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Analyze: Separation Of Power

The Doctrine of Separation of power was originated by Montesquieu he intended through this theory that power should be separated into the three branches of government for smooth functioning and one branch does not interfere in the other's working. The concept of Check and Balance should be their branches could not be separated from each other because they are dependent.

Power in one hand may misuse the power, power should not be left unchecked, if the law makers keep the supreme institution unchecked, then naturally it will become autocratic. Montesquieu's piece of work was very important which precluded that there should not be any sort of concentration of power within the constitutional structure.

The U.S.A, U.K, and INDIA has the different concept of Separation of power. American jurisdiction is Presidential form of government. In United Kingdom it is the combination of Monarchy and constitutional and in India Parliamentary democracy.

Introduction
"If the legislative and executive authorities are one institution, there will be no freedom. There won't be any freedom anyway if the judiciary body is separated from the legislature and executive"- Charles de Montesquieu.

The term "Separation of Powers" or "trias politica" was initiated by Charles de Montesquieu. For the very first time, it was accepted by Greece and then it was widespread use by the Roman Republic as the Constitution of the Roman Republic. Its root is traceable in Aristotle and Plato when this doctrine became the segment of their marvels.

In 16th and 17th-century British politician Locke and Justice Bodin, a French philosopher also expressed their opinion regarding this doctrine. Montesquieu was the first one who articulated this principle scientifically, accurately, and systemically in his book "Esprit des Lois" (The Spirit of Laws) which was published in the year 1785.

The separation of power is based on the concept of "trias politica". This principle refers to a system where the powers are delegated and distributed among three organs outlining their jurisdiction each.

It is known that if a large number of powers is vested in the hands of one administrating authority there are high chances of misusing the power, corruption, impartial administration. The doctrine of separation of power prevents the abuse of power. It is a protection from arbitrary rule, ending autocracy and, protect the liberty of the individual and maintaining the efficiency of the administration.

The Main Function Of Separation Of Power Is:
  1. A person forming a part of one organ should not be the part of other organs.
  2. One organ should not interfere with the functioning of the other organs.
  3. One organ should not exercise the function belonging to other organs.
The Doctrine Separation of Power is inseparable from democracy. Separation of power is such a measure that divides the power among the three main organs of governmental function that is the legislative, executive, and judiciary. If power lies in the hand of a single person or a group it will be dangerous and misused. So, decentralization of power is important.
To ensure the working of them systematically there should be check and balance.

The three main organs of the government and separation of power must be free in democracy to exercise his power, the three organs should not interfere in each other's working so, they must be kept separated for exercising their power. But the three organs cannot be segregated from each other because they are interdependent, they have different roles and power to exercise and to ensure effective governance.

The doctrine of separation of power is rigid this is one of the reasons that it is not accepted by many countries in the world.

Separation of power in the U.S.A.
The doctrine of Separation of Power is the foundation of the constitution in which the whole structure is based. It has been accepted in the U.S.A in a strict Nature.
Article I:
All the legislative powers vested in a congress.

Article II:
The executive power shall be vested in a President.

Article III:
All the Judicial Power shall be vested in one Supreme Court.

Bases on this doctrine, The Supreme Court was not given the power to decide a political questions or to interfere in the exercise of the power of the executive. Also, the overriding power of judicial review was not given to the Supreme Court. The President uses Veto power to interfere with the exercise of power by congress. He interferes with the functioning of the Supreme Court for the appointment of judges and exercises law-making power in the exercise of his treaty.

The Supreme Court has made more amendments in the American constitution than congress. Judiciary interferes with the power of congress and the president through its power of Judicial Review.

In the US the executive is not directly accountable to the legislature, but the legislature has control over the executive. The congress can put indirect pressure over the Executive through its power- to levy taxes, legislature, investigate the Executive work and policies by its committees and the senate's power to confirm treaties and appointment.

This could be accomplished through a system of check and balance; this allows government organs to limit their power and others.

Legislative:
Makes laws (Congress, comprised of the House of Representatives and Senate)

Executive:
Carries out laws (president, vice president, Cabinet, most federal agencies)

Judicial:
Evaluates laws (Supreme Court and other courts)

Legislative Power
Congress as the sole power of legislature, does not delegate its law-making responsibility to any other agency through non-delegation doctrine.

In the case of Clinton v. City of New York,[1] 1998 Supreme Court held 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. 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[2].

Executive Power
By Article II, the Executive is vested with the power, exceptions, and qualification, in the president. By law the president becomes the commander in chief of the Army and Navy, Militia of several other state when called into service. President has the power to make an appointment to his office with the advice and consent of the Senate, make treaties. Can take Ambassadors and Public Ministers, and take care of the laws and faithfully execute them as made by Congress (Section 3).

Congress can terminate the appointment made by the president, by impeachment, and restrict the president. The presidents have to perform the responsibility and follow the instructions given by the congress. Congress often passes laws that restrain executive officials to perform their duties.

In INS v. Chadha[3], the Supreme Court decided 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 is 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. Even both Houses acting together cannot override Executive veto without a 2/3 majority. Legislation may always prescribe regulations governing executive officers.[4]

Judicial Power
The judges are appointed by the President with the advice and consent of the senate. A court exercising the judicial power are called Constitutional Court. Congress may establish Legislative Court but do not form the Judicial agencies or Commissions, member of those courts does not have the same security of tenure as the Constitutional Court Judges. Legislative courts do not exercise Judicial Function. Supreme Court decide the cases and the Controversies vested to them and Inferior Courts established by congress.

In Murrays Lessee v. Hoboken Land & Improvement Co.[5], the Supreme Court held that a legislative court may not decide sea suit at the common law, or in equity, or admiralty, as such a suit is inherently judicial. Legislative courts may only adjudicate republic rights. During the19th century Doctrine of Separation of Powers has attracted lawmakers but is not accepted in American Constitution in its strict sense.

In a leading case: Marbury v. Madison[6], 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 Marbury's petition, holding that the part of the statute upon which he based his claim, the judiciary Act of 1789, was unconstitutional[7].

Framers of the American Constitution believed that the Doctrine of Separation of Power would help to prevent tyrannical form of government by making it impossible for a single group to exercise too much power. Balance of power could only be attained by the check and balance between the separate organs of government. Separation of power prevents any organ to become supreme in power.

Separation of power in the U.K
The constitution of the UK is uncodified and no specific rule or document that specifies the legality of the Separation of power. However, in various forms, it does exist. The theory of Separation of Power was never applied in the strict sense. In the UK there is democratic a structure as well as Monarchy is the Head of Democracy. The crown who is head of the executive is also an integral part of the legislature.

PM has to report to the crown as the Crown is the official head of the State. In a democratic structure, they also have a Joint Session, the Joint Session in British Parliament is addressed by the Queen of England. In Parliamentary Democracy it is to ensure that leaders get elected and represents the will of the people/citizens at the parliament. The term of office of the Prime Minister is 5 years.

The UK does not have a separate branch for legislative, executive, judiciary they overlap each other as ministers. Including the PM of executive can sit in legislature to make laws but the theory states that one man should not be present in more than one branch of governance.

Parliament is the legislative branch, so the executive is merged with the legislative.

Legislative with Judicial:
Parliament is responsible for its regulations; judiciary does not have power over the parliament as much as power parliament have it for itself so there is overlap between them. House of common controls legislative, the judiciary is independent, but the judges can be removed on an address from both the house of parliament.
  • Legislative:
    House of Common and The House of Lords.
  • Executive:
    The Prime Minister.
  • Judiciary:
    The Supreme Court.
Lord chancellor has the power in all three branches he is Head of the judiciary, Chairman of the House of Common(legislature), a member of executive even a member of the cabinet. There is a fusion of power rather than separation.

Since 2003, there has been an effort to reform to abolish the office of Lord Chancellor. However, it had a bit of backlash from public opposition, so the office never came to ban it.

Constitutional Reform Act ,2005
The act of the UK Parliament consists of several policies and reforms.

The act is divided into three parts:
  1. Reformed the office of Lord Chancellor,
  2. Created and set the framework for a UK Supreme Court,
  3. Regulate the appointment of judges.

Section 2 of the act states that the PM was able to appoint the Lord Chancellor and also took away his judicial power. Important for Separation of power.

Before the act, the highest court inland had been the Appellate Committee of House of Lords. Lord Chancellor, a Minister was also the head of Judiciary. The highest court of the judiciary was within the House of Lords, so there was total overlapping of branches and fusion of power which created political influence at the time of appeal. Earlier the Queen with the advice of the Lord Chancellor appointed the judges which were subject to political influence.

The Constitutional Reform Act, 2005, established the Judicial Appointment Commission. The independent commission proposes a candidate, and the Secretary of State for Justice can only say Yes or No[8]. To show and increase the feeling that judicial appointment is based-on merit rather than Political Influence.

Under the Act, the Secretary of State for Justice also holds the office of Lord Chancellor, although with the greatly reduced role. The Lord Chancellor also used to be Speaker of the House of Lords, but this is not anymore.[9]

The Supreme court was established with the aim to achieve a clear Separation of Power between the legislature and the Judiciary. According to the European Convention of Human Rights, A judicial officer having legislative, executive power is likely not to be considered sufficiently impartial to provide a fair trial.

Law passed in 2005 and placed in 2009.

Separation of Power in India
There is a federal system of Government in India. The Doctrine of Separation of Power is not defined in the constitution. The concept of this Doctrine is to divide the power among the three organs of the government.
  • Legislature:
    Parliament (Lok Sabha and Rajya Sabha) State Legislative Bodies.
     
  • Executive:
    At the central level- President, at the State level- Governor.
     
  • Judiciary:
    Supreme Court, High Court, and all other Subordinate courts.

The Indian constitution recognizes the Doctrine of Separation of power in the strict sense. Article 50 enjoys the Separation of power of the judiciary from the executive[10]. The Executive Power of the union and state is vested in the constitution of the President and governor under Article- 53(1) and 154(1). President exercises its power as per the constitution on aid and advice of the Council of Ministers. President is empowered to promulgate the ordinance during the time of emergency or when both the houses are not in session.

Legislature:
Enacts the law with the will of the state, it is spotted in the first place among the three organs because, until the law is framed the functioning of implementation and applying the law cannot be exercised. Judiciary act as the advisory body to the legislature about amending the existing legislation or suggestions about framing the new laws.

Executive:
This organ is responsible for implementing or enforcing the will of the state as explicit by the constituent assembly and the legislature. The Executive is the administrative head of the government. Executive includes a head of the minister, advisors, departmental head and his ministers. It is called the mainspring of the government because if the executive crack-up, the government exhaust as it gets imbalanced.

Judiciary:
Refers to the body of those officers whose responsibility is to apply the law framed by the legislature to individual cases by taking into consideration of the principle of natural justice, fairness. Judiciary is the watchdog of the democracy and the Guardian of the Indian Constitution.

Some of the Articles of the constitution:
  • Article 50: This article puts an obligation over the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable.
  • Articles 53 and 154: It provides that the executive power of the Union and the State shall be vested with the President and the Governor, and they enjoy immunity from civil and criminal liability.
  • Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.
  • Article 123: The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions.
  • Article 361: The President and Governors enjoy immunity from court proceedings., they shall not be answerable to any court for the exercise and performance of the powers and duties of his office.

Judicial Pronouncement
Kesavananda Bharati v State of Kerala[11]: In this case, the SC held that the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic features will be declared unconstitutional.

Ram Jawaya Kapoor V State of Punjab[12]: In this case, it was held that 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 be very well said that our Constitution does not contemplate assumption by one organ or part of the state of functions that essentially belong to another.

Indira Nehru Gandhi v. Raj Narain[13]: The dispute regarding the 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 is not 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.

Conclusion
Role of government is to protect the individual rights and for the smooth functioning of any government there must be free democracy. The Separation of power is the concept where cooperation, and coordination among all three wings of the government are necessary. Professor Garner said that "this doctrine is impracticable as working principle of Government. It is difficult to divide the functions of each organ on an accurate basis".

In my opinion, this doctrine has great significance as it protects the liberty of the individual from arbitrary rule and prevents the organs from seizing the essential functions of other organs.

References:
  • Doctrine of Separation of Powers. ByNivethahttps://www.legalserviceindia.com/legal/article-35-doctrine-of-separation-of-powers.html
  • Separation of Powers: A Comparative Analysis of the Doctrine India, United States of America, and England. April 30, 2015 https://www.lawctopus.com/academike/separation-of-powers-a-comparative-analysis-of-the-doctrine-india-united-states-of-america-and-england/
  • Constitutional Reform Act 2005Level: Board:AQA, Edexcel, OCR, IB https://www.tutor2u.net/politics/reference/constitutional-reform-act-2005
Books:
  • The Constitution of India.
End-Notes:
  1. Clinton v. City of New York, 524 U.S. 417 (1998) https://supreme.justia.com/cases/federal/us/524/417/ (Last visited on 20/9/2021)
  2. Wayman v. Southard, 23 U.S. 1 (1825) https://supreme.justia.com/cases/federal/us/524/417/ (Last visited on 20/9/2021)
  3. INS v. Chadha, 462 U.S. 919 (1983) https://supreme.justia.com/cases/federal/us/462/919/ (Last visited on 20/9/2021)
  4. Doctrine of Separation of Powers. By Nivetha https://www.legalserviceindia.com/legal/article-35-doctrine-of-separation-of-powers.html (Last visited on 23/9/2021)
  5. Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856) https://supreme.justia.com/cases/federal/us/59/272/
  6. Marbury v. Madison, 5 U.S. 137 (1803). https://supreme.justia.com/cases/federal/us/5/137/(Last visited on 23/9/2021)
  7. Separation of Powers: A Comparative Analysis of the Doctrine India, United States of America and England
    April 30, 2015 (Last visited on 23/9/2021) https://www.lawctopus.com/academike/separation-of-powers-a-comparative-analysis-of-the-doctrine-india-united-states-of-america-and-england/
  8. Constitutional Reform Act 2005Level: Board:AQA, Edexcel, OCR, IB
    https://www.tutor2u.net/politics/reference/constitutional-reform-act-2005' (Last visited on 24/9/2021)
  9. ibid
  10. Art. 50 separation of judiciary from executive The State shall take steps to separate the judiciary from the executive in the public services of the states.
  11. Kesavananda Bharati v State of Kerala (1973) 4 SCC 255. Doctrine of Separation of Power April 4,2015. https://www.lawctopus.com/academike/doctrine-of-separation-of-power/ (Last visited on 25/9/2021)
  12. Ram Jawaya Kapoor V State of Punjab. AIR 1955 SC 549. https://legalvoiceblog.wordpress.com/2016/12/02/ram-jawayya-kapur-vs-state-of-punjab-giving-touchstone-for-a-federal-constitution-via-separation-of-powers/ (Last visited on 25/9/2021)
  13. Indira Nehru Gandhi v. Raj Narain. 1975 Supp SCC 1. https://lawtimesjournal.in/indira-nehru-gandhi-v-raj-narain/ (Last visited on 25/9/2021)

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