Concept Behind the Separation of Powers

The concept of Separation of Powers [1] is a model for the governance of democratic states. The three branches of the government- the legislative, the executive and the judiciary are the three distinct activities in every government through which the will of the people are expressed. The legislature makes laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the breach of law. Thus, it has become a model for the governance of democratic States. This model is also known as Trias Politica, which in the non-political context means ‘separation of duties’ which, for example, includes the segregation of accounting and custodial functions.

The proponents of the separation of powers believe that it protects democracy and forestalls tyranny. Whereas, the others say that there occurs considerable overlap of powers in parliamentary democracies. If we toe the middle line, we can observe that the Doctrine of Separation of Powers is like any other system with both merits as well as demerits. Thus, across the world, there isn’t any democracy with absolute separation of powers or complete absence of it. “This doctrine (of separation of powers) has got not only relevance to the question of separation of judiciary from the legislature and the executive, it has got a vital bearing upon the whole question of federalism,” said Brajeshwar Prasad on May 30, 1949, participating in the Constituent Assembly’s discussion. [2]

Lord Acton had once aptly stated, “Power corrupts, and absolute power corrupts absolutely. [3] ” Separation of power is a way of restraining the amount of power in the hands of any group or faction, making its abuse more difficult. “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. [4] ” Therefore, separation of powers limits the unlimited exercise of power by any branch of the government. This doctrine also helps in checking corruption and unlawful activities against the interests of the common man whom the government is supposed to serve. Each organ while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible when it comes to dealing with the general public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs. Thus, each organ will impose ‘checks and balances’ on the other.

In India, a lot of the present debate on the separation of powers is due to the active steps that the judiciary is taking to redress the sufferings of the common man. But behind the present brouhaha over the issue of judicial ac­tivism, what is often lost sight of is the politics of a turf-war among members of a troika who are also partners in running the Indian state. Although the Constitution mandates the separation of the judiciary from the executive and makes par­liamentary proceedings immune from court jurisdiction, experts from all the three wings agree that instead of any rigid distribu­tion of powers, a system of checks and balances should operate. Within this delicate system, the interests of the judiciary, the executive and the legislature sometimes converge, as well as clash.

In this project, the author will deal with the ingredients of the concept of separation of powers, the concept of separation of powers in India and recent developments with respect to the constitutionality of different tribunals in India.

Chapter I. Ingredients of Separation of Powers

The concept of Separation of Powers runs throughout the Constitution of India although the term has not been mentioned even once. It is a doctrine which is fundamental to the concept of a State and to the concept of Constitutionalism – insofar as it prescribes the appropriate allocation of powers.

The separation of powers doctrine does not insist that there should be three institutions of government each operating in isolation from each other. In fact, it is essential that there be a sufficient coordination between each institution of the State. It is for the executive for the most part to propose legislation for Parliament’s approval. Once passed by the Parliament and given the President’s assent thereto, the legislation becomes an Act, and thus, a law to be upheld by the judiciary. A complete separation of the three institutions could result in legal and constitutional deadlock. Rather than a pure Separation of Powers, the concept insists that the primary functions of the State should be allocated clearly and that there should be checks to ensure that no institution encroaches significantly upon the function of the other.

The author would like to briefly define the three organs of the State which broadly constitutes the governing authority of the nation.

The executive may be defined as that branch of the State which formulates policy and is responsible for its execution. In formal terms, the sovereign is the head of the executive. The Prime Minister, the Cabinet and other Ministers’, for the most part, are elected members of the Parliament. In addition, the Civil Service, local authorities, police and armed forces, constitute the executive in practical terms.

Parliament of India comprises the President of India, the Lok Sabha (House of the People) and the Rajya Sabha (Council of the States). The cardinal functions of the Legislature include overseeing of administration, passing of budget, ventilation of public grievances, and discussing various subjects like development plans, international relations, and national policies. All legislation requires the consent of both Houses of Parliament. In the case of Money Bills, the will of the Lok Sabha prevails. The Parliament is also vested with the power to initiate amendments in the Constitution. The various States also have their respective legislatures, the Legislative Assembly (Vidhan Sabha) and the Legislative Council (Vidhan Parishad) in a few States.

The judiciary is that branch of the State which adjudicates upon conflicts between State institutions, between State and individual, and between individuals. The judiciary is independent of both parliament and the executive. It is the feature of judicial independence which is of prime importance in relation to the protection of liberty of the citizen against the executive.

Quite recently, the press has been described as a “fourth estate” because of its considerable influence over public opinion, as well as its indirect influence in the branches of government by, for example, its support or criticism of pending legislation or policy changes. There is no provision in the Constitution of India providing guarantee for the freedom of the press but the Supreme Court in Sakal Papers v. Union of India [5] interpreted the scope of Article 19(1) (a) widely to include within its fold the freedom of the press which is regarded as a ‘species of which freedom of expression is a genus’.

Chapter II. Separation of Powers in India

On reading the provisions of the Constitution of India, one may be inclined to say that the Constitution accepts the doctrine of Separation of Powers. [6] Under the Indian Constitution, the executive powers are vested with the President, [7] the legislative powers with the Parliament, [8] and the judicial powers with the judiciary [9] (the Supreme Court, the High Courts and Subordinate Courts). The President holds his office for a fixed period. His functions and powers are enumerated in the Constitution itself. Parliament of India is competent to make any law, subject to the provisions of the Constitution and there is no other limitation on its legislative power. It can amend the law prospectively or even retrospectively but it cannot declare a judgment delivered by a competent court void or of no effect. Parliament has also inherited all the powers, privileges and immunities of the British House of Commons. Similarly, the judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or the legislature. The Supreme Court and High Courts are given the power of judicial review and they can declare any law passed by Parliament or Legislature as ultra vires or unconstitutional.

Taking into account these factors, some jurists are of the opinion that the doctrine of Separation of Powers has been accepted in the Constitution of India and is a part of the basic structure of the Constitution. Separation of functions is not confined to the doctrine of Separation of Powers. It is a part of essential structure of any developed legal system. In Kartar Singh v. State of Punjab, [10] Justice K. Ramaswamy stated: “It is the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the legislature to make law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution.”

The constitutional provisions do not declare the doctrine of Separation of Powers to be followed in its strict sense. There is no provision in the Constitution of India itself regarding the division of functions of the Government and the exercise thereof. Though under Articles 53(1) [11] and 154(1) [12] , the executive power of the Union and of the States is vested in the President and the Governors’ respectively, there is no corresponding provision vesting the legislative and judicial power in any particular organ. Thus, the doctrine of Separation of Powers is not fully accepted in the Constitution of India, and therefore the observations of Justice Mukherjea in Ram Jawaya v. State of Punjab [13] are important in this regard, wherein he stated that : “The 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 be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to one another.”

Thus, the legislature writes and enacts laws, Enacts taxes, authorizes borrowing, and sets the budget, has power to declare war, may start investigations, especially against the executive branch, often appoints the heads of the executive branch, appoints judges, ratifies treaties.

Each organ while performing its activities tends to interfere in the sphere 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.

In Ram Jawaya v. State of Punjab, [14] the Hon’ble Supreme Court observed that 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. Article 74(1) of the constitution of India, gives 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.

On the question that where the amending power of the Parliament lies and whether Article 368 confers an unlimited amending power on Parliament, the Supreme Court in the Kesavananda Bharati v. The State of Kerala and Others [15] case 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. Justice Beg 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.

In Indira Nehru Gandhi v. Raj Narain, [16] 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 won’t be void, it discharged a judicial function which 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. In a nutshell we can say that the Separation of Power is a method of removing the amount of power in any group’s hands, making it more difficult to abuse.

Chapter III. Recent Developments w.r.t. Various Tribunals

In the recent past there has been lots of conflict w.r.t. the constitutionality of different tribunals especially on the ground that it did not adhered to the separation of powers as reflected in the Constitution. These forums usually have both technical and judicial members and hence have been accused of possessing a quasi-judicial character (and not a full fledged court) which distinguishes them from the main frame of the judicial hierarchy.

A major contentious area in this regard is whether these Tribunals fall within the meaning of judiciary as referred to under Article 50 of the Constitution of India. The question therefore that arises is whether these Tribunals, which perform the role of adjudicatory bodies as a substitute to the ordinary courts under the judicial hierarchy, are a part of ‘judiciary’ as referred to in Article 50. The Supreme Court in the case of Union of India v. Delhi High Court Bar Association [17] observed “Such Tribunals, whether they pertain to income tax or sales tax or excise or customs or administration, have now become an essential part of the judicial system in this country. Such specialized institutions may not strictly come within the concept of the judiciary, as envisaged by Article 50, but it cannot be presumed that such Tribunals are not an effective part of the justice delivery system, like courts of law.”

In two recent cases, one involving the Competition Commission of India [18] and another the Appellate Tribunal constituted under the Prevention of Money Laundering Act, [19] the petitioners contended that the constitution of selection committee to recommend members and Chairperson to these bodies was not independent as because all the members of the committee were of the executive and not of the judiciary and there was also no provision for consultation with the Chief Justice of India. They further contended that there cannot be an independent judiciary when the power of appointment of superior judges’ vests in the executive as the independence of the judiciary is inextricably linked and connected with the constitutional process of appointment of judges of the higher judiciary.

This Hon’ble Court in Pareena Swarup [20] case said in paragraph 8 that the Constitution guarantees free and independent judiciary and the constitutional scheme of separation of powers can be easily and seriously undermined, if the legislatures were to divest the regular courts of their jurisdiction in all matters and entrust the same to the newly created Tribunals which are not entitled to protection similar to the constitutional protection afforded to the regular Courts.

Subsequently on the direction of the Supreme Court certain portions of Appellate Tribunal Rules, 2007 was amended to provide that the Chairperson of Appellate Tribunal is appointed on the recommendation of the Chief Justice of India and the composition of the Selection Committee to select Members of the Tribunal has been amended to provide for a Judge of the Supreme Court, nominated by the Chief Justice of India, to be the Chairperson of the Selection Committee.

Very recently, in the case of Union of India v. R. Gandhi, President of the Madras Bar Association [21]  the Supreme Court while deciding the constitutionality of the National Company Law Tribunal (NCLT) stated unambiguously that active bureaucrats could not be tasked with judicial functions since the same would go against the doctrine of separation of powers between the Executive and the Judiciary.

The Supreme Court went on to state that the Legislature has the competence to transfer any particular jurisdiction from courts to Tribunals provided that the persons who are appointed as President/Chairperson/Members are of a standard which is reasonably approximate to the standards of mainstream judicial functioning. On the other hand, if a Tribunal is packed with members who are drawn from the civil services and who continue to be employees of different Ministries or Government Departments by maintaining lien over their respective posts, it would amount to transferring judicial functions to the executive which would go against the doctrine of separation of power and independence of judiciary.

Conclusion

From the 1980s, much of the debate on separation of powers has taken place due to the proactive role being played by the judiciary and even to this day the latter is passing through a defining moment. After having gone through the shameful phase of total subjugation under the Indira Gandhi regime, the judiciary had been attempting, since the lifting of the Emergency, to reinvent its role as an independent institution. This was done through steps like evolving the concept of pub­lic interest litigation (PIL) and suo motu intervention in many cases involving the marginalised sections of the society.

Such activism has drawn ire from legislators and administrators who feel threatened by what they perceive as an alternative power centre, with Lok Sabha speaker Somnath Chatterjee going to the extent of denouncing judicial activism as an attack on democracy. [22]

Mention must be also made of the recent attempts of the executive to take over certain judicial functions as had been enumerated by the author in the third chapter of this project.

The judiciary, the executive and the legislature have generally managed to work out a compromise formulae on disputes that pose a threat to the status quo, with the apex court intervening to save the situation and for the interest of the smooth and conducive relations between the three organs it is hoped that there will never arise a stalemate situation in which one organ’s functions have been completely subverted by the other.