these powers are vested upon the same
person, leading to tyranny. Unlike
Locke, he did not overlook the role of the independence of the judiciary and instead deemed it as the
most important of all. Moreover, he took Locke’s ideas of legislative,
executive and federative functions and modified them for the sake of political liberty, considering the judiciary as a
branch separate from the broadly categorized executive in Locke’s theory.
John Locke
In the 17th Century, England witnessed the emergence of
the Parliament, and a semblance of the
tripartite governmental structure was expounded by the British politician John
Locke in his book titled ‘Two Treatises of the Government’. Locke described the three powers as
being legislative, executive and federative, but did not
envision a coequal or independent distribution
of functions among them. Rather, he regarded the legislative as the supreme branch, while the executive and federative
branches were only concerned with the internal and external affairs of the country
respectively, operating under the control and authority of the King. His theory was more in
consonance with the prevailing dual form of government in England at that point of time, which
fixated upon the Parliament and the King. Furthermore, Locke’s theory evidences a noticeable absence of the mention of
the judiciary as a separate branch of
the government. It regards the judicial functions under the ambit of ‘Executive functions’, thereby bestowing the same to
the control of the King. Therefore, it has been pinpointed that Locke’s theory, in a strict sense, does not
truly qualify as an explication of the doctrine of separation of powers.
Montesquieu a political
thinker of the same time as Locke, emphasized upon the independence of the judiciary from the clutches
of the King and to some extent,
influenced the demand for
the same through his writings. Nonetheless, the 17th and 18th century saw a flurry of scattered expositions on the
separation of powers until a concrete and influential expansion of the theory emerged through Montesquieu.
1.2
AIMS & OBJECTIVES
·
To understand theOrigin and Source of Separation of Power.
·
To understandMeaning of Separation of Power.
·
To Doctrine of Separation of Power.
·
To Why Need Separation of Powers..
·
To understand the Indian Constitution and separation of powers
1.3
REVIEW OF LITERATUR
Separation of Powers in the Contemporary Constitution this 2010 book, Roger Masterman analyzes the splitting lines between the
powers of the legal part of government and those of the chief and regulative branches in the illumination
of two of the main sacred changes of
late years: the Human Rights Act
(1998) and Constitutional Reform Act (2005). The two rules have suggestions for the partition of abilities inside the
United Kingdom constitution. The Human Rights Act brings the appointed authorities into a lot nearer
closeness with the choices of political entertainers than recently allowed by the Wednesbury standard of
survey and the regulation of parliamentary sway, while the Constitutional Reform Act denotes
the development of an institutionally free legal branch.
Taken together, the two regulative plans structure the foundation of a more extensive arrangement of protected
governing rules policed by a legal branch supported by the authenticity of
institutional freedom.
The Rule of Law and
the Separation of Powers Law and order is every now and again summoned
in political discussion, yet seldom characterized with any accuracy.
Some utilize it as an equivalent word for a majority
rules government, others for the subjection of the lawmaking body to a composed constitution and its legal
watchmen. It has been viewed as dutifulness
to the properly perceived government, a type of overseeing through formal and basic guideline like regulations and the
standard of rule. Considering this variety of view, it is maybe obvious that specific
researchers have viewed the idea as something like a self- celebratory logical gadget. This assortment of eighteen vital
expositions from legal advisers, political
scholars and public regulation political researchers, expects to investigate
the job regulation plays in
the political framework. The presentation assesses their contentions.
1.4
HYPOTHESIS
1. The Doctrine
of Separation of powers
is a basic feature of Indian
Constitution
2 Doctrine of Separation of Powers is no
more a pure Doctrine in any legal system
1.5 RESEARCH QUESTION
·
Do the Constitutional provisions in union and state legislative relations are
·
sufficient or some amendment
is necessary?
·
What are various
doctrines evolved by judiciary to interpret the Constitutional
·
provisions in union state relations?
·
Whether the doctrine
of Separation of Power is recognized in rigid/absolute
·
sense under the Constitution of India or not?
·
How the judiciary is saviour for the Separation of
1.6
RESEARCH METHODOLOGY
The
researcher intends to adopt a doctrinal method of research for the purposes of
this research work. The doctrinal
research methodology provides an ample scope to examine the existing literature
from both primary and non-primary
sources. Doctrinal methodology mainly helps the researcher to find out the gaps in the existing
provisions of the law basing on
statutes, international and national documents,
case law,
juristic writings and other scholarly literature available on the area of the
research. An examination of these
sources relevant to the topic of study certainly helps the researchers to find
out the ways and means to fill the
gaps in the existing legal system and also to suggest the redressal mechanism
that need to be injected by the State in
its future policy formulations.
1.7
SOURCES OF DATA
In order to
complete the research study, the researcher will collect the material through
various primary and secondary sources,
such as the occasional policy papers of the State, statutes, commentaries, case-law, text books,
juristic opinions, policy formulations of various governmental bodies,
reviewing the existing
literature on the area, the views and perspectives of stake holders,
policy makers and all other relevant sections of the society which
includes the efforts of charitable organizations, non-governmental organizations and philanthropists.
1.8
LIMITATION OF RESEARCH
The research will be limited
to specifically mentioned cases and provisions only.
2 Separation of power
The Baron de Montesquieu, a legal scholar,
coined the phrase "separation of powers." Enlightenment thinker from France. But the
actual division of authority among the origins of several governmental branches can be
found in ancient Greece. Those who
drafted the American
governmental structure would
be based on the concept
of three separate
Braches
i.e. Executive
,Judiciary, and Legislative. The three branches are unique from one another and serve as checks and balances.
No branch will be able to abuse its authority
or acquire total power in
this way.
The executive branch of the US is led by the President and
consists of the bureaucracy. The Senate
and the House of Representatives make up the legislative branch of government.
The Supreme Court and the lesser federal
courts make up the judicial branch.
The term "separation of powers," which is
frequently erroneously interchanged with the trias politica principle serves as a guide
for state administration.
The Roman Republic used the model extensively as a part of
its uncodified Constitution, whi ch
was initially created in ancient Greece. This model divides the state into
branches, each wi th their own distinct and independent powers and spheres of authority, ensuring
that no branch h as more
authority than the others.The three branches of government are often divided
into an executive, a legislative, and a judiciary.
Several nations have adopted the idea of separation of
religion and state for comparable reaso ns,
though to varied degrees depending on the relevant legal frameworks and common
beliefs regarding proper role of the society
The French Enlightenment political philosopher Baron de Montesquieu is credited with coining
the phrase. The division of political authority between the executive, the
legislative, and the judiciary was
described by Montesquieu. He modelled this system on the British Constitutional system, where he saw a
division of authority between the king, Parliament, and the legal system3
According to Montesquieu, "the independence of the court
must be actual, and not only apparent."
In addition to being viewed as hazardous, "the judiciary was typically
perceived as the most important of
powers, independent and unrestrained." Every government expresses the desire of the people through one of
three specific actions. These are the government's legislative, executive, and judicial responsibilities. The
legislative, the executive branch, and the
judiciary are the three branches of government that correspond to these three activities. The state's legislative branch creates
laws, the executive implements them, and the court applies them to
particular instances resulting from law violations.
The modern concept of constitutionalism and the theory of separation of powers
covers a position of almost
unparalleled global world as foundational tenet of liberal democracy . The doctrine
of long standing
historically and politically significance over the attitudes, and public
opinion which pronouncement of academics, official, and citizens alike. In recent
times this theory has even attracted comment from a number of eminent English academics a notable development in a
jurisdiction whose Dicey Heritage had inculcated an extreme disparagement of this doctrine as a
3 https://www.law.ox.ac.uk/sites/files/oxlaw/ak_separation_of_powers_philfounds_book.pdf Date 10/09/2022 Time 5:53 pm .
‘Rickety Chariot’ an
invention and dubious system. In a similar point of view the Supreme court of Irish proclaimed this doctrine to be a high constitutional value , through the
ideologically prism of all the other constitutional provisions ought
to be perceived.
The doctrine of separation of powers under the Indian
jurisprudence is an amalgam of all the powers which comprises legislative, executive , judicial
powers. it is flow from the constituent powers through the
constitution to the various department and heads. Their is no demarcation of powers in the hands of
constituent authority. It is only when the constituent authority defines the authorities or demarcates the areas that separation of powers is discussed
and creates the organs and distributes the powers , it is shows the sovereign
powers of the constituent.
The constitution of India under part XI, chapter I with
Schedules Vll of the constitution also provides
for the division of powers for the purpose of
legislation of different subject matters it is reflected the distribution of powers . It is here where
Indian Constitution needs to breeze through
the corrosive assessment of federalism. It is here where Indian Constitution
neglected to fulfill the conservative
of it's government believability due to a few arrangements in this section which has been pronounced as
one-sided for focus. In any case, there are sufficient legitimization for these arrangements because of curious state
of Indian commonwealth, and it's case as government Constitution can not be disregarded exclusively on the abovementioned ground.
That the present constitution of India contains provision
have its roots into the government of India
act 1935, 4According to Ashoka chanda observations some provisions of the act
find place as modified words: The
constituent assembly did not consider that having regard to the evolution of india’s political system and
insistent needs of co-ordination of economic and industrial development centrally, The basic departure should be
made from the modified federal
concept which was embodies in the 1935 Act. However the constitution enlarged
the scope of the legislative
authority of the states by delivering number of subjects in the central list and
state list of 1935 act but at the same time if made other adjustment to
strengthen the powers of the centre
to promote National economic unity. National highways, interstate trade and commerce and several other subjects
were accordingly deliver to the union list from the state list of the act of 1935.
And inter state rivers were subjected to the concurrent list, so the comprehensive provision incorporated to
overall control of the parliament of
India to make a single economic
unite for the purpose of trade
and commerce.
4 https://www.jstor.org/stable/41856368 Date 10/09/20022 Time 11:20 AM
In the recent time all the democratic systems not be adopting
for the strict form of separation of
powers because that is not sustainable and impracticable in implementation of
this concept, Almost all the
democratic system adopted its diluted form. So in the recent time that the philosophers theoretical concept of separation of powers is no longer to day to day functioning of the government.
2.1 Doctrine of Separation of Power
The governmental powers,
broadly speaking are divisible in three categories executive, legislative
and judicial. A reign of law, in contrast to the tyranny of powers, can be
achieved only through separating
appropriately, several powers and functions of Government. If the law makers should also be the
administrators and dispensers of law
and justice, then the people must be
left without a remedy in case of injustice since no appeal can lie to any superior.
Therefore, an age-old search has gone on for the secret of
good Government ensuring to the citizens
individual liberty. Montesquieu’s common sense coupled with Locke's opposition
to Hobbes absolutism saw the dangers
of concentration of powers. He felt that the history of the despotic Tudors and absolutist Stuarts,
showed that freedom was not secured, if the executive and the legislative powers were held on the same hands. He deducted his ideas of separation
of powers from his observations and ideas of the relations
between the Stuart King and the Parliament.
He thought that Parliament would never be arbitrary and the denial of
legislative powers to king alone
could make the rule by extemporary decrees impossible. Montesquieu have experienced the tyrannies in the
monarchical France, must have watched the conditions on the other side of the Channel with
envy.
In the second half of the Seventeenth century, he would not
fail to notice that the Englishmen stood
under the warm sunshine of the Magna Carat. Having lost his legislative and tax powers to Parliament, the English King was left with no
prerogative. Parliament made the laws.
His majesty’s Government was, even though the cabinet system was not yet
developed, administering the laws
passed by Parliament. By the end of the century, the Judges, like the Great Coke, could not be dismissed by the
King at this will, because, the Act of Settlement gave them a tenure during good behaviour as distinguished from a
tenure during the pleasure of His
Majesty. Montesquieu concluded that the secret of the Englishmen’s liberty was
the separation and functional
independence of the three departments of the Government from one another.
Locke in his treatises expounded this theory and influenced
the thinking of men on the other side of the
Atlantic. It became a political fundamental of American
constitution.
According to Montesquieu, the doctrine of separation (des pouvoirs) means one person or body of person should not exercise all the three types of powers. Wade and
Phillips says that the doctrine
means the following
(a)
the same set of persons should not compose more than
one department of the three governments departments:
(b)
one department should not exercise the functions of
the other two departments; and
(c)
one departmental should not control,
much less, interfere
with the work of the other two departments.
The division of Government into three branches does not
imply, as its critics would have as think, three water-tight compartments. The machinery and procedure of legislative and appointment
of judges and judicial review of legislation and executive action are essential features of any sound Constitutional
system. It is said instead of applying the doctrine in a strict sense of the functional machinery and procedures of the
Government, the doctrine should be
deemed to require a system of checks and balance among the three departments of Government while opposing the
concentration of governmental powers in any of the three departments.
5 Turning into India in Constituent Assembly there
were proposals to incorporate the doctrine
into the Constitution; but deliberately the assembly did not accept
them. The doctrine in its absolute
rigidity is not inferable from the provisions of the Constitution. The
Constitution has not made any
absolute or rigid division of functions among the three agencies of the State. Often the legislative and the judicial
functions are entrusted
to the Executive. Nevertheless
functional separation of the different powers has not been ignored, nor, it is
stressed. The executive powers of the
Union is vested in the President of the Union of India and the powers
of the State Governments, in the
Governors of the respective states. The President is thus made the highest executive head of the Union. He exercises
his powers Constitutionally on the
aid and advice of his Council of Ministers. There is no similar vesting of
legislative powers in Parliament and
the State Legislatures; and of judicial powers in the Supreme Court and other
courts.
The Constitution recognizes of the three fold functional
division of governmental powers. Article
50 expressly requires.6 the State to apply the principle of
separation of the judiciary from the executive
as a sound principle of Government. This declaration is made in the Chapter on Directive principles of State policy, and therefore, has no mandatory character and cannot be said
6 Article 50 of the Indian constitution Bare act edition
2021
5 https://loksabhaph.nic.in/writereaddata/cadebatefiles/C23051949.html Date 10/09/2022 Time 9:10 Am
to incorporate the whole doctrine.
The President is given extensive
legislative powers. He can make Ordinances. The powers to promulgate an
Ordinance, is an essential
legislative powers, and its extent had scope would have been envied even by
Henry VIII, and would have taken the
Judges in the case of Proclamations by surprise. 7The powers extend to all things which are within the
legislative competence of Parliament, and its limited operative duration of an Ordinance. The President makes laws for a State, after the dissolution
of the State Legislature, following the imposition
of the President’s rule and delegation of legislative functions of the state Legislature to him by parliament by law.
2.2 Why Need Separation of Powers
Clement Walker, a member of the Long Parliament in 1648, saw distinctly enough the kind of
arbitrary, tyrannical rule against which the governed had to be protected. The
remedy, he lay in separation of
governmental functions cast in terms of “the
Governing powers,” “the Legislative powers,” and “the Judicative
powers.” For Marchamont Nedham, writing under
Cromwellts Protectorate in 1656 , the
required separation is that of legislative and executive powers into different “hands and persons.” As used by him, the
distinction resembles the sharp dichotomy
between the formation of policy and its administration
favored by mid-twentieth century American
administrative theorists. Separation, for Ned ham, is an indispensable means
for locating responsibility and
fixing accountability. An executive, unambiguously charged with executing
a policy set by the Law-makers can be held liable for its performance or nonperformance. Let that clear line of distinction and responsibility be blurred, and liberty and the people’s
interest are alike in
jeopardy.
Among Americans reflecting on new political arrangements
in the latter half of the eighteenth century,
no political authority was invoked more often than “the celebrated
Montesquieu.” Thanks in some measure
to those Americans themselves; the name of Montesquieu is firmly attached to the doctrine of the separation
of powers. But like most teachings of that subtle mind, this one has its ambiguities and invites differing
interpretations Although Montesquieu separated
governmental functions and separated governmental powers, there is no clear
one- to-one correspondence between
the two because he did not insist on an absolute separation. Thus, although the executive is a separate
branch, it properly partakes (through the veto, for example) in a legislative function.
This blending or overlapping of functions is
in part
7 Indira Nehru Gandhi v. Raj Narain,
AIR 1975 SC 2299
necessitated by Montesquieu intention that separation checks
the excesses of one or the other branch.
Separation of powers here reinforces or even merges into balanced government. Excesses
may come from all or almost all sides. Thanks to bicameralism, the licentiousness of the many and the encroachments of the
few are alike checked. The nobility mediate between
a potentially overbearing lower house and the executive. The executive’s powers
to convene and prorogue the legislature
and to veto. Its enactments are forms of self-defence, while the legislature’s powers to impeach and try the agents or
ministers of the executive is necessary and sufficient to hold the
executive accountable to examination without holding him hostage
8If the goal is liberty--that is
to say, individual safety--the model
to follow (Montesquieu suggested) is
that of the English Constitution portrayed in his pages. But one might
pursue an alternative goal with more
or less separation of powers and more or less happiness--like “the monarchies
we are acquainted with Although
maintaining that sovereignty resides in the king in Parliament, Blackstone draws heavily on elements of
Montesquieu argument and adapts them to
his peculiar purpose (no. 6). For all
his insistence on three distinct powers--and they are now the familiar executive, legislative, and
judicial powers, with the latter a recognizable judiciary with independent tenure of office--and for
all his insistence on separation for the sake of warding off oppressive government, Blackstone seems less
interested in separation than he is in balance.
I-{is mechanical image fits his point; balance
is to be sought not in total separation
but in the artful involvement and mutual interactions of the several branches
of the civil polity: executive,
nobility, and people. The separation of powers and balance of social orders are inextricably interwoven9. If the instructions of the Bostonians to their representatives in the Massachusetts
provincial congress are any sign (no. 8), the reasons of Montesquieu and the others had become commonplace by 1776. No
less effective in directing American thoughts to the separation of powers would
have been the protracted, painful controversies
between royal governors, councils, and
colonial assemblies. The colonists’ experiences
with what they saw as executive usurpations, corruption of elected officials,
and manipulation of electoral processes
focused their minds on suitable
remedies. For the Bostonians
the tripartite separation of powers, functions, and persons is a sine qua non
if arbitrary powers is to be checked
and liberty secured. A correlative of the separation of persons is the prohibition of plural office-holding; and in the
democratic context that entails adequate
salaries so that officials are “above the necessity of stooping.” John Adams’s
early Thoughts on Government (see ch.
4,
8 Separation of Powers and the Madisoniari Model: A
Reply to the Critics - George W. Carey, In
Defense of the Constitution (1989)
no. 5) similarly confirms the high expectations held for the separation of powers and the broad
spectrum of ills that it would guard against: passionate partiality, absurd judgments avaricious and ambitious
self-serving behavior by governors, and the inefficient performance of
functions.
The experiences under the early state Constitutions and the Articles
of Confederation reinforced the belief in separation. Jefferson’s critique of the Virginia Constitution (no. 9)
raised the familiar concerns with safety and efficiency; both
to establish free principles and to preserve them once established required a division
and balance that went beyond
those embodied in existing
arrangements. Despotism is no less despotic because ‘elective.” The Philadelphia Convention usually discussed
the adequacy and proper degree of the separation of powers in terms of the ends to be achieved: stability
(Dickinson), defense (Gerry,
Madison, G. Morris, Wilson), independence (King), and proper function
(Gerry). No less worrisome, however,
was whether the means available to the several branches of government to defend
themselves against the others
might not be excessive (Franklin).
2.3 Constitutional status and practice pre 2014
.10 Following the general elections
in 1952—the first after independence—the Indian National Congress
(INC) party emerged as the most dominant
party at the centre as well as the
states. The Congress party would from thereon completely dominate Indian
politics, until the 1967 elections
when it faced a major electoral setback. The federal arrangement was such that the national political scene was
presided over by Congress’s national leadership, led by the prime minister, Jawaharlal Nehru, while the regional
Congress leaders had a mass base of their
own and possessed considerable power and influence in their respective states.
Political scientists, Yogendra Yadav and Suhas Palshikar, have observed that
Congress’s success was “a combination
of its state level organization along with Nehru’s plebiscitary leadership and popular appeal.” co-existence[ of national and state leadership in their
respective realms of influence was a
consensual model of inner party federalism that marked the era of Congress dominance. Even after the death of Nehru
in 1964, the regional leaders continued to play an important role in national politics. The political decline of
these notable regional leaders of Congress
would happen eventually, after their electoral defeat in the 1967 national
elections and following their power tussle
with Indira Gandh.
The mass-based popular regional leaders of the Congress party were sidelined, resulting
in the
10 https://www.thehindu.com/opinion/letters/separation-of-powers/article7770901.ece Date 11/09/2022 Time 10/09/2022
concentration of power in the Congress central
leadership. Only those who were “loyalists”
to Indira Gandhi were installed as state party leaders and chief ministers. As
a result, the party was deprived of
its organisational strength at the grassroots that earlier had been built with the support of the popular
state-level leaders. Over time, the Congress vote share started to decline. In 1971, the national elections
were separated from the state elections.
The Congress party fought the elections mainly based on national issues and
Indira Gandhi’s personal popularity.
This gave Congress victories in three national elections in this period (except in 1977). The Congress also
won the state elections in 1972 due to Prime
Minister Indira Gandhi’s electoral appeal. However, the social base of
Congress’s electoral support began to
shrink gradually from this time due to organisational weakness at the local level and the absence of strong state
leaders. This era also coincided with the political rise of many regional parties
in a number of Indian states.
CHAPTER-III
3.1 Majoritarianism and Separation of Powers
The basic structure doctrine permits unelected judges to
impose near-permanent checks upon parliament’s power to amend the Constitution. Recall that we have proposed
two philosophical defences
that render this doctrine compatible with democracy as we understand it. The first – and let us call this the
substantive defence – posits an
expanded idea of democracy, one that
guarantees equal concern and respect to all members of a polity, and that therefore accords legitimacy to
majoritarian decision-making procedures only insofar as these procedures respect certain basic
individual rights without which equal concern and respect cannot
genuinely be said to exist.
Two important points may be raised now: First, certain
questions of grave Constitutional importance
often arise that pit the interests of the majority against the minority. Allied
to this is the fact that most of the
basic human rights are rights against the majority. In such a situation, allowing the majority (through
Parliament) to be the ultimate arbiter would be tantamount to it judging its own cause, and deciding upon
matters that it has a close and intimate interest
in. This problem is clearly recognized by Professor State , who points out that
the basic structure doctrine is essentially the “ultimate counter-majoritarian”
check upon democracy” (see Sathe, Judicial Activism
in India). The argument above, of course,
is different in that it defines
democracy itself as separate from majoritarianism, but the basic point remains that it is axiomatic that
the deciding authority must be of a non-majoritarian character and so,
cannot be the Parliament11.
11 https://indconlawphil.wordpress.com/tag/majoritarianism/ Date 11/09/2022 Time 9:20 am
Secondly, certain principles are by their very nature beyond the pale of majoritarian authority. These include the most basic
individual rights against the State, e.g., the right to life, equality and the
fundamental freedoms, and the right to
freedom of conscience. These are
matters to be governed by individual autonomy, central to how an individual
decides to order and determine his
own life, and cannot be subjected to external majoritarian authority – because to make even those rights subject
to majoritarian control would destroy individual autonomy in a way that would not be consistent with according
equal concern and respect to all. Professor Dworkin gives the classic example
of an orchestra conductor.12
3.2 Testing the water: position post 2014 in India
The 2014 general elections challenge nether era of coalition politics at the national level. The BJP gained a parliamentary majority on
its own and formed the government at the Centre led by Prime Minister Narendra Modi. This phase marked the beginning
of what is called the “renationalisation
of Indian politics” with BJP as the new national political force. After its
victory in the national elections, BJP as a major political party also
went ahead to capture power in 21 states in India either on its own or
with a strong regional ally. BJP’s more impressive
win in the 2019 elections strengthened its position as the new ‘dominant party’
in India. However, unlike in the first phase, the BJP is the most dominant national political force amongst other parties but faces substantial political opposition from the national
opposition party (Congress party) and many regional parties at the state level.
Modi as Chief Minister of Gujarat realised the need for
empowering the states, and made ‘cooperative
federalism’ a major electoral promise in his campaign in the 2014 national elections. After coming to power, the BJP
government took some major steps in the direction of strengthening the states. The centralised Planning Commission
was replaced by the Niti Aayog which
the Union government assured would have “active involvement of the states in the spirit of “co-operative” federalism.”
Second, the Goods and Services Tax (GST) by which the Centre and states would “become equal fiscal partners in
sharing a common indirect tax base”
was implemented. A GST Council was formed to create a consensus amongst the
states regarding the decision.
Third, the Union government accepted the 14th Finance Commission recommendation to give the states
42-percent share of the funds from the central pool (from the previous 32
12 https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1075&context=jcl
Date 11/09/2022 Time 7:20 pm
percent). However, how far Niti Aayog and the devolution
of increased funds have a bearing
on has its own challenges.
deepening of federalism in tangible proportions, has to
be more closely examined with time as it Despite the centralizing tendencies of
the dominant national ruling party, BJP has been facing tremendous challenge in the state-level elections since 2017. BJP, led by Modi, remains largely politically unchallenged at the
national level. But its reliance on national agendas and its inability to accommodate the regional and local issues in
the state elections resulted in its electoral
setbacks despite its efforts.
Further, the electoral understanding that BJP manages to have with
the regional political outfits, helped
it to capture power in many states. Though the regional forces are unable to shape
national politics unlike in the previous phase, they provide some opposition to the political
dominance of the BJP at the state-level elections in a limited manner, despite many regional
parties being co-opted by the national ruling party in many instances. Particularly, the regionalist parties which
have strong appeal based on sub- nationalism
and cultural identity like the ones in Tamil Nadu, Orissa and West Bengal, have been more successful in fighting the BJP
in their respective regional turfs so far.
Moreover, in states like
Punjab, Rajasthan, Haryana or Chhattisgarh, the Congress was able to gain in state elections by relying mostly on their
regional leaders and addressing regional concerns. This reveals a limited form of ‘de-nationalised party system in India even under a
dominant national party. Moreover, the main political opposition
against the proposal of implementing the all-India
National Register of Citizens (NRC), came from the states and regional
forces.
Most of the state governments ruled by Congress or regional parties including the ones being ruled by some of the BJP’s own
political allies, opposed it.
3.3 Judicial Review
vis-à-vis the Doctrine
As regards the power of judicial review, it has, in its
modern exercise, often been questioned as
being antithetical to separation of powers and the extent of its exercise has
been argued to infringe India’s model
of the doctrine by surpassing the intended constitutional limits. It is important to note, however, that judicial
review ensures the supremacy of the people and not the judiciary, as pinpointed by Alexander Hamilton. Judicial
review as granted by the Indian Constitution
enables the judiciary to act as a protector of the Constitution and the rule of
law, both of them being underlying
values of separation of powers. It does not oppose the doctrine but emanates
from it, as a means to enforce
the same where it is infringed.
In the13 Keshav Singh case, the Supreme Court upheld
the independence of the judiciary and pronounced
the scope of judicial review. Commenting on the extent of judicial review of Legislative affairs in light of the
doctrine, the Supreme Court pronounced that only in matters of ‘irregularity of procedure’ would the
Legislative proceedings be immune from judicial interference, and that their ‘illegality’ is subject to judicial
review. The special role of the Courts
as enforcers of the rule of law, also allows them to safeguard the rights of
individuals in the absence of
legislation or executive action, so as to fill the void in law for the meantime as a constitutional obligation.
In the Vishakha case,14 the Court
laid down a set of procedural guidelines pertaining to sexual harassment at workplace consistent with CEDAW, to fill the gap of legislation in that regard. Thus, judicial review
complements and furthers the principle of checks and balances, thereby furthering the concept of
separation of powers as understood in India and has rightly been accorded
to comprise basic structure
of the Constitution.
Modern view and the way forwards
In Bhim Singh v. Union of India and Ors.15,
the Supreme Court displayed an interesting take on the doctrine, stating that modern governance does not have
any place for a strict separation of
powers. Rather, separation of powers has the aim of achieving the maximum
extent of accountability of each instrument,
and functional overlap does not infringe the doctrine if the constitutional accountability is maintained. This view is correct, as it falls in line with the present needs and emphasizes the
impracticality of the strict version of the doctrine in the modern scenario. The emergence of the field of administrative law calls for increased harmonious integration of the functions of
the instruments through administrative tribunals and delegated legislation, so as to reduce the burden on the
prime organs of the State. Strict implementation
of the doctrine would encumber the objectives of expediency and efficacy sought to be achieved through the function
of administrative authorities and would act as a limit on administrative law. Thus, strict implementation of the
doctrine is undesirable. The way forward
consists of a practical approach
that is in touch with the felt necessities of time.
13 IN RE
KESHAV SINGH, AIR 1965 SC 745
14 Vishaka and others V. State of Rajasthan and others. (AIR 1997 SUPREME COURT 3011)
15 Bhim Singh v. State of
Jammu and Kashmir
Citation : AIR 1986 SC 494
In Indira Gandhi Nehru v. Raj Narain, 16The
Supreme court asserted the Kesavananda ruling
and upheld the basic structure as well as the separation of powers
doctrine, making it a landmark case
our country. The dispute in this case was regarding the Prime Minister elections, where the constituent body had declared
that the elections
weren’t void, thus acting in a judicial capacity. This made the
actions of the constituent body ultravires. It was thus held that a parliament cannot
under any constitutional amending power or the like take on the role of the judiciary. Thus the position
of separation of powers was upheld and asserted in this case.
Delhi Development Authority v M/s UEE Electricals Engg.17
Pvt. Ltd Supreme Court ruling has sought to clarify the meaning and
objective of judicial review as a protection and not an instrument for undue interference in executive functions. The
Supreme Court made the observation
that, “One can conveniently classify under three heads the grounds on which administrative action is subject to
control by judicial review. The first ground is “illegality", the second
“irrationality" and the third “procedural impropriety".
I.C.GolakNath v. State of Punjab 18It was
observed: “The Constitution brings into existence different constitutional entities, namely, the Union, the States
and the Union Territories. It creates
three major instruments of power, namely, the Legislature, the Executive and
the Judiciary. It demarcates their
jurisdiction minutely and expects them to exercise their respective powers without
overstepping their limits.
They should function
within the spheres
allotted to them.
I.R. Coelho vs. State of Tamil 19Nadu S.C. took the help of doctrine of basic
structure as propounded in
KesavanandaBharati case and said that Ninth Schedule is violative of this doctrine and hence from now on the Ninth Schedule will be amenable
to judicial review which also forms part of the basic
feature theory. The basic structure theory and the Golden triangle comprising of A. 14, 19, and 21,
will now be the criterion in scrutiny of the Ninth Schedule. In a democratic country goals are enshrined in the
constitution and the state machinery
is then setup accordingly. And here it can be seen that constitutional
provisions are made as such to support a parliamentary form of government where the principle can’t be followed rigidly. The S.C. rulings also
justify that the alternative system of checks and balances is the requirement, not the strict doctrine.
16 1975 AIR 865, 1975 SCR
(3) 333.
17 Appeal(civil)1725 of 2004
18 1967 AIR 1643; 1967 SCR (2) 762
19 AIR 2007 SC 861
Conclusion& Suggestions
It has been well said by Lord Acton:- “Power corrupts and
absolute Power tends to corrupt absolutely”.
Conferment of power in a single body leads to absolutism but,
even after distinguishing the functions,
when an authority wields public power, then providing absolute and sole
discretion to the body in the
matters regarding its sphere of influence may also cause abuse of such power. Therefore, the doctrine of separation of powers is a theoretical concept and is impracticable
to follow it absolutely. The status of modem state is a lot more different than what it used to be. It has evolved a great
deal from a minimal, non-interventionist state to an welfare state, wherein it has multifarious roles to play, like
that of a protector, arbiter,
controller, provider. This omnipresence of the state has rendered its
functions becoming diverse and
problems, interdependent and any serious attempt to define and separate those functions would cause inefficiency in
government. Hence, a distinction is made between ‘essential’ and ‘incidental’ powers of an organ. According to
this differentiation one organ can’t
claim the powers essentially belonging to other organ because that would be a
violation of the principle of
separation of powers. But, it can claim the exercise of the incidental functions of another organ. This
distinction prevents encroachment of an organ into the essential sphere of activity of the other. It is the exercise of
incidental powers only which has made
executive grow everywhere in this social welfare state. It has assumed a vital
role but, it has not usurped any
role from any other wing. It just happened that the other two organs, namely, judiciary and legislature, became
unsuitable for undertaking the functions of this welfare state and as a consequence the functions of the
executive increased. As controller and provider, the judicial processes
were very time consuming and the legislature was overburdened with
work. Therefore, it was in natural scheme of
things which made the administrators
end up performing a variety of roles in the modem state including those of legislature and judiciary too, to an extent.Further, the check of the adjudicators over functioning's of
the other two has been regarded as an ‘essential’ feature of the basic
structure theory. The judicial
review power is a preventive measure in a democratic country which prevents administrators and law-makers to
exercise their whims and caprices on the lay man and turn it into a despotic regime. There have been cases where
the judiciary has dictated the ambit
of their power to the implementers and the mode to exercise it. Recent Supreme
Court judgments- on the
cash-for-query case and on the Ninth Schedule — have once again brought the powers and roles of the legislature and the judiciary
into focus. In the case of the former,
the court upheld the Lok Sabha’s decision to expel members of
Parliament, who were caught on camera
taking bribes, but clearly rejected the contention that it cannot review
parliament’s power to expel MPs and
claimed for itself the role of final arbiter on decisions taken by the legislature. The judgment on the Ninth
Schedule has curtailed Parliament’s power to keep certain progressive laws outside judicial Review.
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 have been sufficiently differentiated.
References/ Bibliography
1.
M.P Jain, Constitution of India
2.
NATIONAL CONFERENCE ON AFFIRMATIVE ACTION AND THE
INDIAN CONSTITUTION, SUB THEME –
OPPORTUNITIES IN PUBLIC EMPLOYMENT TITLE
OF THE RESEARCH PAPER – ARTICLE 16 OF INDIAN
CONSTITUTION: OVERCOMING PAST DISCRIMINATIONSAuthor- Aishwarya Singh
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Affirmative Action in India and the United States: the Untouchable and Black Experience by M. Van Chandola*
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Indian Constitution of India 1950
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Potchefstroom
Electronic Law Journal (PELJ)On-line version ISSN 1727-3781 PER vol.12
n.1 Potchefstroom Jan. 2009
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M. J. C. Vile,
Constitutionalism and the separation of powers (1967)
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Montesquieu, The Spirit of Laws (Nugent)
152 (1748).
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Basu, D.D., Administrative Law (6 ed. 2004)
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https://samarthagrawalbooks.com/2021/08/05/separation-of-power-2/ Title Separation of power
Author name Samarth Agarwal (Date 26/08/2022
, time 1:33 pm).
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Title Principal of separation of power and
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Singh http://ijtr.nic.in/articles/art35.pdf(Date 022/08/2022 time 8 pm)
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Carolina Academic Press,
2018, TitleSeparation of Powers Law
Article Information
SEPARATION OF POWER – AN INDIAN PERSPECTIVE
Authors: Md. Bilal
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/03/23
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
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