Separation of Powers: UK, USA, and India

Introduction

“If the legislative and executive authorities are one institution, there will be no freedom. There won’t be any freedom anyway if the judiciary body is separated from the legislature and executive”

– Charles de Montesquieu

History has repeatedly shown that unlimited power in the hands of one person or group of persons, in most instances, means suppressing others or weakening their power. The separation of powers in a democracy should prevent the abuse of powers and protect individual’s liberty.

Thus, in order to stabilize a political system, the holders of power ought to be balanced off against every other. The principle of the separation of powers deals with the relationship between the three important organs of the government, namely the Legislative, Executive, and Judiciary. The doctrine aims for a strict demarcation of power between the three organs. It signifies the very fact that one person or body of persons mustn’t exercise all the three powers of government.

For the smooth functioning of a democratic system, it is essential to avoid any conflict among the three vital organs of the government. Liberty of an individual would be guaranteed only when there exists a system of separation of powers among the three organs of the government, viz. Legislative, Executive, and Judiciary. A further system of checks and balances is highly needed to ensure the liberty of the individual. But in a rigid sense, it is impossible and, in a check and balance form it is quite possible which makes filtration of the arbitrariness of the powers of others as because if any organ gets the three powers in hand definitely it becomes absolute and despotic which does cause the hardship of the individuals in a country and the idea of democratic value and constitutionalism would be jeopardized.

However, the doctrine has undergone significant changes over time with the changing needs of society. This can be deduced through a comparative analysis of the interrelationship among the organs of the government in countries like India, the U.S.A., and the U.K. The doctrine has evolved from being construed in its rigid sense to being perceptive of the interdependence of these organs. In this sense, the doctrine of separation of powers has assumed a different character which can be construed as a system of checks and balances. However, the inherent significance of the doctrine remains intact. Even though the classical conception of the doctrine cannot be applied to the modern world, the essence of the doctrine pertaining to the dispersal of central authority to prevent autocracy holds relevance even today.

Origin:

The doctrine of separation of powers has its origins in ancient and medieval theories of mixed government, which stated that the governance process should involve various elements of society such as monarchical, aristocratic, and democratic interests. This doctrine was first laid down by a French political philosopher Montesquieu in De l’esprit des Lois (1748, Spirit of the Laws). Although an English philosopher John Locke previously advocated that the legislative power should be distributed between the king and the parliament, his writings were very influential, especially in the United States, where it had a major impact on the formulation of the US Constitution.

The Doctrine of Separation of Powers:

The theory of the separation of powers implies three expressions of the structural separation of powers, which are based on the following basic principles:

The same organ should not form part of more than one of the three organs of the government.
These organs must not interfere with the work of any other organ of the government.
One organ of the government should not perform the functions assigned to any other organ.

In short, the separation of powers simply means that each of the three government departments should be governed by different people, and none of them should control other departments. This separation is important for personal freedom and a safeguard against tyranny.

The doctrine calls on the executive and administrative branches not to interfere with law and justice to protect individual freedom in society; each branch has its own power, and usually, one branch cannot exercise the power of any other branch. The legislature exercises the law-making power, the executive executes the laws and regulations, and the judiciary exercises the power of judicial review.

Doctrine of Checks and Balance:

The separation of the three powers is the constitutional law doctrine of the separation of the three branches of the government (executive, legislative and judicial). It involves a complex system of checks and balances under which each branch is given certain powers so as to check and balance the other branches. This means that the executive department has certain control power over the legislative and judicial departments; legislative power over the executive and judicial departments; and judicial power over the executive and legislative departments. This method of blocking the power of another branch will become an antidote to tyranny.

Constitutional status of the Doctrine In Different Countries:

Separation of Power in India

On a casual glance at the provisions of the Constitution of India, one may be inclined to say that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution, Executive powers are with the President, Legislative powers with the Parliament, and Judicial powers with the Judiciary i.e., Supreme Court, High Courts, and Subordinate Courts.

The Parliament has the power to subject any law to the provisions of the Constitution, and its legislative power is not restricted. The powers and functions of the President are contained in the Constitution itself (Articles 62-72). The judiciary is independent in its field, and its judicial functions are not hindered by the legislature or the executive. Thus, many jurists believe that the doctrine of separation of power is accepted in India.

However, if we take a closer look at the provisions of the Indian Constitution, we will find that India does not recognize the doctrine of the separation of powers in an absolute and strict sense. There is personnel overlapping along with the functional overlapping. If any law enacted by the legislature violates the basic structure of the Constitution, the Supreme Court can invalidate it. The executive branch also influences the operation of the judiciary by appointing chief justices and judges. Such overlapping may be observed in many other provisions of the Constitution.

Decisions of courts with respect to Separation of Powers in India:

The first predominant judgment in relation to the Doctrine of separation of power was given in Ram Jawaya v. state of Punjab by the Supreme Court of India. In the aforementioned case, the court held that the principle of separation of powers in India is not effective in its strict form, but in a broader sense, which can be derived from the Indian Constitution. It also held that the only validity of the doctrine in the Indian Constitution is the separation of functions of the organs of the government. There are frequent overlaps in the functions and membership in the three organs.

A more clarified view taken in Ram Jawaya’s case can be found in Katar Singh v. the State of Punjab, in which Ramaswamy J. stated,

“It is the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the Legislature to make the law, the Executive to implement the law and the Judiciary to interpret the law within the limits set down by the Constitution.”

The Parliament additionally undertakes a few judicial features that are in violation of the Doctrine of Separation of Power, if it is looked at in the rigid sense. It should be noted that these judicial functions performed by the legislature have been enshrined in the Indian Constitution. According to Article 61, the legislature also acts as a judicial organ in the impeachment process of the president.

The issue that whether the legislature can undertake judicial functions was addressed in the case of Indira Nehru Gandhi v. Raj Narain wherein two conditions were laid down for the legislature to fulfill when it is performing judicial functions.

The power should be expressly provided to the parliament, and
The due process of law during discharging the function ought to be upheld.

Coming to the Executive department, though the separation of the executive from the judiciary has been provided, an intensive reading through the provisions of the Indian Constitution makes it clear that the President can exercise the functions of both Legislature and Judiciary in some specific circumstances. Referring to the legislative power, the Constitution of India has expressly provided this power to the President in Article 123 and that to the Governor under Article 213. This power to promulgate laws can be exercised by the executive when the parliament is not in session or when an emergency is proclaimed.

The executive can also exercise legislative powers through delegated legislation. The rule regarding delegated legislation and its applicability was decided in the Re Delhi Laws Act case where it was held that due to the very reason that the Constitution had expressly provided for the legislative procedure and entrusted it with the parliament, the makers had given a trust to the legislative department that the law-making function would be carried by them alone. However, this extends only to essential legislative functions and these cannot be delegated. Other ancillary law-making functions can be delegated by the legislatures. With regard to performing judicial functions by the Executive, it is well established that tribunals and quasi-judicial bodies that are executives perform functions of interpreting the laws.

There exists a certain degree of overlap with regard to the legislative and executive powers which is, in certain circumstances, assumed by the judiciary. Article 141 and 142 provide power to the Supreme Court of India to make laws or pass a decree to ensure complete justice for the people which is fundamentally the function of the legislature and executive departments.

If we talk about the amending power of the Parliament under Article 368, it has been subject to the concept of the Basic Structure held in the case of Kesavnanda Bharati v, State of Kerala. In this case, Supreme Court was of the view that amending the power of the parliament was subject to the Basic Structure of the Constitution. It was held that the Parliament couldn’t amend the provision in such a way that violates the Basic Structure. And if it is made in violation of Basic Structure then such amendment will be declared as unconstitutional and void by the judiciary.

Thus, India has adopted the doctrine of separation of powers not in an absolute rigid sense but with the system of checks and balances. Apart from checks and balances, there are some personnel as well as functional overlapping in order to protect the rights and liberty of an individual.

Separation of Power in the U.S.A.

In theory, the United States insists on the absolute rigid separation of powers, but in practice, this principle is combined with the principle of checks and balances to ensure effective and efficient governance. The U.S. Constitution clearly defines three government departments and the functions performed by each department.

Article I – Section 1 of the American Constitution states that –

“All the legislative powers are vested in Congress.”

Article II – Section 1 of the American Constitution states that –

“All the executive powers are vested in the President.”

Article III – Section 1 of the American Constitution states that –

“All the judicial powers are vested in the federal courts and the Supreme Court.”

On the basis of the Doctrine of Separation of Powers, the Supreme Court was not given the power to decide political questions so that there was no interference in the exercise of the power of the executive branch of government. Also, overriding power of judicial review was not given to the Supreme Court. The President interferes with the exercise of powers through his veto power and exercises the law-making power through his treaty-making power. He also interferes in the functioning of the Supreme Court by appointing judges.

In a landmark case of Marbury v. Madison, for the first time, Supreme Court declared something “unconstitutional”, and established the concept of judicial review in the U.S.A. This landmark decision helped define the system of checks and balances and laid the foundation for the United States to exercise judicial review in accordance with Article III of the Constitution.

Separation of Power in the U.K.

In Britain, there is a parliamentary form of government, wherein the king is the nominal head, and the actual legislative functions are performed by the parliament. Although the king is the chief executive, he is also an integral part of the legislature, and all his ministers are also members of specific houses of the parliaments.

Parliament – Legislature
Prime Minister, Cabinet, Government Departments and Civil Service – Executive
Courts – Judiciary

The Lord Chancellor is head of the judiciary, Chairman of the Legislature (House of Commons), a member of the executive, and frequently a member of the cabinet. Therefore, the House of Commons eventually controls the Legislature. The Judiciary is unbiased; however, the judges of the higher courts may be eliminated on recommendation from each of the Houses of Parliament. Therefore, the resting of powers in a single institution thus denies the certainty that there may be any type of Separation of Powers in Britain.

Britain has the concept of separation of powers, but it is not in a formal sense like in the United States. The three branches are not officially separated, but there is still a large overlapping as in India. In numerous cases, senior judges have held that the U.K. Constitution is based on the doctrine of separation of powers. As in Duport Steels Ltd. v. Sirs (1980), Lord Diplock it was aptly stated that:

“At a time when more and more cases involve the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasized that the British Constitution, though largely unwritten, is firmly based on the Separation of Powers; Parliament makes the laws, the judiciary interprets them”.

Therefore, U.K. has a weak separation of power which implies that the doctrine of Separation of Power is implemented in a broad sense as a result of which the functions of all three organs overlap with one another and conjointly work together.

Criticism:

Every doctrine has its consequences and shortcomings. In theory, the doctrine of separation of powers may be ideal, but it cannot be completely applied in the actual functions of any organization. There are certain shortcomings and limitations.

The doctrine of the separation of powers is anti-historical because it has never been applied in the UK. Montesquieu formulated and defended this theory and believed that it was valid in England. The British Constitution has never been based on the principle of separation of powers.
Montesquieu, who put forward this theory, tried to protect individual’s freedom, which was impossible due to the strict demarcation of powers.
The government is a single unit. Its three organs can never be fully divided. The legislative, executive and judicial functions are symbiotic and inter-related functions and thus, cannot be fully separated. A smooth and stable government can only exist when there is cooperation among the three organs. Therefore, separating these organs into sealed compartments may lead to failure and inefficiency in the government.
In the current times, a government works for the welfare and prosperity of the people. It has to solve the complicated issues of society. In such circumstances, the precept of separation of powers appears to be impossible. The imposition of this doctrine in its rigid form will now no longer cause the effectuation of the goals of the modern government. Thus, separation of powers is theoretically uncertain and realistically almost impossible.
If the doctrine of separation of powers is rigidly adopted then there will be no flexibility in functioning of the organs of the government. If the legislature can only legislate, then it cannot penalize anyone, committing 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. 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 rigidly.

Conclusion:

“Power corrupts and absolute power tends to corrupt absolutely”.

Lord Acton

Granting power to a single body can lead to absolutism, but even after the separation of functions, if the organs exercise public power, granting absolute and sole authority within its sphere of influence may lead to abuse. Therefore, the theory of the separation of powers is a theoretical concept, and it is almost impossible to follow it completely.

Exercising the doctrine of separation power cannot be applied in the strict sense in any contemporary countries like The United States, India, U.K., etc. But still, this doctrine has relevance today. Our government is an organized system and it is very difficult to divide into watertight compartments.

The theory of separation of power in its strict sense does not apply to any modern country, such as the United States, India, and the United Kingdom. But this theory still applies today. Our government is an organized system and it is difficult to divide the powers of the organs into sealed compartments.

For the smooth functioning of any government, cooperation and coordination among all three organs of the government is essential. Professor Garner said that “this doctrine is impracticable as working principle of Government. It is difficult to divide the functions of each organ on an accurate basis”.

In my opinion, this doctrine is very important because it protects the rights and freedoms of individuals from arbitrariness and does not allow organs to usurp the essential functions of other organs; to some extent, it is applicable in almost all countries.

Therefore, after considering all the aspects it can be concluded that the doctrine of separation of power is not accepted in any country in its absolute rigid form. If we compare the Indian and American Constitution, it can be said that on the first glance that both the Constitutions have adopted the Doctrine of Separation of Power but after an intensive reading through their provisions, it can be said that the doctrine has not been rigidly accepted in both the countries.

The doctrine of separation of powers must be expounded relatively. In the era of liberalization, privatization, and globalization, separation of power has to be viewed from a broader perspective. It should not be limited to the principle of strict classification but also exercise collective power in the spirit of cooperation, coordination, and protection of individual rights and freedom.

Though this doctrine is impractical in its rigid form nevertheless its effectiveness lies in the prominence of those checks and balances which are necessary so as to prevent maladroit government and abuse of powers by the different organs of the government. In brief, we can say that the Doctrine of Separation Powers; is followed in the US with a spirit, never followed in the UK purely, and India has followed it with large exceptions.

References:

blog.ipleaders.in
papers.ssrn.com
www.legalservicesindia.com
www.britannica.com
http://www.lawctopus.com/
www.indiankanoon.com
Ram Jawaya v. state of Punjab, AIR 1955 SC 549
Kartar Singh v state of Punjab, (1994) 3 SCC 569
Duport Steels Ltd. v. Sirs, 1980 1 ALL ER 529
Indira Nehru Gandhi v. Raj Narain, 1975 AIR 1590
Re Delhi Laws Act Case, AIR 1951 SC 747
Kesavnanda Bharati v, State of Kerela, AIR 1973 SC 1461
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

This article is written by SAHEBA SHAMS, a 1st-year student pursuing BA-LL. B from Osmania University, Hyderabad.

This article is edited by Shreya Litoria, a 4th-year student pursuing B.Com LLB from Banasthali Vidyapith University, Jaipur.

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