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DOCTRINE OF SEPARATION OF POWER UNDER INDIA & USA-FROM IDEALIST CONCEPT TO THE PRACTICAL EXISTENCE

Author: Esha Maken, I Year of LL.M from Rashtriya Raksha University.


Introduction

The Constitution for any country forms an integral part of its governance and order. This document provides for the rights and duties of both the citizens as well as the government of the State. Along with the mention of certain rights, duties, directive principles and policies of the state, Constitution also provides for various important doctrines that are worth adopting for the appropriate functioning of the state. Among the varieties of principles and doctrines that exist, there is one that this research paper discusses about, and that is the Doctrine of Separation of Powers.


The Doctrine of Separation of Powers elucidate how the three organs of the government, i.e., the Legislature, the Executive and the Judiciary, have to function independently in order to see that there is no terror caused to the democratic structure of the state due to the concentration of power in a single entity.


Origin and History of the Doctrine of Separation of Power

Since the time immemorial, the Constitution of various countries have witnessed how the accumulation of power on one hand has resulted in nothing but a reign of terror. The kings who ruled the people in the earlier times had on many occasions proved how vesting too many powers in them led them to cause sufferings.


This Doctrine is a result of the years of the deliberations that were carried out on the basis of the political and philosophical ideas that emerged as a result of the necessity of the continuity of the democratic governance. There were several distinguished personalities who have contributed towards the development of this doctrine.


Aristotle, who was a Greek philosopher and a polymath, had spoken about three agencies – the general assembly, the public officials and the judiciary. An English philosopher and political theorist, John Locke, founded a constitutional theory and then in his book “Two Treatises of the Government” (1689), he defined the three organs of the government were defined by him. The contemporary delineation of the doctrine of the Separation of Power is said to have a basis on his constitutional theory. Eventually, Montesquieu, who was a French judge and a political philosopher, promoted and mushroomed his ideas in regards to the theory of Separation of Power that was found on his own understandings and perceptions.


The Doctrine of Separation of Power- Comprehending the Concept

When the concept of the Separation of Power was envisaged by Montesquieu, he kept the purpose of giving a wide berth to concentration of power at the very core. He believed that concentration of power in one hand can lead to despotism. That being his belief, he came up with the idea of separation of power where the power in a democracy has to be divided amongst the three organs namely the legislature, the executive and the judiciary.


While trying to define the term Separation of Power, we can derive that it is a bifurcation of power and responsibilities between the organs of the government in order to cease the accumulation of power in a single organ or the branch of the government.The principle of Separation of Power also lies down that each organ of the government is independent of each other as well as no function of one organ is performed by the other organ, thereby maintaining the autonomy of each branch.


This doctrine means that certain functions and responsibilities are bifurcated amongst the distinguished branches of the governance with a pre-defined means of limitations, adeptness as well as jurisdictions. It is a distribution of powers between three integral organs of the government, that is to say, the legislative, the executive and the judiciary. While considering the constitutional framework, the meaning of these three branches can be laid down as follows:

  • The Legislative: is vested with the power to make, amend and repeal the laws.

  • The Executive: is vested with the power to execute and enforce the laws.

  • The Judiciary: is vested with the responsibility to impart justice and resolve any dispute arising while ensuring that fairness, in all cases prevails.


The Doctrine of Separation of Power as laid down under the Constitution

India

The Indian Constitution has been so beautifully and well-appropriately framed by our constitution framers. The Post-independence period was a very crucial period for India, and therefore, while making the Constitution, a great deal of focus and attention was paid while adopting various principles. Even while adopting the doctrine of Separation of powers, the Constituent Assembly made it a point to ensure whether India, as a country, should have a complete Separation of Power or not. The idea of adopting the doctrine of Separation of Powers is very evident and can be found under the Article 50 of the Indian Constitution.


The inclusion of this Article and the provision laid down under it has clearly laid down that the Judiciary must be kept separate from the executive. When it comes to the Constitution of India, the doctrine of Separation of Power has obtained a notable position and given a status of quite an essential and basic characteristic of the Constitution.


In India, therefore, the President of the country is vested with the executive powers, the Parliament has been vested with the legislative powers and the Supreme Court, The High Courts and the Sub-ordinate Courts have been vested with the Judiciary powers.


United States of America

In the United States of America, this doctrine was adopted and applied to the making of the Constitution. As the Constitution of the United States of America has under its ambit utilised this doctrine in its pure form, the powers of all the three organs have been separately and independently vested individually since the onset of the implementation of the Constitution.


Although it has not been explicitly mentioned in the Federal Constitution of the America, this principle is found to have been adopted while framing the provisions and structure of the Constitution. It can be observed that in the American Constitution, the Legislature, the executive and the Judiciary are vested in varied and different entities.


Separation of Power and the existing scenario

India

While on referring the Constitution, we might have an impression of the existence of the Doctrine of Separation of Power in India in a rigid sense, the actual scenario is very different. The doctrine in India has not been adopted in a very rigid sense. In India, there could be seen and observed that while this doctrine has been adopted, there is a functional overlapping between the different organs.


  • Executive carrying out the Legislative and Judicial Functions

If we consider the actual mode of functioning by the different organs, we will observe that the President who is the executive head has also got the legislative power to promulgate ordinances if the circumstances demand so. Even in the situation of the prevailing promulgation of emergency, the President is empowered to take legislative powers in his hands. Moreover, the President has also been vested with the powers to amend or repeal any law in order to adapt any law by making such modifications and adaptations as may seem necessary.

The Constitution also has empowered the President with the judicial powers when it comes to deciding upon the question of disqualification of any member of the Parliament, and the decision of the President has to be considered final when such a situation arises. The executive has also been conferred with the power to appoint the Judges, thereby making it a judiciary power.


  • The Legislature performing the Judiciary functions

There are also instances wherein the Legislature could be found performing the judicial functions. The Legislature has a role to play when it comes to the removal of the President, and it has to be done in the prescribed manner.


  • Judiciary performing the Legislative Functions

Even the Judiciary has been found many times performing or carrying out the functions of the legislature. As per the bifurcation powers, the Legislature is considered as the sole authority to introduce, enact and amend the laws but the apex court of the country and also many a times the High Court is found to be passing judgments that have impact on the existing laws, thereby bringing about changes in the law and in a way performing the functions that the Legislature is supposed to perform. Moreover, the power of Judicial review and the writ of Jurisdictions helps the judiciary to keep a check on the acts carried out by the executive and the legislature.


United States of America

The United States of America is believed to have been adopting and exercising the doctrine of Separation of Powers while keeping the system of checks and balances in practice.


  • The President’s role in the Legislature

The United States of America has made the President as the executive head of the state as laid down in the provisions of its constitution. The President has been conferred with the powers to vote bills that are passed by the Congress, and these bills cannot become laws until and unless they are consequently again passed by each house with a two-third majority. Therefore, in this way by carrying out the veto power, the President carries out the legislative function. The president has also been vested with the powers of legislative nature when entering into foreign treaties or agreements. Under his legislative capacity, the President shares the information of the Union with the Congress.


  • The power of the Congress to intervene in the budget

The Congress has the power to intervene with the powers of the president by casting a vote in the matters of the budget. The President has been made responsible to present a detailed expenditure plan to the congress, which is called the executive budget for the following fiscal year. So the Congress can then intervene in the matters with regards to the budget. Moreover, the congress also plays an important role in the ratification of the treaties along with the appointments through its senators.


  • Judicial Powers of the Congress

The Congress has also been vested with the judicial powers. Any member of the house can either be expelled or punished for his/her disorderly behaviour by two thirds majority of the votes of the congress. In this matter, the congress is the sole judge of the reasons laid down for the expulsion. Additionally, in the situation of an impeachment procedure of the judges of American courts, the impeachment proceedings have to be instituted before the congress.


  • The judiciary’s Power of Judicial Review

The Courts are believed to have a supervisory power over the actions of the executive and the legislature. The judiciary can exercise its power through the judicial review. It keeps a check on all the laws enacted by the legislature. Additionally, where the law is silent and the situation demands it, the courts can create new laws in order to meet the necessity. Interestingly, the amendments that have been incorporated so far in the Constitution of the United States have not all been incorporated by only the Congress, the courts of the state have played an equally important role.


Conclusions and Inferences Drawn

The Doctrine of Separation of Power had been introduced with the view to bifurcate the powers in a very strict and rigid sense but looking at the changing needs and socio-economic conditions of the countries of the world both at the national as well as the global level, it is near to impossible to have a complete separation of power and therefore this principle, even though made a part of the constitution, cannot be exercised in an arbitrary manner.


The government as a whole is a single entity working for the welfare of its society, its people and its state. The power of the government, therefore, cannot be completely separated. The doctrine of separation of power can merely help in balancing the see-saw of the governmental structure and functions. In fact, without the check and balance system and in the absence of the interference amongst the three organs, the government cannot function with its full efficiency and effectively.


Even though this theory was proposed by Montesquieu while considering the government and functional structure of the United Kingdom, this system ceased to be a permanent part of England, so it could be derived that this doctrine is indeed way old in regards to the practice and implementation.


In the contemporary world that we reside in, the governance and the procedures and functions performed needs to be adopted as per the need for the hour. In that scenario, continuing to get stuck with an age-old doctrine in its rigid or strict sense can only lead us to a halt making us lag behind on a planet where change is the universally accepted way to progress.


No matter how right Montesquieu was while propagating and materialising this theory of separation of power, our respect shall forever stay for him but what is also necessary is that we adopt to the changing needs of the present-day world and utilise this very useful theory in its modified version because that will definitely help the present as well as the future generations a government that best serves the interest of majority of the citizens.


References:

  1. Dr. Shruti Bedi, Implications of Separation of Powers for Judiciary in India: The Constitutional Jostling, Focus, India Foundation Journal, Jan Feb 2020. (https://indiafoundation.in/wp-content/uploads/2020/01/PDF-of-all-pages-final-30-12-2019.pdf)

  2. Aristotle, Politics, Book IV, Ch.14 Sam J. Erwin “Separation of Powers: Judicial Independence” Law and Contemporary Problems 35, No. 1 (Winter 1970), 108.

  3. Judge Phineas M Mojapelo, The Doctrine of Separation of Powers (a South African Perspective), Advocate 26(1) 2013. (http://ulspace.ul.ac.za/bitstream/handle/10386/1882/munzhedzi_role_2017.pdf?sequence=1#:~:text=Separation%20of%20powers%20doctrine%20as,in%20the%20same%20hands%20and)

  4. SK Jahangir Ali, Separation of Power: A Comparative Study, SSRN, Feb 2 2013. (https://poseidon01.ssrn.com/delivery.php?ID=572020111031087071027087091122004108006045091065063000028096096064102121089021080103045011120033106120053097121024001110106113047040027013023094077073120106118117026009081056095084024031115117095082007123095068085126079023023108127000105127064021008117&EXT=pdf&INDEX=TRUE)

  5. Separation of Powers—An Overview, NCSL, Jan 5 2019, available at: https://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx.

  6. Vivek Vilas Sable, Critical Analysis of Separation of Power Theory in India, ResearchGate, December 2020. (https://www.researchgate.net/publication/347516753_Critical_Analysis_of_Application_of_Separation_of_Power_Theory_in_India)

  7. Tej Bahadur Singh, Principle of Separation of Powers and Concentration of Authority, Institute’s Journal, March 1996. (http://ijtr.nic.in/articles/art35.pdf)

  8. C.Herman Pritchett, The American Constitution, 3rd edn. P.163.

  9. Constitution of India, 1950

  10. The Constitution of The United States of America

  11. Bhim Singh V. Union of India, (2010) 5 SCC 538.