DOCTRINE OF SEPARATION OF POWER Introduction “Power corrupts and absolute Power tends to corrupt absolutely”. The separation of powers, also known as trias politica. The Doctrine of Separation of Power is the forerunner to all the constitutions of the world which came into existence since the days of the “Magna Carta”. Though Montesquieu was under the erroneous impression that the foundations of the British constitution lay in the principle of Separation of Power, it found its genesis in the American Constitution. Montesquieu had feelin feeling g that it it would would be a panac panacea ea to good good gover governan nance ce but it it had its its own drawbacks. A complete separation of power without adequate checks and balances would have have nullified any constituti constitution. on. It was only with this in mind the founding founding fathers of various constitutions have accepted this theory with modifications to make it relevant to the changing times. The doctrine of Separation of Powers deals with the mutual relations among the three organs of the Government namely legislature, executive and judiciary. The origin of this principle goes back to the period of Plato and Aristotle. It was Aristotle who for the first time classified the functions of the Government into three categories viz., deliberative, magisterial and judicial Locks categorizes the powers of the government. The French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) published in 1748, for the first time enunciated the principle of separation of powers. powers. That’s why he is known as modern exponent of this theory. Montesquieu doctrine, in essence, signifies the fact that one person or body of persons should not exercise all the three powers of the Government viz. legislative, executive and judiciary. In other words each organ should restrict itself to its own sphere and restrain from transgressing the province of the other. In the view of Montesquieu: “When the legislative and executive powers are united in the same person, or int he same body or Magistrate, there can be no liberty. Again, there is no liberty if the judicial power is not separated from the Legislative and Executive power. Where it joined with the legislative power, the life and liberty of the subject would be exposed 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 every thing were the same man or the same body to exercise these three powers... Montesquieu Montesquieu s “Separation” “Separation” took the form, form, not of impassable impassable barriers barriers and unalterable unalterable frontiers, but of mutual restraints, or of what afterwards came to be known as “checks and balances”. The three organs much act in concert, not that their respective functions should not ever touch one another. If this limitation is respected and preserved, “it is impossible for that situation to arise which Locke and Monstequieu regarded as the eclipse of liberty- the monopoly, or disproportionate accumulation of power in one sphere.” The man behind the the principles is to protect the people again capricious tyrannical and whimsical powers of the State. ‟
As has been observed by the Hon’ble Chief Justice Balakrishnan, 'the Constitution lays down the structure and defines the limits and demarcates the role and function of
every organ of the State including the judiciary and establishes norms for their inter relationships, checks and balances.' Our institutions of governance have been intentionally founded on the principle of separation of powers as a bulwark against tyranny of any or more organs of the State and the Constitution does not give any unfettered power to any organ and all the three principal organs are expected to work in harmony 'in a joint and participatory role … instead of an exclusive primacy of any one in the process', to quote former Chief Justice J. S. Verma. He has further observed that the basic constituent principle of the Indian polity is that no single public functionary will have absolute power, which is anathema in a democracy. The obvious consideration before the Constituent Assembly was to preserve and protect the freedom and democratic rights of the people and the supremacy of the popular will in our system of governance. The centrality of the will of the people finds its best expression in the Preamble of the Constitution itself. The words, ‘We, the People of India’ and ‘do hereby Adopt, Enact and Give to ourselves this Constitution’ recognize the sovereignty of the people and their primacy in our constitutional system and convey its eternal message. It is in exercise of this sovereign power that we, the People, have given unto ourselves the Constitution making India a Sovereign, Socialist, Secular and Democratic Republic. And, through the provisions of the Constitution, we have enumerated the powers and responsibilities of the organs of the State to be the facilitators of national weal, leaving hardly any scope for doubt or confusion in the mutual relationship. To quote Chief Justice Verma, 'The sovereign will of the people finds expression through their chosen representatives in the Parliament … The real political executive is the Council of Ministers, which also controls the Lok Sabha, wherein lies the real legislative power. Parliament exercises political and financial control over the Executive, and there are inherent checks and balances to keep every organ within the limits of constitutional power. The grey areas are meant to be covered by healthy conventions developed on the basis of mutual respect keeping in view the common purpose to be served by the exercise of that power'. The Legislature has been accorded a pre-eminent position in our constitutional and political set-up, with power inter alia, to make laws, to exercise control over the nation’s purse, to make the Executive accountable to the popular House, and when considered necessary, also to amend the Constitution. But obviously the Legislature has to function within the parameters laid down by the Constitution. The framers of our Constitution took infinite care to provide for an independent and impartial Judiciary as the interpreter of the Constitution and as the custodian of the rights of the citizens through the process of judicial review, which gives the mandate to the judiciary to interpret the laws but, if I may humbly submit, not to make them, nor to lay down general norms of behaviour for the government or to decide upon public policy. The concept is 'judicial review' and not 'judicial activism' which is of recent coinage and extends, as one finds, much beyond review. The scope of judicial review is confined to the enquiry as to whether an impugned legislation or an executive action falls within the competence of the Legislature or of the executive
authority or is consistent with the Fundamental Rights guaranteed by the Constitution or with its other mandatory provisions. The Constitution does not contemplate a Super-organ nor confers an over-riding authority on any one organ. No organ has any power to superintend over the exercise of powers and functions of another, unless the Constitution strictly so mandates. In the words of Pandit Jawaharlal Nehru, while speaking in the Constituent Assembly: (I quote) 'No Supreme Court and no Judiciary can stand in judgment over the sovereign will of Parliament, representing the will of the entire community. If we go wrong here and there, it can point it out, but in the ultimate analysis, where the future of the community is concerned, no Judiciary can come in the way… ultimately the fact remains that the Legislature must be supreme and must not be interfered with by the Court of law in measures of social reforms.' (unquote). In the early years of the Republic, the Supreme Court had already recognized that the Indian Legislature had a distinctly superior position vis-à-vis the other organs of the State. The observations of the then Justice S. R. Das, who later adorned the office of the Chief Justice of India with great lustre, in the famous case of A. K. Gopalan v. State of Madras (1950 SCR 88) made it very clear and I quote: 'Although our Constitution has imposed some limitations … [it] has left our Parliament and the State Legislature supreme in their respective legislative fields. In the main, subject to limitations … our Constitution has preferred the supremacy of the Legislature to that of the Judiciary… and the Court has no authority to question the wisdom or policy of the law duly made by the appropriate Legislature … and this is a basic fact which the Court must not overlook.' (unquote). Although prima facie it appears that our constitution has based itself upon doctrine of separation of powers. Judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or the legislature. Constitution restricts the discussion of the conduct of any judge in the Parliament. The High Courts and the Supreme Court has been given the power of judicial review and they can declare any law passed by parliament as unconstitutional. The judges of the S.C. are appointed by the President in consultation with the CJI and judges of the S.C. The S.C. has power to make Rules for efficient conduction of business . It is noteworthy that A. 50 of the constitution puts an obligation over state to take steps to separate the judiciary from the executive. But, since it is a DPSP, therefore it’s unenforceable. In a similar fashion certain constitutional provisions also provide for Powers, Privileges and Immunities to the MPs , Immunity from judicial scrutiny into the proceedings of the house , etc. Such provisions are thereby making legislature independent, in a way. The Constitution provides for conferment of executive power on the President. His powers and functions are enumerated in the constitution itself. The President and the Governor enjoy immunity from civil and criminal liabilities.
But, if studied carefully, it is clear that doctrine of separation of powers has not been accepted in India in its strict sense. The executive is a part of the legislature. It is responsible to the legislature for its actions and also it derives its authority from legislature. India, since it is a parliamentary form of government, therefore it is based upon intimate contact and close co-ordination among the legislative and executive wings. However, the executive power vests in the President but, in reality he is only a formal head and that, the Real head is the Prime minister along with his Council of Ministers. The reading of Art. 74(1) makes it clear that the executive head has to act in accordance with the aid and advice given by the cabinet. Generally the legislature is the repository of the legislative power but, under some specified circumstances President is also empowered to exercise legislative functions. Like while issuing an ordinance , framing rules and regulations relating to Public service matters , formulating law while proclamation of emergency is in force . These were some instances of the executive head becoming the repository of legislative functioning. President performs judicial functions also . On the other side, in certain matters Parliament exercises judicial functions too. It can decide the question of breach of its privilege , and in case of impeaching the President; both the houses take active participation and decide the charges Judiciary, in India, too can be seen exercising administrative functions when it supervises all the subordinate courts below . It has legislative power also which is reflected in formulation of rules regulating their own procedure for the conduct and disposal of cases
MENTION ARTICLES Judicial view on the doctrine of Separation of Power
As clearly mentioned about the separation of power there were times where the judiciary has faced tough challenges in maintaining and preserving the Doctrine of separation of power and it has in the process of preservation of the above said Doctrine has delivered landmark judgments which clearly talks about the independence of judiciary as well as the success of judiciary in India for the last six decades. The first major judgment by the judiciary in relation to Doctrine of separation of power was in Ram Jawaya v state of Punjab AIR 1955 The court in the above 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 recognize 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”. In Re Delhi Laws Act AIR 1951, Supreme Court held that this doctrine is not a part of our constitution, as we have a parliamentary form of government, it’s just a mere partial incorporation. In Ram Krishna Dalmia v. Justice Tendolkar AIR 1958 S.C.
Hon’ble Chief Justice S.R. Das opined that in the absence of specific provision for separation of powers in our Constitution, such as there is under the American Constitution, some such division of powers legislative, executive and judicial- is nevertheless implicit in our Constitution. Later in I.C.Golak Nath v State of Punjab AIR 1967 , Subha Rao, C.J opined that: “The constitution brings into existence different constitutional entitles, namely the union, the state and the union territories. It creates three major instruments of power, namely the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping there limits. They should function with the spheres allotted to them ” The above opinion of the court clearly states the change in the courts view pertaining to the opinion in the case of Ram Jawaya v state of Punjab related to the doctrine of separation of power. Then came one of the most land mark judgments delivered by the Supreme Court in Keshvananda Bharti v Union of India 1973, the court was of the view 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. 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. Then in Indira Gandhi Nehru v. Raj Narain 1975, where the dispute regarding P.M. election was pending before the Supreme Court, opined that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise i.e. the parliament does not have the jurisdiction to perform a function which the other organ is responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions of the three organs of the state. Also the constituent Assembly Of France in 1789 was of the view that “there would be nothing like a Constitution in the country where the doctrine of separation of power is not accepted. So if there is a provision then there should be proper implementation and this judgment emphasis on that point only.
SEPARATION OF POWERS AND JUDICIAL OVERREACH
However, one may point out that the Hon’ble Supreme Court has itself construed that the concept of Separation of Powers is a 'basic feature' of the Constitution. That being so, necessarily, each organ of the State has separate areas of functioning, into which no other organ can enter or intervene, unless permitted by the Constitution itself, and if it so does, it will be contrary to one of the 'basic features' of our Constitution and that includes the Judiciary also. There was a lot of appreciation when our Supreme Court was pleased to hold that justice can be provided, through an innovative procedure, to the oppressed citizens, especially those belonging to the vulnerable sections of the community, who have no
means, no facilities and, in fact, no possibility on their own to approach the Court even in cases of glaring injustice and discrimination, by giving a liberal meaning to the concept of locus standi, without in any way, entering into the areas preserved for the legislature or the executive. (SP Gupta and othrs v. UOI ) But today, there is a considerable feeling even in well-meaning quarters that we have travelled a long way from that objective. On many occasions, the Hon’ble Supreme Court itself has felt it necessary to condemn motivated and frivolous approaches to Court in the garb of Public Interest Litigation (PIL), which goes much beyond the scope of Judicial Review. By way of warning, Chief Justice Verma, in his lecture, has drawn attention to 'the deliberate misuse of the judicial process by some vested interests to settle political scores, or to shift the responsibility to the judiciary for deciding some delicate political issue found inconvenient by the political executive for decision.' Chief Justice Verma has expressed the view that 'Judicial activism should be neither judicial ad-hocism nor judicial tyranny and that while commanding performance by the concerned authority, the judiciary should not take over the function itself, as it will not be a legitimate judicial intervention, which can only be when it comes within the scope of permissible judicial review.' Now-a-days, there are umpteen instances where judiciary has intervened in matters entirely within the domain of the executive, including policy decisions. As the learned Chief Justice Verma has pointed out in his Dr. K. L. Dubey Lecture: '….Judiciary has intervened to question a ‘mysterious car’ racing down the Tughlaq Road in Delhi, allotment of a particular bungalow to a Judge, specific bungalows for the Judge’s pool, monkeys capering colonies to stray cattle on the streets, cleaning public conveniences, and levying congestion charges at peak hours at airports with heavy traffic, etc., under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance.' In a democracy, where rule of law and not laws of men prevail, for its every action or inaction, the executive authority must be and is accountable to the people. But where the judiciary interferes with policy decisions of the executive and takes decisions clearly of administrative nature, I feel that it may then be proper to ask: is the Judiciary accountable to anyone for the discharge of functions of executive nature and what are the constitutional and legal sanctions behind such orders made and directions given by courts, by way of judicial activism? While he was a Judge of the Supreme Court, Hon’ble Justice Srikrishna, observed very appropriately, if I may say so, in a lecture delivered at a Law College, that 'In the name of judicial activism, modern day Judges in India have abandoned the traditional role of a neutral referee and have increasingly resorted to tipping the scales of justice in the name of distributive justice. The legitimacy of such actions needs critical appraisement at the hands of the legal fraternity.' Further, his Lordship pointed out that 'Political questions which were meant to be out-of-bounds for the courts have often been thrown into the laps of Judges. Instead of throwing them back, the courts
have, with great enthusiasm, essayed into adjudication of such questions, often with unsatisfactory results.' As the former Chief Justice of India, Justice Ahmadi has stated, sometimes this activism has the potential to transcend the borders of judicial review and turn into populism and excessivism. 'Activism', according to him, 'is populism when doctrinal effervescence transcends the institutional capacity of the judiciary to translate the doctrine into reality, and it is excessivism when a court undertakes responsibilities normally discharged by other coordinate organs of the government.' In a very recent article, Mr. Soli Sorabjee, former Attorney General of India and a known votary of judicial activism, has observed that 'Undoubtedly there have been at times judicial aberrations. This cannot be avoided because infallibility has not been divinely guaranteed to the judges.' One may ask then what is the redress against such aberrations? If there is legislative and executive aberrations, the judiciary can exercise its power of Judicial Review by correcting the same though not by substituting its own decisions in matters within executive or legislative domain. After stating that even if there is malfunctioning in the House of Parliament, the Judiciary cannot interfere with the internal functioning of the Parliament, Mr. Sorabjee admits that 'Problems really stem from the judiciary’s role in entertaining Public Interest Litigation petitions. Some orders and directions passed are beyond the judicial sphere and at times smack of judicial adventurism… . Judges must withstand the temptation of publicity and also rid themselves of the belief that the judiciary alone can solve all the problems that afflict our nation and remember that PIL is not a pill for every ill … friction can be avoided if each organ of the state correctly understands and respects the constitutional functions of the other organs.' Justice A. S. Anand, former Chief Justice of India, has recently observed that 'Courts have to function within the established parameters and constitutional bounds. Decisions should have a jurisprudential base with clearly discernible principles … . Courts have to be careful to see that they do not overstep their limits because to them is assigned the sacred duty of guarding the Constitution … . Policy matters, fiscal, educational or otherwise, are thus best left to the judgment of the executive. The danger of judiciary creating a multiplicity of rights without the possibility of adequate enforcement will, in the ultimate analysis, be counter productive and undermine the credibility of the institution. Courts cannot 'create rights' where none exist nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles…. With a view to see that judicial activism does not become 'judicial adventurism', the courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile – failure to bear this in mind would lead to chaos…. Public adulation must not sway the judges and personal aggrandizement must be eschewed. It is imperative to preserve the sanctity and credibility of judicial process. It needs to be remembered that courts cannot run the government … . The judiciary should act only as an alarm clock but not as a time keeper. After ringing the alarm bell, it should ensure that the executive has become alive to perform its duties.' Shri Rajeev Dhavan, a leading lawyer of the Hon’ble Supreme Court, in a recent article in the media has observed that 'Public Interest Litigation was a wonderful tool to help the poor and the disadvantaged and to explore public causes. But how far will
the court go? Today, it is acting as the Ministry of Forests in the Godavarman case. No electricity line, school, project can be built in India without the Supreme Court’s permission and its dreaded self-appointed committee which is a law unto itself … .' The Supreme Court must recognise that 'policy' is for the government, and 'law' for the court.' In connection with a recent matter, Shri Dhavan has further observed that 'for the government, equality means social and economic opportunity for all. The Supreme Court protects merit, meritocracy and an elite equality. This is a very serious clash of ideology … about social justice – albeit with politicians seeking votes and the judges enjoying public attention.' In a recent editorial in one of the leading national dailies, it has been stated that 'Judicial Activism, by definition, tends to encroach. Like other organs of civil society, the judiciary should hold itself up for occasional introspection and consider whether restraint is actually the better part of intellectual valour.' On 14 April 2007, it has been reported in the Press that a Bench of the Supreme Court while hearing a petition under PIL observed as follows: 'Courts cannot interfere with government policies on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review… . Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy. Nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate… . The scope of judicial review when examining a policy…is to check whether it violates the fundamental rights of citizens or is opposed to provisions of the Constitution or opposed to any statutory provision or (is) manifestly arbitrary.' Justice Srikrishna’s warning of the inherent dangers in such intrusions into the domains of the other branches of the government merits serious attention. He said, (and I quote): 'The legislative and the executive wings of the body politic, which possess the core competence and specialization in dealing with complex socio-economic problems, are getting progressively marginalized. The judicial organ of the State, the least equipped to deal with socio-politico-economic issues, has occupied the center stage, and has got bogged down in more and more of such cases. Sheer expediency or the urge for immediate justice in an abstract sense is hardly a justification for taking on problems with myriad fine details that the court is ill-equipped to handle.' Discharge of executive responsibilities by any other authority, howsoever highly placed, but non-accountable, is anathema in a democracy. There should be no assumption that any particular organ has any inherent superiority or a monopoly over concern for the people or that it alone can solve their problems. I believe that activism of any institution has to be, first and foremost, directed to the due discharging of its own basic and fundamental duties. To my mind, what is required for any institution to perform most effectively is, to start with, a realistic role-perception within the broader systemic framework. Once the
Judiciary gets involved with an issue, which falls within the executive domain, it precludes the possibility of the Legislature exercising its assigned role of ensuring executive accountability through effective legislative scrutiny. It is important for the Judiciary to remind itself, if I may humbly submit, that its 'task does not include an amorphous supervision of the government.' Let us not forget the basic premise, as Sri Fali Nariman says in his recent book ‘On saving the Legal System,' that : 'Under our constitutional scheme the social, economic and political aspects of justice (stated in the Preamble) are left primarily to the Law-makers (Parliament and the State Legislatures). The entire legislative process, it is assumed, is influenced by considerations of Justice and Reason… .' It is often seen that the Judiciary is applauded for its 'activism'. The issue involved, however, is more serious than perception of a section of the people, who have access to the media. It is about the very basis of our constitutional scheme of powerrelationship. Self-restraint is the primary balancing element in the exercise of judicial power. Justice Frankfurter of the US Supreme Court reiterated this in the Trope v. Dulles (1958), when he said: '… it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitation on its own power, and this precludes the Court’s giving effect to its own notions of what is wise or politic. That selfrestraint is of the essence in the observation of the judicial oath, for the Constitution has not authorized the justices to sit in judgment on the wisdom of what Congress and the executive branch do.' The provisions of the Chapter IV of Part V of our Constitution dealing particularly with the Union Judiciary clearly provide for a close relationship between the Judiciary and the Legislature, not in a manner of controlling each other but of a mutually complementary relationship, which should necessarily be based on harmony between the two most important organs of the State. Under Article 140, it is the Parliament which by law make provision for conferring upon the Supreme Court such supplementary powers not inconsistent with any of the provisions of the Constitution as may appear to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by or under this Constitution. Article 142(1) of the Constitution provides that any decree passed or order made by the Hon’ble Supreme Court 'shall be enforceable' throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. I would humbly refer to what I consider some very important issues in connection with the exercise of an activist role of the judiciary: a) What are the laws, legal principles or authorities which will be applied or followed by the judiciary in deciding matters which will require exercise of jurisdiction assigned to some other organ or authority? Would that depend on
the ipse dixit of the learned judge or judges when the matter is res integra? and b) What is the method or procedure provided by the Constitution or any law for enforcement of such orders? The principle of separation of powers, clearly provided for in our Constitution, to my mind, is not an optional feature to be selectively recognized by the organs of the State, but is one of the most essential directives of our Constitution, which has to inform every aspect of administration in the country. Otherwise, the constitutional basis of our Republic and the credibility of our democratic institutions itself will be questioned, as they are now, which will not strengthen due governance of the country. In a democratic set up, the space and role of every institution is expected to be clearly earmarked in the Constitution that creates it. It is in the effective discharge of those functions, that it serves the people for whom the institutions are meant. This can be accomplished without intruding into or trivializing the role of the co-ordinate institutions or without undermining the importance of fundamental democratic processes. To my mind, when institutions succeed in functioning strictly within the domain assigned to each, not only do they grow in public esteem, but they also create the ideal conditions for the effective functioning of the entire system. The commitment and sensitivity to democratic values demonstrated by our Founding Fathers and other leaders in the formative years of our Republic and also by our Apex Court have all contributed immensely to the building up of the democratic edifice in the country over the decades. When, during a tumultuous period of our history, the Judiciary had left the citizens, at the mercy of the executive with ‘diamond bright’ and ‘diamond hard’ hope for protection of their Constitutional rights, which were being blatantly abused by the administrative machinery of the State, but perceived by some elements in the judiciary as something as good as ‘maternal care’ and as such chose to look the other way, when the ordinary citizens would have needed their support the most, it was the later Parliament itself that was elected by the people at the earliest opportunity through free democratic elections that finally restored the basic rights of the people and put in place stronger defences for our democracy and for safeguarding the interest of the citizens through the 44th Constitution Amendment Act in 1978. No other institution could match that capacity for alertness and collective sensitivity to popular feelings.
