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An analysis of the violation of Separation of Power

In India, the doctrine cannot claim any historical background. The legislature did not appear as a body separate from the executive till the middle of 19th century. The doctrine of separations of powers has not been accorded a constitutional status. It was only after the independence that a constituent assembly was constituted to draft a constitution for the country. There was a proposal[1] to incorporate the doctrine in the constitution but it was turned down.

The doctrine of separation of power is not followed strictly. Apart from the directive principles of state policy laid down in Article 50 which talks about the separation of judiciary from the executive, the constitutional scheme does not embody any formalistic division of powers. In India, there are three main categories of governmental functions: Legislative, Executive and Judiciary. In separation of power all the functions and powers of government should be separate to each organ and each organ has to be in free democracy.

No organ should interfere in the decisions of other organ or no organ can exercise powers of other organ. Doctrine of separation of power is accepted in India. Theory of separation of power signifies three formulation of Structural classification of Governmental powers. Same person should not form part of more than one of the three organs of the government[2]. One organ of government should not exercise the functions assigned to any other organ.

  • To identify the powers of the different organs of government.
  • The aim is to trace the history of the doctrine of separation of power by analysing the relevant case laws.
  • To find out the status of this theory as it exists today, in India.

According to the theory of Separation of Powers, these three departments of the Government must be in a free democracy, always be kept separate by three separate department of the Government. The functions of the legislature is to make laws while the function of the executive is to execute and that of the judiciary is to enforce and interpret them. None of the these three departments should interfere with exercise of the function of the other departments.

The theory signifies the following three different things[4]:
  • That the same person should not form more than one of the three departments of the government. Eg: Ministers should not sit in the parliament
  • That one department of the government should not interfere with any other department. Eg: The judiciary should be independent of the executive or that Ministers should not be responsible to Parliament.
  • That one department of the government should not exercise the functions assigned to any other department. Eg: The Ministers should not have legislative powers.
Thus, the doctrine lays emphasis on the separation both at the functional as well as personal level. In an ideal set up the separation in both these aspects should be clear and complete. Montesquieu for the first time formulated this doctrine systematically, scientifically and clearly in his book Esprit Des Los[5] published in the year 1748.

According to Montesquieu, If the executive and the legislature are the same body of person there would be danger of the legislature enacting tyrannical laws which the executive will administer to attain for its own ends. He further said that if one person could exercise both the executive and judicial powers in the same matter there would be arbitrary power which would amount to complete severity and there would be no objectivity of laws (4).

The doctrine of separation of powers means that no one person should be vested with all the three types of powers. The idea of this theory stems from the logical concept that if the law-makers should also be the administrators of law and justice, then the people at large will be left without remedy in case any injustice is done as there will be no superior authority.

The concentration of power in one person results in tyranny, and thus, for decentralisation of power to check arbitrariness, there is a need for vesting the governmental power in three different organs. In theory, the doctrine of separation of powers is supposed to have a classification of functions and corresponding organs.

But because of the complex nature of a modern state, where the process of law making, administration and adjudication cannot be clearly assigned to separate institutions, the application of this doctrine in strict sense is very difficult that's why there is functional and personal overlapping exist in our system. The basic concept behind this is that when a single person has a large amount of power, they can become dangerous to society and citizens.

Later Rousseau also supported the said theory propounded by Montesquieu. England follows the parliamentary form of government where the crown is a titular head. The mere existence of the cabinet system negates the doctrine of separation of power in England as the executive represented by the cabinet remains in power at the sweet will of the parliament.

Constitutional Position
The Constitution of India shows the idea of separation of power in an implied manner. By looking into various provision of the Constitution, it is evident that the Constitution intends that the powers of legislation shall be exercised exclusively by the executive and judiciary. Similarly, the judicial powers can be said to be vested with the judiciary. The judiciary is independent and there can be no interference either by the Executive or by the Legislature.

The executive powers of the Union and the state are vested in the president and the Governor respectively.
According to Indian Constitution, state shall take steps to separate the judiciary from the executive.

This is for the purpose of ensuring the independence of judiciary[6]. Constitutional provision provides validity of proceedings in parliament and the Legislatures cannot be called into question in any court within the territory of India[7]. Judicial conduct of a judge of the Supreme court and the High court cannot be discussed in the parliament and the state Legislature[8].

The executive power of the Union and the State shall be vested with the President and the Governor and according to Article 361 they enjoy immunity from civil and criminal liability[9]. Applying the doctrines of constitutional provision in the Indian scenario, a system is created where none of the department can usurp the functions or powers which are vested into another organ by express. Further the Constitution of India expressly provides for a system of checks and balances in order to prevent the arbitrary use of power. It is essential in order to enable the just and equitable functioning of such a constitutional system.

By giving such powers, a mechanism for the control over the exercise of constitutional powers by the respective organs is mentioned. This clearly indicates that the Indian Constitution in its function does not provide for a strict separation of powers in India. It creates a system consisting of the three departments of Government and confers them both exclusive and overlapping powers and functions. Thus, there is no absolute separation of function between the three departments of Government.

Check And Balance Theory
Check and Balance is an internal control mechanism in which to avoid mistakes, error and fraud in the output. These are commonly used in the accounting and finance since this the common grounds for errors and fraud. The accounting and finance unit is susceptible for errors and fraud so there is a segregation of incompatible duties. Check and Balance can also be implemented in the administrative agencies since there is an organizational structure within the company.

For instance, in the hiring process the administrative staff is the one preparing the background checks and performs related duties in the hiring of the people. However, after the applicants passed the examination the supervisor will take place and will assess the ability, skills and attitude of the applicant if he/she can do the work. After the assessment the end-user will do some final testing and approve the employment of the applicant.
  1. Judicial Control over Legislature

    • Article 13: This section talks about the Judicial Review, under this judicial review the laws made by the legislature and this process is known as judicial review. It refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them to conflict the Constitution of India. The Constitution of India is supreme law of the land.

    • Article 145: Under this Article, Supreme Court has right to make law for regulating its own procedure.

  2. Judicial Control over Executive

    • Article 32: Under this Article, one can file writ directly to the Supreme court in case some fundamental rights are infringed.
    • Article 226: Under this Article, one can file writ in the High court directly if any fundamental rights are violated.

  3. Legislative Control over Executive

    • Article 61: Under this Article, the procedure for impeachment of president is mentioned. If president violates any constitutional provision, then parliament has the power to impeach the president.
    • Article 75: Clause 5 of this Article, talks that the council of ministers are collectively responsible for the House of People.
    • Article 352: Under this Article, the parliament passes a resolution for passing the National Emergency.
    • Article 123: Parliament passes an ordinance, under this Article president has rights to make ordinance when the parliament is not in session.

  4. Legislative Control over Judiciary:

    • Article 124: Under this Article, it discussed about the establishment of Supreme court and Removal of Judges. Legislature has the right to making laws for regulating on how the court will proceed.

  5. Executive Control over Legislative and Judiciary

    • Article 111: When bill is passed by both the houses of Parliament it have the President's (Executive body) consent. President has three powers, i.e, to give his consent, to withhold his consent, to return the bill.

    • Article 103: Disqualification and removal of member of parliament. President can remove on the grounds of violation of power. President removes them by taking opinion of the election commission.

Functional Overlapping

The President's function and powers are enumerated in the Constitution itself. The Parliament is competent to make any law subject to the provisions of the Constitution and there is no other limitation on is 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 powers of judicial review and they can declare any law passed by the parliament or the legislature unconstitutional. In India not only functional overlapping is there but also personal overlapping exists.

The Supreme court has the power to declare unconstitutional any laws passed by the legislature and the action taken by the executive if they violate any provision of the constitution. Even the powers to amend the constitution by Parliament is subject to the review of the court. The President of India who is the executive head exercises law-making powers in the shape of ordinance making power and also the judicial powers[10]. The council of ministers is selected from the legislature and is responsible to the legislature.

Pratibha v State of Karnataka[11]:

The Supreme Court observed that since the executive power of the state executive is co-extensive with that of the state legislature, it follows that the state executive may make rule regarding any matter within the legislative competence of the state legislature, without prior legislative authority, except where a law is required because of the rule so framed would violate any provision of the constitution which requires legislation.

Shri Sitaram Sugar Co. Ltd. V Union of India[12]:

The Supreme Court has observed that in general, the court would not exercise its power of judicial review to interfere with a policy made by the government in exercise of its power under Article 162, particularly where it involves technical, scientific or economic expertise. Proper functioning of state administration should not be jeopardised owing to ego clashes between high officers. Such officers should be aware that power should be exercised for public good, and not for personal benefit.

Harish Uppal v Union of India[13]:

The Supreme court has observed that the Supreme court power to frame rules including rules regarding condition on which a person including an advocate can practice in the Supreme court. Such a rule would not be valid and binding on all. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of Bar Councils[14].

Judicial Opinion On Separation Of Power

Delhi Laws Act, 1912, Re[15]:
The court held by a majority of 5:2, that the theory of separation of powers is not [art and parcel of our constitution but it was also held that except for exceptional circumstances like in Article 123 and 357, it is evident that constitution intends that the powers of legislation shall be exercised by the Legislature.

Ram Krishna Dalmia v Justice Tendolkar[16]:

Justice Das observed that the constitution does not express the existence of separation of powers, and it is true that division of powers of the government into legislative, executive and judiciary is implicit in the constitution but the doctrine does not form an essential basis of foundation stone of the constitutional framework as it does in U.S.A.

Asif Hamid v State of Jammu & Kashmir[17]:

The Supreme Court has observed that Legislature, executive and judiciary have to functions within their own sphere as mentioned under the constitution. The functioning of the democracy depends upon the strength and independence of each of its departments. Judicial review is a powerful weapon to restraint unconstitutional exercise of power by the legislature and executive. Judicial review is like social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint.

Ram Jawaya Kapoor v State of Punjab[18]:

The court observed that the doctrine of separation of power is not expressly mentioned in the constitution, but it also stands to be violated when the functions of one department of Government are performed by another.

Indira Gandhi v Raj Narains

In this case, an appeal was filed by the appellant against the decision of the Allahabad High court invalidating Smt. Indira Gandhi's election on the ground of corrupt practices. In the meantime, the Parliament passed the 39th Constitutional Amendment which introduces and added a new Article 329 A to the Constitution of India. Stated by Article 329A that the election of the Prime Minister and the speaker cannot be challenged in any court in the country.

It can be rather challenged before a committee formed by the Parliament itself. Although the Supreme court validated the election of Indira Gandhi but declared the 39th Amendment to be unconstitutional as it violated the basic structure of the constitution. The 39th Amendment was made to validate with retrospective effect the election of the then Prime Minister which was set aside by the Allahabad High Court.

Issue: The main question involved in this case was of the validity of the clause (4) of the Constitution 39th Amendment Act, 1975. The contention was that this clause in question not only wiped out the high court judgement but also the election and the law relating thereto.

Judgement: Supreme court invalidated clause (4) of Article 329A inserted in the Constitution Act, 1975 to immunise the election dispute to the office of the prime Minister from any kind of judicial review. Indira Gandhi won the election by misusing her powers. Therefore, the elections are held void under Article 329A clause 4 of the Constitution. In this case it is held that Separation of Power is the basic feature of the Constitution.

Kesavananda Bharati v State of Kerala

Facts: In this case writ petition was filed by the petitioner under Article 32 of the Constitution for enforcement of his fundamental right under Article 14, 16, 19(1)(f), 25 and 31 of the Constitution. He prayed that provision of Kerala Land Reforms Act, 1963 as amended by Kerala Land Reforms Act, 1969 declared unconstitutional.

Ultra vires and void on the ground that some of its provision are violative of fundamental rights. During pendency of the Writ parliament passed there new Amendment those amendments are 24, 25 and 29th Amendment. Petitioner also challenged the validity of these three new amendments.

Issue: Whether land laws challenged by way of writ petition are in consonance with Article 31C of the Constitution?
Judgement: The basic structure theory passed in this case. It was held that parliament has limited power to amendment of Constitution but the basic structure of the constitution cannot be amended. Parliament has power to amend or omit laws and rules even it has power to amend Constitution also. But, this power is limited. There is no such power to parliament for amendment of the Constitution unless, there is no default or anything which is not for the welfare or benefit of public. Therefore, the basic structure of the constitution cannot be amended.

I.C.Golaknath v State of Punjab:

The Supreme court took the help of doctrine of basic structure as propounded in Kesavnanda Bharati case[19] and said that 9th schedule is violative of this doctrine and hence the 9th schedule is violative of this doctrine and hence the 9th schedule was made amenable to judicial review which also forms part of the basic structure.

The Constitution brings into existence different constitutional entities. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres given to them.

Comparison Between UK And USA

  • Doctrine of Separation of power has been accepted and strictly adopted by US constitution while not accepted strictly in UK.
  • Integration of power has not been adopted in the UK.
  • Legislative powers are vested in the Congress. Executive power vested in the President. Judiciary power vested to the Supreme court and its subordinate court of the US.
  • In England all three powers are vested in three separate organs of the government and each one has its peculiar features but, there is sharing out of the powers of the government.

Outcome Of Hypothesis

The Doctrine of Separation of Powers suffers from inherent and not absolute limitations. The theory has not been codified as such and the only defects that can be drawn, are the ones which have been experienced, after its practical application.
  • Ram Jawaya Kapur v. State of Punjab does not recognize the principle fully but makes only a reference to it. The theory was given full recognition in a plethora of cases after the judgment in this case.

  • It can be said, that application of the doctrine in its strictest sense is not only undesirable but also impracticable and considering the situation as it exists today, the system of checks and balances has become a practical necessity for better functioning of the Government.

The aim of doctrine of separation of power is to bring conclusiveness in the functioning of the three organs. No organs should perform functions that belong to the other. Though, theoretically, the doctrine of separation of powers was very sound, many criticism have been brought forward when it was sought to be applied in real life situations.

Some of the criticism:
  • Division of function:

    This doctrine is based on the assumption that the three functions of the Government are independent and distinguishable from one another. But in fact, it is not so. There are no watertight components. It is not easy to draw a demarcating line between one power and another with mathematical precision.

  • Adherence to it not possible to welfare state:

    It is impossible to take certain actions if this doctrine is accepted in its entirety. Thus, if the legislature can only legislate, then it cannot punish anyone who commits a breach of its privilege, nor can it delegate any legislative function even though it does not know the details of the subject matter of the legislation and the executive authority has expertise over it, nor could the courts frame rules of procedure to be adopted by them for the disposal of cases. Separation of powers thus can only be relative and not absolute.

  • The modern state is a welfare state and it has to solve complex socio-economic problems and in this state of affairs also, it is not possible to stick to this doctrine. Enforcement of rigid conception of separation of power would make modern government impossible. Strict separation of power is a theoretical absurdity and practically impossible.

  • Practical difficulties in its acceptance:

    In practice it has not been found possible to concentrate power of one kind in one organ only. The legislature does not act merely as law making body, but also act as an overseer of the executive, the administrative organ has legislative function. The judiciary has not only judicial functions but also has some rule making powers.

  • The modern interpretation of the doctrine means that the discretion must be drawn between essential and incidental powers and one organ of the government cannot usurp or encroach upon the essential functions belonging to another organ but may exercise some incidental functions.

  • Although Montesquieu doctrine aims is to secure the liberty and freedom of the individual, yet it is impossible to achieve the same through the mechanical division of functions and powers.
For freedom and liberty, it is essential that there should be rule of law and impartial and independent judiciary and eternal vigilance on the part of the subjects.

Some have argued that while functions may be demarcated powers should always remain supreme. But it is impossible to perform functions without the necessary powers. At one point of time this theory held great value against the despotism of a king and later of a parliament. Such despotism does not exist today. The modern day governments require protection against the domination of parliament and of civil servants. The separation of powers is too mechanical in nature to be of any avail against these types of domination.

What is required is not separation of powers but coordination or articulation of powers. Although this doctrine of separation of powers ensures a certain degree of efficiency it can even give rise to jealousy, suspicion and internal friction. In the words of Finer, the theory of separation of powers throws the government into alternative conditions of coma and convulsion.

The doctrine of separation of power has come a long way from its theoretical form. The more separation of powers between the three departments is not sufficient for the elimination of dangers of arbitrary government. Therefore, a system of checks and balances is a practical necessity in order to achieve the successful end of the doctrine.

Such a system like separation of power is necessary in order to strengthen its actual usage. It is evident that governments in their actual operation do not opt for the strict operation of powers because it is impracticable, however, application of this concept can be seen in almost all the countries in its mixed form.

Doctrine of Separation of Power in today's context of liberalizations, privatizations and globalizations cannot be interpreted to mean either separation of powers or checks and balance or principle of restraint but community of powers exercised in the spirit of cooperation by various departments of state in the best interest of the people. It is to be noted that the doctrine of separation of powers should not be taken to mean that the executive and the legislature cannot be directed by the judiciary to discharge their functions if they are found inactive in discharging of the function assigned to them by the constitution.

The supreme court has been made the guardian and protector of the constitution and therefore it can direct the legislature and executive to discharge their functions properly. The judiciary in India, in addition to the judicial functions, has been assigned the functioning to see that the constitution is not violated by any authority including the executive and the legislature. For the maintenance of rule of law in the country it is necessary that each department of the government perform its functions properly.

  • Separation of power is a Doctrine which is made great thought.

  • Concept behind this Doctrine is really appreciable. Because powers in hands of a single person can make him corrupt or arrogant.

  • All powers in one hand means violation of rights of public and no decision will be for the benefit of public in such case. Therefore, the powers are distributed among the three separate organs of the government.

  • Separation powers are given to each organ still these organs exercising powers of other organs. Such exercise of powers of one organ by another organ is not the violation of separation of power. Such process is known as delegated legislation.

  • This concept gives flexibility to Constitution from the doctrine of separation of power.

  • Delegated legislations plays an important role in the constitution because sometimes it is necessary to take decision with the help of other organ or in any situation like when parliament is not in session if that some emergency comes in front of government who will handle the situation. So, for that circumstances delegated legislations is very important.

  • It can be said that the government should be for the benefit of the public and for the public welfare. But, welfare or justice is not a thing which can only be feel so it can also be visible Justice must not only done but also appears to be done.

[1] Proposal proposed by Prof. K.T. Shah, a member of constituent assembly
[2] minister should not sit in the parliament
[3] AIR 1959 SC 549
[4] Wade and Phillips
[5] The Spirit of the Laws
[6] Article 50
[7] Article 122 and 212
[8] Article 121 and 211
[9] Article 53 and 154
[10] Article 103(1) and 217(3)
[11] AIR 1991 Kant 205
[12] AIR 1990 SC 1277
[13] AIR 2003 SC 739
[14] Article 145
[15] AIR 1951 SC 332
[16] 1959 SCR 229
[17] AIR 1989 SC 1899
[18] AIR 1955 SC 549
[19] AIR 1973 SC 1461

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