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Critical Analysis of Separation of Power

The three main organs of the government are the legislature, the executive, and the judiciary. According to the doctrine of separation of powers, the powers and functions of the government must always be kept separate and be exercised only by the respective organs.

This is however a very basic view of this theory. According to Wade and Phillips, the theory has three manifestations:

Firstly, it means that one organ of the government should not discharge any function of the other two, as for instance a Judge should not have legislative powers.

Secondly, it means that one organ of the government should not interfere with the other two organs when they are discharging their respective functions. For instance, the executive should not interfere with the judiciary, which should function as an independent body.

Lastly, it means that the same person should not belong to two (or more) organs of the government, as for instance, a minister should not be a judicial officer.

The Legislature is the assembly of parliamentary members with the authority to make laws for a political entity such as a country or city. Laws enacted by legislatures are usually known as primary legislation. In addition, legislatures may observe and steer governing actions, with the authority to amend the budget involved.

The Executive is the part of the government which exercises the authority and responsibility for governance in the state. They execute and enforce the law. The executive can be the source of certain types of law, such as a decree or executive order. Executive bureaucracies are commonly the source of regulations.

The Judiciary is the system of courts that interprets and applies the law in legal cases. They are responsible to ensure that the violation of separation of powers does not take place. They also keep a check on the laws made by the legislature.

Evolution
Although this doctrine is as old as Plato and Aristotle[1], it was made popular in the 16th and 17th centuries by the famous French philosopher, John Bodin and British politician, Locke. However, it was Montesquieu, the French scholar, who re-formulated this doctrine in a systematic and scientific form in his book 'Espirit des Lois' (the Spiriti of the laws) in 1748. in his own words:
When the legislative and executive powers are United in the same person or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same Monarch should enact tyrannical laws – to execute them in a tyrannical manner.

Again, there is no liberty if the judicial power be not separated from the legislative and the executive. When it is joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control – for the judge would then be the legislator. When it is joined with the executive power, the judge might behave with violence and oppression.

Miserable indeed would be the case, were the same man or the same body, whether of nobles or of the people, to exercise those three powers, that of enacting laws, that of executing them and that of judging the crimes of individuals.

From the historical angle, it was the absolute and autocratic monarchy which prevailed in France during the time of Louis XIV that prompted Montesquieu to pursue the theory with force and vigour. Montesquieu looked around him and realized that in the reign of this monarch, French subjects enjoyed neither rights nor liberties. It was a full-fledged monarchy where Louis XIV exercised all possible powers – legislative, executive and judicial. Montesquieu also drew inspiration from the liberal thoughts of writers like Locke.

However his greatest inspiration was the functioning of the English Constitution in the earlier part of the 18h Century and he came to the conclusion that the liberty enjoyed by an Englishman to the fullest possible extent was the result of the total separation of the functioning of the three organs of the government in England at that time[2].

Montesquieu's doctrine had a tremendous impact on the development of administrative law, not only in France, but also in England, USA and other countries. It can be said that just as the doctrine of rule of law shaped the development of administrative law in England, the theory of separation of powers had a profound impact on the development of administrative law in UA. Madison, for instance, observed that the accumulation of legislative, executive and judicial powers in the same hands would be the very definition of tyranny. Blackstone also observed that if legislative, executive and judicial functions were to be vested in one man, that would be the end of personal liberty[3].

The Constituent Assembly of France also declared that there would be nothing like a constitution in a country if the doctrine of separation of powers was not incorporated therein. Montesquieu's attitude towards monarchy is the reason why later on the parliament has from time to time emphasized on their right to refuse to register royalties to the Parliament of Bordeaux (French parliament), of which Montesquieu became a President.

One feature of this doctrine is accepted by all the jurists that the judiciary must be independent of and separate from the remaining two organs of the government viz. legislative and executive. In the Report of International Congress of jurists held at New Delhi in 1959, it is stated;

An independent judiciary is an indispensable requisite of a free society under the Rule of Law. Such independence implies freedom from interference by the Executive or the legislature with the exercise of the judicial function.

American model
The founding fathers considered the doctrine of separation of powers as the heart of the Constitution of United States of America [hereafter American Constitution]. The United States federal government and forty states divide their governments into three branches. For the purpose of this article the author has discussed the features of separation of powers with regards to the American Constitution and not the 40 states.

Article 1 of the American Constitution establishes the Legislative Branch
Under the Legislative branch, the Congress has the power to make laws in America. Following the nondelegation doctrine, the Legislative branch cannot delegate its law-making responsibility to the Executive[4]. However, they can provide agencies with regulatory guidelines if it provides them with an intelligible principle to base their regulations on.

Article 2 of the American Constitution establishes the Executive branch
The Executive power is vested in the President, with a few exceptions and qualifications. The President approves and carries out the laws created by the Legislative Branch. According to the Constitution, the President is not required to personally enforce the laws. The officers subordinate to him/her shall perform these duties. The officers and bodies set up by the president usually have Congressional oversight[5], e.g. War Claims Commission, the Interstate Commerce Commission, the Federal Trade commission etc.

Article 3 of the American Constitution establishes the Judicial branch
The power to decide cases is vested by the Constitution in the Supreme Court and lower courts established by Congress. The Judicial Branch interprets the laws passed by the Legislative Branch. Courts exercising the judicial power are called constitutional courts. Congress may establish legislative courts which do not take the form of judicial agencies or commissions, they may only adjudicate cases related to public rights, i.e. cases between government and an individual[6].

System of Checks and Balances
The American form of separation of powers is associated with a system of checks and balances. They are a primary requirement to ensure that the functioning of the government is smooth, even if that results in violation of the fundamental idea of separation. Given below is a table which shows how the system of Checks and balances works in America;
  • Legislative
  • Executive
  • Judiciary
  • With regards to law
  • Formulates and enacts the law
  • Power to veto the law
  • Determines and judges which laws Congress intended to apply to a given case
  • Determines whether a law is unconstitutional or not.
  • Determines how Congress meant the law to apply to disputes
  • Mixed powers
  • Can start investigations against the President.
  • Vice-President presides over the senate
  • Appointments

The Senate confirms presidential appointments of federal judges, executive department heads, ambassadors, and many other officers.

Decision regarding appointment of federal judges, executive department heads, ambassadors, and various other officers

House of Representatives and the Senate can remove executive and Judicial officers.

War
Sole power to declare war against a nation

Wages war at the direction of the Congress

Convicted person
Power to grant pardons to convicted persons.

Determines how a law acts to determine the disposition of the prisoners

Miscellaneous
Creates federal courts except for the Supreme Court, and sets the number of justices on the Supreme Court

Executes and enforces orders of the court through federal law enforcement.

Determines how a law acts to compel testimony and the production of evidence

May override presidential vetoes

Power to make decrees or declarations and promulgate lawful regulations and executive orders

Polices its own members

Discretion for determination of how laws should be interpreted to assure uniform policies.

The doctrine of separation of powers may have been the foundation stone of the American Constitution when it was framed in 1787. However, with the passage of time and the growth of Administrative law, a strict adherence to the doctrine has become almost difficult today. The President of USA sends ‘messages' to the Congress, he actually interferes with the legislature. Moreover, he also enjoys a right of veto. The Congress is vested with the power of impeachment, which is, strictly speaking, a judicial act.

Likewise, the Senate exercises executive powers when it ‘considers' international treaties and ‘confirms' the appointment of Supreme Court judges nominated by the President. The Congress has also delegated its legislative powers to various administrative agencies. In any event, the Supreme Court of USA has not handed down a single ruling declaring the combination of two or more functions in the same organ of the government to be unconstitutional[7].

Indian perspective
The Constituent Assembly Debates
Dr. B. R. Ambedkar, who was amongst the members of the Constituent Assembly, remarked that the assembly while drafting the Constitution, had dwelt in the issue whether to incorporate the doctrine or not. Ultimately, they had rejected the idea in toto after comparing the Parliamentary systems in India and America[8].

The assembly took into consideration the responsibility which a non-parliamentary executive will have being independent of the Parliament. In such a scenario the executive will be less responsible to the legislature, like in the case of America. Whereas in a parliamentary system, the executive would be responsible to the legislature but there would be issues regarding time and agency for the assessment of their responsibilities.

In case of non-parliamentary system, the assessment of the responsibility of the executive is periodic. In England such an assessment is done by the electorate in England, where the Parliamentary system prevails, here the assessment is done both periodically (by the electorate at the time of the election) and daily (by the members of Parliament).

After comparing both the scenarios the assembly preferred more responsibility than stability.

Judicial perspective
The views of the Constituent Assembly have further been supplemented and reiterated by the Supreme Court of Indian, in Ram Jawaya Kapur vs State of Punjab [9], where Justice Mukherjee 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.

Further, a more clarified view was taken in the case of Kartar Singh vs State of Punjab[10], where Justice Ramaswamy held that;
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 above classification and demarcation interpreted by the Supreme Court does not suggest the application of the doctrine in its absolute terms. The Constitution of India has been inspired by the British Parliamentary system.

In India, the Executive powers are vested in the President[11] and the governors of different states[12]. The President exercises his Executive powers as per the constitutional mandate on the aid and advice of the council of ministers[13]. 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[14]. The President of India as a part of the legislature but not a member of either of the houses[15].

The following legislations can not be initiated without the recommendation of the president:
  • Bill for formation of new states or alteration of boundaries of existing states
  • Bill which affects the taxation of the state or the principles laid down for distributing the money to the states or imposing a surcharge for the purpose of the Union[16]
  • Money bill involving expenditure from the consolidated fund of India[17]
  • The president has an interfering function with the Judiciary which is deciding the dispute relating to the age of the judges of the constitutional courts for the purpose of their retirement from their judicial office[18].
Similarly, parliament also exercises judicial functions, it can decide the question of breach of its privilege and if proved, can punish the person concerned[19]. The parliament is the sole judge and courts cannot generally question the decisions of the houses in this point.

Despite such interferences, there exists a considerable separation between the judiciary and other organs of the Government. The Constitution confers wide 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 in 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[20] 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[21] 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[22].

A simple reading of the Indian Constitution would teach us that there exists a separation of functions instead of powers, which has been incorporated in the Constitution, as Executive powers vest in the president, Legislative powers are vested in the Lok Sabha, the Rajya Sabha and various State legislatures, whereas the Supreme Court, the High Courts and other subordinate courts discharge Judicial functions. There exists a system of checks and balances which facilitates the judiciary to strike down any unconstitutional laws passed by the legislature.

In Asif Hameed vs State of Jammu and Kashmir[23], the Apex court held that,
Although the doctrine of separation of powers has not been recognized under the constitution in its absolute rigidity but 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 people's 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 judiciary has been given and independent status and the role assigned to it is of an independent umpire to guard the constitution and ensure that other branches do not exceed their powers as expected under the Constitutional framework. Sir A. K. Aiyar, who was a member of the Constituent Assembly, has observed that[24],

The 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

We can say that the judicial structure in our country was not meant to be given a supreme status but to coordinate the other organs. The essence of the Constitution is that it produces a system which is the result of amalgamation of the principle 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[25].

Separation of powers
In India, we don't abide by the principle of separation rigidly, hence there is a separation of functions and not of powers. To understand this better we can consider the functions by the Cabinet ministers, who exercise both legislative and executive functions. Article 74(1) provides an upper hand to the legislature over executive, this was observed by the Hon'ble Supreme Court in Ram Jawaya(supra).

On the question that where the amending power of the Parliament does lies and whether Article 368 confers and unlimited amending power on Parliament, the S.C. in Keshavanand Bharti vs State of Kerala[26] 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.

In the subsequent case of Indira Nehru Gandhi vs Raj Narain[27], the Supreme Court had a chance 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. 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.

So, the main ground on which the amendment was held ultra-virus was that when the constituent body declared that the election of P.M won't be void, it discharged a judicial function which according to the principle of separation it shouldn't have done. The place of this doctrine in Indian 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.

Critical analysis
The greatest and one of the most obvious benefits of the doctrine of separation of powers is that it ensures that each organ of the government functions independently and without any influence or interference from the other two. If any two (or three) functions of the government are combined in the same person or body of persons, rights and liberties of the citizens would be set at naught, and as stated above, that would be the very definition of tyranny. There is, therefore, no doubt that the doctrine must find place – in one form or the other – in the constitution of every civilised democracy.

However important and useful the doctrine of separation of powers maybe in theory, its practical application has often created serious problems. The doctrine has been criticised mainly on the following grounds:

The historical assumption of Montesquieu, namely that he drew inspiration for his theory from the English Constitution, cannot be accepted. In fact, at no point of time in history had English adopted this doctrine and this country was never the classic home of separation of powers. As Donoughmore Committee[28] observed, Montesquieu looked across foggy England from his sunny vineyard in Paris and completely misunderstood what he saw.

The second objection is that this theory presupposes that the three functions of the government are independent of, and distinguishable from, one another. In fact, however, it is not possible to draw thin demarcating lines between them and assign each to a water-tight compartment. As observed by president Woodrow Wilson, the government is not a machine, but a living thing whose life is dependent on a mutual cooperation between the three organs. There, cooperation, he observed, is indispensable just as their warfare is fatal to any country[29].

Again, in actual practice, it is difficult to apply this doctrine in a strict sense, for instance, the function of the legislature is confined to legislation, it would have no power to punish any person for contempt or for a breach of its privilege. Nor would it be able to delegate any rule-making power to its executive authority which is an expert in that field.

Montesquieu had devised and advocated this theory to ensure that the freedoms and liberties of citizens were not trampled upon. However, a mere mechanical division and separation of power and functions cannot achieve this end. What is required to reach this goal is the prevalence of the rule of law, combined with the strong and independent judiciary and eternal vigilance on the part of citizens. This alone can guarantee the life and liberty, safety and freedom of the citizens of a state.

Lastly, as read under administrative law the modern state is a welfare state which tries to solve complex socio-economic problems of its citizens. If the doctrine of separation of powers was to be applied in a strict sense, the working of the government would not be possible. As observed by Prof. Freedmann[30], strict separation of powers is a theoretical absurdity and a practical impossibility.

While separation of powers is key to the workings of any 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[31].

Conclusion
Despite all the criticism of the doctrine, one can't say that the theory of separation of power need to be abundant, because that mean accepting the diametrically opposite doctrine of integration of powers. The pitfalls of the theory appear only when one looks at theory in its extreme sense. Those who contend that if the doctrine of separation of power is applied, the working of any modern government would come to a halt are obviously looking at the doctrine in its strict sense. The bottom line seems to be that the doctrine is necessary in modern times, but in a relative and not in an absolute sense.

In a democratic country like ours the framework and goals are enshrined in the Constitution and the state machinery is then setup accordingly. The constitutional provisions are made as such to support a parliamentary form of Government where the principle can't be followed rigidly. There are numerous instances where the issue regarding violation of the Separation of powers has surfaced. In the case of Thiru. R. Gandhi vs Union of India,[32] the issue regarding the independence of judiciary arose.

Where the parliament had set up National Company Law Tribunal and National Company Law Appellate Tribunal, which were given the jurisdiction to hear company law matters and the High Courts jurisdiction was shifted. The Supreme Court addressed the issue and supported the move saying that this would result in efficiency in regards to disposing off the cases.

The appointment of the Chief of Defence questions the separation of powers among civil bureaucrats and military officers, though desirable, was unacceptable to the bureaucracy. Building upon politicians' fears born out of ignorance, the bureaucracy scuttled it by arguing that too many powers in the hands of the CDS could result in a takeover of the government by the military. Just as the idea of a coup frightened the politicians, within the services, the Air Force resisted the creation of the CDS. It said a CDS from the Army, who knew little about the Air Force's core competencies, would be unhelpful to the growth of air power, which, given the technological advances, had emerged as a strategic force.

These are a few instances where the principles of Separation of Powers were in question but they were compromised in order to facilitate a system of better governance. As we proceed the idea of separation would shift from powers to functions, like the system in India.

End-Notes:
  1. Vanderbilt, The Doctrine of separation of powers and its Present-Day Significance, 14 LLR 38-45 (1953)
  2. Chapter-2 Separation of Powers: Historical Background, ShodhGanga (July 10, 2020, 11:19), https://shodhganga.inflibnet.ac.in/bitstream/10603/71955/10/10_chapter%202.pdf
  3. Commentaries on the Laws of England, 1765
  4. Clinton vs City of New York, 524 U.S. 417 (1998)
  5. I. Elaine Halchin and Fredrick M. Kaiser, Congressional Oversight, Congressional Research Service (July 10, 2020, 13:05), https://fas.org/sgp/crs/misc/97-936.pdf
  6. Murray's Lessee vs Hoboken Land & Improvement Co., 59 U.S. (18 How) 272 (1856)
  7. Prof. H. D. Pithawalla, Administrative Law, pg. 27 (First Edition, 2015)
  8. CAD vol.7 at 956 cited in H.r. Khanna, Making of the Indian Constitution 69 (1957)
  9. AIR 1955 SC 549
  10. AIR 1967 SC 1643
  11. Article 53(1) of the Constitution of India
  12. Article 154(1) of the Constitution of India
  13. Article 74(1) of the Constitution of India, Rao vs. Indira AIR 1971 SC 1002
  14. Article 123 of the Constitution of India
  15. Article 356 of the Constitution of India
  16. Article 274 of the Constitution of India
  17. Article 117 of the Constitution of India
  18. Article 124(2A) and 217(3), Union of India vs Jyoti Prakesh Mitter AIR 1972 SC 1093
  19. Article 105 of the Constitution of India
  20. Article 124(3) of the Constitution of India
  21. Article 227 of the Constitution of India
  22. Article 145 and 225 of the Constitution of India
  23. AIR 1989 SC 1899
  24. Glanville Austin, The Indian Constitution- Cornerstone of a Nation 174 (1966)
  25. Separation of Powers and the Indian Constitution, Shodh Ganga (July 14, 2020, 13:52), https://shodhganga.inflibnet.ac.in/bitstream/10603/32340/9/10_chapter%204.pdf
  26. AIR 1973 SC 1461
  27. AIR 1975 SC 2299
  28. The editors of Encyclopaedia Britannica, Donoughmore Commission: British Commission (July 13, 2020, 14:52), https://www.britannica.com/topic/Donoughmore-Commission
  29. Principles of Australian Administrative Law, 36 (1962)
  30. Karan Tyagi, The Doctrine of Separation of powers and its relevance in time of coalition politics, vol. 69, no. 3, JSTOR
  31. Separation of power- An overview, National Conference of State Legislatures (July 13, 2020, 18:45), https://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx
  32. (2004) 2 CompLJ 274 Mad

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