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Doctrine of Separation of Powers: American and Indian Perspective

Author- Etesh Verma B.A. LL.B (Hons), 2nd Year Amity Law School, Noida

Introduction 

The term “trias politica” or “separation of powers” was coined by Montesquieu, a French scholar in 1747 in his book ‘Espirit des Louis’ (Spirit of the Laws). It is considered one of the great works in the history of political theory and jurisprudence and it was inspired by the Declaration of the Rights of Man and the Constitution of America. In this doctrine, the state is divided into three different branches that is the legislature, executive and judiciary each organ having different independent power and responsibility on them so that one organ will not interfere with the work of the other two organs. If this principle is not followed them there will be more chances of corruption and misuse of powers. If the power is concentrated in a single hand or a group of people then it will result in the tyrannical form of government. To ignore this condition to check the arbitrariness of the government. There should be a clear division of power between the three branches of the government.

Evaluation of the Doctrine

In a strict view, the doctrine of separation of powers can’t be carried out in any modern-day Government either may be U.S.A, India, Australia, France or UK. But it does not imply that the principle has no relevance nowadays. Government is a natural unity. It cannot be divided into watertight compartments. History proves this truth. If there may be a whole separation of powers the government cannot run easily and effectively. The smooth running of government is possible only by co-operation and mutual understanding of all the three branches of the government. Professor Garner has justly said, “The doctrine is impracticable as a working principle of Government.” It is impossible to categorize the functions of all three branches of Government on a mathematical basis. The views of Frankfurter is notable in this connection. He mentions that “Enforcement of a rigid conception of separation of powers would make Government impossible.” This is his opinion that the doctrine of Montesquieu is not merely a “myth” it also carries a truth, but in the view that each branch of the Government should practice its power and responsibility on the doctrine of “Checks and Balances” signifying the fact that none of the branches of the Government should take the important activities, responsibilities and duties of the other branches. Professor Laski has competently mentioned: “It is necessary to have a separation of functions which need not imply a separation of workers.”[1]

Montesquieu’s Theory

According to his theory, there are three types of powers: Legislative power, executive power and judicial power and these powers need to be distributed in a separate and distinct organ, for if all these powers, or any two of them, are joined in the same organ or individual, there can be no liberty. If, for instance, legislative and executive powers joined, there is apprehension that the organ concerned may make oppressive laws and fulfil them in a tyrannical style. Again, there can be no liberty and freedom if the judicial power is not apart from the legislative power and the executive power. Where it united the legislative, the life and liberty of the subject would be brought out to arbitrary control, for the judge would then be the legislator. Where it united with the executive power, the judge possibly behaves with violence and oppression.[2] He mentioned that apprehensions can also arise when the powers of the executive and legislature are unified. In this way, there may be no actual freedom when the judiciary attaches forces within the legislative branch and the executive branch. The life and freedom of the subject would be subdued to the control and management of arbitrariness.

American Perspective

Separation of powers mentions to the thought that the special institutions of government should be functionally independent which no individual should have powers that span these offices the principal institutions are usually taken to be the legislature, the executive, and the judiciary. In the book of Montesquieu ‘The Spirit of Laws’, the separation of powers is supposed to protect against tyranny and protects liberty and freedom. The separation of powers is more often suggested as a way to foster a system of checks and balances essential for good government.

The doctrine of separation of powers forms the basis of the American constitutional structure. It has been accepted and strictly adopted in the United States.

Article 1, of the American Constitution, made the Legislative branch which consists of Congress. It is responsible for creating laws. Congress can allow agencies with regulatory guidelines if it provides them with an “intelligible principle” to base their regulations on.

Article 2 of the American Constitution constituted the Executive branch which comprises of the President. The President authorizes and carries out the laws created by the legislative branch.

Article 3 of the United States Constitution established the judicial branch which consists of the United States Supreme Court. The judiciary branch interprets the laws which pass by the legislative branch.[3]

The creators of the Constitution of the United States believed that the doctrine of separation of powers would help to protect the rise of tyrannical government by making it impossible for a single group of people to exercise too much power. They intended that the balance of power must be attained by the system of checks and balances between separate branches of the government. The alternative system existing with the separation doctrine protects any organ to become powerful.

 

Legislative Branch 

Congress has the special power to legislate for the United States. Under the non – delegation doctrine, Congress might not delegate its lawmaking duties and responsibilities to some other agency. In the Clinton VS City of New York case, the Supreme Court held that Congress couldn’t delegate a “line-item veto” to the President, with the help of which he became empowered to selectively nullify certain provisions of a bill before signing it. The Constitution Article 1, section 8; is about to give all the power to Congress. Congress has the exclusive power to legislate, to make laws and in addition to the enumerated powers vested in the government by the Constitution.

Executive Branch 

Under article 2, section 1 of the American Constitution the executive power is vested with the exception and qualifications in the President. With the law, the President becomes the

Commander in Chief of the Army and Navy, Militia of numerous states when called into service, he has also the power to treaties and appointments to the office with the recommendation and consent of the Senate. President receives Ambassador and Public Ministers and takes care that the laws and legal guidelines be faithfully executed. The Constitution empowers the President to ensure the trustworthy execution of the laws made through Congress. It is the responsibility and duty of the President to execute whatever orders and instructions he is given by Congress. Congress often writes legislation to restrain executive officials to the performance of their duties, as authorised by the laws Congress passes.

Judicial Branch 

It is the power to decide cases and controversies is vested within the Supreme Court and inferior courts established by Congress. The judges must be appointed by the President with the recommendation and consent of the Senate, hold office for life and receive compensation that may not be diminished during their continuance in office. The court may not exercise the judicial power of the United States if the judges don’t have such attributes. Those courts which exercising judicial power are called “constitutional courts”. Congress may establish “legislative court” which do not take the shape of judicial agencies or commissions. The members of the legislative court do not have the same compensation or tenure security as the judges of the constitutional court. The legislative court may not exercise the judicial power of the United States but only adjudicate public rights.[4]

 

System of Checks and Balances 

The separation of powers in the United States is related to the checks and balances system. The system of checks and balances provides each branch of government with separate powers to check the alternative branches and prevent any one branch from turning into more powerful. For example, Congress can create laws, the President can Veto them, and also the Supreme Court may additionally declare laws unconstitutional. Congress includes two houses: the Senate and also the House of Representatives and may override a Presidential veto with a two-thirds vote in each house. The system of checks and balances also provides the powers to the branches to appoint or eliminate members from the alternative branches. Congress can impeach and convict the President for excessive crimes like treason of bribery. The House of Representatives can bring impeachment charges against the President and also the Senate has the power to convict and remove the President from the office. Supreme Court candidates are appointed through the President and are confirmed by the Senate. Judges may be removed from office through impeachment in the House of Representatives and conviction inside the Senate.[5] The powers, functions and responsibilities were divided between these three organs in such a way that each organ checked by the other organs so that equanimity was achieved which imparted the stability to the Constitutional structure.

Indian Perspective

In India, the separation of powers is not followed in a strict sense as it follows in America. The Indian Constitution tells that the legislature is Parliament which contains both the houses, the executive contain President and the judiciary is all about the Supreme Courts, High Courts, and other lower courts. The doctrine of separation of powers has no longer accorded to the constitutional status. Article 50 puts an obligation on the government or state to separate the executive from the judiciary. But Article 50 falls under Directive Principles of State Policy that’s why it is not enforceable. This is for the securing purpose of the independence of the Judiciary.

 

The Relevant Articles in the Indian Constitution which Emphasize the Separation of Powers  

Under article 121 and 211, the judicial conduct of the Supreme Court judge and the high court judge cannot be discussed inside the Parliament and the state legislature. Under article 122 and 212, the validity of the proceedings inside the Parliament and legislature cannot be called in the court for the query. This ensures the separation of the legislature from the judiciary on the allegation of the procedural irregularity. Under article 361 the Governor and the President shall not be answerable to any court for the exercise the overall performance of the powers and duties of his office. Under articles 53 and 154, 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.[6]

 

Functional Overlapping 

The legislature practicing law-making power and also doing judicial powers in the case of breach of its exclusive right, the impeachment of the President, and the removal of the judges. The executive may further affect the functions of the judiciary through making appointments to the office of Chief Justice and other judges. The legislature is additionally practicing the judicial power for the amending a law declared ultra virus by the court revalidating it. The legislature discharges the functions of the judiciary while discharging the function of disqualifying its members and impeachment of the judges. The legislature can punish the Parliament for exceeding freedom of speech, this comes under the powers and privileges of the Parliament. But at the same as practicing this power, it is always essential that it should be conformity with due process. The head of each governmental minister is a member of the legislature, that’s why making the executive an integral part of the legislature. The council of ministers on whose recommendation the President and Governor acts are elected members of the legislature. Legislative power that is being vested with the legislature in certain circumstances can be practiced by the executive. If the President or the Governor, when the legislature is not in the session and is satisfied that circumstances exist that require quick action may promulgate ordinance which has the same force of the Act through the Parliament or the state legislature. The Constitution permits, under the Article 118 and Article 208, the legislature at the center and in the state respectively, the authority to make rules for regulating their process and doing of business subject to the provisions of this Constitution. The executive also practices lawmaking power under delegated legislation. The tribunals and other quasi-judicial bodies that are part of the executive also discharge judicial functions. Administrative tribunals which are the part of the executive also discharge judicial functions. Higher administration tribunals should always have a member of the judiciary. The higher judiciary is consulted with the power of supervising the functioning of secondary courts. It also acts as a legislature that making laws regulating its conduct and rules regarding the disposal of cases. Besides the functional overlapping, the Indian system also faces the problem of separation of personnel among the three branches. Applying the Constitutional limitation and trust in the Indian scenario, a system is created where none of the organs can take the powers, functions and responsibilities which are assigned to another organ. Further, the Constitution of India expressly provides for a system of checks and balances to prevent the arbitrary use of power.[7]

 

Judicial Opinion of the Doctrine of Separation of Powers 

The first special judgment through the court is related to the Doctrine of Separation of Powers was in Ram Jawaya VS State of Punjab. In this case, the court held that the doctrine of separation was not fully accepted in India. It was held that the “The Indian Constitution has not indeed recognized the doctrine of separation of powering its absolute rigidity but the functions of the different parts or organs of the government have been sufficiently differentiated and consequently it can very well be said that Indian Constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another”.[8]

In Indra Nehru Gandi VS Raj Narain case, the Supreme Court held that the adjudication of a dispute is a judicial function and Parliament cannot even under constitutional amending power is cannot exercise this function.[9] It was observed that:

“In the Indian Constitution, there is a separation of powers in a broad sense only. A rigid separation of powers as under American Constitution does not apply to India. Chandrachud J. also discovered that the political usefulness of the doctrine of separation of power is not widely recognised. No Constitution can survive without a conscious adherence to it’s a fine system of checks and balances. The principle of separation of powers is a principle of restraint which has in it the precept, innate in the prudence that discretion is the better part of valour”.[10]

In Kesavananda Bharati vs the State of Kerala. The Supreme Court held that amending power was a challenge to the main features of the Constitution. So, any amendment violating the main features will be held unconstitutional. Separation of powers is a part of the basic form of the Constitution. None of the three separate branches of the government can take over the functions assigned to the other.[11]

In I.C. Golak Nath vs the State of Punjab. The court was held that “The Constitution brings in existence different Constitutional entities, namely, the Union, the States, and the Union Territories. It creates three major instruments of power that is the Legislature power, the Executive Power, and the Judiciary power. It delimitates their jurisdiction minutely and expects them to practice their respective powers without overstepping their limits. They must function within the sphere allotted to them”.[12]

Conclusion 

The doctrine of separation of powers in the strict sense is undesirable and impracticable and that’s why till now it has not been fully accepted in any of the countries. In the Constitution of the United States of America the doctrine of separation of powers has been strictly borrowed but there also gradually the Supreme Court is relaxing the policy. In India, the separation of powers theory has been used as a guiding philosophy to separate power as much as possible but not entirely. The three organs of the government in some of the other ways exercise the task of others. The organs are overlapping with each other functions. In this sense, the doctrine of separation of power is not accepted in any country till now due to many critical issues involved in it. And after comparing the American Constitution and Indian Constitution it can be said that both the Constitution has adopted the doctrine of separation of power but this doctrine is not strictly accepted in both the countries.

REFERENCES

[1] Bani Mahajan, Doctrine of Separation of Powers, LAWCTOPUS, (Dec. 07, 2014), https://www.lawctopus.com/academike/doctrine-of-separation-of-powers/.

[2] Bani Mahajan, Doctrine of Separation of Powers, LAWCTOPUS, (Dec. 07, 2014), https://www.lawctopus.com/academike/doctrine-of-separation-of-powers/.

[3] Cornell Law School, Separation of Powers, LEGAL INFORMATION INSTITUTE,  https://www.law.cornell.edu/wex/separation_of_powers_0.

[4] Prachishah, Separation of Powers in India and USA, LEGAL SERVICE INDIA, http://www.legalservicesindia.com/article/483/Separation-of-Power-in-India-&-USA.html.

[5] Cornell Law School, Separation of Powers, LEGAL INFORMATION INSTITUTE,  https://www.law.cornell.edu/wex/separation_of_powers_0.

[6] B2B, Doctrine of Separation of Power in India, CIVILSDAILY, (Sept. 22, 2017),  https://www.civilsdaily.com/doctrine-of-separation-of-powers-in-india/

[7] B2B, Doctrine of Separation of Power in India, CIVILSDAILY, (Sept. 22, 2017),  https://www.civilsdaily.com/doctrine-of-separation-of-powers-in-india/

[8] Kudrat, Doctrine of Separation of Power, LAWCTOPUS, (April 04, 2015), https://www.lawctopus.com/academike/doctrine-of-separation-of-power/

[9] Separation of Powers in the Constitution of India, GKTODAY, (Sept. 26, 2016), https://www.gktoday.in/gk/separation-of-powers-in-constitution-of-india/.

[10] Prachishah, Separation of Powers in India and USA, LEGAL SERVICE INDIA, http://www.legalservicesindia.com/article/483/Separation-of-Power-in-India-&-USA.html.

[11] Kudrat, Doctrine of Separation of Power, LAWCTOPUS, (April 04, 2015), https://www.lawctopus.com/academike/doctrine-of-separation-of-power/.

[12] Drishti, (April 30, 2015), https://www.lawctopus.com/academike/separation-of-powers-a-comparative-analysis-of-the-doctrine-indiaunited-states-of-america-and-england/.

 

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