Separation of Powers: Doctrine, Evolution, and Relevance in Modern Governance

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INTRODUCTION – ORIGIN AND EVOLUTION

Separation of powers is an integral part of administrative law and it’s roots lies in the concept of natural law and rule of law, as it is often observed that the aim of natural law and rule of law is to put a check on public institutions in order to safeguard one’s life,  liberty and dignity.  It is also considered to be an animation of the rule of law as it is annoy flexible, which can be moulded in order to suit the necessities of governance, however its core fundamentals and rationality must not be compromised.

The origin of the concept of doctrine of separation of powers can be traced back to ancient Greek philosopher Aristotle. However, writings about the concept of doctrine of separation of powers can be traced to lock and Montesquieu, as they have used it as a base to distinguish between legislative executive and judicial organs of the government in modern democracies.

Furthermore, Lock outlined three kinds of powers:

  • Discontinuous legislative power
  • Continuous executive power
  • Federative power

He conferred general rule making power in the arena of Discontinuous Legislative Power as those powers would come into play from time to time whenever the need arises.

However, Continuous Executive Power encompassed all powers which we presently term as executive and judicial powers. Also, Lock was of the view that Federative Power referred to the power to conduct foreign affairs.

With regards to Montesquieu’s division of Power, he divided it into general legislative power and executive powers which were further divided into Locke’s federative power and civil law executive power which comprised of executive power and judicial powers.

 

The doctrine of separation of powers can also be understood in two senses:

  1. Negative sense
  2. Positive sense.

In case of negative sense, the doctrine of separation of powers exercises limits on the exercise of power by each organ of the democratic state and in the case of positive sense this doctrine, it demarcates and also sets minimum parameters for the Court to exercise its jurisdiction while maintaining  constitutional validity.

 

The doctrine of separation of powers proposes three ideals:

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

 

Upon observation of the above characteristics or ideals enshrined within the concept of separation of powers, we can come to a natural conclusion that the principles of separation of powers cannot be applied in a strict sense in a modern democracy.  For example, even in England where the concept of separation of powers gained momentum before most modern democracies, it was noted that the King being an executive head also had an integral role in the legislature and all his ministers were also members of one or the other houses of the Parliament, thereby England clearly contradicts the first aforementioned ideal as the separation of powers dictate that the same person should not form more than one of the three organs of the government.

As regards to the second aforementioned ideal, we can observe that the House of Commons ultimately controls the executive.  The Judiciary though being independent, the judges of superior courts can be removed upon order from both houses of the Parliament.

Therefore, with regards to separation of powers between the three organs of the government, there is no separation of powers in England.  However, it is to be noted that with regards to the separation of powers, the Supreme Court of United Kingdom has declared that the Judiciary has now been separated from the Parliament. It must also be noted that, legislative and judicial and adjudicatory powers being increased are being excessively delegated to the executive. This poses a great threat to the doctrine of separation of powers and democracy as democracy depends on the safeguard on the independence of judiciary.

 

DOCTRINE OF SEPARATION OF POWERS IN INDIAN CONTEXT

In India, the doctrine of separation of powers has not been given a constitutional status as only executive power is vested in the hands of the President and the governor also other powers are not vested with regards to the directive principles enshrined an Article 50 of the Constitution of India which states that separation of Judiciary, which provides for the separation of Judiciary from the executive the outlining constitutional parameter does not embody any formalistic and dogmatic suppression of powers also.  In the case of Ranjavier Kapur v. State of Punjab, the Supreme Court held that the Indian Constitution has not indeed recognised the doctrine in suppression of powers in its absolute rigidity, but the functions of the different parts of the 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 other part of the state or functions that essentially belong to another.  In the case of Indira Nehru Gandhi v. Shri Raj Narain, Chief Justice Ray also observed that the Indian that there is no doubt the separation of powers mentioned is mentioned in a very broad sense in the Indian Constitution, so concept of separation of powers can not be applied strictly in India.  The rigid application of separation of powers as seen under the American Constitution or Australian Constitution does not apply similarly in the case of Indian Constitution. Also in case of Kesavanda Bharati v. State of Kerala, the doctrine of basic structure was developed and the ordinary legislative powers will be was regarded to be encroachment on the theory of citation of powers. However, justice Beg added held that the separation of powers is actually a basic part of the Constitution and none of the three separate organs of the Republic can take over the functions assigned to the other. Also article, also the separation of powers is part of the basic structure of the government, and this cannot be amended even by resorting to Article 368 of the Constitution of India.

In India, it is observed that the functions of three organs of the state, that is, the executive legislature, and judiciary are not separated so the separation of powers do not apply in a strict sense. However, it is also it is observed that the functions and powers of the executive, Judiciary and legislature overlap with each other’s functions and powers. This overlapping is functional overlapping and also personal overlapping. Supreme Court has the power to declare as the power to declare laws. Passed by the legislature and actions taken by the executive as void if they violate any of the provisions of the Constitution of India or any law passed by the legislature.  With regards to executive actions, even the power to amend the Constitution by the Parliament is subject to the scrutiny of the board. The court has the power to declare any amendment void if it violates the basic structure of the Constitution of India. It is also to be noted that the court exercises its legislative functions in cases where the high courts exercise their power of supervision over lower judiciary. The right to exercise administrative powers to transfer a case from one court to another, is provided for under Article to 28 of the Constitution of India.  This is an example of administrative power with regards to the president of India. The President is regarded to be the executive authority of India and in him is vested law making power in the shape of ordinance making power and also judicial powers under Article 103(1) and Article 217(3) of the Constitution of India. Also, the Council of Ministers that are selected from the legislature are also responsible to the legislature and these council of ministers also exercise law making powers which are judicial powers in the cases of breach of their privileges impeachment of the President and removal of the judges, In this sense, the executive often affects the functioning of the Judiciary by making appointments to the office of chief justice and other judges.

CONCLUSION

The doctrine of separation of powers in modern democracy’s context of liberalisation, privatisation and globalisation cannot in good sense be interpreted to refer to only principle of separation of powers, or principle of checks and balances, or principle of restraint; but is interpreted to be a community of powers which are exercised in the spirit of cooperation by various organs of the government in the best interest of the people.

In the case of Indira Nehru Gandhi versus Raj Narian, Justice Chandrachud (as he then was) observed that political usefulness of the doctrine of separation of powers is now widely recognised. The court observed that no modern constitution can survive without a conscious effort to the adherence to the principle of checks and balances upon the organs of the government.

Therefore, the logic and reasoning behind the doctrine of separation of powers is valid and still holds relevance in the modern democracies of today’s day and age. The logic behind this doctrine is that of polarity, rather than strict classification, which means that the central authority must be dispersed in order to avoid absolute is in simple terms separation of powers is a medium to place checks on authorities to avoid absolute  corruption or absolutism.

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