SEPARATION OF POWERS

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This article is written by Nishtha Vallecha of 5^th Semester of Amity University, Chhattisgarh

Abstract

The separation of powers is a fundamental principle in democratic governance, aimed at preventing the concentration of power in any single authority. It establishes distinct branches of government—executive, legislative, and judicial—with specific powers and responsibilities. This division ensures checks and balances, safeguarding individual liberties and promoting accountability. The executive branch implements and enforces laws, while the legislative branch formulates laws and policies. The judicial branch interprets and applies laws impartially. By separating powers, this system fosters a healthy balance of authority, preventing abuse and tyranny. It is a cornerstone of modern democratic societies, upholding the principles of democracy, justice, and the rule of law.

Keywords: Executive, Legislative, Judiciary, Separation of power, Rule of law

Introduction:

The separation of powers is a foundational principle that underpins democratic governance, providing a system of checks and balances designed to prevent the concentration and abuse of power. It is a fundamental pillar of modern constitutional democracies, ensuring the protection of individual rights, promoting accountability, and fostering the rule of law.

The concept of separating powers can be traced back to ancient Greek and Roman political philosophy, but it gained prominence through the works of Enlightenment thinkers such as Montesquieu. In his seminal work “The Spirit of the Laws,” Montesquieu argued for the division of government into separate branches, each with its own distinct powers and responsibilities.

The separation of powers involves the allocation of functions among three main branches of government: the executive, the legislative, and the judicial. The executive branch is responsible for implementing and enforcing laws, while the legislative branch formulates laws and policies. The judicial branch interprets and applies laws impartially in the resolution of disputes.

By distributing powers among these branches, the separation of powers prevents any single entity from accumulating excessive authority. It serves as a safeguard against tyranny and ensures that no branch becomes dominant or abuses its power. This system establishes a delicate balance where each branch acts as a check on the others, promoting accountability and preserving the rights and liberties of citizens.

Furthermore, the separation of powers promotes transparency and accountability in government operations. It allows for independent oversight and scrutiny of actions taken by each branch, reducing the risk of corruption and enhancing public trust in the democratic process.

In conclusion, the separation of powers is a fundamental principle in democratic governance. It creates a system of checks and balances, preventing the abuse of power, protecting individual rights, and upholding the rule of law. This principle remains a cornerstone of modern democratic societies, ensuring the proper functioning of government and the preservation of democratic values.

Objective of Separation of Powers

The doctrine of separation of powers is guided by the following primary objectives:

1. Ensuring Accountability and Democracy: The doctrine aims to eradicate arbitrariness, totalitarianism, and tyranny, and instead promote a system of government that is accountable and democratic.

2. Preventing Misuse of Powers: It serves to prevent the misuse of powers within each branch of government. In the Indian context, the Constitution establishes specific limits and boundaries for each branch, requiring them to operate within those boundaries. The Constitution holds ultimate authority, rendering anything beyond its provisions null, void, and unconstitutional.

3. Establishing Checks and Balances: The separation of powers ensures that each branch of government is subject to checks and balances, holding them accountable for their actions.

4. Maintaining Balance: By dividing powers among the three branches, the separation of powers maintains a balance, preventing the concentration of power in any one branch and mitigating the risk of arbitrary decision-making.

5. Specialization and Efficiency: This principle allows each branch to specialize in its respective field, aiming to enhance and improve the overall efficiency of the government.

In summary, the doctrine of separation of powers seeks to establish a government that is accountable, prevents the misuse of powers, maintains a balance among branches, and promotes specialization and efficiency.

Similar to the parliamentary system practiced in the United Kingdom, India’s form of government also combines the executive and legislative branches. Consequently, the strict implementation of the doctrine of separation of powers is not followed. However, the composition of the Indian Constitution leaves no doubt that it adheres to the principles of separation of powers. Several provisions within the Indian Constitution substantiate the existence of this doctrine, both at the central and state levels.

The three-tier machinery of state government consists of the legislature, executive, and judiciary, each with distinct functions and responsibilities.

Legislature:

The primary role of the legislature is to create and pass laws. Through the enactment of laws, the legislature expresses the will of the state and establishes the framework for the functioning of the executive and judiciary. It holds a pivotal position among the three organs because the implementation and application of laws can only take place once they are formulated. While the judiciary can provide suggestions to the legislature on the creation or amendment of legislation, it does not have the authority to enact laws itself.

Executive:

The executive branch is responsible for executing, implementing, and enforcing the will of the state as defined by the constitution and legislature. It serves as the administrative head of the government and plays a crucial role in maintaining the balance and functioning of the government. The executive branch encompasses various positions, including the head of state or government, advisors, department heads, and ministers.

Judiciary:

The judiciary consists of public officers whose primary responsibility is to interpret and apply the laws created by the legislature to individual cases. In doing so, they uphold the principles of natural justice and fairness. The judiciary acts independently and impartially to ensure that laws are correctly applied, disputes are resolved, and justice is served.

In summary, the legislature creates laws, the executive implements them, and the judiciary applies them to individual cases while safeguarding the principles of justice and fairness. These three branches work in concert to ensure the proper functioning of the state government.

Constitutional relation of Separation of Powers in India

Legislature	Parliament (Lok Sabha and Rajya Sabha)State legislative bodies
Executive	At the central level- PresidentAt the state level- Governor
Judiciary	Supreme Court, High Court and all other subordinate courts

Key Provisions Supporting Separation of Powers:

1. Article 53(1)[1] and Article 154[2] designate executive powers for the Union and States respectively, vested in the President and Governors. These powers are to be exercised directly by them or through subordinate officers.

2. Article 122[3] and Article 212[4] state that the courts cannot inquire into the proceedings of Parliament and the State Legislature, ensuring no interference of the judiciary in the legislature.

3. Article 105[5] and Article 194[6] specify that Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs) cannot be called to court for their speeches made during sessions.

4. Article 50[7] encourages the separation of the judiciary from the executive at the state level

5. Article 245[8] empowers Parliament and State Legislatures to make laws for the entire country and respective states.

6. Article 121[9] and Article 211[10] state that the judicial conduct of Supreme Court judges and High Court judges respectively shall not be discussed in Parliament or State Legislature.

7. Article 361[11] stipulates that the President and Governors are not accountable to any court for the exercise of their powers and duties.

Overlapping Provisions:

1. Article 123[12] grants the President the authority to issue ordinances when both houses are not in session.

2. Article 213[13] empowers the Governor to issue ordinances when the state legislative assembly is not in session.

3. Article 356[14] allows for the imposition of the President’s Rule in case of a state emergency.

4. Article 73[15] states that the executive powers shall be co-extensive with those of the legislature.

5. Article 74[16] establishes that the council of ministers aids the President in the exercise of executive functions.

6. Article 75(3)[17] holds the Council of Ministers collectively responsible to the House of the People.

7. Article 61[18] outlines the impeachment process for the removal of the President through a resolution passed by both houses.

8. Article 66[19] specifies that the Vice-President is elected by members of both houses.

9. Article 145[20] grants the Supreme Court the authority, with the President’s approval, to make rules regarding court proceedings and practices.

10. Article 146[21] provides for the appointment of Supreme Court servants and officers by the Chief Justice of India, in consultation with the President and the Union Public Service Commission.

11. Article 229[22] lays down the provisions for the appointment of High Court servants and officers, with consultation from the Governor and the State Public Service Commission.

12. Article 124[23] grants the President the power to appoint judges to the Supreme Court.

13. Article 72[24] empowers the President to grant pardons or suspend the sentences of individuals convicted by the Supreme Court.

14. Article 32[25], Article 226[26], and Article 136[27] provide the Supreme Court with the power of judicial review, allowing it to strike down any law passed by Parliament or any unconstitutional administrative action.

These provisions within the Indian Constitution showcase the principles of separation of powers, despite the parliamentary form of government, by delineating the respective powers and functions of the executive, legislative, and judicial branches at both the central and state levels.

Judgement in relation with Separation of Powers

The doctrine of separation of powers in India has been interpreted by the courts in several landmark cases. The judgment in the case of Ram Jamaya Kapur v. State of Punjab[28] provided the first significant interpretation of the doctrine. It recognized that while the Indian Constitution does not explicitly endorse the doctrine, it adequately distinguishes the functions and powers of each organ of government. The executive can exercise legislative and judicial powers within defined limits, but no organ should exceed its constitutional provisions.

In the case of Indira Nehru Gandhi v. Raj Narain[29], it was emphasized that India does not adhere strictly to the rigid sense of separation of powers found in American and Australian constitutions. However, the separation of powers is considered a part of the basic structure of the Indian Constitution and cannot be altered through constitutional amendments.

In Golak Nath v. State of Punjab[30], it was stated that all three organs of government must exercise their functions within the boundaries set by the constitution. The constitution assigns specific jurisdictions to each organ, and no authority created by the constitution is supreme. The constitution itself is sovereign, and all authorities must operate under its supreme law.

In A. K. Gopalan v. State of Madras[31], it was acknowledged that while the constitution imposes limitations on the three organs of government, it grants supremacy to the legislature and allows the courts to question laws only within those limitations.

In Asif Hameed v. State of Jammu and Kashmir[32], the Supreme Court observed that while the constitution does not recognize the doctrine of separation of powers in an absolute sense, it clearly defines the powers and functions of each organ. The legislature, executive, and judiciary are expected to operate within their designated domains, without encroaching upon the functions of one another.

Regarding administrative law, which determines the organization, powers, and duties of administrative authorities, the principle of separation of powers poses a challenge. Administrative agencies increasingly exercise not only administrative functions but also quasi-legislative and quasi-judicial powers, which goes against the strict separation of powers.

To ensure efficient governance and the proper enforcement of laws, there is a need to delegate additional legislative and judicial powers to administrative agencies. This has led to the establishment of administrative tribunals and delegation legislation, aimed at expediting the lawmaking and justice processes with expertise. However, strict adherence to the separation of powers hinders these efforts. Thus, the separation of powers serves as a limitation on administrative law.

In summary, while the courts in India have recognized and interpreted the doctrine of separation of powers, they have also acknowledged its flexibility and the need to balance it with the demands of efficient governance and justice administration.

The relevance of separation of powers in the Modern Era

While the doctrine of separation of powers may not be strictly applied in the modern era, it still holds relevance. The fundamental purpose of this doctrine is to maintain checks and balances among the three branches of government, which is crucial for effective governance. The doctrine does not advocate rigid classification but rather aims to prevent the concentration of power in a single individual or body. Although it may not be implemented in an absolute sense, it can be highly beneficial when practiced in a correlated manner. Therefore, rather than imposing impenetrable barriers and unalterable boundaries, the true spirit of the doctrine lies in the mutual restraint exercised by the three branches of government in the exercise of their powers.

Separation of Powers: An Obstacle to Administrative Law

The principle of separation of powers creates a division among the three branches of government and poses a challenge to administrative law. Administrative law, which governs the organization, powers, and duties of administrative authorities, is now faced with a contradiction to the principle of separation of powers. In today’s globalized and interconnected world, administrative agencies are not limited to administrative functions alone. They often exercise quasi-legislative and quasi-judicial powers, thereby violating the principle of separation of powers.

In contemporary times, it has become necessary to delegate additional legislative and judicial powers to administrative agencies in order to establish efficient and effective governance and ensure proper enforcement of laws. The creation of administrative tribunals and delegation legislation aims to alleviate the burden on the legislative and judicial branches and expedite the processes of lawmaking and justice administration with specialized expertise. However, the strict application of the doctrine of separation of powers hampers the achievement of these goals. Therefore, the separation of powers acts as a constraint on the development and functioning of administrative law.

Denunciation

Like any doctrine, the separation of powers is not without its critics. While it may appear flawless in theory, its comprehensive application in real-life situations is challenging and has certain drawbacks and limitations.

One major difficulty is the precise distinction of powers among the legislature, executive, and judiciary. A functional and stable government relies on cooperation among these branches. Attempts to create strict separations between them can result in inefficiency and failure in governance.

If the doctrine is strictly implemented, it can hinder certain actions. For instance, the legislature may be unable to delegate lawmaking powers to the executive, which may possess expertise in a particular subject matter. Similarly, the courts may be restricted from making laws concerning their own functioning and proceedings.

In the present context, states are tasked with addressing complex societal issues and working for the welfare and prosperity of their people. In such circumstances, the rigid application of the principle of separation of powers may seem impractical. The strict enforcement of this doctrine may not align with the objectives of a modern state. Consequently, separation of powers becomes theoretically improbable and practically impossible.

Montesquieu originally proposed this theory with the aim of protecting and preserving the freedom and liberty of individuals. However, achieving this goal through strict adherence to the separation of powers proves to be unattainable.

In summary, the separation of powers faces criticism due to the challenges of precise demarcation, limitations on actions, impracticality in modern states, and its inability to fully protect individual freedom and liberty as envisioned by its proponents.

Conclusion

The concept of the separation of powers should be understood in a flexible manner. In the context of liberalization, privatization, and globalization, the separation of powers needs to be interpreted more broadly. It should not be limited to strict restraints or rigid categorization but should encompass a collective exercise of power that promotes cooperation, coordination, and serves the welfare of the state. While the doctrine may not be feasible in its rigid form, its effectiveness lies in emphasizing the importance of checks and balances to prevent ineffective governance and abuse of power by different branches of the government.

Cooperation and coordination among the three branches of government are crucial for the effective functioning of any government. However, Professor Garner argues that implementing this doctrine practically is challenging, as accurately dividing the functions of each branch is difficult.

While maintaining a balance between the branches is vital for preserving liberty, there has been a trend of granting greater authority to the executive in response to concerns about welfare and security. In an ideal society, individual liberty, well-being, and state security should all be equally important. Achieving this requires a strong government with checks and balances, as well as a division of powers.

[1] Article 53 (1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officer’s subordinate to him in accordance with this Constitution.

[2] Article 154- Executive power of State

[3] Article 122- Courts not to inquire into proceedings of Parliament.

[4] Article 212- Courts not to inquire into proceedings of the Legislature.

[5] Article 105-Powers, privileges, etc. of the Houses of Parliament and of the members and committees thereof

[6] Article 194- Powers, privileges, etc., of the House of Legislatures and of the members and committees thereof

[7] Article 50 -Separation of judiciary from executive The State shall take steps to separate the judiciary from the executive in the public services of the State.

[8] Article 245- Extent of laws made by Parliament and by the Legislatures of States

[9] Article 121- Restriction on discussion in Parliament No discussions shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties expect upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided

[10] Article 211- No discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.

[11] Article 361- Protection of President and Governors and Rajpramukhs

[12] Article 123- Power of President to promulgate Ordinances during recess of Parliament.

[13] Article 213- Power of Governor to promulgate Ordinances during recess of Legislature.

[14] Article 356- Provisions in case of failure of constitutional machinery in States.

[15] Article 73- Extent of executive power of the Union.

[16] Article 74- Council of Ministers to aid and advise President.

[17] Article 75(3)-The Council of Ministers shall be collectively responsible to the House of the People.

[18] Article 61- Procedure for impeachment of the President.

[19] Article 66- Election of Vice-President.

[20] Article 145 – Rules of Court, etc.

[21] Article 146-Officers and servants and the expenses of the Supreme Court

[22] Article 229- Officers and servants and the expenses of High Courts