SUBMITTED TO:
SUBMITTED BY:
Ms. NANCY SHARMA
GUNNEET KAUR
UILS, PU, CHD
126/10, 4 semester
th
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Acknowledgement I have taken efforts in this project. However, it wo uld not have been possible without the kind support and help of my teacher Ms Nancy Sharma. I would like to extend my sincere thanks to her. And I would also like to express my special gratitude and thanks to my parents and my friends. Gunneet Kaur
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Table of Cases
I.C.Golak Nath v State of Punjab, AIR 1967 SC 1643, p.10
Indira Gandhi Nehru v. Raj Narain, AIR 1975 SC 2299, p.11
I.R. Coelho vs. State of Tamil Nadu, AIR 2007 SC 8617, p.11
Kesavananda Bharati v State of Kerela, AIR 1973 SC 1461, p.11
Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549, p.10
Re Delhi Laws Act case, AIR 1951 SC 332, p.9
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Index
TOPIC
PAGE NO.
1. Introduction
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2. Historical background
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3. Separation Of Powers Under Indian Constitution
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4. Separation of Powers and Judicial Pronouncements in India
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5. Importance of the Doctrine
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6. Criticism
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7. Conclusion
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8. Bibliography
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Introduction “To become truly great, one has to stand with people, not above them .”
Charles de Montesquieu Understanding that a government's role is to protect individual rights, but acknowledging that governments have historically been the major violators of these rights, a number of measures have been derived to reduce this likelihood. The concept of Separation of Powers is one such measure.1 There are three distinct activities in every government through w hich 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 legislative organ of the state mak es laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the breach of law. 2 According to the theory of separation of powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and be exercised by three separate organs of the Government. Thus, legislature cannot exercise legislative or judicial power; the Executive cannot exercise legislative or judicial and the Judiciary cannot exercise legislative or executive power of the Government.3 But each organ while performing its activities tends to interfere in the sph ere 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 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. The Separation of Power is a method of removing the amount of power in any group's hands, making it more difficult to abuse.
1
http://legalservicesindia.com/article/article/separation-of-power-in-india-usa-483-1.html http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html 3 Basu, D.D., „Administrative Law‟, Kamal Law House, Kolkata, Sixth Edition, 2004 2
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Historical Background The separation of powers is a model for the governance of both democratic and federative states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the un-codified Constitution of the Roman Republic. The doctrine of separation of powers has emerged in several forms at d ifferent periods. Its origin is traceable to Plato and Aristotle. In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers. But it was Montesquieu who for the first time formulated this doctrine systematically, scientifically and 4
clearly in his book „Esprit des Lois‟ (The Spirit of the Laws), published in the year 1748.
Montesquieu’s Doctrine Though the doctrine of Separation of Power is traceable to Aristotle but the writings of Locke and Montesquieu gave it a base on which modern attempts to distinguish between legislative, executive and judicial power is grounded. Montesquieu found that if the power is concentrated in a single person‟s hand or a group of people then it results in a tyrannical form of government. To avoid this situation with a view to checking the arbitrariness of the government he suggested that power of governance there should be clear cut division of power between the three organs of the state i.e. Executive, Legislative and the Judiciary. This made Montesquieu propound the above said theory and according to this it was held that each organ of the state should be confined to its own spheres i.e. there should not be any overlapping of jurisdictions of the organs of th e state. Montesquieu studied the English constitution for two years and after that he came to the conclusion that the stability of the English Constitution is because of its adherence of the separation of power. Montesquieu had clearly misconstrued the statement pertaining to the British constitution and later on he was criticized and in a very sarcastic manner its criticism was made.
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http://legalservicesindia.com/article/article/separation-of-power-in-india-usa-483-1.html 5
After the end of the war of independence in America by 1787 the founding fathers of the American constitution drafted the constitution of America and in that itself they inserted the Doctrine of separation of power and by this America became the first nation to implement the Doctrine of separation of power throughout the world. The constituent Assembly of France in 1789 was of the view that “there would be nothing like a Constitution in the country where the doctrine o f separation of power is not accepted”. In France, where the doctrine was preached with great force by Montesquieu, it was held by the more moderate parties in the French Revolution. However the Jacobins, Napoleon I and Napoleon III discarded the above theory for they believed in the concentration of power. But it again found its place in the French Constitution of 1871. Later Rousseau also supported the said theory propounded by Montesquieu. England follows the parliamentary form of government where the crown is only a titular head. The mere existence of the cabinet system negates the doctrine of separation of power in England as the executive represented by the cabinet remains in power at the sweet will of the parliament.
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http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf 6
Separation of Powers under Indian Constitution On a casual glance at the provisions of the Constitution of India, one may be inclined to say that that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution, executive powers are with the President, legislative powers with Parliament and judicial powers with Judiciary (Supreme Court, High Courts and Sub ordinate Courts).
Functional overlapping: The President‟s function and powers are enumerated in the Constitution itself. Parliament is competent to make any law subject to the provisions of the Constitution and there is no other limitation on it legislative power. The Judiciary is independent in its field and there can be no interference with its judicial functions either b y the Executive or by the Legislature. The Supreme Court and High Courts are given the power of judicial review and they can declare any law passed by the Parliament or the Legislature 6
unconstitutional.
No rigid separation of powers: In Indian constitution, there is express mention that the executive power of the Union and of a State is vested by the constitution in the President and the Governor, respectively, by articles 53(1) and 154(1), but there is no corresponding provision vesting the legislative and judicial powers in any particular organ. It has accordingly been held that there is no rigid separation of powers. Although prima facie it appears that our constitution has based itself upon doctrine of separation of powers. Judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or the legislature. Constitution restricts the discussion of the conduct of any judge in the Parliament. The High Courts and the Supreme Court has been given the power of judicial review and they can declare any law passed by parliament as unconstitutional. The judges of the S.C. are appointed by the
6
Massey, I.P., „Administrative Law‟, Eastern book Company, Lucknow, Sixth Edition, 2 005
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President in consultation with the CJI and judges of the S.C. The S.C. has power to make Rules for efficient conduction of business. It is noteworthy that Article 50 of the constitution puts an obligation over state to take steps to separate the judiciary from the executive. But, since it is a Directive Principle of State Policy, therefore it‟s unenforceable. In a similar fashion certain constitutional provisions also provide for Powers, Privileges and Immunities to the MPs, Immunity from judicial scrutiny into the proce edings of the house , etc. Such provisions are thereby making legislature independent, in a way. The Constitution provides for conferment of executive power on the President. His powers and functions are enumerated in the constitution itself. The President and the Governor enjoy immunity from civil and criminal liabilities. But, if studied carefully, it is clear that doctrine of separation of po wers has not been accepted in India in its strict sense. The ex ecutive is a part of the legislature. It is responsible to the legislature for its actions and also it derives its authority from legislature. Parliamentary executive: In India, since it is a pa rliamentary form of government, therefore it is based upon intimate contact and close co-ordination among the legislative and executive wings. However, the executive power vests in the President but, in reality he is only a formal head and that, the Real head is the Prime minister along with his Cou ncil of Ministers. The reading of Article 74(1) makes it clear that the executive head has to act in accordance with the aid and advice given by the cabinet. Generally the legislature is the repository of the legislative power but, under some specified circumstances President is also empowered to exercise legislative functions. Like while issuing an ordinance, framing rules and regulations relating to Public service matters, formulating law while proclamation of emergency is in force. These were some instances of the executive head becoming the repository of legislative functioning. President performs judicial functions also under article 103 (1) and article 217(3). On the other side, in certain matters Parliament exercises judicial functions too. It can decide the question of breach of its privilege, and in case of impeaching the President; both the houses take active participation and decide the charges 8
Judiciary, in India, too can be seen exercising administrative functions when it supervises all the subordinate courts below. It has legislative power also which is reflected in formulation of rules regulating their own procedure for the conduct and disposal of cases So, it‟s quite evident from the constitutional provisions themselves that India, being a parliamentary democracy, does not follow an absolute separation and is, rather based upon fusion of powers, where a close co-ordination am ongst the principal organs is unavoidable and the constitutional scheme itself mentions it. The doctrine has, thus, not been awarded a Constitutional status. Thus, every organ of the government is required to perform all the three types of functions. Also, each organ is, in some form or the other, dependant on the other organ which checks and balances it. The reason for the interdependence can be accorded to the parliamentary form of governance followed in our country. But, this doesn‟t mean that this doctrine is no t followed in India at all. 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. This observation was made by 7
the Supreme Court in the re Delhi Laws Act case , wherein, it was held by a majority of 5:2, that, the theory of separation of powers is not part and parcel of our Constitution. But, it was also held that except for exceptional circumstances like in Article 123 and 357, it is evident that constitution intends that the powers of legislation shall be exercised exclusively b y the Legislature. As Kania, C.J., observed-Although in the constitution of India there is no express separation of powers, it is clear that a legislature is created b y the constitution and detailed provisions are made for making that legislature pass laws. In essence they imported the modern doctrine of separation of powers.
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· AIR 1951 SC 332 http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html 9
Separation of Powers and Judicial Pronouncements in India As clearly mentioned about the separation of power, there were times where the judiciary has faced tough challenges in maintaining and preserving the Doctrine of separation of power and it has in the process of preservation of the above said Doctrine has delivered landmark judgments which clearly talks about the independence of judiciary as well as the success of judiciary in India for the last six decades. In India, 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. A rticle 74(1) wins 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. This 9
was the observation made by the Hon‟ble S.C. in Ram Jawaya Kapoor v. State of Punjab . Later in I.C.Golak Nath v State of Punjab 10 Subha Rao, C.J opined that “The constitution brings into existence different constitutional entitles, namely the union, the state and the union territories. It creates three major instruments of power, namely the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping there limits. The y should function with the spheres allotted to them” The above opinion of the court clearly states the change in the courts view pertaining to the opinion in the case of Ram Jawaya v state of Punjab related to the doctrine of separation of power.
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AIR 1955 SC 549 AIR 1967 SC 1643
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On the question that where the amending power of the Parliament does lies and whether Article 368 confers an unlimited amending power on Parliament, the S.C. in Kesavananda Bharati v State of Kerela
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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. Beg, J. added that separation of powers is a part of the basic structure of the constitution. None of the three separate organs of th e 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. Then in Indira Gandhi Nehru v. Raj Narain 12, where the dispute regarding P.M. election was pending before the Supreme Court, opined that adjudication of a specific dispute is a judicial function which parliament, even und er constitutional amending power, cannot exercise i.e. the parliament does not have the jurisdiction to perform a function which the other organ is responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions of the three organs of the state. So, the main ground on which the amendment was held ultravires was that when the constituent body declared that the election of P.M. won‟t be void, it discharged a judicial function which accordin g to the principle of separation it shouldn‟t have done. Chandrachud J. also observed that the political usefulness of doctrine of Separation of Power is not widely recognized. No constitution can survive without a conscious adherence to its fine check and balance. The principle of Separation of Power is a principle of restraint which has in it the precept, innate in the prudence of self preservation, that discretion is the b etter part of valor. The place of this doctrine in Indian context was made a bit clearer after this judgment. 13
Also in I.R. Coelho vs. State of Tamil Nadu ,
S.C. took the opinion opined by the
Supreme court in Kesavananda Bharati case pertaining to the doctrine of basic structure and held that the Ninth Schedule is violative of the above said doctrine and hence from now on the Ninth Schedule will be amenable to judicial review which also forms part of the basic structure theory.
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AIR 1973 SC 1461 AIR 1975 SC 2299 13 AIR 2007 SC 8617 12
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Though in India strict separation of powers is not f ollowed but, the principle of „checks and balances‟, a part of this doctrine is. Therefore, none of the three organs can usurps the essential functions of the organs, which constitute a part of „basic structure‟ doctrine so much so that, not even by amending the constitution and if any such amendment is made, the court will strike it down as unconstitutional.
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Importance of the Doctrine The doctrine of separation of power in its true sense is very rigid and this is one of the reasons of why it is not accepted by a large number of countries in the world. The main object as per Montesquieu in the Doctrine of separation of pow er is that there should be government of law rather than having willed and whims of the official Also another most important feature of the above said doctrine is that there should be independence of judiciary i.e. it should be free from the other organs of the state and if it is so then justice would be delivered properly. The judiciary is the scale through which one can measure the actual development of the state if the judiciary is not independent then it is the first step towards a tyrannical form of government i.e. power is concentrated in a single hand and if it is so then there is a cent percent chance of misuse of power. Hence the Doctrine of separation of power do plays a vital role in the creation of a fair government and also fair and proper justice is dispensed by the judiciary as there is independence of judiciary. Also the importance of the above said doctrine can be traced back to as early as 1789 where the constituent Assembly of France in 1789 was of the view that “there would be nothing like a Constitution in the country where the doctrine of separation o f power is not accepted”.
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http://www.airwebworld.com/articles/index.php?article=1512
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Criticism The legislature, the Judiciary and the Executive are the three pillars of a stable government. The aim of the doctrine of the Separation of Powers is to “bring exclusiveness in the functioning of the three organs. In principle each organ should be able to perform its function independent of the other organs and no organ should perform functions that belong to the other. Chaos would prevail if the same man or the same body were to exercise the three powers. “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.” Adherence to it not possible in welfare state: As we know the legislature can onl y legislate and
the executive can only punish anyone who commits a breach of privilege; neither of these two can assume the powers of the other. So this theory cannot be accepted in its entirety because separation of powers can only be relative and not absolute. According to Justice Frankfurter “Enforcement of a rigid conception of separation of powers would make modern government impossible.”
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Division of function : The assumption behind the doctrine of separation of powers is that the
three functions of the government are divisible from each other. The fact however is that it is not so in reality. There is overlapping with each othe r. Organic separation: The theory is criticized on the ground that the government is an organic
unity and absolute demarcation of powers is impossible. It is neither practicable nor desirable to divide it into three water-tight compartments. The distinction must be d rawn between essential and incidental powers and that one organ of government cannot usurp upon the essential functions belonging to another organ Practical difficulties in its acceptance : in practice it has not been found possible to concentrate
power of one kind in one organ only. The legislature does not act merely as law making body,
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http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf 14
but also act as an overseer of the executive, the administrative organ has legislative function. The 16
judiciary has not only judicial functions but also has some rule making powers.
Thus separation of powers is not only practically impossible but theoretically absurd too. Although Montesquieu‟s doctrine aims to secure the liberty and freedom of the individual yet it is impossible to achieve the same through the mechanical division of functions and powers. Rule of Law accompanied by eternal vigilance are the mainstay of freedom an d liberty. Some have argued that while functions may be demarcated powers should always remain supreme. But it is impossible to perform functions without the necessary powers. At one point of time this theory held great value against the despotism of a king and later of a parliament. Such despotism does not exist today. The modern day governments require protection against the domination of parliament and of civil servants. The separation of powers is too mechanical in nature to be of any avail against these types of domination. What is required is not separation of powers but „co-ordination‟ or „articulation‟ of powers. Although this doctrine of separation of powers ensures a certain d egree of efficiency it can even give rise to jealousy, suspicion and internal friction. In the words of Finer , “the theory of separation of powers throws government into alternative conditions of coma and convulsion.”
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Upadhya, JJR, „Administrative Law‟, Central Law Agency, 7 th ed, 2006
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Conclusion “ Power corrupts and absolute Power tends to corrupt absolutely” -Lord Acton
Conferment of power in a single bod y leads to absolutism. But, even after distinguishing the functions, when an authority wields public power, then providing absolute and sole discretion to the body in the matters regarding its sphere of influence may also cause abuse of such power. Therefore, the doctrine of separation of powers is a theoretical concept and is impracticable to follow it absolutely The doctrine of separation of power in its true sense is very rigid and this is one of the reasons of why it is not accepted by a large number of countries in the world. So the framers of the Indian constitution did not incorporate a strict doctrine of separation of po wers but envisaged a system of „checks and balances,.
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Bibliography BOOKS: Basu, D.D., „Administrative Law‟, Kamal Law House, Kolkata, Sixth Edition, 2004 Massey, I.P., „Administrative Law‟, Eastern book Company, Lucknow, Six th Edition, 2005 th
Upadhya, JJR, „Administrative Law‟, Central Law Agency, 7 ed, 2006 WEBSITES: http://legalservicesindia.com/article/article/separation-of-power-in-india-usa-483-1.html http://www.airwebworld.com/articles/index.php?article=1512 http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf
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