If the doctrinaire concept of the Rule of law hampered the recognition of administrative law in England, the doctrine of Separation of powers had similar impact on the thinking of administrative process in the United States.
The separation of powers is a model for the governance of both democratic and federative states the model of which was first developed in ancient Greece and came into widespread use by the Roman Republic as part of its uncodified Constitution. Its origin is traceable to 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.
In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers. But it was Montesquieu who for the first time formulated this doctrine and gave it a scientific and systematic formulation in his book ‘Esprit des Lois’ (The Spirit of the Laws), published in the year 1748. The main justification for separating powers between independent branches is to prevent any individual or group from accumulating excessive power and ruling tyrannically[1].
MONTESQUIEU’S THEORY
According to this theory powers are of three kinds:
Legislative, executive and judicial each of which is vested in three separate organs of the Government for if all these powers are united in the same organ or individual there can be no liberty. For instance, if legislative and executive powers are united there is an apprehension that the organ concerned may enact tyrannical laws and execute them in tyrannical manner. Again there can be no liberty if judicial power is not separated from the legislative and executive.
There would be end of everything if the same man or the same body were to exercise those three powers that of enacting laws, that of executing the public resolutions and of trying the cause of individuals.
According to Wade and Philips, the theory of separation of the powers signifies the following three different things:
- That the same person should not form part of more than one of the three organs of the government;
- That one organ of the government should not interfere with any other organ of the government;
- That one organ of the government should not exercise the functions assigned to any other organ.
This theory has had different application in U.S.A., England and India.
DOCTRINE OF SEPARATION OF POWERS IN USA
The whole structure of the Constitution of U.S.A is based on the doctrine of separation of powers which has been accepted and strictly adopted in U.S.A. Article I; Section 1 vests all legislative powers in the Congress. Article II; Section 1 vest all executive powers in the President and Article III; Section 1 vests all judicial powers in the Supreme Court. So in America the doctrine has the following characteristics:
- Presidential form of government: The form of government, characterized as presidential, is based on the theory of separation between the executive and the legislature. The President being both the head of the state as well as its chief executive appoints and dismisses other executive officers and thereby controls the policies and actions of government departments. The persons in charge of the various departments, designated as the Secretaries of State, hold office at his pleasure, are responsible to him and are more like his personal advisors. The ultimate decision rests with the President and he is not bound to accept the advice of a Secretary. Separation is maintained between the legislative and executive organs whereby neither the President nor any member of the executive is a member of the Congress. This system of government is fundamentally different from the parliamentary system prevailing in India. In U.S.A., the President is not in theory responsible to the Congress and has a fixed tenure of office and does not depend on majority support in the Congress[2].
- Principle of checks and balances: The U.S. Constitution however incorporates some exceptions to the doctrine of separation with a view to introduce the system of checks and balances. President can be said to be exercising a legislative function when he veto a bill passed by the congress. Again, appointment of certain high officials is subject to the approval of the Senate. The Senate may be deemed to be exercising executive functions because treaties made by the President are not effective until approved by the Senate. The executive functioning of the congress can be seen through its various committees, which has the power to sanction money for governmental operations. The Supreme Court has the power to declare the Acts passed by the Congress unconstitutional. But we can see that the judges of the Supreme Court are appointed by the President with the consent of the Senate so there is overlapping of functions. The president now exercises legislative functions by sending messages to the congress and by the exercise of the right of veto. The congress has the power to exercise judicial function of impeachment to remove the president. Senate discharges executive function regarding treaties and in the making of certain appointments. The congress has delegated legislative powers to numerous administrative organs and they exercise all type of functions. And the Supreme Court has never held that the combination of all these power in one agency is unconstitutional.
This exercise of performing some part of the function by an organ likely to do it by the other type of organ is justified on the basis of the theory of checks and balances. It means that the functioning of one organ is checked in some measure by the other organ so that no organ mat run amok with its powers and misuse the same. Thus, in the case of Panama Refining Company v. Ryan[3] [(1935)293 U.S. 388(400)], commenting on the practicality of the doctrine J. Cardozo said: The doctrine of “separation of powers” is not a doctrinaire concept to be made use of with pedantic rigor. There must be sensible approximation; there must be elasticity of adjustment in response the practical necessities of government which cannot foresee today the development of tomorrow in their nearly infinite variety.”
DOCTRINE OF SEPARATION OF POWERS IN FRANCE
Even though France is credited with giving origin to the doctrine of separation of powers, it recognizes the separation of powers in its Constitution in a flexible manner. Art1 and Art 2 separates the legislature from the executive. An eminent feature of the doctrine is reflected in its dual court system that is one kind of court that deals with all the civil matters and another kind which deals with administrative matters.
The French administration also consists of three independent organs viz. the legislature, the executive and the judiciary. The legislature makes the laws. The executive branch implements these laws. But the executive by exercising veto to prevent a particular law from being passed keeps a check on the legislature. Further, the Judiciary too has the power to determine the constitutionality of the laws passed by the legislature. The legislative branch also has the power to remove a president or judge if they aren’t doing the duties of their job right. The executive branch chooses the judges and the legislative branch approves the executive branch’s choice.
There have been several debates going around in France regarding the blurry concept of separation of power in the minds of the current French President, Emanuel Macron. Macron has advocated certain constitutional reforms before the parliament and the same is being criticized as they weaken the doctrine in France[4].
DOCTRINE OF SEPARATION OF POWERS IN UK
The famous English Jurist Blackstone supported the doctrine of Montesquieu. According to him, “whereever the right of making and enforcing the Law is vested in the same man or in the same body of men there can be no liberty”. Despite the fact that, Montesquieu based his explanation of the doctrine on the British system, it is obvious that the British system has a weak division of powers. In the United Kingdom, in the absence of a written constitution, there is no formal separation of powers and hence no Act of the Parliament may be held to be unconstitutional if any power is conferred in breach of the doctrine. The Three Branches of Power:
The Executive Power:
The executive consists of the Crown and the government, including the Prime Minister, Cabinet of Ministers and also the Civil Service. The executive mainly formulates and executes the government policies. The government is accountable to Parliament which has the ultimate power to dismiss a government and force a general election in which the new government will be elected. The government is mainly elected from the Members of Parliament who sit in either House of Common or House of Lords.
The Legislative Power:
The legislative power in the UK is held by the Parliament. The Parliament of UK is composed of three parts, namely; the Monarch, House of Lords and House of Commons. However, the monarch has only nominal powers and mainly has to listen to the advice of the Prime Minister. The House of Commons is made up of elected members of Parliament, whereas the House of Lords is made up of unelected hereditary peers and life peers appointed by the Crown and Archbishops and Bishops of the Church of England. However, it should be pointed out that the House of Commons is superior to House of Lords in its law making power. The main functions of the Parliament are to: create/amend law, scrutinise the government, and to enable the government to make financial decisions.
The Judicial Power:
The main function of this branch is to hear upon and resolve the matters of law. However, in the UK the judiciary has one more essential function: to develop the law through their judgements. The judiciary consists of judges in courts, as well as those who hold judicial office in tribunals. The senior judicial appointments are made by the Crown. Their independence in protected in the “Act of Settlement – 1700″, according to which, Senior Judges can only be dismissed by address to the Crown from both Houses of the Parliament.
The Lord Chancellor:
One of the most peculiar features of the UK was probably the Lord Chancellor. This is mainly due to the fact that the Lord Chancellor was a part of all three branches of the government (i.e. executive, legislative, and judicial). The Lord Chancellor is often regarded as a disregard to the doctrine of separation of powers. Prior to the “Constitutional Reform Act 2005″ the Lord Chancellor acted as the head of the Judiciary, was a member of the Cabinet and presided over the House of Lords as its Speaker. However, after the “Constitutional Reform Act 2005″ was passed, the Lord Chancellor was removed from his position in the Judiciary. Moreover, he no longer acts as the speaker of the House of Lords. In future, the Lord Chancellor can be a part of either of the Houses. The “Constitutional Reform Act 2005″ led the British government towards having a clearer division among the powers.
EXCEPTIONS
The absolute sovereignty of the Parliament is maintained under which the Crown governs through ministers who are members of the Parliament and responsible to it. The independence of the judiciary is firmly established by the Act of Settlement, 1700. Many disputes which arise out of the process of the government are dealt with not by the ordinary courts but by the administrative tribunals. However, the impartiality of the tribunals is maintained through preservation of essential features of ‘fair judicial procedure[5]. During the 17th century in England Parliament exercised legislative powers, the King exercised executive powers, and the Courts exercised judicial powers, but with the emergence of cabinet system of Government i.e. parliamentary form of Government, the doctrine remains no good. The renowned constitutional Bagehot observed “The cabinet is a hyphen which joins, buckle which fastens, the legislative part of the State to the executive part of the State.”
In England the King being the executive head s also an integral part of the legislature. His ministers are also members of one or other Houses of Parliament. This concept goes against the idea that same person should not form part of more than one organ of the Government.
In England House of Commons control the executive. So far as judiciary is concerned, in theory House of Lords is the highest Court of the country but in practice judicial functions are discharged by persons who are appointed specially for this purpose, they are known as Law Lords and other persons who held judicial post. Thus we can say that doctrine of separation of powers is not an essential feature of British Constitution.
Donoughmore Committee has aptly remarked:
“In the British Constitution there is no such thing as the absolute separation of legislative, executive and judicial powers[6].”
DOCTRINE OF SEPARATION OF POWERS IN INDIA
The Constitution of India lays down a functional separation of the organs of the State in the following manner:
Article 50: State shall take steps to separate the judiciary from the executive. This is for the purpose of ensuring the independence of judiciary.
Article 122 and 212: validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court. This ensures the separation and immunity of the legislatures from judicial intervention on the allegation of procedural irregularity.
Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be discussed in the Parliament and the State Legislature, according to Article 121 and 211 of the Constitution.
Articles 53 and 154 respectively, provide that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.
Article 361: the President or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office[7].
In India, not only functional overlapping is there but also the personal overlapping is prevailing.
Judiciary:
Judiciary exercises few legislative and executive functions under Articles 145- the rule making function of the judiciary where it performs the role of executive and Article-142 of our constitution has given a very powerful sword to the Apex Court for complete justice in any case or matter so there is complete shifting from the ordinary powers and thereby weakening the doctrine in its strict sense. 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.
Executive:
The President of India who is the supreme executive authority in India exercise law making power in the form of ordinance making power under Article-123, also the Judicial powers under Article-103(1) and Article-217(3), he has the consulting power to the SC of India under Article-143 and also the pardoning power in Article-72 of the Constitution. The executive also affecting functioning of the judiciary by making appointments to the office of Chief Justice of India and other judges.
Legislature:
The Council of Minister is selected from the legislature and this Council is responsible for the legislature. The legislature exercising judicial powers in cases of breach of its privileges, impeachment of the President under Article-61 and removal of judges. The legislative body has the punitive powers under Article-105(3).
JUDICIAL PRONOUNCEMENTS ENUNCIATING SEPARATION OF POWERS
In India the principle isn’t laid down in a formalistic way in the constitutional scheme but it has been often referred to by way of Art 50 and judicial pronouncements.
The Supreme Court in Ram Jawaya Kapur v State of Punjab[8] held that the Indian Constitution hasn’t recognized the doctrine in its absolute rigidity but the different functions of the different branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution doesn’t contemplate that functions of one organ essentially belong to another.
In Indira Nehru Gandhi v. Raj Narain[9], Ray C.J. observed that even 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. Beg, J. in Kesavananda Bharati v. State of Kerela[10] 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.
Later in I.C. Golak Nath v State of Punjab[11], Subha Rao, C.J opined that the constitution brought different constitutional entities into existence, namely the union, the state and the union territories. It created three major instruments of power, namely the Legislature, the Executive and the Judiciary. There is minute demarcation amongst the three and they are expected to exercise their respective powers without overstepping there limits.
In Bandhuva Mukti Morcha v. Union of India[12] Pathak J., said:
“The Constitution envisages a broad division of the power of state between the legislature, the executive and the judiciary. Although the division is not precisely demarcated, there is general acknowledgment of its limits. The limits can be gathered from the written text of the Constitution, from conventions and constitutional practice, and from an entire array of judicial decisions.”
Essential functions were defined in Mallikarjuna v. State of Andhra Pradesh[13] when the Andhra Pradesh Administrative Tribunal directed the State Government “to evolve proper and rational method of determination of seniority among the veterinary surgeons in the matters of promotions to next higher rank of Assistant Director of Veterinary Surgeons”. The Supreme Court quashed the aforesaid direction and observed that the power under Article 309 of the Constitution to frame rules is the legislative power which has to be exercised by the President or the Governor of the State as the case may be. The High Court or Administrative Tribunals cannot issue a mandate to the State Government to legislate on any matter. In this way the principle of restraint prevents any organ of the State from becoming superior to another or others in action.
Similarly, in Supreme Court Employees’ Welfare Association v. Union of India[14] [AIR 1990 SC 334], it was held that no court can issue a direction to a legislature to enact a particular law neither it can direct an executive authority to enact a law which it has been empowered to do under the delegated legislative authority.
In India there exists a functional and personnel overlapping amongst the wings of the government. The Supreme Court has the power to strike down laws passed by the legislature actions taken by the executive if they are in contravention of the Constitution. The President, executive head of the country has lawmaking powers by virtue of ordinance making power and clemency powers, inter alia. The Legislature apart from exercising its law-making powers exercises judicial control in cases of breach of privileges provided to the legislators, impeachment of the President and judges. The Executive wing also affects the functioning of the judiciary by making appointments to the office of the Chief Justice and other Judges of the High Courts and lower judiciary[15].
CONCLUSION
It was only the American constitution where there is express provisions regarding the doctrine of separation of powers but it incorporates some exceptions to the doctrine of separation with a view to introduces the system of checks and balances. The doctrine of separation of powers has no place in strict sense in Indian Constitution, but the functions of different organs of the Government have been sufficiently differentiated, so that one organ of the Government could not usurp the function of another. But in England we can see that although the three powers are vested in three organs and each has its own peculiar features, but it cannot be said that there is no ‘sharing out’ of the powers of the government. Even though France is credited with giving origin to the doctrine of separation of powers, it recognizes the separation of powers in its Constitution in a flexible manner. Therefore the doctrine of separation of powers in the strict sense is undesirable and impracticable and therefore till now it has not been fully accepted in any of the country.
[1]. Andrew James Klassen, Seperation of Powers, In book: Encyclopedia of Power (pp.597-598)Publisher: SAGE Publications, January 2011
[2]. Yashmita, Separation of Powers: A Comparative Analysis of the Doctrine India, United States of America and England, academike, April 30 2015
[3]. [(1935)293 U.S. 388(400)]
[4]. The Doctrine of Separation of Powers in India, USA and France, LEXFORTI September 17, 2020
[5]. Priyanka Goel, Doctrine of Separation of Powers: Global and Indian Perspective, International Journal of Research in Humanities and Social Sciences, Vol. 2, Issue: 4, April-May 2014.
[6]. Tej Bahadur Singh, PRINCIPLE OF SEPARATION OF POWERS AND CONCENTRATION OF AUTHORITY, Deputy Director (Administration) I.J.T.R., U.P., Lucknow, March 1996
[7]. Doctrine of Separation of Powers in India, Civils Daily, September 2017
[8]. AIR 1955 SC 549.
[9]. 1975 SCC 161,
[10]. AIR 1973 SC 1461.
[11]. AIR 1967 SC 1643
[12]. [AIR 1984 SC 802],
[13]. [AIR 1990 SC 1251]
[14]. AIR 1990 SC 334
[15]. IP Massey, Administrative Law, 39-40
Praveena.C, an editor of the lawexams.co.in, part of LJRF is working for the TDP a glorious initiative of this organization. She had graduated from Government Law College, Thrissur and got enrolled in the Bar Council of Kerala in 2019. And currently she is a final year student of LLM at Government Law College, Thrissur specializing in Administrative Law. She had qualified UGC NET in september 2020 . This article conceptualizes the theory of separation of powers in India, U.K, U.S.A and France and its application in real sense.
