Separation of Power: A Disputed Territory
Introduction
The theory of separation of powers constitutes a key tenet of democratic governance. The term "it" pertains to a political framework characterized by the division of powers among various departments of the government, with each branch exercising control over distinct aspects of governance.
The concept of the division of powers originated in ancient times. In his seminal work "Politics," Aristotle expounded upon the notion of the separation of powers, asserting that any constitution ought to incorporate a diverse system of governance comprising primarily three distinct branches: the deliberative, the executive, and the judiciary. The Roman Republic exhibited a comparable governmental system, establishing the principle of checks and balances within the nation.
Moreover, during the 17th century, when Parliament was established in England, the concept of three pillars of government was reaffirmed by John Locke, a prominent British politician, in his renowned work titled "Two Treatises of Government." However, Locke presented various distinct perspectives on this matter.
In the Indian context, rigorous adherence to the principle of separation of powers is not consistently observed. In contrast, a division of functions is adhered to. The governmental structure in India consists of three distinct branches, namely the legislative, the executive, and the judiciary. In a democratic society, it is imperative that the powers and functions of the several departments of government are clearly delineated and kept separate. These organs operate autonomously, carrying out their respective functions without mutual interference, thereby minimising the potential for conflict.
The Indian Constitution does not, however, provide for an absolute separation of powers. Instead, it provides for a system of checks and balances between the three branches of the government. The judiciary has the power to strike down any unconstitutional laws passed by the legislature.
The Juristic View on Separation of Power
In recent times, there has been a growing focus on the topic of separation of power, which has sparked considerable debate. This debate encompasses various aspects, such as the government's efforts to safeguard convicted Members of Parliament, the appointment process for Supreme Court Judges, and even disagreements within the judiciary. The misunderstanding of the definition of "power" and the false assumption that power is equivalent to property, as put forth by renowned legal scholar H.M. Seervai, are major causes of the conflict. Power can be seen as a tool utilised to achieve a desired outcome, and it should be granted to the entity that is most capable of accomplishing that outcome. In essence, the concept of separation pertains to the division of functions, and the classical theory of separation of powers can be understood as a mere 'doctrine of functional specialisation'.
However, it is widely acknowledged among those who prioritise political freedom that Montesquieu's concept of power monopoly, regardless of its definition, by any single entity within the various branches established and operating under a Constitution, whether written or unwritten, inevitably results in tyranny. Therefore, it is imperative to have a system of governance that incorporates the separation of powers in some capacity, wherein each distinct authority serves as a means to check and balance the exercise of others.
In broad terms, the domains of governance can be categorized into three main branches: the executive branch, which encompasses administrative functions and law enforcement; the legislative branch, responsible for the creation of laws; and the judicial branch, tasked with resolving conflicts pertaining to the creation, enforcement, and application of legal statutes.
Three Models of Separation of Powers
1.Montesquieu Principle of Rigid Separation of Powers
There are two commonly observed models of separation, one of which involves strict adherence to Montesquieu's principle of a rigid separation of powers among the three authorities. One instance that exemplifies this is the American Constitution, which serves as a governing framework for the United States.
In order to ensure the exercise of legislative, executive, and judicial power, distinct departments are established, with efforts made to maintain their separation and distinctiveness. However, provisions are also made to allow each department to serve as a check on the others, preventing excessive or ill-considered actions. The Executive Branch serves as a mechanism to restrain the legislature by exercising the power of veto. Conversely, the legislature acts as a check on both the other branches by its ability to establish regulations for the exercise of authority and by its power to impeach officials. Additionally, the judicial branch acts as a check on the legislature through its authority to invalidate.
2. The Westminster Model
The Westminster Model, a relaxed division of power, is based on the supremacy of Parliament. Before joining the European Union, England followed this model, where Parliament could modify legislation at its discretion. The judiciary's authority to review legislative actions was limited to scrutinising delegated legislation that exceeded the limits set by the statute. However, the English Constitution also contains a hidden mechanism called the "efficient secret," referring to the close relationship between the executive and legislative branches. The concept of parliamentary sovereignty and judicial review of legislative action has been modified following the British acceptance of the European Communities Act, 1972. The 1972 Act establishes that a UK Court is responsible for superseding domestic legal regulations that contradict Community Law regulations when issuing a definitive verdict. The executive and legislative powers remain interconnected, with the British Cabinet serving as a mechanism to unify and secure the bond between the legislative and executive branches.
3. The Westminster Model and English Constitution
The Westminster Model, which is based on the Supremacy of Parliament, is a more flexible way for England to divide power. Before Britain joined the European Union, Parliament could change laws whenever it wanted. The courts could only review actions taken by the legislature when delegated laws went beyond what was allowed. The "efficient secret," which is the close relationship between the executive and legislative branches, is written in the English Constitution. The European Communities Act of 1972 changed the idea of parliamentary sovereignty and the power of the courts to review what the government does. The British Cabinet brings the legislative and executive branches together and makes sure they stay connected.
4. Separation of Power in the Indian Context
As Acharya Kriplani stated during the early years of the Lok Sabha
"Let there be no camouflage. The legislature practically means the executive. It is absurd to say that the Legislature is a free body of people. Today, the Executive is the Legislature, but the Legislature may not be the Executive. The Executive is the Legislature in a party system democracy. In a centralised democracy, there is no difference."
The Indian Constitution is thus one of a kind model for Separation of Power, because it has a legislative, executive, and judicial branch, but there isn't a clear separation of powers. The Indian Constitution has the most power because the Parliament does not have it and has to follow what the Constitution says. There is a lot of power in the executive branch. The debate about the separation of powers should be seen in the context of the debates in the Constituent Assembly, which were mostly about how to separate the executive from the judiciary.
The Constitution tried to set up a parliamentary democracy, where the legislative bodies run the country with the support of the majority. The word "legislature" is often used to mean "executive," though, which makes it hard to tell them apart. The legislative, executive, and judicial branches work together more because of this, making it harder to tell their roles apart. The main goal of the Constitution was to set up a parliamentary democracy, in which the majority runs the legislative bodies. Every part of the government has become more alike over time, which makes it easy to see who is in charge of what.
Separation of Power V/s Checks and Balances
The distinction between the concepts of separation of power and checks and balances lies in their respective roles within governance. Separation of power is a fundamental principle that entails the allocation of state functions and powers across distinct branches, including the legislature, executive, and judiciary. Conversely, checks and balances refer to a set of mechanisms that enable each branch to restrict or exert influence over the others, with the aim of averting power abuse or excessive concentration.
The principle of separation of powers hence, aims to maintain accountability and independence in each branch of government while protecting the fundamental rights and freedoms of the population. To work effectively, each branch must have a certain level of interdependence and cooperation with other branches, and each branch should have the power to influence and exert authority over the others. This system ensures consistency and efficiency of the governing body while ensuring a balanced distribution of authority among different branches. Different countries have adopted unique systems for distributing power and creating mechanisms to ensure accountability, depending on their constitutional and political arrangements. Republic of India for example, operates under a system of checks and balances, where each branch has the power to exert control or influence over others, enhancing the coherence and effectiveness of the governing body while protecting the fundamental rights and freedoms of the population.
Judicial Review and Separation of Power
1. The Marbury Case
One illustrative instance of a seminal legal case pertaining to the doctrine of separation of powers an example of such a case is Marbury v. Madison, a landmark decision rendered by the United States Supreme Court in the year 1803:
The landmark case of Marbury v. Madison in the United States established the foundational structure of judicial review, conferring upon the judiciary the power to declare laws or actions as unconstitutional. The decision in question, which arose from a political disagreement, served to strengthen the independence and authority of the judiciary, thereby establishing limitations on the powers of the legislative and executive branches. This case established a precedent for subsequent constitutional and division of powers cases. The case thus established judicial review in the US, establishing separation of powers and legal authority while also limiting the legislative and executive branches' powers.
2. Judicial Review Structure in the United States of America
Article III of the United States Constitution sets up a system for judicial review based on this case. The judiciary has the power to say that laws or actions taken by other branches are unconstitutional.
Because of this, the Landmark Case is a key part of the separation of powers. In this way, it effectively sets up the independence and legal authority of the judiciary. It also sets limits on the power of the legislative and executive branches. Under Chief Justice Marshall, the Supreme Court faced a dilemma: grant Marbury's commission, potentially causing disapproval from President Jefferson, or deny it, resulting in Marshall's ruling. Marshall's ruling thus resolved the Supreme Court's dilemma by granting Marbury's commission, avoiding President Jefferson's disapproval, and ensuring the Court's rightful entitlement to its commission.
The individual ruled that the Judiciary Act of 1789 was unconstitutional, preventing the Supreme Court from issuing a writ of mandamus. Marshall argued that the Constitution is the highest law, invalidating any legislation contradicting its provisions. The judiciary is responsible for interpreting and implementing the Constitution, rendering any legislation unconstitutional. This decision established the authority of judicial review, mitigating potential conflicts with President Jefferson. This decision was significant in US history, solidifying the judiciary's role in safeguarding the Constitution and overseeing government branches. It thus set a legal precedent for future cases involving constitutional interpretation and power delineation among government branches.
3. Hon’ble Supreme Court of India’s Take on Separation of Power
The judiciary plays a crucial role in the system of separation of powers by engaging in the interpretation and application of the law, resolving legal disputes, and overseeing the administration of justice.
The judiciary serves as a mechanism for checks and balances on the legislative and executive arms of government through the exercise of judicial review. Judicial review refers to the authority vested in the courts to assess the constitutionality and legality of actions and legislation enacted by the executive and legislative branches, respectively. Should these actions and laws be deemed inconsistent with the Constitution or any other legal provisions, the courts possess the ability to nullify them. Judicial review is often regarded as a fundamental characteristic of a democratic and federal state, as it serves to uphold the principles of the rule of law, the separation of powers, and the checks and balances system.
Judicial review which, originated in the US with Marbury v. Madison in 1803 finds its application to the Indian context under the Articles 32 and 226 of the ‘Constitution of India’, which empowers the Supreme Court and High Courts to issue writs to uphold fundamental rights, implicitly recognizing judicial review. In accordance to the Article 13 of the Indian Constitution, the Supreme Court can declare any Parliament or state legislature law unconstitutional if it violates the Constitution. The judiciary can rule on the legality of central and state executive orders, ordinances, rules, regulations, notices, and other directives.
There are thus, two different ways to define the role of the judiciary in society: Judicial Review and Judicial Activism. Judicial activism means that the courts actively deal with public concerns, promote social justice, protect human rights, and protect the environment. Judicial review means that the courts declare laws to be invalid or fix problems with the law. This is done by making it easier to understand constitutional provisions, making rules easier to follow, and suing for the public good. People have said that judicial activism is good because it protects the rights of marginalised groups, makes government more accountable and open, and improves social welfare. But some people say that judicial overreach happens when the judiciary goes beyond what the Constitution allows it to do.
Judicial involvement in the allocation of power thus encompasses the following aspects: Exhibits a harmonious combination of judicial restraint and activism. And carries out duties in compliance with the constitutional framework. Recognises and acknowledges the functions of other branches of government. Maintains autonomy and upholds moral principles. It guarantees the safeguarding and advancement of individual rights and welfare.
4. Breach of Boundaries
In the case of Rai Sahib Ram Jawaya Kapur and Ors. Vs The State of Punjab , a 1955 Indian Supreme Court case, it was ruled that the executive branch's authority is proportionate to the legislative branches and that any attempt to usurp these powers is unlawful.
The court thus, held that the executive branch's power is equal to the legislative branches, and that the executive branch cannot legally take over the legislative or judicial branches' powers and duties. The court ruled in favour of Ram Jawaya Kapur and other petitioners who were questioning the legality of executive orders issued by the Governor of Punjab. The orders gave the government the power to take action against newspapers and printing presses accused of bad practices, violating their basic rights and not authorized by the law. The court upheld the orders as legal, arguing they were an example of the state's executive power. However, the court criticized the executive orders for going against the separation of powers, limiting press and speech rights, and not providing fair hearings or appeal options, resulting in decisions that were not made for good reasons.
Conclusion
Although there are some similarities, the legislature, executive, and judiciary have consistently supported a comprehensive "constitutional organization of legal powers." This arrangement recognizes the significance of incorporating checks and balances to ensure the achievement of the constitutional goals outlined in the Directive Principles. However, the Constitution clearly denies Montesquieu's idea of a balanced separation of powers by giving the judiciary the power to examine and assess the actions of the legislative and executive branches. There is a noticeable trend of establishing additional autonomous organisations, either through legislative measures (such as the National Judicial Appointments Commission Bill 2014) or judicial directives (such as the instructions for establishing a State Scrutiny Commission, a Police Establishment Board, and Police Complaints Authorities). These measures aim to enable individuals to monitor the exercise of power. Ackerman argues that a thorough understanding of the division of powers should recognize the distinct status of autonomous agencies as a separate element within the system of checks and balances.
The importance of a written constitution, which clearly defines the goals, responsibilities, and constraints on the exercise of those responsibilities by different authorities in order to accomplish these goals, cannot be emphasised enough in a country like ours. However, even though it is still in the initial phases of development, the Indian model of function distribution must conform to the principles specified in the Constitution. It is crucial for the judiciary to maintain its role as an independent interpreter of the Constitution in order to serve as a vital cornerstone in this evolutionary process.
In conclusion, it is pertinent to cite the perspectives of Justice P.B. Mukherjee regarding the subject matter of this article, namely, "The new jurisprudence, constitutional or otherwise, is not the erstwhile doctrine of 'Separation of Power' but the 'Doctrine of Co-Ordination and Co-Operation between the Legislature and the Judiciary."
References
1. Separation of Power in the Indian Constitution-BYJU’s. (2023).
https://byjus.com. Retrieved November 16, 2023, from https://byjus.com/free-ias-prep/separation-power-indian constitution
2. Ipleaders . (2023). Separation of Powers and its Relevance.
https://blog.ipleaders.in. . Retrieved November 20, 2023, from
https://blog.ipleaders.in/separation-of-powers-and-its-relevance
3. Seervai, H. M. (1970, January 1). The Position of the Judiciary under the Constitution of India. Sir Chimanlal Setalvad Lectures.
4. Cooley, T. (1972). A Treatise on the Constitutional Limitations . De Capo Press.
5. Paton . (2004). A Textbook of Jurisprudence (4th ed.). Oxford University Press.
6. Parliamentary Debates (Vol. 3). (1955). Loksabha Secretariat, 4990.
7. U.S. (1 Cranch) 137 (1803)
8. AIR 1955 SC 549, 1955 2 SCR 225
9. Mukharji, P. B., Lala, A., & Bhattacharyya, P. (2016, January 1). The New Jurisprudence.
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