How Really Powerful is Separation of Powers | Indian Context

INTRODUCTION – ORIGIN AND EVOLUTION

Separation of powers is an integral part of administrative law and it’s roots lies in the concept of natural law and rule of law. The aim of natural law and the rule of law is to check public institutions. This ensures the safeguarding of life, liberty, and dignity. It is a flexible extension of the rule of law, adaptable to governance while preserving its core principles. The ancient Greek philosopher Aristotle first introduced the concept of the doctrine of separation of powers. However, Locke and Montesquieu wrote about the doctrine of separation of powers. They used it to distinguish legislative, executive, and judicial organs in modern democracies.

Powers and their kinds

Furthermore, Lock outlined three kinds of powers:

• Discontinuous legislative power
• Continuous executive power
• Federative power

He granted rule-making power in Discontinuous Legislative Power, activating it as needed. However, Continuous Executive Power encompassed all powers which we presently term as executive and judicial powers. Also, Locke viewed Federative Power as the power to conduct foreign affairs.

1. Negative sense
2. Positive sense.

In the negative sense, the doctrine limits each organ's power in a democratic state. In the positive sense, it sets jurisdictional parameters for the Court while ensuring constitutional validity.

The doctrine of separation of powers proposes three ideals:

1. The same person cannot form part of more than one organ of the three organs of the state.
2. There should be no interference of one organ of the state in the matters of another organ of the state
3. The state can not exercise the functions which were assigned to other organs of the state

Upon observing these characteristics or ideals within the separation of powers, we reach a natural conclusion. The principles of separation of powers cannot be applied strictly in a modern democracy. For example, even in England, where the concept of separation of powers gained momentum before most modern democracies, observers noted that the King, as an executive head, also played an integral role in the legislature. All his ministers also served as members of one or the other houses of Parliament. Therefore, England clearly contradicts the first aforementioned ideal, as the separation of powers dictates that the same person should not form more than one of the three organs of government.

It can not be applied everywhere:

As regards to the second aforementioned ideal, we can observe that the House of Commons ultimately controls the executive. The Judiciary is independent. Judges of superior courts can be removed by an order from both houses of Parliament. Therefore, with regards to separation of powers between the three organs of the government, there is no separation of powers in England.  The Supreme Court of the UK declared the Judiciary separate from Parliament. This aligns with the principle of separation of powers. It must also be noted that, legislative and judicial and adjudicatory powers being increased are being excessively delegated to the executive. This threatens the doctrine of separation of powers. Democracy relies on safeguarding the independence of the judiciary. 

DOCTRINE OF SEPARATION OF POWERS IN INDIAN CONTEXT

In India, this doctrine has not been given a constitutional status as only executive power is given to the President and the governor. Other powers are not vested concerning the directive principles in Article 50 of the Indian Constitution. This article states the separation of the Judiciary, ensuring its division from the executive. The outlined constitutional parameter does not enforce any rigid or dogmatic suppression of powers.

Ranjavier Kapur v. State of Punjab

In Ranjavier Kapur v. State of Punjab, the Supreme Court held that the Indian Constitution does not rigidly enforce suppression of powers. However, the functions of different government branches are sufficiently differentiated. Consequently, the Constitution does not allow one organ to assume functions belonging to another.

Indira Nehru Gandhi v. Shri Raj Narain

In this case, Chief Justice Ray also observed that the Indian that there is no doubt the separation of powers mentioned is mentioned in a very broad sense in the Indian Constitution, so concept of separation of powers can not be applied strictly in India. The rigid application of separation of powers as seen under the American Constitution or Australian Constitution does not apply similarly in the case of Indian Constitution.

Kesavanda Bharati v. State of Kerala

Also in case of Kesavanda Bharati v. State of Kerala, the doctrine of basic structure was developed and the ordinary legislative powers will be was regarded to be encroachment on the theory of citation of powers. However, justice Beg added held that the separation of powers is actually a basic part of the Constitution and none of the three separate organs of the Republic can take over the functions assigned to the other. Also, the separation of powers forms part of the basic structure of the government. Even by resorting to Article 368 of the Constitution of India, lawmakers cannot amend this principle. In India, observers note that the functions of the three organs of the state—the executive, legislature, and judiciary—are not separated, so the separation of powers does not apply strictly. However, they also observe that the functions and powers of the executive, judiciary, and legislature overlap with each other. This overlapping is functional overlapping and also personal overlapping. Supreme Court has the power to declare as the power to declare laws. Passed by the legislature and actions taken by the executive as void if they violate any of the provisions of the Constitution of India or any law passed by the legislature.  With regards to executive actions, even the power to amend the Constitution by the Parliament is subject to the scrutiny of the board.

Judiciary's Role in Maintaining Constitutional Supremacy

The court has the power to declare any amendment void if it violates the basic structure of the Constitution of India. It is also important to note that the court performs legislative functions when high courts exercise their power of supervision over the lower judiciary. The Constitution of India provides the right to exercise administrative powers to transfer a case from one court to another under Article 228.  This is an example of administrative power with regards to the president of India. The President is considered the executive authority of India, holding law-making power through ordinances. He also has judicial powers under Article 103(1) and Article 217(3) of the Indian Constitution. The Council of Ministers, selected from the legislature, is responsible to the legislature. They also exercise law-making powers, which include judicial functions in cases of privilege breaches. Additionally, they handle the impeachment of the President and the removal of judges. In this sense, the executive often affects the functioning of the Judiciary by making appointments to the office of chief justice and other judges.

CONCLUSION

In the context of liberalization, privatization, and globalization, modern democracy does not interpret the doctrine of separation of powers as only the principle of separation, checks and balances, or restraint. Instead, it views the doctrine as a community of powers exercised in the spirit of cooperation by various government organs in the best interest of the people. In Indira Nehru Gandhi v. Raj Narain, Justice Chandrachud observed that the doctrine of separation of powers has political usefulness. He stated that its importance is now widely recognized. The court observed that no modern constitution can survive without conscious adherence to checks and balances. These checks apply to the organs of the government. Therefore, the doctrine of separation of powers remains valid. It is still relevant in modern democracies today. The doctrine is based on polarity, not strict classification. It disperses central authority to prevent absolutism and corruption.