The Doctrine of Separation of Powers explained.
“Power tends to corrupt, and absolute power corrupts absolutely”- Lord John Acton’s quote has summarized today’s article in its entirety. Through this article, we will try to understand the doctrine of separation of power in a democratic system. We will also reflect upon its different versions being used across the length and breadth of the globe with a special focus on the Indian context.
Three organs of the Government
In democratic governance set up, the government functions through its three different organs viz. Legislature, Executive and Judiciary. Each organ has its distinct set up of powers and responsibilities. Before going further, let us understand what these organs do.
Legislature being the law-making organ, holds the responsibility of formulating the laws of the land, devising policies holding governments responsible for their functions, etc. Ideally, the Legislature forms the base of the other two organs of the government.
Executive is the administrative organ of the government and its primary responsibility is to implement the laws and policies made by the Legislature. It shapes the policy, made by the Legislature, into actions on the field. And lastly, Judiciary has the responsibility of interpreting the laws and administering justice in accordance with the law.
Simply put, let us suppose, the Parliament (Legislature)has made a law criminalizing the consumption of liquor, the government (Executive) make sure that it is followed in its letter and spirit and lastly, the courts (Judiciary) will ensure that the law is being upheld and the violators are punished in accordance to the law as interpreted by them.
And the Doctrine of Power is..
The doctrine of separation of power states that no individual or a body of individuals is exercising the power of more than one organ of the government. In its literal sense, no person should be a part of more than one organ and one organ must not interfere with the functioning of the other two.
The doctrine, therefore, has three elements:
1. The presence of three agencies of the government in the name of Executive, Legislature, and Judiciary
2. There is a division of functions performed by these three organs
3. These organs are represented by separate persons or groups of persons.
Why do we need separation of power?
Imagine, a body of individuals is passing a tyrannical act. You, being an aggrieved person, go to the court of law with a hope that you will get justice against this draconian act. While standing before the judges, surprisingly, you find that the same body of the individuals is sitting as judges to hear your petition. Will you get any justice?
Similarly the argument can be made for separation Executive and the legislature. Suppose the government of the day wants to implement a very unpopular and tyrannical policy. If the Executive is also the Legislature then simply the government would be able to make it a law of the land without much debate and deliberation in the Legislative Assembly.
The historical consciousness has, time and again, shown us that if all the powers are concentrated in one person or a body of persons, it has led to anarchy, despotism, maladministration, breach of individual’s liberty, corruption and what not. Montesquieu, the French philosopher in his book, “De L’ Espirit des Lois” in 1748 has stated:
“When the Legislature and Executive powers are united in the same person or body, there can be no liberty, because apprehensions might arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again there is no liberty, if the Judiciary power be not separated from the Legislative and Executive. Where it joined with the legislative, the life and liberty of the subject would be exposed to the arbitrary control; for the judge would then be a legislator. When it joined with the Executive power, the judge might behave with the violence and oppression. There would be the end of everything where the same man of same body whether nobles or the people, to exercise those three powers, that of enacting the laws, that of executing the public resolutions, and of trying the cases of the individual.”
The doctrine of separation of power prohibits this concentration of power and thereby ensures fairness in the governance of the country.
The doctrine of separation of powers in major democracies of the world:
Though the separation of the power was theorized by Montesquieu, it was given the constitutional status in USA. In fact, it forms the basis of the constitutional structure of the US. Article I, II and III of the US Constitution define and vests powers of Legislature, Executive and Judiciary into the Congress, the President and the Supreme Court respectively. All three organs function in their own independent systems without interfering with the functioning of the others. The President is independent of the Congress. Similarly, the Judiciary is independent of both the Congress and the President. Apart from the segregation of the powers and functions, these independent systems interact with each other through the mechanism of “checks and balances”. It ensures that no one organ is becoming supreme and misusing its powers.
Like US, the French Constitution also provides for separation of powers of the three organs of the state.
The Parliamentary Democracy system of the United Kingdom refutes the doctrine of separation of powers in the sense that two organs viz. the Legislature and the Executive are controlled by the cabinet. Although, the crown heads the Executive but it is a nominal head. The Cabinet is the real head and it also controls the Legislature, initiates laws, and also has the power to dissolve the Assembly. Moreover, because the UK Constitution is unwritten, there is no clear cut separation of powers and functions of these three organs of the government.
The Doctrine and the Indian Constitution:
India has adopted the system of Parliamentary Democracy from its imperial ruler. The inclusion of doctrine of separation of power in Indian Constitution has been a matter of debate since the Constituent Assembly days. Though the Constituent Assembly did not go for adoption of the doctrine in its rigid absolute sense, it continued to be an essential aspect of the constitutional framework. This was formally institutionalized by the Supreme Court in the famous Keshvananda Bharti v. State of Kerala case. The Supreme Court declared the doctrine of separation of powers as one of the basic structure of the Constitution (again reiterated in Indira Nehru Gandhi v. Raj Narain case) and the Legislature cannot alter the basic structure of the Constitution by the means of an amendment. Similarly, the independence of Judiciary, an essential aspect of the doctrine, has been recognized as one of the basic structure of the Constitution. The Judiciary has been given the role of a watchdog to keep the other organs within their respective constitutional bounds.
The Constitution of India, however, does provide for some overlapping in the powers of these organs. Some are illustrated below:
1. The President is the nominal head of the Executive where as the real head is the Prime Minister and his Council of Ministers. They are a part of the Legislature and are responsible to it. Executive in India is a subset of the Legislature.
2. The President, although being the head of the Executive, is provided with legislative powers to formulate laws and policies (with the aid and advice of the council of ministers) during the declaration of emergency. Similarly, the power to promulgate ordinances is also given.
3. The president of India has also been vested with some judicial powers like granting of pardon, reprieves, remission and commutation of sentences of the persons convicted of an offence. This is solely a domain of Judiciary.
4. The Parliament also exercises some judicial powers in deciding the cases of breach of its privilege and punishes the guilty.
5. The Supreme Court of India, apart from exercising its judicial functions, has executive and administrative control over all subordinates courts and tribunals.
6. The Judiciary has also time and again, encroached in the domain of the Legislature and the Executive by forming policies, laying down procedures and implementing them.
It is evident that, in India, there is some overlapping in the powers of these three organs but what it separates from the UK system of Parliamentary Democracy is the written nature of Constitution and the separation and independence of the judiciary. Due to the Constitution being a written document, the functions and powers of all the organs are clearly mentioned and the institutions are supposed to function within their constitutional limits.
Checks and Balances
Like the US constitution, the principle of checks and balances is also adopted in the constitutional scheme of India. It is an indispensable part of Indian democracy as it helps in smooth and proper functioning of the government keeping in mind, the rights and liberties of the citizens. The basic premise of the principle of checks and balances is that no one organ of the government should become too powerful. The following examples illustrate some of the checks and balances provided in the Constitution of India:
1. The executive is ultimately responsible to the Legislature as it reviews the functioning of the executive through several instruments (Parliamentary committees, question hour, debates and discussions in the Parliament etc.)
2. Judiciary reviews the actions and functions of Legislature and Executive. It can term any executive action or act passed by the legislature, as unconstitutional and can declare it as null and void.
3. The impeachment of judges of Supreme Court and High Court on the ground of proved misbehavior and incapacity can be done by the Legislature.
4. The appointment of Supreme Court and High Court Judges by the President of India who is the head of the executive.
Therefore, the Constitution of India provides for a fine balance in between the doctrine of Separation of Power and the smooth functioning of the Parliamentary Democracy. Independence of the Judiciary and the principle of checks and balances are very instrumental in the present constitutional scheme.
However, if we look into the short history of Independent India, it has been seen that if any organ(s) of the state becomes too powerful, it tends to undermine the authority of the other organ(s) of the state. In the India of 60s and 70s, the Legislature and the Executive, were very powerful organs of the state. They overshadowed (or at least tried to) the authority of the Judiciary. Vice versa also, if one of the organs of the state fails to do justice to its constitutional mandate, the other organ(s) tends to fill the vacuum. In the era of coalition government, in order to have a continuance of the support of its coalition partners, the government of the day generally was reluctant to take decisions which were not in the interest of other coalition members. This policy paralysis led to the rise of stature and authority of judiciary where the instruments like Public Interest Litigation (PIL) and Judicial Activism became significant.
Way forward with the doctrine
Both the scenarios might be successful in the short term but it will harm the fabric of the democracy. Individuals change, not the institutions. If one organ becomes too powerful, then as Lord Acton pointed out, it would be susceptible to misusing its authority and ultimately corrupting the very system it is working for. Though, the doctrine of separation of power is not explicitly mentioned, it has been the bedrock of the Constitution of India. The sufficiently differentiated functions of the three organs with some level of overlapping powers, coupled with the principle of checks and balances, has served the public interest very well. However, these overlapping powers should be seldom used as it may lead to encroachment/interference in each other’s domain. In fact, in Indian context, true separation of powers would be reflected if all three organs are stepping up to their assigned roles and responsibilities without receding from their domains to make way for the others to encroach. They should assert their powers and carry out their responsibilities within the ambit of the constitutional scheme.
The role of government, in this era of technology, is evolving more into being a regulator and facilitator. It is the duty of the government that all the stakeholders’ interests are safe and secured. For Public interest, it is even more pertinent that the principle of checks and balances is religiously adhered to. Today, technology has made dissemination of information fast, so much so that the public scrutiny has become an added check and balance in the functioning of the state. The Executive, Legislature and the Judiciary are being continuously judged by the aspiring youth of this country. To secure the basic rights of individuals, along with the overall development of the society, it’s sine qua non that these three organs are more proactive in discharging their duties without interfering in each other’s domain. The Constitution has provided them enough space to work in a collaborative manner. May be the strict compliance of separation of power in its literal sense is not needed or desirable in the Indian Constitutionalism. What do you say?
