DOCTRINE OF SEPARATION OF POWERS -
HOLISTIC APPROACH NEEDED IN THE PUBLIC INTEREST
By Dr. T Padma., LLM., Ph D
kethepadma@gmail.com
Introduction
The Separation of Powers, is a model
for the governance of democratic 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. Under this model, the state
is divided into branches, each with separate and independent powers and areas
of responsibility so that no one branch has more power than the other branches.
The normal division of branches is into an executive,
a legislature, and a judiciary.
Different
Models
Constitutions with a high degree of
separation of powers are found worldwide. The UK system is distinguished by a
particular entwining of powers. In Italy the powers are completely separated,
even if Council of Ministers needs the vote of confidence from both chambers of
Parliament, that's however formed by a wide number of members. A number of
Latin American countries have electoral branches of government.
Countries with little separation of
power include New Zealand and Canada. Canada makes limited use of separation of
powers in practice, although in theory it distinguishes between branches of
government.
Complete separation-of-powers
systems are almost always presidential, although theoretically this need not be
the case. There are a few historical exceptions, such as the ‘Directoire’ system of revolutionary
France. Switzerland offers an example of non-Presidential separation of powers
today: It is run by a seven-member executive branch, the Federal Council.
However, some might argue that Switzerland does not have a strong separation of
powers system, as the Federal Council is appointed by parliament (but not
dependent on parliament), and the judiciary has no power of review.
Theory of Classification of powers
The
theory of separation of powers signifies three formulations of structural
classification of governmental powers:
(i)
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.
(ii)
One organ of the government should
not interfere with any other organ of the government.
(iii) One
organ of the government should not exercise the functions assigned to any other
organ.
In the Indian Context
In
a welfare State, the State performs important functions as a Provider,
Entrepreneur and Economic Controller, and the objective of the rule of law
should be to see that these multifarious and diverse encounters are fair, just
and free from arbitrariness. Therefore, it is important to structure and
restrict the power of the executive government so as to prevent its arbitrary
application or exercise. The rule of law which runs like a golden thread,
through every provision of the Constitution and indisputably constitutes one of
its basic features requires that every organ of the State must act within the
powers conferred upon it by the Constitution and the law.
In
India, the doctrine of separation of powers has not been accorded a
constitutional status. Apart from the directive principle laid down in Article
50 which enjoins separation of judiciary from the executive, the constitutional
scheme does not embody nay formalistic and dogmatic division of powers. The
Supreme Court in Ram Jawaya Kapur v. State of Punjab[1],
held.
“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 said that our
Constitution does not contemplate assumption by one organ or part of the State
of functions that essentially belong to another.”
In
Indira Nehru Gandhi v. Raj Narain[2],
Ray C.J. observed that in the Indian Constitution there is separation of
powers in a broad sense only. A rigid separation of powers as under the
American Constitution or under the Australian Constitution does not apply to
India. However, the court held that though the constituent power is independent
of the doctrine of separation of powers to implant the theory of basic
structure as developed in the case of Kesavananda
Bharati v. State of Kerala[3]
on the ordinary legislative powers will be an encroachment on the theory of
separation of powers. Nevertheless, 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. This
scheme of the Constitution cannot be changed even by resorting to Article 368
of the Constitution.
Overlapping
In
India, not only is there a ‘functional
overlapping’ but there is ‘personnel
overlapping’ also. The Supreme Court has the 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. Even the power to amend the constitution by
Parliament is subject to the scrutiny of the Court. The Court can declare any
amendment void if it changes the basic structure of the Constitution[4].
The President of India in whom the executive authority of India is vested
exercises law-making power in the shape of ordinance-making power and also the
judicial powers under Article 103(1) and Article 217(3), to mention only a few.
The council of Ministers is selected from the legislature and is responsible to
the legislature. The legislature besides exercising law-making powers exercises
judicial powers in cases of breach of its privilege, impeachment of the
president and the removal of the judges. The executive may further affect the
functioning of the judiciary by making appointments to the office of chief
Justice and other judge. One can go on listing such examples yet the list would
not be exhaustive.
Check and Balance
The
separation of powers is a doctrine which provides a separate authority, which
makes it possible for the authorities to check each other’s checks and balances.
The Supreme Court in Indira Nehru Gandhi
v. Raj Narain, it held that adjudication of a specific dispute is a
judicial function which Parliament, even acting under a constitutional amending
power, cannot exercise.
The
Constitution has invested the constitutional courts with the power to
invalidated laws made by parliament and State Legislature transgressing
constitutional limitations. Where an Act made by the legislature is invalidated
by the courts on the ground of legislative incompetence, the legislature cannot
enact a law declaring that the judgment of the court shall not operate; it
cannot overrule or annual the decision of the court. This is what is meant by “check and balance” inherent in a system
of government incorporating separation of powers[5].
If
the doctrine of separation of powers in its classical sense, which is now
considered as a high school textbook interpretation of this doctrine, cannot be
applied to any modern government, this does not mean that the doctrine has no
relevance in the world of today. The logic behind this doctrine is still valid.
Therefore, not impassable barriers and unalterable frontiers but mutual
restraint in the exercise of power by the three organs of the State is the soul
of the doctrine of separation of powers. Hence the doctrine can be better
appreciated as a ‘doctrine of check and
balance’ and in this sense administrative process is not an antithesis of
the ‘doctrine of separation of powers’.
In
Indira Nehru Gandhi v. Raj Narain[6],
Chandrachud, J. (as he then was) also observed that the “…political usefulness of the ‘doctrine of
separation of powers’ is now widely recognised…” No Constitution can
survive without a conscious adherence to its fine checks and balances. “Just as
courts ought not to enter into problems entwined in the ‘political thicket’, Parliament must also respect the preserve of
the courts. The principle of separation of powers is a principle of restraint
which ‘has in it the precept, innate in the prudence of self-preservation…that
discretion is the better part of valour’.
Therefore, the “Doctrine of separation of Powers” in today’s context of Liberalisation,
privatisation and globalisation cannot be interpreted to mean either ‘separation of powers’ or ‘check and balance’ or ‘principle of restraint’ but community of
powers exercised in the spirit of cooperation by various organs of the State in
the best interest of the people.
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[Published
in Supreme Court Journal / Weekly
May, 2011; Part -21
&
Published
in Andhra Law Times / Fortnightly
July, 2011; Part -7]
[1] Ram Jawaya Kapur v. State of Punjab;1955 SC 549;
[2] Indira Nehru
Gandhi v. Raj Narain; 1975 Supp SCC 1
[3] Kesavananda
Bharati v. State of Kerala; (1973) 4 SCC 225
[4] Kesavananda Bharathi v. State of Kerala,
(1973) 4 SCC 225: AIR 1973 sc 1461
[5] P . Kannadasan v. State of T N, (1996) 5 SCC
670.
[6] Indira Nehru
Gandhi v. Raj Narain; (1975) Supp SCC 1, 260
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