ADMINSTRATIVE LAW

Doctrine of Separation of Powers

The Indian Perspective

Srinivas Atreya519

July 2011

Introduction

“The legislative department shall never exercise the executive and judicial powers, or

either of them; the executive shall never exercise the legislative and judicial powers, or either

of them; the judiciary shall never exercise the legislative and executive power, or either of

them; to the end that it may be a government of law and not of men”

- The State Constitution of Massachusetts

The separation of powers, in practice if not in form, is considered to be a

prerequisite for the effective functioning of a democracy. It’s a paradoxical concept that like

the ‘rule of law’ that has superficial simplicity as well as a deeper complexity. Broadly

speaking, it is based on the idea that governmental powers are divisible into three

categories – executive to promulgate laws, legislative to make laws and judicial to apply

and interpret the laws. The idea of separation of functions stems from the legal conclusion

that if the law-makers should also be the administrators and dispensers of law and justice,

then the people at large will be left without a remedy, for there will be no superior

authority in case any injustice occurs. In essence, the principle of separation of powers

deals with the mutual relations among the three organs of the government, namely

legislature, executive and judiciary.

The doctrine attempts to bring exclusiveness in the functioning of the three organs and

thus a strict demarcation of power is the aim sought to be achieved as the it signifies the

fact that one person or body of persons should not exercise all the three powers of the

government. However in practice, each organ while performing its activities tends to

interfere in the sphere of working of another functionary because a strict demarcation of

functions is not possible in their dealings with the general public. Thus, even when acting in

ambit of their own power, overlapping functions tend to appear amongst these organs.

The Theory of separation of powers was propounded and popularized by the French

political analyst Montesquieu. Published in 1748, his work on the theory titled ‘Esprit des

Lois’ (The Spirit of the Laws), extensively discussed the doctrine and gave it a systematic

and scientific design. The inspiration of this doctrine may have originated in the

Aristotelian era and was consequently explored by the 16th and 17th century political

philosophers John Bodin and John Locke.

According to Montesquieu’s conception of the doctrine of separation of powers no one

person or body should be vested with all three types of powers and there must be a

division of functions on the basis that the legislature should make laws but not administer

or enforce them, the executive must administer the made laws but neither influence the

legislature in the making of the laws nor stand in judgment of the same and the judiciary

must determine rights and uphold justice without taking over the functions of law-making

or administration. It was further explicated that such separation is necessary in order to

ensure that justice does not become arbitrary and capricious.

It is interesting note that the value of this doctrine lies in that it attempts to preserve

human liberty by avoiding the concentration of powers in any one person or body of

person. Montesquieu propounded this theory after careful consideration and study of

numerous crucial event and factors. First, he learnt from the historical trends of the

despotic Tudors and the absolutist Stuarts that freedom could not be secured if the

executive and legislative powers were held in the same hands. Having personally

experienced the tyrannies in monarchical France, he felt that such a combination of powers

would lead to the enacting of oppressive laws which the executive would administer to

attain its own ends. Montesquieu also carefully followed the events unfolding on the other

side of the channel prior to determining what he thought was the best course of action. In

England, the inception of the Magna Carta and the Act of Settlement, drastically curtailed

the powers of the monarch vesting them instead with Parliament and Courts.

Though, there was no clear separation of powers, the positive effect of the reduced

prerogative powers of the King cemented Montesquieu’s belief that the secret to liberty is

the separation and functional independence of the three departments of Government.

“All would be lost”, he wrote, “If the same man or the same ruling body, whether of nobles

or the people, were to exercise these three powers, that of law making, that of executing

public resolutions and that judging crimes and civil causes”

In the modern era, it is widely accepted that for a political system to be stable, the

receptacles of power need to be balanced off against each other. In this regard the doctrine

of separation of powers can be put into applied for different purposes. It may be used in

support of a principle of allocation of functions to the most appropriate body in the State,

whether a tribunal, a court, an elected assembly or a body of elected or appointed officials.

On the other hand, the separation of powers may also be invoked in support of

arrangements for preventing the abuse of power in situations where public powers are

distributed amongst different institutions in such a manner that each has the necessary

freedom for its own actions and simultaneously possess a concurrent capacity to check the

actions of other power-holding bodies in the event of a misuse of their power – a system of

checks and balances. The doctrine enables the creation of a merged and balanced

government, with safeguards to check excesses no matter where they arise. As stated by

Vile, this “diffusion of authority among different centers of decision-making is the

antithesis of totalitarianism and absolutism”.

Whether accepted by express provision or necessary implication, the doctrine of

separation of powers, in its essence, has become an integral part of the governmental

structures of numerous states. In theory, the doctrine of separation of powers has been

traditionally supposed to require a threefold classification of functions and corresponding

institutions. But as a result of being placed in the context of the diverse and complex nature

of a modern state, where the process of law making, administration and adjudication are

neither clearly demarcated nor assigned to separate institutions, even the previously

existent boundaries of separation are becoming more blurred. As this is a matter of

allocating functions and powers in such a way that they can be operated with the greatest

possible effectiveness, the need for absolute separation has been upstaged by the need for

efficient, regulated and non-arbitrary governmental administration.

As stated by Madison, “The accumulation of all powers, legislative, executive and judicial, in

the same hands whether of one, a few, or many and whether hereditary, self-appointed or

elective, may justly be pronounced the very definition of tyranny”. And it is in the

prevention of this tyranny that the doctrine of separation of power holds its greatest

importance.

In order to understand the development and practical implications of the Doctrine of

Separation of Power, it is essential to understand this juristic conception in light of the

Constitutions and Administrative setups of the United States of America and the United

Kingdom which are more or less the inspiration to the Indian conception of the doctrine.

It is in the Constitution of the United States of America that Montesquieu’s doctrine of

separation of powers has found its highest recognition. The Constitution accepts the

separation in explicit terms and specifically provides for the division of functions and

powers amongst the three organs of government as a part of its basic structure. Article I of

the US Constitution assigns legislative power to the Congress while Articles II and III vest

executive and judicial powers in the President and the Courts of America respectively. In

other words, this implies that as per the constitutional plan, the constitution of the US is

desirous of a system of organization characterized by the independence of power and

action of the Congress, the President and the Courts respectively. However, the practical

implementation of such independent functioning has proven unsuccessful and the actual

position is quite different.

Louis Leventhall Jaffe has aptly summed up the practical interpretation of the doctrine in

the US by stating that

“The separation of powers principle is a fundamental and valid dogma of the US

constitution, the primary purpose of which is the preservation of political safeguards

against the capricious exercise of power. The logic behind such division is the logic of

polarity and not strict classification. In many crucial instances where there is pressure for

the transfer of old, or for the creation of new functions the logical implications become

conflicting and it should be kept in mind that the purpose of the said division is not to

externally stratify the governmental arrangements.”

Separation of Powers in India

The Constitution of India embraces the idea of separation of powers in an implied manner.

Despite the absence of an express provision recognizing the doctrine of separation of

powers in its absolute form, the Constitution does make the provisions for a reasonable

separation of functions and powers between the three organs of Government. Though the

executive power of the Union and of the States is vested by the Constitution in the

President and Governor by Articles 53(1) and 154(1) respectively, there is no

corresponding provision vesting legislative and judiciary provisions in any particular

organ. However, the powers and function of each must be found from the Constitution

itself. Thus subject to exceptional provisions like Articles 123, 213 and 357, it is evident

that the Constitution intends that the powers of legislation shall be exercised exclusively by

the legislature. Similarly, the judicial powers can be said to vest with the judiciary.

Applying the doctrines of constitutional limitation and trust within this scenario, a system

is created where none of the organs can usurp the functions or powers which are assigned

to another organ by express or necessary provision, neither can they divest themselves of

essential functions which belong to them as under the Constitution.

In reality however, there is no absolute separation of functions between the three organs of

Government. The President being the head of the Union exercises his powers

constitutionally on the aid and advice of the Council of Ministers. On the other hand, he is

given exclusive legislative powers for the making and promulgation of ordinances even

during the course of recess of Parliament. He is further empowered to make laws for the

State after emergency has been declared under Article 356 of the Constitution and

exercises purely legislative functions as provided under Articles 372 and 372-A. The

President is also assigned judicial functions to the extent of deciding cases of

disqualification of the House of Parliament as also granting pardon in exceptional

circumstances. Similarly, parliament is also granted judicial functions in that they can

consider the questions of breach of any parliamentary privileges and where the breach is

established they have the power to punish for contempt. Also, in the event of impeachment

of the President, one of the Houses acts as the prosecutor and the other as investigator in

order to determine whether the charges are sustainable or not as under Article 61 of the

Constitution. In a further example of the merger of functions, the High Court’s within a

certain marginal sphere perform functions that are administrative in nature. Their power

of supervision over subordinate Courts as provided under Article 227 demonstrates a

function that is administrative rather than judicial. They also possess legislative powers to

the extent that they are allowed to frame rules for their efficient functioning.

Besides the functional overlapping, the Indian system also lacks the separation of

personnel amongst the three departments. An inevitable part of a Parliamentary system of

government, this can be seen under Article 75(5) of the Constitution which states that a

person in order to be a member of the Council of Ministers must necessarily be a member

of either House of Parliament.

Further, the Constitution of India expressly provides for a system of checks and balances in

order to prevent the arbitrary or capricious use of power derived from the said supreme

document. Though such a system appears dilatory of the doctrine of separation of powers,

it is essential in order to enable the just and equitable functioning of such a constitutional

system. The constitution within its articles provides for a machinery of legislative

impeachment of judges and executive officers, executive control over the appointment of

judges and the power to veto legislation made by parliament and most importantly, confers

the judiciary with the power of judicial review over legislation and executive action.

Through the conferment of the said powers, a mechanism for the control over the exercise

of constitutional powers by the respective organs is established. The constitution creates a

system consisting of the three organs of Government and confers upon them both exclusive

and overlapping powers and functions where in essence there is separation of functions

rather than powers. This is illustrated in the case Ram Jawaya v. State of Punjab1

The debate about the doctrine of separation of powers, and exactly what it involves in

regard to Indian governance, is as old as the Constitution itself. It was extensively debated

in the Constituent Assembly. It also figured in various judgments handed down by the

Supreme Court after the Constitution was adopted. It is through these judicial

pronouncements, passed from time to time, that the boundaries of applicability of the

doctrine have been determined.

In the re Delhi Laws Act case, it was for the first time observed by the Supreme Court that

except where the constitution has vested power in a body, the principle that one organ

should not perform functions which essentially belong to others is followed in India. By a 1 AIR 1955 SC 549

majority of 5:2, the Court held that the theory of separation of powers though not part and

parcel of our Constitution, in exceptional circumstances is evident in the provisions of the

Constitution itself. In the decision given by Justice Kania, he opined that “Although in the

constitution of India there is no express separation of powers, it is clear that a legislature is

created by the constitution and detailed provisions are made for making that legislature

pass laws. Does it not imply that unless it can be gathered from other provisions of the

constitution, other bodies-executive or judicial-are not intended to discharge legislative

functions?”

In essence, this judgment implied that all the three organs of the State, i.e., the Legislature,

the Judiciary, and the Executive are bound by and subject to the provisions of the

Constitution, which demarcates their respective powers, jurisdictions, responsibilities and

relationship with one another. Also, that it can be assumed that none of the organs of the

State, including the judiciary, would exceed its powers as laid down in the Constitution.

While there was a broad agreement on the principles put forth by this judgment, in

practice, from time to time, disputes continued to arise as to whether one organ of the State

had exceeded the boundaries assigned to it under the Constitution.

This question of what amounts to an excess, was the basis for action in the landmark

Kesavananda Bharti2 case of 1973. The question placed before the Supreme Court in this

case was in regard to the extent of the power of the legislature to amend the Constitution as

provided for under the Constitution itself. It was argued that Parliament was “supreme”

and represented the sovereign will of the people. As such, if the people’s representatives in

2 AIR 1973 SC 1461

Parliament decided to change a particular law to curb individual freedom or limit the scope

of judicial scrutiny, the judiciary had no right to question whether it was constitutional or

not. However, the Court did not allow this argument and instead found in favor of the

appellant on the grounds that the doctrine of separation of powers was a part of the “basic

structure” of our Constitution. As per this ruling, there was no longer any need for

ambiguity as the doctrine was expressly recognized as a part of the Indian Constitution,

unalterable even by an Act of Parliament. Thus, the doctrine of separation of powers has

been incorporated, in its essence, into the Indian laws.

The doctrine of separation of powers was further expressly recognized to be a part of the

Constitution in the case of Ram Jawaya Kapur v. State of Punjab, where the Court held that

though the doctrine of separation of powers is not expressly mentioned in the Constitution

it stands to be violated when the functions of one organ of Government are performed by

another.

However, it was after the landmark case of Indira Nehru Gandhi v. Raj Narain3 that the

place of this doctrine in the Indian context was made clearer. In this, the election of Mrs.

Indira Gandhi, who was the Prime Minister of India, was challenged in the Allahabad High

Court on the grounds of violation of the election code and misuse of power during her

election campaign. The Allahabad High Court found the claim into alleged violations by the

appellant to be valid and hence cancelled her candidature. Subsequently, a cross-appeal

was filed in the Supreme Court of India. However, before the case could be heard by the

apex court, Mrs. Indira Gandhi exerted influence over the legislature and implemented the

3 AIR 1975 SC 1590

Constitution (Thirty-ninth Amendment) Act, 1975, with the aim of negating the ongoing

judicial process.

The amendment contained the following highly controversial features:

1. First, Article 71 was substituted by a new Article 71 which stated that subject to the

provisions of the Constitution, Parliament may by law regulate any matter relating

to or connected with the election of a President or Vice-President including the

grounds on which such election may be questioned.

2. The second was the insertion of Article 329-A, clause (4) of which directly

concerned the appeals stating that no law made by Parliament before the

commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far

as it relates to election petitions and matters connected therewith, shall apply or

shall be deemed ever to have applied to or in relation to the election the Prime

Minister or the Speaker of the Lok Sabha.

3. The fifth clause of Art. 329-A, provided that any appeal or cross appeal against any

such order of any court as is referred to in Clause (4) pending immediately before

the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before

the Supreme Court shall be disposed of in conformity with the provisions of Clause

4. Finally, the sixth clause of Art. 329-A which stated that the provisions of Article 329-

A would supersede the effect of any other provision of the Constitution implying

that this Article 329-A was superior to the entire Constitution itself.

The question of constitutionality of the said constitutional amendments was brought

before the Court, which held them to be violative of the basic structure of the Constitution.

Further, on the matter of the legislatures’ declaration of validity of the election, the

Supreme Court that, the adjudication of a specific dispute is a judicial function which

parliament even under its constitutional amending power, cannot exercise. Therefore, the

amendment was held to be ultra-vires on the basis that when the constituent body declared

the validity of the election of P.M., it discharged a judicial function, which according to the

principle of separation, should not have been done.

The basic structure doctrine as laid down in Kesavananda Bharti was once again called to

use in the more recent case of I.R. Coelho v. State of Tamil Nadu4. The State had passed a

law creating 69% of reservations in educational institutions, far exceeding the accepted

limit of 50%. In order to protect the said provision from being struck down on the grounds

of being unconstitutional, it was placed under the Ninth Schedule, which was said to be

outside the scope of judicial review. The matter placed before the Court, was a questioning

of the validity of the Ninth Schedule itself, on the grounds that it was not in consonance

with the basic structure of the Constitution. The Court took cognizance of the said

argument and held the Ninth Schedule as being violative of this doctrine and hence even

matters placed under the said Schedule shall henceforth be open to judicial inquiry.

Thereby, this previously protected portion of the Constitution was also brought under the

ambit of the Basic structure theory and the Golden triangle comprising of Art.14, 19 and 21,

making laws placed under it amenable to judicial review.

It is one thing to discuss the usage of the doctrine of separation of powers in normal

governance and entirely another to examine it under the unique circumstances of a

national emergency. In such a period, the likelihood of any organ trying to exceed its power 4 AIR 2007 SC 8617

increases greatly as many of the checks and balances become suspended. However, it is

commonly agreed that even during emergency, the doctrine must continue to be in force.

This scenario was the matter of debate in the case of Rameshwar Prasad v. State of Bihar5,

where the Court was required to determine whether the imposition of Art. 356 in the State

without proper consultation with State authorities or considering the Governor’s report,

amounts to an excessive use of legislative power. Finding that the Central Legislature had

sought to step into the shoes of the State Legislature and thereby usurp the power

completely to itself, in the given case, the Court held there to be a clear violation of the

doctrine of separation of powers. India’s Executive had been found to have committed a

constitutional misdemeanor, for which it needed to apologize to the court and the

parliament and then ask the latter to renew it confidence. If confidence was not renewed,

the government would fall and a new government would have to be formed.

Similarly in Asif Hamid v. State of Jammu & Kashmir6, it was held that the Legislature,

executive and judiciary have to function within their own sphere as demarcated under the

constitution and no organ can usurp the functions assigned to another. The functioning of

the democracy depends upon the strength and independence of each of its organs and

judicial review is a powerful weapon to restrain unconstitutional exercise of power by the

legislature and executive. However the only check on judicial power is the self-imposed

discipline of judicial restraint. Therefore this doctrine cannot be liberally applied to any

modern government, because neither the powers can be kept in water tight compartments

nor can any government can run on strict separation of powers.

5 AIR 1958 Pat 210, 1957 (5) BLJR 437, 1958 CriLJ 5516 AIR 1989 SC 1899

This was earlier applied in Golaknath v. State of Punjab7 in which the policy of the

government to distribute land under the land reforms scheme was challenged before the

Supreme Court on the ground of violation of fundamental rights. Justice Subba Rao held

that such distribution of land was unconstitutional but applied the decision prospectively

and stated that it is not practically possible to collect the land which was already

distributed to the farmers. It was further opined that the in the interest of the welfare of

the state it was desirable in the interest of justice to apply the decision with prospective

effect and held that after the date of this decision the government couldn’t acquire the

property of any person and parliament didn’t have the power to amend the fundamental

right. The Supreme Court has over the years by the use of doctrine of prospective

overruling has attempted to balance the share of power between judiciary and other

organs of the government.

It is crucial to understand that the doctrine of separation of powers has come a long way

from its theoretical inception. Today, the doctrine in its absolute form is only recognized in

letter as it is unfeasible and impractical for usage in the operation of a government. With

the passage of time, States have evolved from being minimal and non-interventionist to

being welfare oriented thereby playing the multifarious roles of protector, arbiter,

controller and provider to the people. In its omnipresent role, the functions of the State

have become diverse and its problems interdependent hence, any serious attempt to define

and separate the functions would only cause inefficiency in the government.

In reality, the status of modern state is a lot more different than what it used to be. It has

evolved a great deal from a minimal, non-interventionist state to an welfare state, wherein 7 1967 AIR 1643 1967 SCR (2) 762

it has multifarious roles to play, like that of a protector, arbiter, controller, provider. This

omnipresence of the state has rendered its functions becoming diverse and problems,

interdependent and any serious attempt to define and separate those functions would

cause inefficiency in government. Hence, a distinction is made between ‘essential’ and

‘incidental’ powers of an organ. According to this differentiation one organ can’t claim the

powers essentially belonging to other organ because that would be a violation of the

principle of separation of powers. But, it can claim the exercise of the incidental functions

of another organ. This distinction prevents encroachment of an organ into the essential

sphere of activity of the other.

The modern day interpretation of the doctrine does not recognize the division of

Government into three water-tight compartments but has instead provided for the crossing

of rights and duties in order to establish a system of checks and balances. It has been found

that the mere separation of powers between the three organs is not sufficient for the

elimination of the dangers of arbitrary and capricious government as even after the

division of functions, if an authority wielding public power, is provided an absolute and

sole discretion within the body in the matters regarding its sphere of influence, there will

be a resultant abuse of such power. Therefore, a system of checks and balances is a

practical necessity in order to achieve the desired ends of the doctrine of separation of

powers. Such a system, contrary to popular notion, is not dilatory to the doctrine but

necessary in order to strengthen its actual usage. It is however, essential to continuously

question whether powers have been appropriately allocated and whether the checking

mechanisms set up both between and within different branches of State sufficiently

safeguard against the misuse of the powers so granted.

It is the exercise of incidental powers only which has made executive grow everywhere in

this social welfare state. It has assumed a vital role but, it has not usurped any role from

any other wing. It just happened that the other two organs, namely, judiciary and

legislature, became unsuitable for undertaking the functions of this welfare state and as a

consequence the functions of the executive increased. As controller and provider, the

judicial processes were very time consuming and the legislature was overburdened with

work. Therefore, it was in natural scheme of things which made the administrators end up

performing a variety of roles in the modern state including those of legislature and

judiciary too, to an extent.

Further, the check of the adjudicators over functioning’s of the other two has been

regarded as an ‘essential’ feature of the basic structure theory. The judicial review power is

a preventive measure in a democratic country which prevents administrators and law-

makers to exercise their whims and caprices on the lay man and turn it into a despotic

regime. There have been cases where the judiciary has dictated the ambit of their power to

the implementers and the mode to exercise it. Not even the representatives of people are

immune to the power of the courts. Two recent Supreme Court judgments- on the cash-for-

query case and on the Ninth Schedule – have once again brought the powers and roles of

the legislature and the judiciary into focus. In the case of the former, the court upheld the

Lok Sabha’s decision to expel members of Parliament, who were caught on camera taking

bribes, but clearly rejected the contention that it cannot review parliament’s power to

expel MPs and claimed for itself the role of final arbiter on decisions taken by the

legislature. The judgment on the Ninth Schedule has curtailed Parliament’s power to keep

certain progressive laws outside judicial Review.

In the other case, I.R. Coelho vs. State of Tamil Nadu, the Supreme Court took the help of

doctrine of basic structure as propounded in Kesavananda Bharati case and said that Ninth

Schedule is violative of this doctrine and hence from now on the Ninth Schedule will be

amenable to judicial review which also forms part of the basic feature theory. The basic

structure theory and the Golden triangle comprising of A.14, 19, and 21, will now be the

criterion in scrutiny of the Ninth Schedule.

In a democratic country goals are enshrined in the constitution and the state machinery is

then setup accordingly. And here it can be seen that constitutional provisions are made as

such to support a parliamentary form of government where the principle can’t be followed

rigidly. The S.C. rulings also justify that the alternative system of checks and balances is the

requirement, not the strict doctrine. Constitutionalism, the philosophical concept of the

constitution also insists on limitations being placed upon governmental power to secure

basic freedoms of the individual. Hence, the conclusion drawn out of the study is that there

is no strict separation of powers but the functions of the different branches of the

government have been sufficiently differentiated.

It is evident that governments in their actual operation do not opt for the strict separation

of powers because it is undesirable and impracticable, however, implications of this

concept can be seen in almost all the countries in its diluted form. The discrepancies

between the plan and practice, if any, are based on these very grounds that the ideal plan is

impractical for everyday use. Otherwise, the doctrine is itself a part of the founding

structure of the Constitution of all democratic nations. India in particular, relies heavily

upon the doctrine in order to regulate, check and control the exercise of power by the three

organs of Government. Whether in its theoretical conception or its practical usage, the

Doctrine of Separation of Powers is essential for the effective functioning of a democracy.

References

Books

Bakshi, P.M., ‘The Constitution of India’, Universal Law Publishing Co. Pvt. Ltd., 2005. Massey, I.P., ‘Administrative Law’, Eastern book Company, Lucknow, Sixth Edition,

2005 Jain, M.P., ‘Treatise on Administrative Law’, Wadhwa and company Law Publishers,

Agra, Edition 1996

Articles

Baron de Montesquieu, Charles-Louis de Secondat (Stanford Encyclopedia of Philosophy) Plato.stanford.edu. Retrieved 2008-10-29.

lawiki.org law — Separation of Powers: the reality". lawiki.org. Retrieved 2010-09-16.

Cheryl Saunders. "Separation of Powers and the Judicial Branch" C.K.Thakwani, “Lectures on Administrative Law”,4th edn,Eastern Book

Company,2007 Sidhant M, “Separation of Powers: Constitutional Plan and Practice”, Legal Services

India (http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html) Separation of Powers-Indian Context by Deepak Miglani