Writing Sample

SEPARATION OF POWER

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

It is widely accepted that for a political system to be stable, the holders of power need to be
balanced off against each other. The principle of separation of powers deals with the mutual
relations among the three organs of the government, namely legislature, executive and judiciary.
This doctrine tries to bring exclusiveness in the functioning of the three organs and hence a strict
demarcation of power is the aim sought to be achieved by this principle. This doctrine signifies
the fact that one person or body of persons should not exercise all the three powers of the
government.

The theory of Doctrine of Separation of Power was first propounded by Montesquieu, a French
scholar in and 1747 published in his book ‘Espirit des Louis’ (The spirit of the laws). 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 there should be clear-cut division of power between the three
organs of the state i.e. Executive, Legislative and the Judiciary.

Further Montesquieu explained the doctrine in his own words:

“When the legislative and executive powers are united in the same person, or in the same body or
magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not separates
from the legislative and executive powers. Where it joined with the legislative power, the life and
liberty of the subject would be exposed to arbitrary control, for the Judge would then be the
legislator. Where it joined with the executive power, the Judge might behave with violence and
oppression. There would be an end of everything, were the same man or same body, whether of
the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing
the public resolutions, and of trying the causes of individuals.”

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This doctrine stands testimony to Montesquieu belief that powers of the executive and the
legislature if vested in the same hands would result in a situation of arbitrariness and despotism,
for the executive will be enabled with the power of having any laws it wishes, to be passed,
alternatively if the judiciary and legislature or executive were not separated then the common man
would have no defense against the state. These Montesquieu saw as a serious threat to the liberty
of the people and in order to preserve them extolled the theory of separation of powers.

The American politician. James Madison, better known as the ‘Father of the American
Constitution’ also believed the same and articulated the following, “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."

Therefore, the separation of powers doctrine, in theory, aims at separating power and
disseminating it such that tyranny by the government may be prevented entirely as equal power
vests in three separate organs which act as a check and balance for each other. Thus assigning a
different function to each organ and creating exclusive functions for them counters the
concentration of powers and makes this doctrine a success. In fact this doctrine has been adopted
around the world in many constitutions and in ours to an extent as well. It is a remarkable way of
protecting human liberty and creating a system of governance which is responsible and fair.

The theory of separation of powers signifies three formulations of structural classification of

governmental powers:

 The same person should not form part of more than one of the three organs of the
government. For example, ministers should not sit in Parliament.
 One organ of the government should not interfere with any other organ of the government.
 One organ of the government should not exercise the functions assigned to any other organ.

Separation of Powers under Different Constitutions

Despite the safeguards it gives against tyranny, the modern day societies find it very difficult to
apply it rigidly. In principle they go for separation of powers and dilution of powers
simultaneously.

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1. Separation of Power in U.S.A.

The doctrine of separation finds its home in U.S. It forms the basis of the American constitutional
structure.

Article I, section 1 vests all legislative power in the Congress,

Article II, Section 1 vests all executive power in the President of the United States, and

Article III, Section 1 vests all judicial power in the Supreme Court.

The framers of the American Constitution believed that the principle of separation of powers
would help to prevent the rise of tyrannical government by making it impossible for a single group
of persons to exercise too much power. Accordingly they intended that the balance of power should
be attained by checks and balances between separate organs of the government. This alternative
system existing with the separation doctrine prevents any organ to become supreme.

Despite of the express mention of this doctrine in the Constitution, U.S. incorporates certain
exceptions to the principle of separation with a view to introduce system of checks and balances.
For example, a bill passed by the Congress may be vetoed by the President in the exercise of his
legislative power. Also treaty-making power is with the President but it is not effective till
approved by the Senate. It was the exercise of executive power of the senate due to which U.S.
couldn’t become a member to League of Nations. The Supreme Court has the power to declare the
acts passed by the Congress as unconstitutional.

2. Separation of Power in England

England follows a parliamentary form of government where the Crown is the nominal head and
the real legislative functions are performed by the Parliament. The King though an executive head,
is also an integral part of the legislature and all his ministers are also members of one or other of
the Houses of the Parliament. Furthermore, the Lord Chancellor is at the same time a member of
the House of Lords, a member of the government, and the senior most member of the judiciary.

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The judiciary is independent but judges of the superior courts can be removed on an address from
both house of Parliament. The House of Lords combines judicial and legislative functions.
Legislative and adjudicatory powers are being increasingly delegated to the executive. The resting
of two powers in a single body, therefore denies the fact that there is any kind of separation of
powers in England.

3. Separation of Power in India

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.

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 by 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 unconstitutional. Taking into account these factors, some
jurists are of the opinion that the doctrine of Separation of Powers has been accepted in the Indian
Constitution.

If we study the constitutional provisions carefully, it is clear that the doctrine of Separation of
Powers has not been accepted in India in its strict sense. In India, not only there is functional
overlapping but there is personnel overlapping also. The Supreme Court has power to declare void
the laws passed by the legislature and the actions taken by the executive if they violate any
provision of the Constitution or the law passed by the legislature in case of executive actions. The
executive can affect the functioning of the judiciary by making appointments to the office of Chief
Justice and other judges. One can go on listing such examples yet the list would not be exhaustive.

Some of the articles in the Indian constitution which emphasizes the separation of powers are the
following:
Article 50

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Article 50 puts an obligation over the state to separate the judiciary from the executive. However,
Article 50 falls under the Directive Principles of State policy (DPSP) and hence is not enforceable.
Articles 121 and 211
The legislatures cannot discuss the conduct of a judge of the High Court or Supreme Court. They
can do so only in matters of impeachment.
Articles 122 and 212
The courts cannot inquire the validity of the proceedings of the legislatures.
Article 361
The President and Governors enjoy immunity from court proceedings.

Checks and balances

The doctrine of separation of powers is a part of the basic structure of the Indian Constitution even
though it is not specifically mentioned in it. Hence, no law and amendment can be passed violating
it. The system of checks and balances is essential for the proper functioning of three organs of the
government. Different organs of the state impose checks and balances on the other. The following
examples illustrate the checks and balances:
 Judiciary exercises judicial review over legislative and executive actions. Judiciary has the power
to void laws passed by the Parliament. Similarly, it can declare the unconstitutional executive
actions as void.

 Legislatures review the functioning of the executive.

 Executive appoints the judges.

 Legislative branch removes the judges. It can also alter the basis of the judgment while adhering
to the constitutional limitation.

Checks and balances acts in such a way that no organ of the state becomes too powerful. The
constitution of India makes sure that the discretionary power bestowed upon any organ of the state
does not breach the principles of democracy. For instance, the legislature can impeach judges but
as per the condition i.e. two third majority.

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Separation of Powers and Judicial Pronouncements in India

In Keshavanand Bharti case (1973)1, the Supreme Court held that the amending power of the
Parliament is subject to the basic features of the constitution. So, any amendment violating the
basic features will be held unconstitutional. This scheme cannot be altered by even resorting to
Art.368 of the constitution. The amending power was 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 the republic can take over the functions assigned
to the other. Hence this further confirmed the opinion of the court in relation to the doctrine of
separation of power

In Ram Jawaya v. State Of Punjab (1955)2 case, The court in this case was of the opinion that the
doctrine of separation of power was not fully accepted in India. Further the view of Mukherjea J.
adds weight to the argument that the above said doctrine is not fully accepted in India. He states
that:

“The Indian Constitution has not indeed recognized the doctrine of separation of powering its
absolute rigidity but the functions of the different parts or branches of the government have been
sufficiently differentiated and consequently it can 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
another”.

The Supreme Court also held up the observation that the executive is derived from the legislature
and is dependent on it for its legitimacy. Cabinet ministers in India both executive and legislative
functions. Art. 74(1) gives the upper hand to the cabinet ministers over the executive by making
their aid and advice mandatory for the President, who is the formal head of the State.

1
Kesavananda Bharati vs State Of Kerala And Anr (1973) 4 SCC 225).
2
AIR 1955 SC 549, 1955 2 SCR 225.

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In Indira Nehri Gandhi v. Raj Narain (1975)3 case, 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 wouldn’t be void, it discharged a
judicial function that 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 the Supreme Court held
that adjudication of a dispute is a judicial function and parliament cannot even under constitutional
amending power is competent to exercise this function.

In Swaran Singh case (1998)4 the Supreme Court declared the Governor’s pardon of a convict
unconstitutional.
In subsequent judgments, the Supreme Court upheld the rulings of the Keshavananda Bharti5case
regarding the non-amend ability of the basic features of the Constitution and strict adherence to
the doctrine of separation of powers.
Constituent assembly and the separation of powers

There were primarily two reasons for non-insertion of separation of powers in the constitution:
 It was felt that it was too late to make amends as the constitution was already drafted and bringing
the amendment inserting the principle of separation of powers would bring in change to the
structure of the constitution.

 Since, British system of parliamentary form of government was adopted, it was thought it would
be better to avoid adopting complete separation of powers as in the American system.
Independence of Judiciary and separation of powers

Independence of Judiciary guarantees fair and neutral judicial system without the interference or
influence by the executive and legislative branches of the government. The concept of
independence of judiciary was derived from the England. The Hampden’s case (1637) and Coke’s
(1616) case helped to secure judicial independence.

3
AIR 1590, 1975 SCC (2) 159.
4
AIR 1998, SC 2026, 1998 (4) SCC 75.
5
Supra note 1.

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In India, during pre-independence times, the criminal magistracy was placed under the direct
control of the executive. Executive control of judiciary will breach the rule of law and result may
be that the rights of the citizens may be compromised. Article 50 of the constitution puts an
obligation over the state to separate the judiciary from the executive. In India, independence of
judiciary basically limited to delivering justice. Other things pertaining to the judiciary like salary,
allowances, privileges, jurisdiction, appointment and impeachment of jufges are left with
Parliament and the executive. Independence of judiciary has been made as a basic structure of the
constitution. This was observed in the S.K. Gupta v. President of India (1981)6 case.
Legislature Versus Judiciary

In India, there exists tug of war between the Judiciary and Legislature on certain issues. Judiciary
has striked down certain laws passed by the Legislature terming them ultra vires. The Legislature,
for its part has objected to the concept of Judicial Activism and sometimes frames fresh piece of
legislation to circumvent the objection raised by the judiciary. It is generally held that the concept
of judicial activism outs the doctrine of separation of powers.
In many instances in the past, the courts have issued laws and policies through their judgments.
Some of the prominent examples are:
 Vishakha case7 where the Supreme Court issued guidelines on sexual harassment.

 In 2010, it directed the government to distribute food grains.

 Recently, it also appointed a Special investigation Team (SIT) to replace the High Level
Committee constituted by the government for investigating the issue of black money deposits in
Swiss Banks.
However, it is often alleged that the judiciary crosses its territory pertaining to the Legislature or
executive and is termed as judicial overreach or judicial adventurism.
At the same time, there are also instances of the legislature reversing the outcome of some of the
judgments. For instance, in the Commissioner of Customs vs. Sayed Ali in 20118 case, imposition
of some duties retrospectively by the Customs Amendment and Validation Bill, 2011 was
challenged in the Supreme Court. The Supreme Court struck down the levy of duties. In order to

6
AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365.
7
Vishaka and others v. State of Rajasthan and others (1997) 6 SCC 241, AIR 1997 SC 3011.
8
3 SCC 537.

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circumvent that judgment, the Parliament passed Customs Bill, 2011 and amended the provisions
to levy duties retrospectively even in those which was earlier struck down by the Supreme Court.
Similarly, Essential Commodities (Amendment) Ordinance, 2009 was passed by the Parliament to
overrule the Supreme Courts judgment regarding the purchase of sugar by the government from
the mill.
As the doctrine of separation of powers is not codified in the constitution, there is a necessity that
each pillar of the State to evolve a healthy trend that respects the powers and responsibilities of
other organs of the government.

Conclusion

The doctrine of separation of powers in the strict sense is undesirable and unpractical and therefore
till now it has not been fully accepted in any of the country, but this does not mean that the doctrine
has no relevance in the world of today. The logic behind this doctrine is still valid. The logic behind
the doctrine is of polarity rather than strict classification, meaning thereby that the centre of
authority must be dispersed to avoid absolutism. Hence the doctrine can be better appreciated as a
doctrine of ‘check and balance’.