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SEPARATION OF POWER: A CRITICAL ANALYSIS ON THE JUDICIARY’S WITH POLICY MATTERS OF THE GOVERNMENT
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“SEPARATION OF POWER: A
CRITICAL ANALYSIS ON THE JUDICIARY’S WITH POLICY MATTERS OF THE GOVERNMENT”
AUTHORED BY - PRANALI
GAWADE
ABSTRACT
The underlying idea of the doctrine of separation of power is that the organs of the government do not overlap or interchange the functions that are exercised
by them individually. The notion of ‘separation of powers' is the
division of authorities and duties among the legislative, executive, and judicial branches. The power and accountability are being divided
among these three organs of
Indian government, viz., judiciary, legislature and executive. This doctrine
makes sure that there is no amalgamation of power.
This paper attempt to analyse the concept of this doctrine in India,
the objective, criticism and how it is a barrier to administrative law.
INTRODUCTION
The doctrine of operation of power is an idea which talks about
functioning of government is at its best when the powers are not solely given
to a single authority but is sub divided into different branches. This
principle is not followed in a very strict
sense but is adopted by many
nations. It was first adopted by United States of America. In India the
doctrine of Separation of power was developed in 17th century. Where the
thinkers pointed out three powers of the government which were power to make laws, power
to enforce law and power to interpret
law.
MONTESQUIEU’S CONTRIBUTION
The idea behind
this doctrine is that no man should be empowered
with all these three powers. These should be divided
accordingly that the law should
be made by legislative, administration of law should be done by
executive and judiciary should uphold the law and provide justice.
“There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise
those three powers, that of enacting laws, that of executing the public
resolutions, and of trying the cause of individuals.”1
Montesquieu believed that the
decentralization of power should be done or else the justice becomes
capricious. The three organs Legislative, executive and judiciary should work
independently and there should be no overlap between the powers
of these organs. According to him the basic assumption behind this
principle is that if all the power is given in the hands of one body, it can be
dangerous for the citizens because then the law becomes arbitrary and flawed.
The doctrine of Separation of Powers deals with the mutual relations
among the three organs of the Government namely legislature, executive and
judiciary. The origin of this principle goes back to the period of Plato and Aristotle.
It was Aristotle who for the first time classified the functions of the Government into three categories viz., deliberative, magisterial and judicial Locks categorized the powers of the Government into three parts namely: continuous executive
1 Aldar John, Constitutional and Administrative Law, Palgrave Macmillan, New York, 6 Ed
power, discontinous legislative power and federative power.
“Continuous executive power” implies the executive and the judicial power,
discontinous legislative power? implies the rule making power, „federative
power? signifies the power regulating the foreign affairs.2The
French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws)
published in 1748, for the first time enunciated the principle of separation of
powers. That’s why he is known as modern exponent of this theory.
Montesquieu’s doctrine, in essence, signifies the fact that one
person or body of persons should not exercise all the three powers of the
Government viz. legislative, executive and judiciary. In other word each organ
should restrict itself to its own sphere and restrain from transgressing the
province of the other. In the view of Montesquieu:
“When the legislative and executive powers
are united in the same person, or interest he same
body or Magistrate, there can be no liberty. Again, there is no liberty if the
judicial power is not separated from the Legislative and Executive power. Where
it joined with the legislative power, the life and liberty of the subject would
be exposed to arbitrary control, for the judge would then be the legislator. Where it joined
with the executive
power, the judge might behave with violence and oppression. There would be
an end of everything were the same man or the
same body to exercise these three powers...3
Montesquieu’s “Separation” took the form,
not of impassable barriers and unalterable frontiers, but of mutual restraints, or
of what afterwards came to be known as “checks and balances”. The three organs much act in concert, not that their
respective functions should not ever touch one
another. If this limitation is respected and preserved, “it is impossible for
that situation to arise which Locke and Monstequieu' regarded as the eclipse of
liberty- the monopoly, or disproportionate accumulation of power in one
sphere.”4
The man behind the principles is to protect the people again
capricious tyrannical and whimsical powers of the State.
United Kingdom: The famous English Jurist Blackstone supported the doctrine of
Montesquieu. According to him, “wherever the right of making and enforcing the Law is vested
in the same man or in the same body of
men there can be no liberty”. During the
17th century in England Parliament exercised legislative powers.
The King exercised executive powers, and the
Courts exercised judicial
powers, but with the emergence of cabinet system
of Government
i.e. Parliamentary form of Government, the doctrine
remains no good. The renowned constitutional Bagehot observed. “The cabinet is
a hyphen which joins, buckle which fastens, the legislative part of the State
to the executive part of the State.
According to Wade and Phillips
the doctrine of separation of powers implies:
i)
The same person should not form
more than one organ of the Government.
ii)
One organ of the Government should
not exercise the function of other organs of the Government.
iii)
(iii) One organ of the
Government should not encroach with the
function of the other two organs of
the Government.
2 I.P. Massey: Administrative Law, Edn. 1970, p. 35
3 Montesquieu, De L? Espirit
des lois, 1748 quoted in Justice D.D. Basu: Administrative Law, Edn. 199, p. 23.
4 Carleton K. Alien: Law and Orders,
Edn. 1965, p. 10,19
Now the question in subject is whether this doctrine finds a place
in England? In England the King being the executive head s also an integral
part of the legislature. His ministers are also members of one or other Houses
of Parliament. This concept goes against the idea that same person should not
form part of more than one organ of the Government.
In England House
of Commons control
the executive. So far as judiciary is concerned, in theory
House of Lords is the highest Court of the country but in practice judicial
functions are discharged by persons who are appointed specially for this
purpose, they are known as Law Lords and other
persons who held judicial post. Thus we can say that doctrine
of separation of powers is not an essential feature of
British Constitution.
Donough more Committee has aptly remarked:
“In the British Constitution there is no such thing as the absolute
separation of legislative, executive and judicial powers. ”
U.S.A Usually it is said that
the principle of separation of powers finds a good mention in the Constitution
of United States; while the Federal Constitution of the United States of
America does not expressly provide for the principle of separation of powers.
Having reliance on the doctrine of Montesquieu, Madison, the Federalist
observed; “The 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.” The same ideas were expressed by Hamilton in 1788.
In American Constitution we find that legislative, executive and
judicial powers are vested in separate entities.
Section 1 of Article 1 declares: “All legislative powers herein
granted shall be vested in a Congress of the United State”.
Section 1 of Article II says: “The executive power shall be vested in a President
of the United States of America.”
Section 1 of Article III reads: “The judicial power of the United
States, shall be vested in one Supreme Court and in such inferior courts as the
Congress may from time to time ordain and establish. ”
Let’s us see the actual position prevailing in America. It is clear
from the above mentioned provisions that the President is the head of the
executive in U.S.A. Besides he (President) possesses the power to vote bills 5
passed by the Congress and such bills cannot become law unless they are
subsequently passed again by each House, with a two thirds, majority. The
character of veto power vested in the President is purely legislative. It is true that the power is one of negation only, but the history
of its origin shows that even in its qualified form, it is legislative in its
nature.6 The President also exercises legislative power in making of
treaties regarding foreign affairs.
As John Marshall said in his great
argument of March 7, 1800,
in the House of Representative, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations”.7The President
in his legislative capacity gives
5 Article 1, Section 7(2) of U.S.A. Constitution.
6 Bernard Schwartz: American Constitution of Law, 1955 p.99.
7 United States v. Curtiss-Wright Export Corp;229 U.S. 304,319 (1936).
information of the state of the Union to the Congress.8Likewise
the Congress interferes with the powers of President by casting vote on Budget.
The Budget and Accounting Act, 1921 established the principle and practice of
the executive budget, under which the President is responsible for formulating
and presenting to Congress a complete and detailed expenditure plan for the following
fiscal year.9Congress also plays important
role in ratification of treaties, as well as in appointments through
its senators. Congress
has also judicial
powers. Each house may expel its members by a two
thirds, votes or punish them for „disorderly behaviour?. Congress is the sole judge of the reason
for expulsion. Not only this, American judges may be removed from the office only by impeachment
proceedings instituted before the Congress.
So far as judicial organ is concerned the Courts have supervisory control over both the Congress and the
President, by way of judicial review. It is true that legislature enacts the Law, but it
is also true that in dealing
with the new problems, where Law is silent, the Courts
have to create the Law. The Chief
Justice Hughes’s remarks are most pertinent in this connection, as he candidly
said- „The Constitution is what the judges say it is.?10 The
amendments which have been incorporated in American Constitution, all are not
by Congress itself, but most of the amendments
have been incorporated in Constitution by American Supreme
Court. In this way
it can be said that in U.S.A. there is also not any possibility to have a rigid personal
separation of powers.
India: The doctrine of separation of powers has no place in strict
sense in Indian Constitution,
but the functions of different organs of the Government have been sufficiently differentiated, so that one organ of the
Government could not usurp the function of another. In Constituent Assembly Debates
Prof. K.T. Shah a member
of Constituent Assembly
laid emphasis to insert
by amendment a new Article 40-A concerned with doctrine of separation of
powers. This Article reads:
There shall be complete separation of powers as between the principal organs of the State, viz; the legislative, the executive, and
the judicial.”11
Kazi Syed Karimuddin (a member of Constituent Assembly) was entirely
in agreement with the amendment of Prof. K.T. Shah.
Shri K. Hanumanthiya, a member of
Constituent Assembly dissented with the proposal of Prof. K.T. Shah. He stated that Drafting Committee has given approval
to Parliamentary system of Government suitable to this
country and Prof. Shah sponsors in his amendment the Presidential Executive. He
further commented:
“Instead of having
a conflicting trinity
it is better to have a harmonious governmental structure.
If we completely separate the executive, judiciary and the legislature
conflicts are bound to arise between these three departments of Government. In
any country or in any government, conflicts
are suicidal to the peace and progress of the country Therefore in a governmental
structure it is necessary to have what is called “harmony” and not this
three-fold conflict.”12
8 Article II, Section 2 of Constitution of U.S.A.
9 C.
Herman Pritchett: The American Constitution 3rd Edn. p.163
10 Hendel, Charles Evants Hughes
and the Supreme
Court (1951), II quoted by Bernard Schwartz
in American Constitutional
Law 1955 page 130.
11 Constituent Assembly Debates Book No.2, Vol. No. VII Second Print 1989, p. 959.
12 Ibid p. 962.
Prof. Shibban
Lal Saksena also agreed with the view
of Shri K. Hanumanthaiya.
Dr. B.R. Ambedkar,
one of the important architect
of Indian Constitution, disagreeing with the argument of Prof. K.T. Shah, advocated
thus:
“There is no dispute whatsoever that the executive should be separated from the judiciary. With regard to the separation of the executive from the
legislature, it is true that such a separation does exist in the Constitution
of United States; but many Americans themselves were quite dissatisfied with
the rigid separation embodied in the American Constitution between the
executive and legislature......... There is not slightest doubt in my mind and
in the minds of many students of
Political Science, that the work of Parliament is so complicated, so vast that
unless and until the members
of the Legislature receive direct
guidance and initiative from the members of
the Executive, sitting in Parliament, it would be very difficult for Members of
Parliament to carry on the work of the Legislature. I personally therefore, do
not think that there is any very great loss that is likely to occur if we do
not adopt the American method of separating the Executive from the
Legislature.”13
With the aforesaid observations the motion to insert a new Article
40-A dealing with the separation of powers was negatived i.e. turned down.
In Indian Constitution there is express provision that “Executive
power of the Union shall be vested in the President,14 and the
executive power of the State shall be vested in Governor..” (Article 154(1) of
Indian Constitution). But there is no express provision that legislative and
judicial powers shall be vested in any person or organ.
Now we have to
see what is the real position in India
regarding the separation of powers?
President being the executive head is also empowered to exercise
legislative powers. In his legislative capacity he may promulgate Ordinances in
order to meet the situation as Article 123(1) says “If at any time, except when
both Houses of Parliament are in Session, President is satisfied that circumstances exist which render
it necessary for him to take immediate
action, he may promulgate such Ordinance as the circumstances appear to
him to require”. When Proclamation of emergency
has been declared
by the President due to failure of Constitutional
machinery the President has been given legislative power under Article
357 of our Constitution to
make any Law in order to meet the situations. A power has also been conferred
on the President of India under Article 372 and 372-A to adapt any Law in
country by making such adaptations and modifications, whether by way of repeal
or amendment as may be necessary or expedient for the purpose or bringing the
provisions of such Law into accord with the provisions of the Constitution.
The President of India also exercises judicial function. Article
103(1) of the Constitution is notable in this connection. According to this
Article “If any question arises as to whether a member or either of House of Parliament
has become subject to
disqualification mentioned in clause (1) of Article
102, the questions
hall be referred
for the decision
of the President and his decision shall be final”. Article 50
lays emphasis to separate judiciary from executive. But in practice we find that
the executive also exercises the powers
of judiciary as in appointment of judges. (Articles
124, 126 & Article 127). The legislative (either House of Parliament) also
exercises
Judicial function in removal of President (Article 56) in the prescribed
13 Ibid p. 967, 968
14 Article 53(1) of Indian Constitution.
manner.15Judiciary also exercises legislative power, High
Court and Supreme Court are empowered to make certain rules
legislative in character. Whenever High Court
or the Supreme Court finds a certain provision of law against the
Constitution or public policy it declares the same null and void, and then amendments may be incorporated in the Legal System. Some time
High Court and Supreme Court formulate the principles on the point where law is silent. This power is also
legislative in character.
WHAT IS THE DOCTRINE
OF SEPARATION OF POWERS?
·
Separation of powers is the division
of the legislative, executive, and judicial functions of government.
·
Article 50 says that states
shall take steps to separate the Judiciary from the Executive.
·
The constitutional demarcation precludes the concentration of excessive power by any branch of the government.
·
The Indian Constitution lays down
the structure and defines and determines the role and functions of every organ
of the State and establishes norms for their inter- relationships and checks
and balances.
What are the Instruments of Checks & Balances?
·
Legislature Control:
o On Judiciary: Impeachment and the removal of the judges.
Power to amend laws declared ultra vires by the
Court and revalidating it.
o On
Executive: Through a no-confidence vote it can dissolve the Government. Power
to assess works of the executive through the question hour and zero hour.
·
Executive Control:
o
On
Judiciary: Making appointments to the office
of Chief Justice
and other judges.
o On Legislature: Powers under delegated legislation. Authority to make rules for regulating their respective procedure and conduct
of business subject
to the provisions of this Constitution.
·
Judicial Control
o On
Executive: Judicial review i.e., the power to review executive action to
determine if it violates the Constitution.
o
On
Legislature: Unamendability of the constitution under the basic
structure doctrine pronounced by the Supreme Court in Kesavananda
Bharati Case 1973.16
15 Article 61 of the Indian Constitution.
MEANING OF SEPARATION OF POWER
The doctrine of separation of powers follows the principles tries
politics. The concept of this doctrine is to remove the abuse of power by the authorities. This doctrine says that no organ of the government can exercise the power
other than what is given to them. There are four principles on which this
doctrine is based upon:
• Exclusivity Principle which has divided
the government into three structural organs.
• Functional
Principle which gives the boundaries of the organs, and that one organ shall
not perform the functions of the other.
• Check
and Balance Principle suggests that check should be made on each other by these
organs to look after the functions and duties performed are within the
constitutional bounds.
• Mutuality
Principle which aims at creating concord, not discord, cooperation not
confrontation, engagement not estrangement.
OBJECTIVE
Now let us have an overview of the fundamental concepts and
objectives of separation of power: -
• Firstly,
it aims to overcome the inconsistency, despotism and autocracy of the
government and helps to make it democratic and more accountable.
• Moving
on, secondly, it makes it possible to have a check on the usage of power by the
different sections and areas of government, which further have the effect of
disallowing the misuse of power by these specific blocks. It is clearly stated
in the constitution of India regarding the minima’s
and maxima’s of these domains
and their task is to operate within
these limits and get their work done. In our country, the ultimate and
the sovereign epitome is the constitution and if any form of ideal
or notion tends
to make anything
fall outside of the preview of the constitution and its
provisions then it is simply taken as being either null, void or even
unconstitutional of the constitution and its provisions then it is simply taken
as being either null, void or even unconstitutional
• Thirdly,
all branches of the government have their own tasks and must have the sole aim
as the fulfilment of these tasks so through the concept of separation of power
it makes each and every branch accountable and responsible for their own and
therefore keeps a check on all of them.
• Fourthly,
the concept of separation of power divides the power into three segments so
that instead of it being with a specific
branch wherein this would give rise to inconsistency, it rather
makes it possible to have a balance
of this power and makes the government more democratic and
effective.
• Lastly,
when each branch has a specific role to play, it makes each branch able to hone their skills using their
resources and make them have an expertise in their particular role and duty,
this is done with the intention to enhance, promote,
multiply the efficiency of the government.
EVALUATION OF THE DOCTRINE
In strict sense the principle of separation of powers cannot be
applied in any modern Government either may be U.K.,
U.S.A., France, India or Australia.
But it does not mean that the principle has no relevance
now a days Government is an organic
unity. It cannot be divided into water tight compartments.
History proves this fact. If there is a complete
separation of powers the government cannot run smoothly and effectively. Smooth
running of government is possible only by co-operation and mutual adjustment of all the three organs
of the government. Prof. Garner has rightly
said, “the doctrine is impracticable as a working
principle of Government.” It is not possible to categorize
the functions of all three branches of Government on mathematical basis. The
observation of Frankfurter is notable
in this connection. According to him “Enforcement of a rigid
conception of separation of powers would make Government impossible.”17
It is my opinion that the doctrine
of Montesquieu is not merely
a „myth? it also carries
a truth, but in the sense that
each organ of the Government should exercise its power on the principle of
„Checks and Balances” signifying the fact that none of the organs of Government
should usurp the essential functions of the other organs. Professor Laski has
aptly remarked: “It is necessary to have a separation of functions which need
not imply a separation of personnel.”
SEPARATION OF POWER IN INDIA
In India there are three
major powers of government and each of them is performed by separate
organ. Legislature isresponsible for making the laws, executive isresponsible for enforcing
law and judiciary isresponsible for implementing laws.
The major question
that arisesisthat should there be dependence of these organs
on each other or whether
there should be a strict
separation of powers among them. There is strict provision that defines
separation of powers absolutely but there are provisions in Constitution of India that have made distinction between
the powers of the organs of
the government. Even though there is no express provision for this doctrine,
but it is followed in India in an implied manner. It has defined the roles of
each organ of the government.
The constitution of India had laid separate functions of the organs
of the government in following ways:
·
The judiciary is
independent as laid down under
Article 50. The conduct of the judges
cannot be taken about in the
parliament and state legislature as provided under Article 121 and 211. The powers of executive are vested with president and in a state is vested
with governor as per Article 53 and 154
·
The legislature in certain cases
like impeachment of the president or removing of the judges may have judicial
powers. Likewise, the executive has certain powers to appoint the judges and chief justice which
can affect the functioning of the judiciary.
17 Frankfurter – The Public and its Government (1930)
quoted by B. Schwartz, in American Constitutional Law,
1955 Page 286.
·
The executive can exercise the
powers of the legislature in circumstance when the legislature in not in
session and there is an urgent need to make law. This is provided as under
Article 123 to promulgate ordinance.
The constitution has also provided a system
where checks and balances are done to prevent misuse of powers that have been vested. This
clearly shows that the constitution of India does not
provide a rigid structure of this doctrine
of separation of power.
It is used in a broad sense and the three organs can exercise
there lowers and functions even with some overlap.
PRACTICAL APPLICATION OF SEPARATION OF POWER
Apart from the separation of judiciary provided by directive
principles under Part IV of the Constitution but apart from this there is no
division of power. After the constitution was adopted there have several
judgments by the supreme court which have created boundaries by applying the doctrine of separation of power. The question
raised in the case Keshvananda Bharti Sripadagalvaru and Ors. v. State of Kerala and Anr18., was that till what extend
the constitution can be amended by the legislature. The argument was
that judiciary should not interfere if the parliament
decides to change the law even if
it was unconstitutional. However, the court held that the argument is
vague and the doctrine of separation of power is the basics structure of the
constitution, and it shall not be violated. This has always been integral part
of the constitution and the judiciary along
with executive and legislature are bound to follow the constitution which has
provided distinction between the relationship of these three organs. After this decision the doctrine was recognised as an integral
part of the basic structure off the Indian
constitution.
Further in Ram Jawaya
Kapur v State of Punjab19, it was held by the court that even though the doctrine of separation of power is not mentioned in the constitution but the functions
of one organ should not be
performed by the other. These organs should exercise its powers beyond what is
provided by the constitution. Even in the case of Indira Nehru Gandhi v Raj Narain20, it was observed that
the basic structure of the constitution cannot be changed even when Article 368 provides the amendment of the
constitution. The court further
observed that the doctrine in India has a broad sense than that of UK
and USA which follow the doctrine in a very rigid manner. “The constitution of India is supreme, and no other
authority can be above
it”. The functions of the three organs should be carried out within the
respective power as provided by the law of land. All the organs should work as
per the law of land, as observed in the case of Golak Nath v State of Punjab.21
In reality a strict follow of doctrine of
separation of power is not possible. There exists interdependance. From the
above judicial pronouncements, it can be seen that the doctrine of separation
of power is followed in a broad sense in India.
18 2
AIR 1973 SC 146
19 3
AIR 1955 SC 549
20 4 AIR 1975 SC 2299
21 1967 AIR
1643
SEPARATION OF POWERS AND JUDICIAL OPINION:
The following cases explain the real position of doctrine of separation of powers prevailing in our country.
In re Delhi Law Act case22Hon?ble Chief Justice
Kania observed:
“Although in the Constitution
of India there is no express separation of powers,
it is clear that a
legislature is created by the Constitution and detailed provisions are made for
making that legislature pass laws. It is then too much to say that under the
Constitution the duty to make laws, the duty to exercise
its own wisdom, judgment and patriotism in making law is primarily cast on the legislature? Does it
not imply that unless it can be gathered from other provisions of the Constitution,
other bodies executive or judicial are not intended to discharge legislative
functions?” To the same effect another case is Rai Sahib Ram Jawaya v. State of
Punjab reported in AIR 1955 S.C. 549 at p.556 in which Hon?ble Chief Justice
B.K. Mukherjea observed:
“Although in the Constitution
of India there is no express separation of powers,
it is clear that a
legislature is created by the Constitution and detailed provisions are made for
making that legislature pass laws. Is it then too much to say that under the
Constitution the duty to make laws, the duty to exercise
its own wisdom, judgment and patriotism in making law is primarily cast on the legislature? Does it
not imply that unless it can be gathered from other provisions of the Constitution,
other bodies executive or judicial are not intended to discharge legislative
functions?” To the same effect another case is Rai Sahib Ram Jawaya v. State of
Punjab reported in AIR 1955 S.C. 549 at p.556 in which Hon?ble Chief Justice
B.K. Mukherjea observed:
“The Indian Constitution has not indeed
recognised the doctrine
of separation of powers in the
absolute rigidity but the functions of the different parts or branches of the
Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate
assumption by one organ or part of the State of the functions that essentially
belong to another.”
In Ram Krishna
Dalmia v. Justice
Tendolkar reported in AIR 1958 S.C. 538 at p. 546, Hon?ble Chief Justice S.R. Das opined that in the absence of specific provision
for separation of powers
in our Constitution, such as there is under the American Constitution, some
such division of powers legislative, executive and judicial- is nevertheless
implicit in our Constitution. Same view was expressed in Jayanti Lal Amrit Lal
v. S.M. Ram, AIR 1964 SC 649.
The judiciary is independent and separate wing of the Government. The executive or legislature
has no concern with the day to day functioning of the judiciary. In terms of Biblical
apologue, Francis Bacon in his “Essay
of Judicature” showing
the importance of „Temple of Justice? has expressed thus:
“Solomon?s Throne was supported by lions on
both sides; Let them be lions, but yet lions under the throne; being
circumspect that they do not check or oppose any points of sovereignty.” (Quoted
in S.C. Advocates-on-Record Association v. Union of India,
AIR 1994 SC 268 at p. 301).
22 AIR 1951 S.C. 332 at p.346 = (1951)S.C.R. 747.
Here the expression “Solomon?s Throne” symbolizes the majesty of our justice
system and the word
„Lions? represents the Legislature and the Executive. Briefly it may be stated as”
„Majesty of Justice
system? is supported by the Legislature and the Executive
from both sides, neverthless, these Legislature and Executive are under the control of Judiciary. Legislature and Executive must not go against
any point of Sovereignty. As regards „Sovereignty? it is enough to state that in a democracy it
vests in the will of people.
Showing the importance of judiciary, Supreme Court in the same case
has also observed: “Under the Constitution, the judiciary is above the administrative executive
and any attempt
to place it on par with the administrative executive has to be
discouraged.” (p.338)
In Chandra Mohan v. State of U.P., AIR 1966 SC 1987 at p. 1993
Supreme Court held: “The Indian Constitution, though it does not accept the
strict doctrine of separation of powers, provides for an independent judiciary in the States. But
at the time the direct
control of the
executive. Indeed it is common knowledge that in
pre-independence India there was a strong agitation that the judiciary should
be separated from the executive and that the agitation that the judiciary
should be separated from the executive
and that the agitation was based upon the
assumption that unless they were separated, the independence of the judiciary
at the power levels would be a mockery.”
(See also S.C. Advocates-on-Record Case,
AIR 1994 S.C. 268 at p. 272).
absolute separation of powers is not possible
in any form of Government. In view of the variety of situations, the legislature
cannot fore-see or anticipate all the circumstances to which a legislative
measure should be extended and applied. Therefore, legislature is empowered to
delegate some of its functions
to administrative authority (executive). But one thing is notable
that legislature cannot
delegate its essential
legislative power. On this point following cases are
notable:
(1) Sri Ram v.
State of Bombay, AIR 1959 S.C. 459,473,474
(2) Makhan Singh
v. State of Punjab, AIR 1964 S.C. 381,401
(3) Laxmi Narayan
v. Union of India,
AIR 1976 S.C. 554.
In these cases the Supreme Court held that excessive delegation is
not permissible. So many other cases are also notable on the point.
THE SEPARATION OF POWERS AND DEMOCRACY
Ensuring the exercise
of power is shared between
the Executive, Judicial
and Legislative branches is,
at its core, an attempt to:
1. Ensure no one
body or institution governs alone.
2. Act as a protection against arbitrary or unlimited government.
3.
Allow the representation of
different interests, ideas and principles as law circulates through the three bodies,
for example legal principles, popular
consent and the needs
of the state.
4. Ensure checks
against the actions of one branch
through the actions of another.
As Indian economist, philosopher and Nobel-Prize winner Amartya Sen has noted,
democracy has long been seen as government by “conversation” or “discussion,” and not
solely balloting and elections.
The separation of powers is arguably a powerful
means to make this ideal a
reality. Under the separation of powers, laws and
policies must be proposed, scrutinised and potentially amended, before being
passed, and even then, are subject to ongoing scrutiny and challenge.23
CHALLENGES IN ACHIEVING THE SEPARATION OF POWERS
1) The balance
between separation and supervision
According to academic
Aileen Kavanagh, the desire to separate the three branches
must also interact with the principle that each branch has a
responsibility to check and balance the actions of another. This leads to the question of how to balance separation
with supervision.
The Commonwealth Latimer House Principles recognise this
tension, with Parliaments and the Judiciary recommended to work in a “complementary and constructive manner” and
for the branches to “respect” the
duties of the other.
Supervisory actions can include establishing audit commissions to monitor public finances or adhering to a model of
constitutional supremacy, where all laws and actions are judged against
constitutional provisions (in contrast to the model of parliamentary
supremacy).
2) The ‘Westminster system’ and Executive
membership of the
Legislature
The ‘Westminster system’
broadly refers to a system
where the effective head of
government (usually termed the Prime Minister or Premier), together with their
Cabinet, sit in the Legislature while wielding Executive power. The role of the
Governor-General (in a Commonwealth Realm) or President (in a Republic), in
contrast, is often limited. This system was inherited by many Commonwealth
jurisdictions at their independence from the United Kingdom.
The Executive presence
in Parliament may facilitate scrutiny
provided necessary procedures
are in place.
In many states, there is no rule on how many Members of the Legislature can be
Ministers, often leading
to a substantial Ministerial bloc in a jurisdiction’s Parliament. Around a third of the UK House
of Commons are Ministers or have unpaid government positions, for example,
while India’s constitution states
that no more than 15% of the
Members of the lower house (Lok Sabha) may hold Ministerial office.
23 https://issuu.com/theparliamentarian/docs/parl2023iss4finalonline_single_reduced/s/402939
In smaller Parliaments, it is possible that all Members of a
governing party are Ministers. This puts greater
pressure on a small number
of backbenchers to undertake scrutiny
roles. It also makes
establishing cross-party Committees to scrutinise the Executive challenging.
3) Parliamentary independence from the Executive
Published in 2020, the Commonwealth Parliamentary Association’s
(CPA) ‘Model Law for Independent Parliaments’ recommends that Parliaments establish their own corporate
bodies to strengthen their institutional, financial and administrative
independence from the Executive. On the launch of the model, the CPA said there
were “many examples […]
everyday” in Commonwealth Parliaments of “Executive interference” that can result from a
lack of parliamentary control over their own finances, staffing and physical
infrastructure.
According to
Inter-Parliamentary Union (IPU)
data, 18% of IPU
members globally (31 out of
172) report that the Executive continues to have sole responsibility for
preparing their country’s parliamentary budget,
while 17% (29) have a shared responsibility with Parliament.
4) Continuing influence
of the Executive over judicial
appointments
2015 research by the Bingham
Center also found
continuing Executive influence
over judicial appointments in
the Commonwealth.
In 15 of the 48 Commonwealth independent jurisdictions (27%), it was the Executive, rather than a separate judicial
appointments commission, which had the sole power to appoint
members to the country’s highest
court (for this study, the six states
covered by the Eastern
Caribbean Supreme Court counted as a single unit).
The Chief Justice
(or equivalent) position
was also appointed
by the Executive in half of
Commonwealth states.
5) Inclusive institutions
Even with effective institutions, representative
government and perceptions of democratic fairness can be limited if not all
groups are represented. The role of the separation of powers in drawing on a
range of different evidence, knowledge and values will therefore be limited.
Inclusive Parliaments are particularly important given that in many
jurisdictions the Executive has taken
the lead in proposing legislation, with the Legislature playing a primarily scrutinising role. This role is
strengthened if Parliaments are representative and accessible to the wider
public.
6) Small jurisdictions
The Commonwealth Latimer
House Principles recognise that “small and/or
under-resourced jurisdictions” may experience challenges in achieving a
strong separation of powers.
OBSTACLE TO ADMINISTRATIVE LAW
Administrative law is a subset of public law that
governs the structure, powers, and responsibilities of administrative agencies.
The idea of separation of powers establishes a boundary between the three
branches of government. However, administrative law is now incompatible with
this principle. The Administrative agencies are not only performing the
administrative functions but also quasi-judicial and quasi legislative
functions as well which might violate the doctrine of separation of power. In
order to develop efficient and adroit government and assure competent law
enforcement, it is now an absolute requirement to delegate further legislative
and judicial responsibilities to administrative authorities. These tribunals
were created with an objective to reduce the burden of the legislature and the courts. It will also speed
up the lawmaking process and also provide
timely justice. However,
this not possible if the
doctrine of separation of powers is followed in a strict sense because it
limits the administrative law.
CRITICSM
Like every pointed
end has a blunt side,
the same way every doctrine
has two faces
to its effects. Even though the concept of separation of power into 3
heads might sound like an amazing concept, but the same when put to task in the
real world lacks the appeal as now is the time when the edge of the blunt side
comes to light. The problem arises when we make an attempt to make a
distinction between these 3 heads, namely legislature,
executive and judiciary. The only way that a government can operate in a correct
and timely manner is when these
powers have cohesiveness and cooperation. If we try to make these sections
execute independently it might lead to a system failure and even ineffective
working of the government. Now let us suppose that we adopt this idea in its
full-fledged existence. It will make it practically impossible to carry forward
and take actions in certain and specific matters. Think of it this way that the legislature which has the
capability to delegate powers won’t be able to do it for the executive which
might have the genesis and expertise of any subject which is being considered. Also,
the courts which
dictate and make laws for all matters
will not be able to do
so for the courts itself and the proceedings.
In the present systematic world scenario, it is the job
of the state to bring its foot forward and work for the prosperity and the welfare of its people. Whatever
the case, from the common to the complex issues, it must be able to solve them
within the society. So, when taken into consideration, the separation of power does seem and portray to be impossible. This means that as
long as the rigid and stringent concepts
of this doctrine are being imposed, it will not be able to fulfil the objectives of the
modern state. Therefore, it can be concluded that separation of power is
theoretically improbable and practically impossible. This theory was backed by
Montesquieu, whose aim was to ensure freedom and liberty of an individual while
protecting and safeguarding the same. But this is not at all possible
if the stringent concepts of separation
of power are at play.
CONCLUSION
The theory in debate i.e., the separation of power theory
must be judged
not only in an absolute way but in relation
to its actual purpose. The only way to fully extract it's meaning is to have a
broader view and perceive it within a wide context, especially in this age of
privatization, anarchy, and globalization. Limiting it to just the idea of
being used as a medium of categorizing that too in a rigorous way should not be done, instead should be used in good spirit
of unity, collective enhancement and for the greater good of the people. It can
be argued that this idea or notion is not compatible to work in its literal
meaning, but it can do so and succeed
by laying emphasis on the checks and balances that are placed so as to make it
a good government in it's true form and make it possible
to eradicate power manipulation and misuse
by the different sections and domains of the government. It is seen that states
do not follow this doctrine in strict sense,
and it is very impractical to follow the doctrine of separation of powers.
India with the help of this doctrine
check and look after the functions of the three organs of the
government. The effective
working of a democracy requires
doctrine of separation of power to be an essential part of the
constitution however it should not be used in a strict sense.
Article Information
SEPARATION OF POWER: A CRITICAL ANALYSIS ON THE JUDICIARY’S WITH POLICY MATTERS OF THE GOVERNMENT
Authors: PRANALI GAWADE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/07
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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