EDEN IAS

SEPARATION OF POWERS

THEORY OF SEPARATION OF POWERS

THEORY OF SEPARATION OF POWERS

The term “trias politica” or “separation of powers” was coined by Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, an 18th century French social and political philosopher. His publication, Spirit of the Laws, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United States. Under his model, the political authority of the state is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently.

Separation of powers refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.

The traditional characterizations of the powers of the different branches of the government under the theory of separation of powers are envisaged as follows:

  • The legislative branch is responsible for enacting the laws of the state and appropriating the money necessary to operate the government.
  • The executive branch is responsible for implementing and administering the public policy enacted and funded by the legislative branch.
  • The judicial branch is responsible for interpreting the constitution and laws and applying their interpretations to controversies brought before it.

While separation of powers is vital for the working of government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap; they are too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government. For instance throughout American history, there has been an ebb and flow of preeminence among the governmental branches. Such experiences suggest that where power resides is part of an evolutionary process.

DOCTRINE OF CHECKS AND BALANCES

Building on the ideas of Polybius, Montesquieu, William Blackstone, John Locke and other philosophers and political scientists over the centuries, the framers of the U.S. Constitution divided the powers and responsibilities of the new federal government among three branches: the legislative branch, the executive branch and the judicial branch.

In addition to this separation of powers, the framers built a system of checks and balances designed to guard against tyranny by ensuring that no branch would grab too much power.

“If men were angels, no government would be necessary,” James Madison wrote in the Federalist Papers, of the necessity for checks and balances. “In framing a government which is to be administered by men over men, the great difficulty is this: You must first enable the government to control the governed;and in the next place, oblige it to control itself.”

Checks and balances are of fundamental importance in tripartite governments, such as that of the United States or India, which separate powers among legislative, executive, and judicial branches. Checks and balances, which modify the separation of powers, may operate under parliamentary systems through exercise of a parliament’s prerogative to adopt a no-confidence vote in a government; the government, or cabinet, in turn, ordinarily may dissolve the parliament. Similarly the Judges are appointed by the executive while the laws passed by the legislature are tested in constitutional or supreme courts. The Judiciary can issue writs against the executive. The Judges can be removed from office upon an address of the parliament. Hence every organ of the government is controlled by the other two.

SEPARATION OF POWERS UNDER THE INDIAN CONSTITUTION

On a casual glance at the provisions of the Constitution of India, one may be inclined to say that that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution, executive powers are with the President, legislative powers with Parliament and judicial powers with judiciary.

The President’s function and powers are enumerated in the Constitution itself. Parliament is competent to make any law subject to the provisions of the Constitution and there is no other limitation on it legislative power. The Judiciary is independent in its field and there can be no interference with its judicial functions either by the Executive or by the Legislature. The Supreme Court and High Courts are given the power of judicial review and they can declare any law passed by the Parliament or the Legislature unconstitutional. Taking into account these factors, some jurists are of the opinion that the doctrine of Separation of Powers has been accepted in the Indian Constitution.

However if we study the constitutional provisions carefully, it is clear that the doctrine of Separation of Powers has not been accepted in India in its strict sense. In India, not only there is functional overlapping but there is personnel overlapping also.

Separation of Powers and Judicial Pronouncements in India

The first major judgment by the judiciary in relation to Doctrine of separation of power was in Ram Jawaya v State of Punjab. The court in the above case was of the opinion that the doctrine of separation of power was not fully accepted in India. Further, the view of Mukherjea J. adds weight to the argument that the above-said doctrine is not fully accepted in India. According to him:

“The Indian Constitution has not indeed recognized the doctrine of separation of powers in its 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 functions that essentially belong to another”.

Then in Indira Nehru Gandhi v. Raj Narain, where the dispute regarding Prime Minister’s election was pending before the Supreme Court, it was held that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise. So, the main ground on which the amendment was held ultra vires was that when the constituent body declared that the election of Prime Minister wouldn’t be void, it discharged a judicial function that according to the principle of separation it shouldn’t have done. The place of this doctrine in the Indian context was made a bit clearer after this judgment.

The Supreme Court in Keshavananda Bharti v State of Kerala was of the view that amending power was subject to the basic features of the Constitution. And hence, any amendment tampering these essential features will be struck down as unconstitutional. Beg J. added that separation of powers is a part of the basic structure of the constitution. None of the three separate organs of the republic can take over the functions assigned to the other. Hence this further confirmed the opinion of the court in relation to the doctrine of separation of power.

In India, we follow a separation of functions and not of powers. And hence, we don’t abide by the principle in its rigidity. Hence in India the strict separation of powers in American sense is absent.