ABSTRACT:
Lord Acton stated that, “Power tends to corrupt, and absolute power corrupts absolutely.” The concept of “separation of powers” was first introduced in the writings of Montesquieu in the spirit of the Laws, where Montesquieu discusses the division of governmental functions into three distinct branches to prevent one department from encroaching on another’s jurisdiction. The underlying goal of introducing their principles was to prevent power concentration and to allow for checks and balances. The American constitution applies the doctrine in a strict sense but in India, the separation of powers is not strictly observed. This paper dwells briefly upon the history of this doctrine. It also draws upon a comparative analysis to USA and UK and elaborates in brief the Indian perspective of the Doctrine. It identifies criticisms to the doctrine and suggests reforms in its conclusion.
INTRODUCTION:
A French social and political philosopher from the 18th century, Charles de Montesquieu, first used the phrase “trias politica” or “separation of powers”[1]. The doctrine of separation of powers is a theory that tries to divide government powers into various branches or departments, each with its own set of roles and responsibilities. This doctrine is considered to be a vital safeguard against authoritarianism and tyranny and has been a central part of many modern democratic governments.
Ancient Greeks understood the significance of distributing power across several agencies of the government, which is where the doctrine of separation of powers first emerged. The finest form of governance, according to the philosopher Aristotle, is one in which authority is distributed among many people and no one individual or group has absolute authority.[2]
The doctrine of separation of powers emerged as a crucial component of European political theory during the Medieval Era. The Magna Carta of 1215 set restrictions on the king’s power in England, and the English Parliament was established in the 13th century to act as a check to the king’s power. The French philosopher Montesquieu expanded on this idea in his famous book “The Spirit of the Laws,” which was published in 1748.
According to Montesquieu, a system of government where power is distributed among the legislative, executive, and judicial departments is the best. He felt that this system of checks and balances would protect individual rights and liberties by preventing any one branch of government from becoming overwhelmingly strong.
Montesquieu’s views had a significant impact on the evolution of the American political system. A federal structure of government was formed by the United States Constitution, which was enacted in 1787, and it has separate branches for the legislative, executive, and judicial responsibilities. This system of checks and balances was created to ensure that the rights and liberties of the populace were maintained and to prevent any one branch of government from becoming overly strong.
Several democratic systems all around the world have made use of the theory of the separation of powers extensively. In many countries, the executive branch is in charge of enforcing the laws, the legislative branch is in charge of formulating the laws, and the judicial branch is in charge of interpreting the laws and ensuring that they are applied fairly and impartially.
DOCTRINE OF SEPARATION OF POWER IN USA & UK:
The doctrine of separation of power is implicit in the American Constitution and emphasizes the exclusivity of the three branches of government.[3] In Kilborne v. Thompson[4], the United States Supreme Court held in 1881 that all powers of government are divided into executive, legislative, and judicial branches and that “it is essential to successful working of this system that the person entrusted with power in any one of these branches shall not be permitted to encroach upon the power confided to the others, but each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.”
The Constitution’s express letters state that legislative power shall be vested in Congress, executive power shall be vested in the President, and judicial power shall be vested in the Supreme Court in Art. I, II and III respectively.. This doctrine prevents the Supreme Court from deciding political questions to avoid interfering with the executive branch’s exercise of power[5].
The Separation of Powers in the United States is associated with the Checks and Balances system, which gives each branch of government individual powers to prevent any one branch from becoming too powerful. Congress creates laws, the President can veto them, and the Supreme Court may declare them unconstitutional. Congress can impeach and convict the President, while the President appoints Supreme Court candidates who are confirmed by the Senate, and judges can be removed from office by impeachment. In this way, the system provides a measure for each branch to check the others. The system also allows Congress to override a Presidential veto with a 2/3 vote in both houses.[6]
In the landmark case of Marbury v. Madison (1803), the Court established the principle of judicial review, which gives the judiciary the power to strike down laws that are unconstitutional. This decision helped to establish the principle of checks and balances, which is a key component of the separation of powers.
In recent years, some governments have abandoned rigid separation of powers in favour of a more flexible approach to governance. The concept of the separation of powers, for instance, is not as clearly defined in the United Kingdom as it is in the United States, and the prime minister and other members of the executive branch also serve in the legislature.
The United Kingdom lacks a codified constitution that specifically divides the functions of the government into three branches. Instead, the UK operates under a parliamentary system of government that unites the legislative and executive spheres.
The UK Parliament is divided into two houses: the House of Commons and the House of Lords. The Prime Minister and Cabinet are in charge of putting laws into effect after they have been enacted by the House of Commons. Although the judiciary is separate from the legislative and executive branches, it does not possess the same level of authority as the judiciary in the USA.
Although there is a system of checks and balances in the UK, it is not as structured as the one in the USA. The UK Parliament has the authority to keep the administration accountable, and the court has the authority to interpret the law and strike down laws that are unconstitutional.[7]
DOCTRINE OF SEPARATION OF POWER IN INDIAN PERSPECTIVE[8]:
The notion of separation of powers is enshrined in the Indian Constitution and is seen as a vital aspect of the country’s democratic structure. The legislative, executive, and judicial branches of government are established under the Indian Constitution, each having specific roles and responsibilities.
In India, the division of powers is “functional,” rather than absolute. This indicates that while each branch of the government has distinct authorities and responsibilities, there is some degree of overlap between them as well.
Although there is a functional division of powers, India’s Constitution also has a strong system of checks and balances that serves to guarantee that no one branch of government has too much authority.
Some of the relevant constitutional provisions are:
Article 50- The state is required under Article 50 to keep the judicial branch independent from the executive branch.
Article 121 & 211- The conduct of a judge on the High Court or Supreme Court are not subject to debate in the legislatures. They can only do so in cases of impeachment only.
Article 122 and 212- The courts have no authority to investigate the legality of legislative proceedings.
Article 361- Immunity from legal procedures is granted to the President and Governors.
Some relevant judicial precedents:
1. Ram Jawaya Kapur v. State of Punjab [9](1955): The case dealt with the issue of the separation of powers between the judiciary and the legislature. In this case, the Supreme Court held that the legislature cannot interfere with the functioning of the judiciary and that judiciary is an independent branch of government.
2. Keshavananda Bharati v. State of Kerala[10] (1973): This case established the concept of basic structure, which states that certain elements of the Constitution cannot be amended by Parliament. It held Doctrine of Separation of power as a part of the basic structure doctrine.
3. Indira Nehru Gandhi v. Raj Narain[11] (1975): The question of how the judiciary and executive branches should be separated came up in this case. The Supreme Court ruled that the judiciary had the authority to review executive’s actions.
4. State of Rajasthan v. Union of India[12] (1977): This case dealt with the issue of the separation of powers between the judiciary and the legislature. The Supreme Court held that the legislature cannot interfere with the functioning of the judiciary.
5. S.R. Bommai v. Union of India[13] (1994): This case dealt with the issue of the misuse of Article 356 of the Constitution, which allows the President to dismiss a state government. The Supreme Court held that the misuse of this power is a violation of the principle of separation of powers.
LOOPHOLES & CRITICISM:
Despite its widespread acceptance, the doctrine of separation of powers has also been the subject of much debate and controversy. The separation of powers has been criticized for its loopholes and limitations.
One criticism is that the separation of powers is not absolute, and there is often overlap between the branches of government. This overlap can lead to confusion and inefficiency in the government. Another criticism is that the separation of powers can lead to gridlock and a lack of accountability. For example, if the legislative and executive branches are controlled by different parties, it can be difficult to pass legislation or make decisions.
Additionally, the separation of powers can lead to a lack of coordination between the branches of government, which can make it difficult to respond to crises or emergencies. Finally, some critics argue that the separation of powers can lead to a lack of democratic accountability, as unelected judges and bureaucrats can wield significant power without being directly accountable to the people.
Some of the challenges to the effective implementation of the separation of powers in India are- the potential for political interference in the functioning of the judiciary, particularly in the appointment and promotion of judges. This can undermine the independence of the judiciary and compromise its ability to act as a check on the other branches of government.
Another challenge is the potential for abuse of power by the executive branch, particularly in the use of emergency powers. The Indian Constitution allows for the declaration of a state of emergency in certain circumstances, which grants the executive branch significant powers to suspend fundamental rights and freedoms. While the use of emergency powers is supposed to be limited and subject to judicial review, there have been instances in which they have been abused for political purposes.[14]
CONCLUSION & SUGGESSTIONS:
As a result, the doctrine of separation of powers continues to be an important and influential concept in contemporary political theory. It is considered a crucial defence against authoritarianism and tyranny and has contributed to the growth of numerous contemporary democratic systems throughout the world.
Some critics say that strict separation of powers can lead to gridlock and inefficiency, while others argue that it is ineffective at preventing government abuses of power. While not without limitations and difficulties, the doctrine of separation of powers is fundamental to shaping the nature and structure of democratic governance in the 21st century.
It is suggested that in order to address the criticisms, the coordination between the government’s branches be improved by the establishment of clear lines of authority and responsibility, the strengthening of democratic accountability through transparency and public participation in the decision-making process, the establishment of mechanisms for holding elected officials and bureaucrats accountable for their acts, and the strengthening of the judiciary’s independence through the establishment of clear lines of authority and responsibility.
Ultimately, continuous supervision and vigilance is required to make sure that India’s democratic system is strengthened and the separation of powers is maintained.
Author – DIMPAL KHOTELE
BBA.LL.B – Amity University, Chhattisgarh
[1] See, Separation of Powers: An overview, NCSL, updated- 01.05.2021. Available at: https://www.ncsl.org/about-state-legislatures/separation-of-powers-an-overview
[2] See, K Pandya, Separation of Powers- An Indian Perspective, 22.04.13. Available at: https://ssrn.com/abstract=2254941
[3] See, Anis Ahmed, Doctrine of Separation of Power, Legal Service India E-Journal. Available at: https://www.legalserviceindia.com/legal/article-4789-doctrine-of-separation-of-power.html
[4] 103 U.S. 168 (1881)
[5] I.P. Massey. Administrative Law. 5th edition 2001. Eastern Book Company; New Delhi, p. 34-35
[6] See, Separation of Powers, Legal Information Institute, Available at: https://www.law.cornell.edu/wex/separation_of_powers_0
[7] See, SK Jahangir Ali, Separation of Power: A comparative study, SSRN, 01.02.2013 Available at: Chapter – 1 (ssrn.com)
[8] See, Akash Trikha & Anwesha Tripathi, Separation of Powers: Indian Perspective, PJAEE 17(6). ISSN 1567-214x. Available at: https://archives.palarch.nl/index.php/jae/article/view/1805/1793
[9] AIR 1955 SC 549
[10] AIR 1973 SC 1461
[11] 1975 AIR 865
[12] 1977 AIR 1361
[13] AIR 1994 SC 1918
[14] Supra note 8