Concept Behind The Separation Of Powers
Separation of Powers [1] is a model for the
governance of democratic states. The three branches of the government- the
legislative, the executive and the judiciary are the three distinct activities
in every government through which the will of the people are expressed. The
legislature makes laws, the executive enforces them and the judiciary applies
them to the specific cases arising out of the breach of law. Thus, it has
become a model for the governance of democratic States. This model is also
known as Trias Politica, which in the non-political context means ‘separation of
duties’ which, for example, includes the segregation of accounting and
custodial functions.
The proponents of the separation of powers
believe that it protects democracy and forestalls tyranny. Whereas, the others
say that there occurs considerable overlap of powers in parliamentary
democracies. If we toe the middle line, we can observe that the Doctrine of
Separation of Powers is like any other system with both merits as well as
demerits. Thus, across the world, there isn’t any democracy with absolute separation
of powers or complete absence of it. “This doctrine (of separation of powers)
has got not only relevance to the question of separation of judiciary from the
legislature and the executive, it has got a vital bearing upon the whole
question of federalism,” said Brajeshwar Prasad on May 30, 1949, participating
in the Constituent Assembly's discussion. [2]
Lord Acton had once aptly stated, “Power
corrupts, and absolute power corrupts absolutely. [3] ” Separation of power is
a way of restraining the amount of power in the hands of any group or faction,
making its abuse more difficult. “The premise behind the separation of powers
is that when a single person or group has a large amount of power, they can
become dangerous to citizens. [4] ” Therefore, separation of powers limits the
unlimited exercise of power by any branch of the government. This doctrine also
helps in checking corruption and unlawful activities against the interests of
the common man whom the government is supposed to serve. Each organ while
performing its activities tends to interfere in the sphere of working of
another functionary because a strict demarcation of functions is not possible
when it comes to dealing with the general public. Thus, even when acting in
ambit of their own power, overlapping functions tend to appear amongst these
organs. Thus, each organ will impose ‘checks and balances’ on the other.
In India, a lot of the present debate on the
separation of powers is due to the active steps that the judiciary is taking to
redress the sufferings of the common man. But behind the present brouhaha over
the issue of judicial activism, what is often lost sight of is the politics of
a turf-war among members of a troika who are also partners in running the
Indian state. Although the Constitution mandates the separation of the
judiciary from the executive and makes parliamentary proceedings immune from
court jurisdiction, experts from all the three wings agree that instead of any
rigid distribution of powers, a system of checks and balances should operate.
Within this delicate system, the interests of the judiciary, the executive and
the legislature sometimes converge, as well as clash.
In this project, the author will deal with
the ingredients of the concept of separation of powers, the concept of
separation of powers in India and recent developments with respect to the
constitutionality of different tribunals in India.
Chapter I. Ingredients of Separation of
Powers
The concept of Separation of Powers runs
throughout the Constitution of India although the term has not been mentioned
even once. It is a doctrine which is fundamental to the concept of a State and
to the concept of Constitutionalism – insofar as it prescribes the appropriate
allocation of powers.
The separation of powers doctrine does not
insist that there should be three institutions of government each operating in
isolation from each other. In fact, it is essential that there be a sufficient
coordination between each institution of the State. It is for the executive for
the most part to propose legislation for Parliament’s approval. Once passed by
the Parliament and given the President’s assent thereto, the legislation
becomes an Act, and thus, a law to be upheld by the judiciary. A complete
separation of the three institutions could result in legal and constitutional
deadlock. Rather than a pure Separation of Powers, the concept insists that the
primary functions of the State should be allocated clearly and that there
should be checks to ensure that no institution encroaches significantly upon
the function of the other.
The author would like to briefly define the
three organs of the State which broadly constitutes the governing authority of
the nation.
The executive may be defined as that branch
of the State which formulates policy and is responsible for its execution. In
formal terms, the sovereign is the head of the executive. The Prime Minister,
the Cabinet and other Ministers’, for the most part, are elected members of the
Parliament. In addition, the Civil Service, local authorities, police and armed
forces, constitute the executive in practical terms.
Parliament of India comprises the President
of India, the Lok Sabha (House of the People) and the Rajya Sabha (Council of
the States). The cardinal functions of the Legislature include overseeing of
administration, passing of budget, ventilation of public grievances, and
discussing various subjects like development plans, international relations,
and national policies. All legislation requires the consent of both Houses of
Parliament. In the case of Money Bills, the will of the Lok Sabha prevails. The
Parliament is also vested with the power to initiate amendments in the
Constitution. The various States also have their respective legislatures, the
Legislative Assembly (Vidhan Sabha) and the Legislative Council (Vidhan
Parishad) in a few States.
The judiciary is that branch of the State
which adjudicates upon conflicts between State institutions, between State and
individual, and between individuals. The judiciary is independent of both
parliament and the executive. It is the feature of judicial independence which
is of prime importance in relation to the protection of liberty of the citizen
against the executive.
Quite recently, the press has been described
as a “fourth estate” because of its considerable influence over public opinion,
as well as its indirect influence in the branches of government by, for
example, its support or criticism of pending legislation or policy changes.
There is no provision in the Constitution of India providing guarantee for the
freedom of the press but the Supreme Court in Sakal Papers v. Union of India
[5] interpreted the scope of Article 19(1) (a) widely to include within its
fold the freedom of the press which is regarded as a ‘species of which freedom
of expression is a genus’.
Chapter II. Separation of Powers in India
On reading the provisions of the
Constitution of India, one may be inclined to say that the Constitution accepts
the doctrine of Separation of Powers. [6] Under the Indian Constitution, the
executive powers are vested with the President, [7] the legislative powers with
the Parliament, [8] and the judicial powers with the judiciary [9] (the Supreme
Court, the High Courts and Subordinate Courts). The President holds his office
for a fixed period. His functions and powers are enumerated in the Constitution
itself. Parliament of India is competent to make any law, subject to the
provisions of the Constitution and there is no other limitation on its
legislative power. It can amend the law prospectively or even retrospectively
but it cannot declare a judgment delivered by a competent court void or of no
effect. Parliament has also inherited all the powers, privileges and immunities
of the British House of Commons. Similarly, the judiciary is independent in its
field and there can be no interference with its judicial functions either by
the executive or the legislature. The Supreme Court and High Courts are given
the power of judicial review and they can declare any law passed by Parliament
or Legislature as ultra vires or unconstitutional.
Taking into account these factors, some
jurists are of the opinion that the doctrine of Separation of Powers has been
accepted in the Constitution of India and is a part of the basic structure of
the Constitution. Separation of functions is not confined to the doctrine of
Separation of Powers. It is a part of essential structure of any developed
legal system. In Kartar Singh v. State of Punjab, [10] Justice K. Ramaswamy
stated: “It is the basic postulate under the Indian Constitution that the legal
sovereign power has been distributed between the legislature to make law, the
executive to implement the law and the judiciary to interpret the law within
the limits set down by the Constitution.”
The constitutional provisions do not declare
the doctrine of Separation of Powers to be followed in its strict sense. There
is no provision in the Constitution of India itself regarding the division of
functions of the Government and the exercise thereof. Though under Articles
53(1) [11] and 154(1) [12] , the executive power of the Union and of the States
is vested in the President and the Governors’ respectively, there is no
corresponding provision vesting the legislative and judicial power in any
particular organ. Thus, the doctrine of Separation of Powers is not fully
accepted in the Constitution of India, and therefore the observations of
Justice Mukherjea in Ram Jawaya v. State of Punjab [13] are important in this
regard, wherein he stated that : “The Indian Constitution has not indeed
recognized the doctrine of Separation of Powers in its absolute rigidity but
the functions of the different parts or branches of the Government have been
sufficiently differentiated and consequently it can be 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 one another.”
Thus, the legislature writes and enacts
laws, Enacts taxes, authorizes borrowing, and sets the budget, has power to
declare war, may start investigations, especially against the executive branch,
often appoints the heads of the executive branch, appoints judges, ratifies
treaties.
Each organ while performing its activities
tends to interfere in the sphere of working of another functionary because a
strict demarcation of functions is not possible in their dealings with the
general public. Thus, even when acting in ambit of their own power, overlapping
functions tend to appear amongst these organs.
In Ram Jawaya v. State of Punjab, [14] the
Hon'ble Supreme Court observed that we follow a separation of functions and not
of powers. And hence, we don't abide by the principle in its rigidity. An
example of it can be seen in the exercise of functions by the Cabinet
ministers, who exercise both legislative and executive functions. Article 74(1)
of the constitution of India, gives them an upper hand over the executive by
making their aid and advice mandatory for the formal head. The executive, thus,
is derived from the legislature and is dependent on it, for its legitimacy.
On the question that where the amending
power of the Parliament lies and whether Article 368 confers an unlimited
amending power on Parliament, the Supreme Court in the Kesavananda Bharati v.
The State of Kerala and Others [15] case held 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.
Justice Beg 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.
In Indira Nehru Gandhi v. Raj Narain, [16]
where the dispute regarding Prime Minister’s election was pending before the
Supreme Court, it was held that adjudication of a specific dispute is a
judicial function which parliament, even under constitutional amending power,
cannot exercise. So, the main ground on which the amendment was held ultra
vires was that when the constituent body declared that the election of Prime
Minister won’t be void, it discharged a judicial function which according to
the principle of separation it shouldn't have done. The place of this doctrine
in Indian context was made a bit clearer after this judgment. In a nutshell we
can say that the Separation of Power is a method of removing the amount of
power in any group's hands, making it more difficult to abuse.
Chapter III. Recent Developments w.r.t.
Various Tribunals
In the recent past there has been lots of
conflict w.r.t. the constitutionality of different tribunals especially on the
ground that it did not adhered to the separation of powers as reflected in the
Constitution. These forums usually have both technical and judicial members and
hence have been accused of possessing a quasi-judicial character (and not a
full fledged court) which distinguishes them from the main frame of the
judicial hierarchy.
A major contentious area in this regard is
whether these Tribunals fall within the meaning of judiciary as referred to
under Article 50 of the Constitution of India. The question therefore that
arises is whether these Tribunals, which perform the role of adjudicatory bodies
as a substitute to the ordinary courts under the judicial hierarchy, are a part
of ‘judiciary’ as referred to in Article 50. The Supreme Court in the case of
Union of India v. Delhi High Court Bar Association [17] observed “Such
Tribunals, whether they pertain to income tax or sales tax or excise or customs
or administration, have now become an essential part of the judicial system in
this country. Such specialized institutions may not strictly come within the
concept of the judiciary, as envisaged by Article 50, but it cannot be presumed
that such Tribunals are not an effective part of the justice delivery system,
like courts of law.”
In two recent cases, one involving the
Competition Commission of India [18] and another the Appellate Tribunal
constituted under the Prevention of Money Laundering Act, [19] the petitioners
contended that the constitution of selection committee to recommend members and
Chairperson to these bodies was not independent as because all the members of
the committee were of the executive and not of the judiciary and there was also
no provision for consultation with the Chief Justice of India. They further
contended that there cannot be an independent judiciary when the power of
appointment of superior judges’ vests in the executive as the independence of
the judiciary is inextricably linked and connected with the constitutional
process of appointment of judges of the higher judiciary.
This Hon’ble Court in Pareena Swarup [20]
case said in paragraph 8 that the Constitution guarantees free and independent
judiciary and the constitutional scheme of separation of powers can be easily
and seriously undermined, if the legislatures were to divest the regular courts
of their jurisdiction in all matters and entrust the same to the newly created
Tribunals which are not entitled to protection similar to the constitutional
protection afforded to the regular Courts.
Subsequently on the direction of the Supreme
Court certain portions of Appellate Tribunal Rules, 2007 was amended to provide
that the Chairperson of Appellate Tribunal is appointed on the recommendation
of the Chief Justice of India and the composition of the Selection Committee to
select Members of the Tribunal has been amended to provide for a Judge of the
Supreme Court, nominated by the Chief Justice of India, to be the Chairperson
of the Selection Committee.
Very recently, in the case of Union of India
v. R. Gandhi, President of the Madras Bar Association [21] the Supreme Court while deciding the
constitutionality of the National Company Law Tribunal (NCLT) stated
unambiguously that active bureaucrats could not be tasked with judicial
functions since the same would go against the doctrine of separation of powers
between the Executive and the Judiciary.
The Supreme Court went on to state that the
Legislature has the competence to transfer any particular jurisdiction from
courts to Tribunals provided that the persons who are appointed as
President/Chairperson/Members are of a standard which is reasonably approximate
to the standards of mainstream judicial functioning. On the other hand, if a
Tribunal is packed with members who are drawn from the civil services and who
continue to be employees of different Ministries or Government Departments by
maintaining lien over their respective posts, it would amount to transferring
judicial functions to the executive which would go against the doctrine of
separation of power and independence of judiciary.
Conclusion
From the 1980s, much of the debate on
separation of powers has taken place due to the proactive role being played by
the judiciary and even to this day the latter is passing through a defining
moment. After having gone through the shameful phase of total subjugation under
the Indira Gandhi regime, the judiciary had been attempting, since the lifting
of the Emergency, to reinvent its role as an independent institution. This was
done through steps like evolving the concept of public interest litigation
(PIL) and suo motu intervention in many cases involving the marginalised
sections of the society.
Such activism has drawn ire from legislators
and administrators who feel threatened by what they perceive as an alternative
power centre, with Lok Sabha speaker Somnath Chatterjee going to the extent of
denouncing judicial activism as an attack on democracy.
Mention must be also made of the recent
attempts of the executive to take over certain judicial functions as had been
enumerated by the author in the third chapter of this project.
The judiciary, the executive and the
legislature have generally managed to work out a compromise formulae on
disputes that pose a threat to the status quo, with the apex court intervening
to save the situation and for the interest of the smooth and conducive
relations between the three organs it is hoped that there will never arise a
stalemate situation in which one organ’s functions have been completely
subverted by the other.
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