Doctrine Separation of Powers: The Indian Perspective

Reading time : 10 minutes

Introduction

The accumulation of powers, legislative, executive and judiciary, in the same hands, whether of one, few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” This statement by James Madison, the former American president aptly explains the importance of the concept of separation of powers. This doctrine of separation of powers was first propounded by Jean Jacques Rousseau. He divided the powers of the government under three heads, continuous legislative power, discontinuous legislative power and federative power. Discontinuous legislative power comprises of the legislative, continuous legislative power includes executive and judiciary while the federative power consists of the foreign powers. The doctrine in its original form that was introduced by thinkers like Montesquieu is not followed in any of the nations who claim to be practicing this doctrine. India also practices doctrine of separation of powers but in a flexible manner.

The doctrine has the following important prerequisites-

1. The same person should not form part of more than one of the three organs of the government.

2. One organ of the government should not interfere with any organ of the government.

3. One organ of the government should not exercise the functions assigned to any other organ.[1]

This doctrine is followed in countries like UK, USA, France and Australia but nowhere can we see it being rigidly followed. In India we have made alterations to all these essential elements according to our needs. We believe in the concept of ‘Power corrupts and absolute powers completely’ but our finger is also kept firmly on the thought, ‘Necessity of the mother of invention’. We have invented a plethora of ways wherein we can exercise the doctrine.

The Separation in the real sense

Indian constitution does not explicitly mentions the doctrine of separation of powers. Though, this doctrine finds way in our constitution through several articles. Article 50 of the Indian constitution lays down Separation of judiciary from executive. It states that the State shall take steps to separate the judiciary from the executive in the public services of the State. In the civil law legal system we observe that the judges play an inquisitorial role i.e. they participate in the inquiry of the case and serve the functions of the executive i.e. the police etc. We have the common law legal system which is adversarial. The involvement of judges in the inquiry is nil and they perform the exclusive function of declaring the final verdict after patiently listening to both the sides. Article 50 of our constitution, points towards the same. The judges only perform the judicial function keeping away from the functions of the executive. The law making responsibility has been given to the parliament of the country. To ensure that the parliament makes the laws freely and with zero interference, we have article 122- Courts not to inquire into the proceedings of the parliament. According to it,

  1. The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure
  2. No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

It ensures that the legislative is kept in one slot and the judiciary in the other. If one could knock the doors of the court alleging defamation then no laws could have been formulated. Each time while discussion, the parliamentarians would have felt the threat that they would be charged or so. On the other hand, article 121 puts a restraint on the parliament from discussing about a judge of either the Supreme Court or the high court in the discharge of his duties except when passing a resolution of his removal. On the similar lines, we have article 212-   Courts not to inquire into proceedings of the Legislature. This article says-

(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

Then we have article 53 and 154 which pen down that the executive power of the union shall be vested in the president and the executive power of the state shall be vested in the governor.

Article 361 of our constitution, immunes the president and governor from being answerable to any court in exercising of their powers and duties. Thus, through all these articles of the Indian constitution we have ensured that the powers are separated and there are enough checks and balances to prevent encroachment.

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The flexibility

We have made the system flexible by introducing appropriate alterations. The concept of delegated legislation is one such example. According to this concept, the Legislature has been given the power to delegate its functions to other authorities (executive), to frame the policies as required and instructed by the legislature. In the case of D. S. Gerewal v. State of Punjab, the Supreme Court held that Article 312 of the Constitution of India deals with the powers of delegated legislation. Justice K.N. Wanchoo observed “There is nothing in the words of Article 312 which takes away the usual power of delegation, which ordinarily resides in the legislature.[2] The president performs the function of the executive. He is the nominal head of the country. But his function is not just an executive one. Chapter III of our constitution lays down legislative powers of the president. The president promulgates ordinances under article 123.  An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament. This illustrates that we have not formed water tight compartments. The powers are intermixed, the president can serve a legislative function but as a subsidiary power. We often hear of the president pardoning the capital punishment granted to a criminal. One can categorize this pardon giving power of the president as a judicial function. The judiciary has the duty to grant punishments and granting capital punishment is one of the works of the court under the Indian penal code (IPC). Under Article 72 of the Constitution, the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death. The president thus performs legislative, executive and judicial functions, the executive function being his main business.

Benefits of separation

In 1748, Montesquieu said, “When the legislative and executive powers are vested in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”  The separation of powers restricts any of the organs of the government to become all powerful. The authority and power is distributed and this doctrine acts as a system of checks and balances. It is often said, “Power corrupts and absolute power corrupts, absolutely.” The accumulation of powers is put an end to through this doctrine. Like in a family, each member keeps an eye on the other and prevents him from being deviant. Drawing the same analogy, we can say that each organ of the government like a family member, keeps a check on the other and when he adopts a wrong path, the other organ corrects him. In Keshavanada Bharti case[3], the honorable court held that the constitution can be amended but there are some basic doctrines of the constitution that are not amendable. The government had tried to take away the right to property and the court corrected the wrong decision. Also, when the judiciary goes wrong, the legislature comes to the rescue. The judges of the Supreme Court and the high courts can be impeached by the parliament with the assent of the president in accordance with article 124(4). Continuous vigilance is there and thus the chances of mistake are reduced.

The problem

‘Perfection is a utopian concept.’ Nothing is perfect in this world of flaws. We have tried to ensure that we adopt the doctrine of separation of powers and adapt it according to our own country. But there have been situations where these organs of the government have locked horns. This decision of one was overruled by the other. In P.A Inamdar v. state of Maharashtra[4], the Supreme Court held that the unaided private institutions are not bound to follow the reservation policy of the government. The decision was later overruled when the government introduced amendment to article 15 and introduces sub-clause (3). The NJAC judgment[5] was no less controversial. The 99th amendment to the Indian constitution by the legislature was declared unconstitutional by the Supreme Court. It held that the Supreme Court should be autonomous when it comes to the appointment of judges and no one should have a say in it.  The Supreme Court’s order and directions to the speaker of Jharkhand assembly is one of the important issues to discuss the tug of war prevailing between judiciary and legislature. To react upon such issue, an emergent conference of the Presiding officers of legislative body of India was convened on 20th march, 2005 and expressed their concerned as “such orders passed by the courts repeatedly which tend to disturb the delicate balance between judiciary and legislature.[6]  It is often said that too many vessels make a noise, the same is here. The three organs are bound to conflict and there is no exit door to escape from such conflicts.

Conclusion

Doctrine of separation of power is as important as water not only for India but for any democracy. We cannot imagine the smooth functioning of a country without this indispensable doctrine. Though we do not follow it in the strictest sense but the flexibility that we have introduced ensures that everybody’s interests are met. The judiciary imparts justice, the legislative makes law and the executive is able to get those laws followed, without any threat or interference. Along with it, they are always corrected by each other, whenever something goes wrong. The doctrine of separation of powers is an apt system that portrays how checks and balances are made.


[1] Administration Law, IP Massey ( Eastern Publishing (P) Ltd; Lucknow)

[2] 1959 AIR 512                                                                                                                    

[3] (1973) 4 SCC 225

[4] (2005) 6 S.C.C. 537

[5] (2016) 4 SCC 1

[6] Pandya, Khushi, Separation of Powers – An Indian Perspective (April 22, 2013).

Available at SSRN: https://ssrn.com/abstract=2254941 

AuthorAnushka Singhal, Symbiosis Law School, Noida

Editor: Kanishka VaishSenior Editor, LexLife India.

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