SEPERATION OF POWER

INTRODUCTION

The earliest reference made to the concept of the Doctrine of Separation of Powers was in the
16th & 17th centuries by Aristotle and Plato. In the 16th & 17th centuries French philosopher
John Bodin and British politician Locke expressed their views regarding the doctrine. But it was
the French jurist Montesquieu, who gave birth to this principle through his famous book,
Espirit des Lois Sprit of Law which was published in 1748. He found if powers were to be
concentrated in one person or one group, it may lead to tyranny and colorable use. To avoid this
situation and with a view to checking the arbitrariness of the government he suggested that
power of governance should be divided between the three organs of the state i.e. Executive,
Legislative and the Judiciary.

Montesquieu was impressed by the liberal thoughts as they existed in England in the 18th
century and witnessing the autocratic use of power by Louis XIV in his own country, he felt that
the secret of an Englishmans liberty was the separation and functional independence of the three
departments of the Government from one another.1

According to Montesquieu:

Miserable indeed would be the case, were the same man or the same body, whether of the
nobles or of the people, to exercise those three powers, that of enacting powers, that of executing
the public resolutions and that of judging the crimes or differences of individuals.2

Wade and Philips

Apart from the theory of Montesquieu that the power shall be divided among three organs which
shall be sovereign in their own spheres, Wade and Philips has given three principles of separation

1 Justice, Thakker, C.K. (Takwani) & Mrs. Thakker, M.C. Lectures on Administrative
Law. Eastern Book Company. Lucknow. 4th Edition (Reprinted). 2010.

2 A.R. Gupta, An analysis of the limitations of the doctrine of separation of powers:

re-visiting the judgment delivered in Ram Jawaya Kapur v. State of Punjab
of powers. And if a State fails to follow these three principles then Separation of Power is not
achieved by them. Thus it is not enough to create three organs and divide powers among them in
order to protect liberty.

The three principles provided by Wade and Philips in order to protect separation of powers are:

i. Same person shall not be part of more than one of the three organs of the
Government: Thus one person shall not be part of more than one organ ie. a person can
either belong to Legislative, Executive or Judiciary. This type of separation of power is
neither fully followed in UK nor in India.

In UK the highest court of appeal is House of Lords which is a legislative authority or

part of Parliament. The head of this authority id Lord Chancellor is part of Ministry. Thus
he is a part of Legislative authority, Executive as well as Judiciary. Thus three different
functions are being done by him in different capacity. Thus the above principle is not
being followed in UK.

In USA, the President is part of the Executive who then appoints the Ministers. Thus
these Ministers are solely part of the Executive. Therefore one person from the
Legislative organ are not part of the Executive. Similarly the vice-versa is also true.
Therefore the above principle is strictly followed in the USA.

In India, Ministers are representatives of the people and hence are part of the Parliament.
They belong to the legislative authority. However these representatives are chosen as
members of Executive also. Thus same person is sitting in two different organs which is
violative of the above principle. With respect to Legislative authority and Judiciary and
Executive and Judiciary the above principle holds true as no person who belongs to one
of the organ can be part of the other.

ii. One organ of the Government should not control or interfere with the works of
another: Thus there shall be no interference and questioning by one organ to another.
This principle is not followed in India and UK.

The Ministers are responsible to the Parliament by the way of Article 75. So interference
is allowed here. The Constitution also allows for some control by the Legislature on the
Judiciary by way of check and balance theory. But interference is not allowed and Judges
 are not responsible to the Legislature. Due to the doctrine of basic structure, even control
is not allowed by the Legislature in some spheres.

Per se in the Indian Constitution no interference of Executive and Judiciary was allowed
in the working of the Legislature. But later on by the declaration of basic structure by the
Courts, there has been control on the Constitution making part of the Legislature. Apart
from that Article 13 (2) provides that Parliament shall not make any law inconsistent with
the Fundamental Rights. This control was here in the original Constitution but the control
under Article 368 was drawn by the Judiciary through its various decisions.
In USA there is no interference between any of the organs of the Government. The
Executive is not responsible to the Legislature. However the law made can control the
actions of the President. Thus control can be seen but there is no interference by any
organ. Thus there is strict application of the above principle.

iii. One organ of the Government should not exercise the functions of another: In India
Executive are allowed to perform law making functions. The Legislature is provided with
executive as well as judicial functions. Judiciary, particularly, Supreme Court and High
Court is also conferred with law making functions. Even investigations, which are
executive functions, are done under the guidelines of Courts. Thus the above rule is not
strictly followed in India.

Balance and Counter- balance has been recognized as essential part of every democratic system.
India being a democracy allowed the above theory. As said by Lord Acton, Power corrupts and
absolute power tends to corrupt absolutely. Therefore some power is given to all the organs but
for the proper working of democracy, absolute power cannot be given to any of the organ. Thus
check and balance theory is followed in India. The three organs can practically not be segregated
into three watertight compartments due to their interdependence on each other to ensure
efficacious governance. Thus co-operative federalism and co-operative separation of power is
adopted by India to mutually respect all the organs.

COMPARATIVE ANALYSIS

The theory of separation of powers has different implication in different nations:

USA
The US Constitution expressly divides powers between three organs. Thus the model for
separation of power as provided by Montesquieu is followed in the US. This can be inferred from
the provisions in the US Constitution:

Article I: All legislative powers shall be with the legislative authorities, or the Congress
Article II: All executive powers shall be with the President of USA.
Article III: All judicial powers shall be with the judicial department, or the Judiciary

France

The Courts, as a result of this theory, rejected to review the acts of executive and legislature. It
also led to separate Administratif Courts to settle the disputes between administration and the
citizens.

UK

The theory of Integration of Powers has been adopted in England in reality where the Lord
Chancellor is the Head of the Judiciary, Chairman of the House of Lords, a member of the
Executive and often a member of the Cabinet. The Donoughmore Committee observed: In the
British Constitution there is no such thing as the absolute separation of legislative, executive and
judicial powers. Montesquieu had clearly misconstrued the statement pertaining to the British
constitution.

INDIA AND SEPARATION OF POWER

With respect to this the Indian Constitution provides two Articles from which separation of
powers can be referred to. These two are:

Article 52 (1): All executive powers of the territory shall be with the President of India.
Article 154 (1): All executive powers of the State shall be with the Governor and person
working under him.

These two provisions are similar with the Article II of the US Constitution and thus provides for
express separation of powers of the Executive. Apart from that indirect separation of power is
there in India.
Article 145 of the Indian Constitution separates the power between Parliament and State
Legislative Authority and confers them with the power to make law for whole of the territory of
India and for the State respectively. Article 50 of the Constitution wherein some separation can
be inferred says that State shall endeavor to separate judicial power from the executive power in
the public services. However, this Article is applicable only to the lower judiciary as the people
there are appointed and controlled by the public services authority. Thus no provision has been
made for the separation of powers between Supreme Court or High Court and the Executive. So
prima facie there is no strict provision for separation of power between the three organs of the
Constitution.

Indian Constitution, unlike Constitution of United States of America and Australia, does not have
express provision of separation of powers. However, the structure provided in our Constitution
leaves no manner of doubt that the doctrine of separation of powers runs through the Indian
Constitution. It is for this reason that this Court has recognized separation of power as a basic
feature of the Constitution and an essential constituent of the rule of law. The doctrine of
separation of powers is, though, not expressly engrafted in the Constitution, its sweep, operation
and visibility is apparent from the Constitution. Indian Constitution has made demarcation
without drawing formal lines between the three organs. Separation of powers between these
organs is also nothing but a consequence of principles of equality enshrined in Article 14 of the
Constitution of India. Accordingly, breach of separation of judicial power may amount to
negation of equality Under Article 14.3

JUDICIAL PRONOUNCEMENTS

3 State of T.N. v. State of Kerala, (2014) 12 SCC 696

On a careful study of the Indian Constitution, it can be said that the doctrine of Separation of
Powers has not been accepted in India in the strictest sense (stricto sensu). However, this
doctrine has been interpreted by the judiciary through a series of case laws.

In Re Delhi Laws Act4, the Supreme Court accepted that Indian Constitution does not vest
different sets of powers in different organs of the Government except the Executive. Mukherjea,
J. observed that our Constitution, though federal in nature, is modeled on the British
Parliamentary system, the essential feature of which is responsibility of the Executive to the
Legislature.

In Ram Jawaya Kapoor v. State of Punjab 5 the basic issue was whether Executive authority are
allowed to notify, to make law or without authorization by legislative authority.

Inherent Power Theory: Powers are divided and there are inherent powers with the Legislative
authority. Under Indian Constitution, residuary power is given to the Parliament. This kind of
power is even present with the Judiciary. Even when Statute is silent, Judiciary is present for two
basic works: a) to interpret the law, b) to decide the dispute between parties. This is treated as
inherent power of Judiciary. Similarly power is given to the Executive, by way of legislation, if
there is no law then no power can be exercised by them and if such powers are exercised, they
are ultra vires.

Facts of the case:

In the State of Punjab, all recognised schools had to follow the course (of studies) as approved by
the Education Department of the Government. For a long period of time prior to 1950, the
method adopted by the Government for selection and approval of text books for schools was the
alternative method. Books on relevant subjects, in accordance with the principles laid down by
the Education Department, were prepared by the publishers and they were submitted for approval
to the Government. The Education Department after proper scrutiny selected certain number of
books on each subject as alternative text books, leaving it to the discretion of the Head Masters
of the different schools, to select any one of the alternative books on particular subject out of the
4 AIR 1951 SC 332

5 AIR 1955 SC 549

approved list. By certain resolutions passed by the Government in 1950 the text books on certain
subjects were prepared and published by the Government without inviting them from the
publishers. Another change introduced at this time was that the Government charged, as royalty,
5% on the sale price of all the approved text books. the Government monopolized this system
and the authors and others would only get a royalty at the rate of 5% on the sale of the text
books. Thus the publishing, printing and selling of the books were taken by the Government
exclusively in their own hands.

A petition against the 1952 petition was filed under Article 32 of the Indian Constitution on
violation of Article 19 (1) (g). It was argued that printing is business and due to the Notification
the business was harmed. This Notification is law as per Article 13 (3), and this law took away
the Fundamental Right of people.

Contentions:

1. This change was made by way of Executive authority and there cannot be any notification
without the sanction of Legislature. Thus there shall be some Legislation for this Notification. In
the absence of this, the work done by Executive is without jurisdiction and hence is illegal. Thus
it was argued that the acts of the Government in carrying out their policy of establishing
monopoly in the business of printing and publishing text books for school students is wholly
without jurisdiction and illegal.

2. Even if the State could create a monopoly in its favor in respect of a particular trade or
business, whether the same could be done by any executive act or it could be done only by
means of a proper legislation which should conform to the requirements of Article 19 (6) of
Constitution and not by Executive notification.

3. Interest in the business is a property and according to Article 31 property cannot be taken
away without paying compensation. Therefore it was argued whether it was open to the
Government to deprive the petitioners of their interest in any business or undertaking without
making any compensation.
It was argued that Executive has 2 powers: a) to execute the law. b) to supervise the law. Thus
without legislative enactment, Executive cannot have any authority. If not, it would be against
separation of power as creation of rights and duties is a legislative function.

Article 73 and 162 of the Constitution of India says that executive power of the Union and State
extends to legislative power of the Parliament State Legislative Assembly. Thus Executive
cannot go beyond the law making power of the Legislature. It cannot go in the area where no law
has been enacted by the Parliament.

The SC referred to the case of Motilal v. State of UP6 where question with respect to creation of
monopoly under Article 19 (1) (g) was raised. It was held that it is very difficult to decide what
the executive powers are; still in India it can be understood. Some of the powers of the Executive
that are exercised by them are:

IP n o hc w ie d e r er n g t i v e n In c id e n t a l p o w e r s P o I n w h e e r eg n i v t e p n o iw n e t r h s e : e C x o e n c s u t it t i uo nt i o a n dt o s t u h p e e Er v x i e s ci o u n t i vo ef l a w
iep n no twt ha el r s :
eCp xoo ewn c s u t i t i u o tn i o n
tea o rn s dt h e
sE u x pe ec ur v t i vs ie o n
o f la w
The Court in this case held that whatever is required by the Executive in order to achieve the
objective of the Constitution are executive power. Therefore in broader sense it includes all
types of expectations of the Constitution. The Court observed that if right to hold the property is
given to the State, it means that they have the right to manage the property. This is an incidental
right. Like every citizen has right to do business freely, similarly, State as an artificial person has
a right to do business as per Article 298. Right to do business is incidental power to the right to
make contract. Thus the right to do business by Executive is a constitutional power. The
Court held that if additional power is required by the Executive, then only express legislation
is required.
6 AIR 1951 All 257
The Court also observed that the present scenario in India is quite different as compared to that in
the 17th Century. The Separation of Power was earlier required to protect the liberty and one
organ was not allowed to perform the function of another. In this case, the Education Department
is performing the legislative function by issuing the Notification and thus creating rights and
duties. They are even executing the above Notification. Thus function of two different organs is
being performed by them. But the Part III of the Constitution provides for Fundamental Rights
which is available against the Legislative as well as Executive. Therefore even in the absence
of strict separation of power, the question of violation of liberty does not come into picture due
to the independence of judiciary. And according to Article 13(2) and Article 13(3) State including
the Executive cannot make any law (even Notifications) which are against the Fundamental
Rights. So even when powers are not segregated the objective of protection of liberty is fulfilled.

The Notification here is barring the persons or authors from getting a particular set of consumer
and getting consumers per se is not a Fundamental Right. Therefore Court held that getting
consumer is mere a chance and prospect and hence no right under Article 19 (1) (g) is being
violated. Also since no right is being taken away, thus there is no chance for compensation.

Article 19 (6) says that State by way of making law has right to do business in exclusion of other
citizens. Law here includes Notifications and State includes the Executive. Thus it infers that
Executive can make law for the purpose of business without express sanction of the Legislature.
The petition was dismissed with costs. And hence, it can be said that in India, a separation of
functions and not of powers is followed as it is not possible abide by the principle in its
rigidity.

In the case of Golak Nath v. State of Punjab 7 the SC in majority held that the Constitution
creates three major instruments of power and demarcates their jurisdiction minutely expecting
them to exercise their respective powers without overstepping their limits. The mode of
resolution of conflicts and conditions for supersession are also prescribed. In short, the scope of
the power and the manner of its exercise are regulated by law. No authority created under the
Constitution is supreme; the Constitution is supreme; and all the authorities function under the
supreme law of the land.

7 AIR 1967 SC 1643

In Keshavananda Bharti v. State of Kerala8 the Court took up the question that what amounts to
overlapping of powers by the organs. It was contended that the Parliament was supreme and
sovereign and represented the will of the people. If these representatives of the people passed or
changed a law that would curb the power of the Judiciary then the latter had no right to claim
that such an action was unconstitutional. However, the SC ordered that doctrine of separation of
power is a part of basic structure of the Constitution and being so it cannot be amended.

8 AIR 1973 SC 1461