Separation of powers, a term coined by French political Enlightenment thinker Baron de Montesquieu is a model for the governance of democratic states. There are three distinct activities in every government through which the will of the people are expressed. These are the legislative, executive and judicial functions of the government. Corresponding to these three activities are three organs of the government, namely the legislature, the executive and the judiciary. The legislature makes laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the breach of law. Thus, it has become a model for the governance of democratic States. This model is also known as Trias Politica, which in the non-political context means ‘separation of duties’ which, for example, includes the segregation of accounting and custodial functions.
The model of the separation of Powers was first developed by the Greeks and came into prominence through its use by the Roman Republic. The doctrine of Separation of Powers was outlined in the Constitution of the Roman Republic. Thus, it has come down the ages and can now be seen in a large number of countries throughout the world.
The proponents of the separation of powers believe that it protects democracy and forestalls tyranny. Whereas, the others say that there occurs considerable overlap of powers in parliamentary democracies. If we toe the middle line, we can observe that the Doctrine of Separation of Powers is like any other system with both merits as well as demerits. Thus, across the world, there isn’t any democracy with absolute separation of powers or complete absence of it. “This doctrine (of separation of powers) has got not only relevance to the question of separation of judiciary from the legislature and the executive, it has got a vital bearing upon the whole question of federalism,” said Brajeshwar Prasad on May 30, 1949, participating in the Constituent Assembly’s discussion.
Lord Acton had once aptly stated, “Power corrupts, and absolute power corrupts absolutely.  ” Separation of power is a way of restraining the amount of power in the hands of any group or faction, making its abuse more difficult. “The premise behind the separation of powers is that when a single person or group has a large amount of power, they can become dangerous to citizens.  ” Therefore, separation of powers limits the unlimited exercise of power by any branch of the government. This doctrine also helps in checking corruption and unlawful activities against the interests of the common man whom the government is supposed to serve. 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 when it comes to dealing with the general public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs. Thus, each organ will impose ‘checks and balances’ on the other.
In India, a lot of the present debate on the separation of powers is due to the active steps that the judiciary is taking to redress the sufferings of the common man. But behind the present brouhaha over the issue of judicial activism, what is often lost sight of is the politics of a turf-war among members of a troika who are also partners in running the Indian state. Although the Constitution mandates the separation of the judiciary from the executive and makes parliamentary proceedings immune from court jurisdiction, experts from all the three wings agree that instead of any rigid distribution of powers, a system of checks and balances should operate. Within this delicate system, the interests of the judiciary, the executive and the legislature sometimes converge, as well as clash.
In this project, the author will deal with the ingredients of the concept of separation of powers, the concept of separation of powers in India and recent developments with respect to the constitutionality of different tribunals in India.
II. Ingredients of Separation of Powers
The concept of Separation of Powers runs throughout the Constitution of India although the term has not been mentioned even once. It is a doctrine which is fundamental to the concept of a State and to the concept of Constitutionalism – insofar as it prescribes the appropriate allocation of powers.
The separation of powers doctrine does not insist that there should be three institutions of government each operating in isolation from each other. In fact, it is essential that there be a sufficient coordination between each institution of the State. It is for the executive for the most part to propose legislation for Parliament’s approval. Once passed by the Parliament and given the President’s assent thereto, the legislation becomes an Act, and thus, a law to be upheld by the judiciary. A complete separation of the three institutions could result in legal and constitutional deadlock. Rather than a pure Separation of Powers, the concept insists that the primary functions of the State should be allocated clearly and that there should be checks to ensure that no institution encroaches significantly upon the function of the other.
The author would like to briefly define the three organs of the State which broadly constitutes the
The executive may be defined as that branch of the State which formulates policy and is responsible for its execution. In formal terms, the sovereign is the head of the executive. The Prime Minister, the Cabinet and other Ministers’, for the most part, are elected members of the Parliament. In addition, the Civil Service, local authorities, police and armed forces, constitute the executive in practical terms.
Parliament of India comprises the President of India, the Lok Sabha (House of the People) and the Rajya Sabha (Council of the States). The cardinal functions of the Legislature include overseeing of administration, passing of budget, ventilation of public grievances, and discussing various subjects like development plans, international relations, and national policies. All legislation requires the consent of both Houses of Parliament. In the case of Money Bills, the will of the Lok Sabha prevails. The Parliament is also vested with the power to initiate amendments in the Constitution. The various States also have their respective legislatures, the Legislative Assembly (Vidhan Sabha) and the Legislative Council (Vidhan Parishad) in a few States.
The judiciary is that branch of the State which adjudicates upon conflicts between State institutions, between State and individual, and between individuals. The judiciary is independent of both parliament and the executive. It is the feature of judicial independence which is of prime importance in relation to the protection of liberty of the citizen against the executive.
Quite recently, the press has been described as a “fourth estate” because of its considerable influence over public opinion, as well as its indirect influence in the branches of government by, for example, its support or criticism of pending legislation or policy changes. There is no provision in the Constitution of India providing guarantee for the freedom of the press but the Supreme Court in Sakal Papers v. Union of India  interpreted the scope of Article 19(1) (a) widely to include within its fold the freedom of the press which is regarded as a ‘species of which freedom of expression is a genus’.
III. Separation of Powers in India
On reading the provisions of the Constitution of India, one may be inclined to say that the Constitution accepts the doctrine of Separation of Powers.  Under the Indian Constitution, the executive powers are vested with the President,  the legislative powers with the Parliament,  and the judicial powers with the judiciary  (the Supreme Court, the High Courts and Subordinate Courts). The President holds his office for a fixed period. His functions and powers are enumerated in the Constitution itself. Parliament of India is competent to make any law, subject to the provisions of the Constitution and there is no other limitation on its legislative power. It can amend the law prospectively or even retrospectively but it cannot declare a judgment delivered by a competent court void or of no effect. Parliament has also inherited all the powers, privileges and immunities of the British House of Commons. Similarly, the judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or the legislature. The Supreme Court and High Courts are given the power of judicial review and they can declare any law passed by Parliament or Legislature as ultra vires or unconstitutional.
Taking into account these factors, some jurists are of the opinion that the doctrine of Separation of Powers has been accepted in the Constitution of India and is a part of the basic structure of the Constitution. Separation of functions is not confined to the doctrine of Separation of Powers. It is a part of essential structure of any developed legal system. In Kartar Singh v. State of Punjab,  Justice K. Ramaswamy stated: “It is the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the legislature to make law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution.”
The constitutional provisions do not declare the doctrine of Separation of Powers to be followed in its strict sense. There is no provision in the Constitution of India itself regarding the division of functions of the Government and the exercise thereof. Though under Articles 53(1)  and 154(1)  , the executive power of the Union and of the States is vested in the President and the Governors’ respectively, there is no corresponding provision vesting the legislative and judicial power in any particular organ. Thus, the doctrine of Separation of Powers is not fully accepted in the Constitution of India, and therefore the observations of Justice Mukherjea in Ram Jawaya v. State of Punjab  are important in this regard, wherein he stated that : “The Indian Constitution has not indeed recognized the doctrine of Separation of Powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can be very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to one another.”
Thus, the legislature writes and enacts laws, Enacts taxes, authorizes borrowing, and sets the budget, has power to declare war, may start investigations, especially against the executive branch, often appoints the heads of the executive branch, appoints judges, ratifies treaties.
The judiciary determines which laws apply to any given case, determines whether a law is unconstitutional, has sole power to interpret the law and to apply it to particular disputes, may nullify laws that conflict with a more important law or constitution, determines the disposition of prisoners, has power to compel testimony and the production of evidence, enforces uniform policies in a top-down fashion via the appeals process, but gives discretion in individual cases to low-level judges. (The amount of discretion depends upon the standard of review, determined by the type of case in question), polices its own members and is immune to frequent arbitrary dismissal by other branches.
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.
In Ram Jawaya v. Stateof Punjab,  the Hon’ble Supreme Court observed that we follow a separation of functions and not of powers. And hence, we don’t abide by the principle in its rigidity. An example of it can be seen in the exercise of functions by the Cabinet ministers, who exercise both legislative and executive functions. Article 74(1) of the constitution of India, gives them an upper hand over the executive by making their aid and advice mandatory for the formal head. The executive, thus, is derived from the legislature and is dependent on it, for its legitimacy.
On the question that where the amending power of the Parliament lies and whether Article 368 confers an unlimited amending power on Parliament, the Supreme Court in the Kesavananda Bharati v. The State of Kerala and Others  case held that amending power was now subject to the basic features of the constitution. And hence, any amendment tampering these essential features will be struck down as unconstitutional. Justice Beg added that Separation of Powers is a part of the basic structure of the constitution. None of the three separate organs of the republic can take over the functions assigned to the other. This scheme cannot be changed even by resorting to Article 368 of the Constitution. There are attempts made to dilute the principle, to the level of usurpation of judicial power by the legislature. In a subsequent case law, the Supreme Court had occasion to apply the Kesavananda ruling regarding the non-amend ability of the basic features of the constitution and a strict adherence to doctrine of separation of powers can be seen. In Indira Nehru Gandhi v. Raj Narain,  where the dispute regarding Prime Minister’s election was pending before the Supreme Court, it was held that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise. So, the main ground on which the amendment was held ultra vires was that when the constituent body declared that the election of Prime Minister won’t be void, it discharged a judicial function which according to the principle of separation it shouldn’t have done. The place of this doctrine in Indian context was made a bit clearer after this judgment. In a nutshell we can say that the Separation of Power is a method of removing the amount of power in any group’s hands, making it more difficult to abuse.
It can be argued that there is no natural distinction between executive and legislative forms of government: legislation that is passed must always be executed, and much executive action requires new laws. As such, the division can be said to be an artificial one. This is borne out by the fact that there is currently no constitutional system which has a complete separation of powers where there is a distribution of the three functions among three independent organs with no overlapping or cross-coordination.
In parliamentary systems such as India, the three “powers” are not separated (although the judiciary is independent). However, this has not threatened Indian stability, because the strong tradition of parliamentary sovereignty serves the purpose of limiting executive power.
Alternatively, if the executive branch is granted few powers, there is the danger of political gridlock. When the executive cannot control or cannot operate alongside the legislature, then government action to solve society’s problems can be limited. Political scientists have also noted the tendency for separation-of-power systems, especially those with strong executives, to develop into two-party systems. As the executive is as a “winners-take-it-all” position, voters and lobby groups tend to adopt a strategy of supporting their preferred choice from the two leading candidates, the perception being that a vote or donation to a third-party candidate is a waste. As the executive is usually considered the most important position in government, members of the legislature will coalesce into groups supporting the two dominant executive candidates.
The categories of the functions and corresponding powers of government are inclined to become blurred when it is attempted to apply them to the details of a particular constitution. Some hold that the true distinction lies not in the nature of the powers themselves, but rather in the procedure by which they are exercised. Sometimes systems with clearly defined separation of powers are difficult for the average person to understand, resulting in a nebulous political process and leading to a lack of engagement. Proponents of parliamentary systems claim that they make it easier to understand how “politics is done” by providing a clearer view of who does what, who is responsible for what, and who is to blame. This is important when it comes to engaging the people in political debate and increasing citizens’ interest and participation in politics. However, for a parliamentary system to work effectively, institutional arrangements such as fair electoral laws, freedom of the press, independent courts, due process, and the independence of the Houses of Parliament must be so designed as to prevent executive supremacy over the legislative and judicial branches while also encouraging a culture of public debate, open government, accountable office holders, and policy contestability and compromise, rather than a culture of “winner takes it all” political domination.
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