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Doctrine of Separation of Powers

Understand that a governments role is to protect individual rights, but acknowledging that government have historically been the major violators of these rights, a number of measures have been devised to reduce this likelihood. The concept of Separation of powers is one such measure. The premise behind the Separation of Power is that when a single person or group has a large amount of power, they can become dangerous to citizens. The separation of Power is a method of removing the amount of power in any groups hands, making it more difficult to abuse. It is generally accepted that there are three main categories of governmental functions: (i) the legislative, (ii) the Executive, and (iii) the Judicial. At the same time, there are three main organs of the Government in state i.e. legislature, executive and judiciary. According to the theory of separation of powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and exercised by separate organs of the Government. Thus, the legislature cannot exercise executive or judicial power; the executive exercise legislative or judicial power of the Government.

As the concept of Separation of Powers explained by Wade and Philips, it means three different things:-
That the same persons should not form part of more than one of the three organs of Government, e.g. the Ministers should not sit in Parliament;

That one organ of the Government should not control or interfere with the exercise of its function by another organ, e.g. the Judiciary should be independent of the Executive or that Ministers should not be responsible to Parliament; and that one organ of the Government should not exercise the functions of another, e.g. the Ministers should not have legislative powers.

The doctrine of separation of power in its true sense is very rigid and this is one of the reasons of why it is not strictly accepted by the large number of countries in the world. The main object, as per Montesquieu “ Doctrine of separation of power is that there should be government of law rather than having willed and whims of the official. Also another most important feature of this doctrine is that there should be independence of judiciary i.e. it should be free from the other organs of the state and if it is so then justice would be delivered properly. The judiciary is the scale through which one can measure the actual development of the state if the judiciary is not independent then it is the first step towards a tyrannical form a government i.e. power is concentrated in a single hand and if it is so the there is a cent percent chance of misuse of power. Hence the Doctrine of separation of power do plays a vital role in the creation of a fair government and also fair and proper justice is dispensed by the judiciary as there is independence of judiciary. Also the importance of the above said doctrine can be traced back to as early as 1789 where the constituent Assembly of France in 1789 was of the view that œthere would be nothing like a Constitution in the country where the doctrine of separation of power is not accepted.

Separation of Powers In Usa:

The doctrine of separation of powers forms the foundation on which the whole structure of the constitution is based. It has been accepted and strictly adopted in U.S.A. Article I; Section 1 vests all legislative powers in the congress. Article III; Section 1 vests all judicial powers in the supreme court.

Jefferson quoted, œThe concentration of legislative, executive and judicial powers in the same hands in precisely the definition of despotic Government. On the basis of this theory, the Supreme courts was not given power to decide political questions so that there was not interference in the exercise of power of the executive branch of government. Also overriding power of judicial review is not given to the Supreme Court. The President interferes with the exercise of powers by the congress through his veto power. He also exercise the law making power in exercise of his treaty “ making power. He also interferes in the functioning of the Supreme Court by appointing judges.
The judiciary interferes with the powers of the congress and the president through the exercise of its power of judicial review. It can be said that the Supreme Court has made more amendments to the American Constitution than the congress. To prevent one branch from becoming supreme, protect the œopulent minority from the majority, and to induce the branches to cooperate, governance systems that employ a separation of powers need a way to balance each of the branches. Typically this was accomplished through a system of checks and balances, the origin of which, like separation of powers itself, is specifically credited to Montesquieu. Checks and balances allow for a system based regulation that allows one branch to limit another, such as the power of congress to alter the composition and jurisdiction of the federal courts.

Legislative Power.

Congress as the sole power to legislate for the United States. Under the non delegation doctrine, Congress may not delegate its law making responsibilities to any other agency. In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York that congress could not delegate a line item vote to the president, by which he was empowered to selectively nullify certain provisions of a bill before signing it. The Constitution Article I, Section 8; says to give all the power to congress. Congress has the exclusive power to legislate, to makes law and in addition to the enumerated powers it has all other powers vested in the government by the Constitution. Where Congress does not make great and sweeping delegations of its authority, the Supreme Court has been less stringent. One of the earliest cases involving the exact limits of non “ delegation was Wayman v. Southard (1825). Congress had delegated to the courts the power to prescribe judicial procedure; it was contended that congress had thereby unconstitutionally clothed the judiciary with legislative powers.

Executive Power.
Executive power is vested, with exceptions and qualifications, in the president by Article II, Section 1, of the Constitution. By law the president becomes the Commander in Chief of the Army and Navy, Militia of several states when called into service, has power to make treaties and appointments to office œwith the Advice and Consent of the Senate receive Ambassadors and Public Ministers, and œtake care that the laws be faithfully executed (Section 3.) By using these words, the Constitution does not require the president to personally enforce the law; rather, officers subordinate to the president may perform such duties. The Constitution empowers the president to ensure the faithful execution of the laws made by congress. Congress may itself terminate such appointments, by impeachment, and restrict the president, The presidents responsibility is to execute whatever instructions he is given by the congress. Congress often writes legislation to restrain executive officials to the performance of their duties, as authorized by the laws Congress passes. In INS v. Chadha (1983), the Supreme Court decided (a) The prescription for legislative action in Article I, Section 1 requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives and Section 7 requiring every bill passed by the House and Senate, before becoming law, to be presented to the president, and, if he disapproves, to be repassed by two “ thirds of the Senate and House represents the Framers decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers. Further rulings clarified the case; even both Houses acting together cannot override Executive vetos without a 2/3 majority. Legislation may always [prescribe regulations governing executive officers.

Judicial Power.
Judicial power the power to decide cases and controversies is vested in the Supreme Court and inferior courts established by Congress. The judges must be appointed by the president with the advice and consent of the Senate, hold office for life and receive compensations that may not be diminished during their continuance in office. If a courts judges do not have such attributes, the court may not exercise the judicial power of the United States. Courts exercising the judicial power are called œconstitutional courts. Congress may establish œlegislative courts, which do not take the form of judicial agencies or commissions, whose members do not have the same security of tenure or compensation as the constitutional court judges. Legislative courts may not exercise the judicial power of the United States. In Murrays Lessee v. Hoboken Land & Improvement Co. (1856), the Supreme Court held that a legislative court may not decide œa suit at the common law, or in equity, or admiralty, as such a suit is inherently judicial. Legislative courts may only adjudicate œpublic rights. Even though of above all, Separation of Powers is not accepted in American in its strict sense, only it has attracted the makers of most modern Constitution, especially during 19th Century.
In a leading case: Marbury v. Madison, is a landmark case in United States law. It is formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. This case resulted from a petition to the Supreme Court by William Marbury, who had been appointed by President John Adams as justice of the peace in the District of Columbia but whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force Secretary of State James Madison to deliver the document, but the court, with John Marshall as Chief Justice, denied Marburys petition, holding that the part of the statute upon which he based his claim, the judiciary Act of 1789, was unconstitutional.

Marbury v. Madison was the first time the Supreme Court declared something œunconstitutional, and established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the œchecks and balances of the American form of government.


Separation of Powers has again became a current issue of some controversy concerning debates about judicial independence and political efforts in increase the accountability of judges for the quality of their work, avoiding conflicts of interest, and charges that some judges allegedly disregard procedural rules, statutes, and higher court precedents.

It is said on one side of this debate the separation of powers means that powers are shared among different branches; no one branch may act unilaterally on issues, but most obtain some form of agreement across branches. That is, it is argued that œchecks and balances apply to the judicial branch as well as to the other branches. It is said on the other side of this debate the separation of powers means that the judiciary is independent and untouchable with in the judiciaries sphere. In this view, separation of powers means that the judiciary alone holds all powers relative to the judicial function, and that the Legislative and Executive branches may nor interfere in any aspect of the judicial branch.

The doctrine of separation finds its home in U.S. It forms the basis of the American constitutional structure. Article I vests the legislative power in the congress; Article II vests executive power in the President and Article III vests judicial power in the Supreme Court. The framers of the American constitution believed that the principle of separation of powers would help to prevent the rise of tyrannical government by making it impossible for a single group of persons to exercise too much power. Accordingly they intended that the balance of power should be attained by checks and balances between separate organs of the government. This alternative system existing with the separation of prevents any organ to become supreme.

Despite of the express mention of this doctrine in the Constitution, U.S. incorporates certain exceptions to the principle of separation with a view to introduce system of checks and balances. For example, a bill passed by the congress may be vetoed by the President in the exercise of his legislative power. Also treaty making power is with the President but its not effective till approved by the senate. It was the exercise of executive power of the senate due to which U.S. couldnt become a member to league of Nations. The Supreme Court has the power to declare the acts passed by the congress as unconstitutional. There are other functions of an organ also which are exercised by the other. India, too, followed U.S. in adoption of the checks and balances which make sure that the individuals organs doesnt behold the powers absolutely.

This means that functioning of one organ is checked by the other to an extent so that no organ may misuse the power. Therefore, the constitution which gives a good mention of the doctrine in its provisions also does not follow it in its rigidity and hence has opted for dilution of powers just like India.

U.K.
Before we go to India, its important to know the constitutional setup of the country to which India was a colony and ultimately owes the existence of the form of government it has. U.K. follows a Parliamentary form of government where the Crown is the nominal head and the real legislative functions are performed by the Parliament. The existence of a cabinet system refutes the doctrine of separation of powers completely. It is the Cabinet which is the real head of the executive, instead of the Crown. It initiates legislations, controls the legislature, it even holds the power to dissolve the assembly. The resting of two powers in the single body, therefore denies the fact that there is any kind of separation of powers in England.

Separation Of Powers And The Indian Constitution:

The Constitutional History of India reveals that the framers of the Indian Constitution had no sympathy with the doctrine. This is evident from its express rejection in spite of attempts being made. It even sheds no light to the application of the doctrine during the British Regime. The Constituent Assembly, while in the process of drafting the Constitution, had dwelt at length for incorporating the doctrine and ultimately rejected the idea in toto. Dr. B.R.A. Ambedkar, who was one among the members of the Constituent Assembly, while comparing the Parliamentary and Presidential systems of India and America respectively, remarked as thus.
Looking at it from the point of view of responsibility, a non parliamentary executive, being independent of parliament, tends to be less responsible to the legislature while a parliamentary system differs from a non “ parliamentary system in as much as the former is more responsible than the latter but they also differ as to time and agency for assessment of their responsibility. Under the non “ parliamentary system, such as the one exists in U.S.A. the assessment of the responsibility of the executive is periodic. It takes place once in two years. It is done by the electorate in England, where the parliamentary system prevails; the assessment of responsibility is both periodic and daily. The daily assessment is done by the members of the parliament through questions, resolutions, no confidence motions, adjournment motions and debates on address. Periodic assessment is done by the electorate at the time of the election which may take place every five years of earlier. The daily assessment of responsibility which is not available under the American system is, it is felt, far more effective than the periodic assessment and far more necessary in a country like India. The draft constitution, in recommending the parliamentary system of government, has preferred more responsibility than stability.

The above view of Dr. Ambedkar thus substantiates that Indian Constitution does not make any absolute or rigid separation of powers of three organs owing to its pro “ responsibility approach rather than having stability at the centre stage. This has, however been further supplemented and reiterated by the Indian Supreme Court in Ram Jawaya Kapur v. State of Punjab, the Court though Mukherjee J. held that.
The Indian Constitution has indeed not recognized the doctrine of separation of powers in its absolute rigidity, but the functions of 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.

A more refined and clarified view taken in Ram Jawayas case can be found in Katar Singh v. State of Punjab, where Ramaswamy J. stated.
It is the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the legislature to make the law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution.

The functional classification and sufficient demarcation, as is held by the Supreme Court, indeed does not suggest the application of the doctrine in its absolute terms. Rather it just gives a slight glimpse as to the character of the Indian Constitution which is shares with the pure doctrine discussed above, that is, inter “ alia the acceptance of the philosophy behind the doctrine pertaining to rigors of concentration of power and the avoidance of tyranny, of having a rule of law and not rule of men. The same can be substantiated through a detailed analysis of the provisions of the Constitution which is the next course of action this chapter attempts to take.

Executive in India, like any other Westminster system, is a subset of legislature and virtually there is a fusion between them, thus generally no friction arises between them. The Constitution of India has indeed adopted the British Parliamentary system, where in the political executive controls the Parliament. In addition, the Cabinet or the Council of Ministers enjoys a majority in the legislatures and virtually control both, the legislature as well as the executive. Just like the British Cabinet, its Indian counterpart Can be called as œa hyphen which joins a buckle which the legislative part of the state to its executive part.

Under the Indian Constitution, the executive powers are vested with the President and Governors for respective states. The President is, therefore, regarded as the Chief Executive of Indian Union who exercises his powers as per the constitutional mandate on the aid and advice of the council of ministers. The president is also empowered to promulgate ordinances in exercise his extensive legislative powers which extend to all matters that are within the legislative competence of the Parliament. Such a power is Co “ extensive with the legislative power of the parliament. Apart from ordinance making, he is also vested with powers to frame rules and regulations relating to the service matters. In the absence of Parliamentary enactments, these rules and regulations hold the field and regulate the entire course of public service under the Union and the States. Promulgation of emergency is emergent situations is yet another sphere of legislative power which the President is closed with. While exercising the power after the promulgation of emergency, he can make laws for the state after the dissolution of state legislature following the declaration of emergency in a particular state, on failure of the constitutional machinery.

Like the British Crown, the President of India is a part of the legislature though he is not a member of any house of the Parliament. No bill for the formation of new states or alternation of boundaries etc. of the existing states, or effecting taxation in which States are interested or affecting the principles laid down for distributing money to the states or imposing a surcharge for the purposes of the Union and no money Bill or Bill involving expenditure from the consolidated fund of India can be introduced for legislation except on the recommendation of the President. Besides this, he also has powers to grant pardons, reprieves respites or remissions of punishment or to suspend, remit or commute; the sentence of any person convicted any offence which is of judicial nature. He also performs similar judicial functions in deciding a dispute relating to the age of the judges of the constitutional courts for the purpose of their retirement from their judicial office.

In a similar manner, Parliament also exercises judicial functions. While performing judicial functions, it can decide the question of breach of its privilege and if proved, can punish the person concerned. While doing so, the Parliament is the sole judge and Courts cannot generally question the decision of the Houses on this point. Moreover, in case of impeachment of the president, one house of the Parliament acts as a prosecutor and the other House investigates the levelled charges and decides whether they substantiate or not.

There is however, a considerable institutional separation between the judiciary and other organs of the government. The Constitutional confers wife powers however; a certain amount of executive control is vested in the higher judiciary with respect to subordinate judiciary. At the same time, the power of appointment of high courts and Supreme Court judges including the Chief Justice of India, vests partially with the executive, that is to say, the President of India who is turn exercises this power in consultation with the Governors of the concerned states and the Chief Justice of the concerned High Court in case of a high court judge and Chief Justice of India in case of a Supreme Court Judge. Moreover, the judges of constitutional Courts cannot be removed except for proved misconduct or incapacity and unless an address supported by two “ thirds of the members and absolute majority of the total membership of the House is passed in each House of the Parliament and presented to the President. Apart from exercising routine judicial functions, the superior constitutional courts also performs certain executive and administrative functions as well. High Courts have supervisory powers over all subordinate courts and tribunals and also the power to transfer cases. In addition, the High Courts as well as the Supreme Court also have legislative powers by virtue of which they can frame rules regulating their own procedure for the conduct and disposal of cases.
The foregoing exercise establishes the proposition expounded by the Supreme Court in Ram Jaways Case.

The analysis clearly shows that the concept of Separation of powers, so far as the Indian Constitution is concerned, reveals and artistic blend and an adroit admixture of judicial, legislative and executive functions. Separation sought to be achieved by Indian Constitution is not in an absolute or literal sense. Despite being evident that the constitution nowhere expressly bows in line to the concept, albeit it remains an essential framework of the constitutional scheme. Agreeing on this premise, it has also been accorded the status of basic structure by the Supreme Court. Therefore, it can axiomatically be said that Indian Constitution does not contemplate separation as embodied in the pure doctrine, it rather perceives and accords to it in its central sense, that it to say, not in its literal sense, rather in its purposive sense, I.e. non conferment of unfettered powers in a single body of men and to motivate checks and balances.

Another point of concern which requires clarification is whether the three organs, though not rigidly separate, can usurp their powers or are they requires by the constitution to work only within the respective area earmarked in a narrow- sense. To put it differently, whether the constitution mandates encroachment by one organ into the domain of another on the pretext of failure or inaction of the other organ is the next question that needs to be addressed in is context.

Though theoretically, this issue has been addressed by the Supreme Court, however, in has failed to cater basis in practice which is evident from the growing amount of judicial encroachment in the domain of other organs. In Asif Hameed v. State of J & K, it has been held that:
œAlthough the doctrine of separation of powers has not been recognized under the constitution makers have meticulously defined the functions of various organs of the state. Legislative, Executive and Judiciary have to function within their respective spheres demarcated under the constitution. No organ can usurp the functions assigned to another. Legislative and executive organs, the two facets of the peoples will, have all the powers including that of finance. Judiciary has no power over sword or the purse. Nonetheless it has power to ensure that the aforesaid two main organs of the state function within the constitutional limits. It is the sentinel of democracy.

The prime point of our concern here is whether the judicial organ of the state is conferred with a constitutional mandate so as to overstep its limits while discharging its main functions. That is to say whether the judiciary can interfere and encroach in the executive or legislative domain if just demands so, or it cannot do so simple by virtue of the fact that the concept of separation of powers puts fetters on it. To answer these points, one need to ascertain as to what statute the judiciary has been accorded in the Indian Constitutional. Is it supreme as compared to the other organs or is subordinate thereto?
Judiciary under Indian Constitution has been given an independent status. It has been assigned the role of an independent umpire to guard the constitution and thereby ensure that other branches may not exceed their powers and function within the constitutional framework. Commenting and clarifying the concept of independence of judiciary, Sir A.K. Aiyar, who was one of the framers of the constitution, had observed that
œThe doctrine of independence (of judiciary) is not to be raised to a level of a dogma so as to enable the judiciary to function as a kind of super “ legislature or super executive. The judiciary is there to interpret the constitution or to adjudicate upon the rights between the parties concerned.

It can thus very aptly be said that creation of judicial organ in India was not at al meant to give to it a supreme status as compared to the other co “ ordinate organs. Rather, with powers and functions sufficiently distinguished and demarcated, what is expected out of judiciary is to act as a watchdog to oversee and prods to keep the other organs with in the constitutional bounds. The essence of the Constitution is that it produces a system which is the result of amalgamation of the principles of separation of powers with the doctrine of parliamentary sovereignty in a manner to give effect to both, yet without the rigidity of the two systems. The Parliamentary democracy is cemented as the corner stone of constitutional edifice in preference to the Presidential system of governance.

Separation of Powers And Judicial Pronouncements In India:

In India, we follow a separation of functions and not of powers. And hence, we dont abide by the principle in its rigidity. An example of it can be seen in the exercise of functions by the Cabinet ministers, who exercise both legislative and executive functions. Art.74(1) wins them an upper hand over the executive by making their aid and advice mandatory for the formal head. The executive, thus, is derived from the legislature and is dependent on it, for its legitimacy, this was the observation made by the Honble S.C. in Ram Jawaya v. Punjab.

On the question that where the amending power of the Parliament does lies and whether Art.368 confers and unlimited amending power on Parliament, the S.C. in Keshavanand Bharti held that amending power was now subject to the basic features of the constitution. And hence, any amendment tapering these essential features will be struck down as unconstitutional. Beg. J. added that separation of powers is a part of the basic structure of constitution. None of the three separate organs of the republic can take over the functions assigned to the other. The scheme cannot be changed even by resorting to Art.368 of the constitution. There are attempts made to dilute the principle, to the level of usurpation of judicial power by the legislature.

In a subsequent case law, S.C. had occasion to apply the Keshavanand ruling regarding the non “ amend ability of the basic features of the Constitution and strict adherence to doctrine of separation of powers can be seen. In Indira Nehru Gandhi v. Raj Narain, where the dispute regarding P.M. 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 power. So, the main ground on which the amendment was held ultravires was that when the constituent body declared that the election of P.M. wont be void, it discharged a judicial function which according to the principle of separation it shouldnt have done. The place of this doctrine in India context was made a bit clearer after this judgment.

Though in India strict separation of powers like in American sense is not followed but, the principle of checks and balances a part of this basic structure doctrine so much so that, not even by amending the constitution and if any such amendment is made, the court will strike it down as unconstitutional.

Conclusion:
It has been well said by Lord Action:- œPower 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 modern state is a lot more different than what is 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 protector arbiter, controller, provider. This omnipresence of that 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 cannot 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.

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 cannot be followed rigidly. The S.C. rulings also justify that the alternative system of checks and balances is the requirement, not the strict doctrine. A 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 different branches of the government have been sufficiently differentiated.

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