Separation Of Power In Indian Polity

WHY IN NEWS?

• Recently, the Indian Parliament has passed ‘The Tribunals Reforms Act, 2021’ (The Act). With the enactment of this Act, there has been unjustifiable transgression into the domain of the judiciary by the legislature and the executive.

WHAT IS THE DOCTRINE OF SEPARATION OF POWERS?

• The separation of powers or ‘Trias politica’ principle is a model for the governance of a state.
• It entails division of the legislative, executive, and judicial functions of government. It minimises the possibility of arbitrary excesses by the government, since the sanction of all three branches is required for the making, application, and adjudication of laws.
• This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he described the three agencies of the government as General Assembly, Public Officials and Judiciary.
• In the Ancient Roman Republic too, a similar concept was followed.
• In modern times, it was 18th-century French philosopher Montesquieu who made the doctrine a highly systematic and scientific one
• The idea was developed further by John Locke.
• The doctrine of separation of powers finds place in the basic structure of the Constitution of India, even though it is not explicitly mentioned in the Constitution.

NEED FOR SEPARATION OF POWER

• To check autocracy and safeguard individual liberty
  • If the legislative and executive powers are combined in the same organ >> the liberty of the people gets jeopardized because it leads to tyrannical exercise of these two powers.
  • If the judicial and legislative powers are combined in the same organ >> the interpretation of laws becomes meaningless because in this case the law-maker also acts as the law interpreter and he never accepts the errors of his laws
  • If the judicial power is combined with the executive power >> the administration of justice becomes meaningless and faulty because then the police (executive) becomes the judge (judiciary).
  • If all the three legislative, executive and judicial powers are combined and given to one person or one organ >> the concentration of power becomes so big that it virtually ends all liberty. It establishes despotism of that person or organ.
• Helps create an efficient administration
  • Lack of checks and balance result in maladministration, corruption, nepotism >> which affects efficiency of administration.
  • Further this principle allows all the branches to specialize themselves in their respective field with an intention to enhance and improve the efficiency of the government.
• To avoid arbitrary decision making:
  • Separation of powers maintains a balance among the three organs of government by dividing the powers among them so that powers do not concentrate on any one branch leading to arbitrariness.
• Ensure constitutionalism:
  • Doctrine of separation of power prevents the legislature from enacting arbitrary or unconstitutional laws.

SEPARATION OF POWER IN INDIAN CONSTITUTION

• Like the United Kingdom, India also practices the parliamentary form of government in which executive and legislature are linked to each other.
• So, the doctrine of separation of powers is not implemented in its strict sense.
• However, the composition of our constitution creates no doubt that the Indian Constitution is bound by the separation of powers.
• Articles in the Constitution facilitating Separation of Powers are as follows:
  • Article 50:
    • This provision of DPSP says that the State shall take steps to separate the judiciary from the executive.
  • Article 53(1) and Article 154
    • It clearly say that the executive powers of the Union and the States are vest in the President and Governor respectively and shall only be exercised directly by him or through his subordinate officers.
  • Article 122 and 212:
    • It states that the courts cannot inquire in the proceedings of Parliament and the State Legislature. This ensures that there will be no interference of the judiciary in the legislature.
  • Article 105 and Article 194
    • These articles grant privileges to the members of the parliament or state legislatures so that they can perform their duties  properly without any hindrances
    • As per these articles >> No member of Legislature shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Legislature
    • They also has freedom from being arrested
  • Article 121 and 211:
    • It states that Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be discussed in the Parliament and the State Legislature.
  • Article 245
    • It gives authority to Parliament and State Legislature for making laws for the whole country and the states respectively.
  • 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.

SEPARATION OF POWER IN MAJOR DEMOCRACIES

• U.K. Constitution
  • The United Kingdom practices the unitary parliamentary constitutional monarchy.
  • The concept of separation of powers is applied in the UK but not in its rigid sense because the UK has an unwritten constitution.
  • The Crown is the head of the state whereas the Prime Minister is recognised as the head of the government. The executive and the legislature are somehow interconnected to one another.
  • The executive powers are exercised by the Crown through his government. Thus, the Crown is the nominal head and the real executive powers vest in the Prime Minister and the other Cabinet Ministers.
  • The UK parliament is bicameral and divided into two houses – The House of Commons and House of Lords. The Parliament is the sovereign rule-making body in the UK. The Prime Minister and the other cabinet ministers are also a part of The House of Commons. The government is answerable to the Parliament. Practically, the executive is controlled by the House of Commons. The Judiciary, however, is independent of executive control. But the judges of the Supreme Court can be removed on the address of both the houses if found with any charge of corruption.
  • Thus, we can conclude that the UK constitution has incorporated the separation of powers just to keep checks and balances among the three organs of the government but there exist some kind of interference of one organ in the other.
• U.S. Constitution
  • The US has a written constitution and governed by the Presidential form of government.
  • The cornerstone of the Constitution of the United States is the doctrine of separation of powers.
  • This concept is well-defined and clear under the American Constitution.
    • Article I states that “All the legislative powers are vested in Congress.”
    • Article II states that “All the executive powers are vested in the President.”
    • Article III states that “All the judicial powers are vested in the federal courts and the Supreme Court.”
  • The President and his ministers are the executive authority and they are not members of the Congress. The ministers are accountable to the President only and not to the Congress. The tenure of the President is fixed and independent of the majority in Congress.
  • Congress is the sovereign legislative authority. It consists of two houses- Senate and House of Representative. The impeachment of the President can be done by Congress. The treaties entered by the President are to be approved by the Senate.
  • The Supreme Court of the USA is independent. It may declare any action of the executive as well as the legislature as unconstitutional if found so.
  • Thus, it appears as if the powers of the three organs exist in a watertight compartment but actually it is not so.
  • President interferes in the functioning of Congress by exercising his veto power. He also makes the appointment of the Judges thus, interfering in judicial powers.
  • Similarly, Congress interferes in the powers of the Courts by passing procedural laws, making special courts and by approving the appointment of the judges.
  • The judiciary, by exercising the power of judicial review interferes in the powers of Congress and the President.
  • Justice Cardozo of U.S Supreme Court observed that “the doctrine of separation of power is not a dogmatic concept. It cannot be imposed with strictness. There must be elasticity in its application with respect to the needs of the government. Therefore, a practical approach to this theory is required.”
• Australian Constitution
  • Australia is governed by a federal parliamentary constitutional monarchy system.
  • Like the U.S. and U.K., Australia also does not have complete separation of powers.
  • Though, a system of checks and balances has been evolved.
  • Some roles and powers of the three organs overlap:
    • The judges, Prime Minister and other ministers are appointed by the Governor-General.
    • The Prime Minister and other ministers are members of the parliament as well as the executive.

FUNCTIONAL OVERLAP AMONG ORGANS OF THE GOVERNMENT UNDER INDIAN CONSTITUTION:

• Overlapping Powers Of Legislature
  • With Judiciary
    • Article 124(4) of the Constitution gives Parliament the power to remove judges.
    • Legislature has power to amend laws declared ultra vires by the Court and revalidating it.
    • In case of breach of its privilege and legislatures can punish the person concerned.
  • With executive:
    • Executive is not separated from the legislature >> members of the council of ministers are members of the legislature.
    • The executive loses power when it loses the confidence of the legislature >> Hence the legislature controls the executive through a vote of no-confidence.
    • Legislature has power to assess works of the executive >> through tools such as question hour, censure motion etc.
    • Article 73 >> specifies that the powers of the executive shall be co-extensive with that of the legislature.
    • Article 74 >> states that the council of ministers shall aid the President in the exercise of his executive functions.
    • Article 75(3) >> makes the Council of Ministers collectively responsible to the House of the People.
    • Election and Impeachment of the President is done by legislative members.
    • Election and removal of Vice-President is done by the electoral members of Parliament.
• Overlapping Powers Of The Executive:
  • With Judiciary
    • Article 124 >> gives the President the power to appoint the judges of the Supreme Court and High Court.
    • President and Governor have powers to grant pardons, reprieve, respite or remission of punishments or sentence of any person convicted of any offence (Article 72 and 161).
    • The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial functions. For example: Central Administrative Tribunal, Income Tax Appellate Tribunal etc.
  • With Legislature
    • President and Governor have power to promulgate ordinance which has the same force of the Act made by the Parliament or the State legislature. (Article 123 and Article 213)
    • Powers under delegated legislation >> The legsialture makes laws in general broad terms and delegates the powers to the executive to formulate detailed policy and implement them.
    • Article 356 >> lays the provision of Presidential Rule in case of state emergency.
• Overlapping Powers Of The Judiciary
  • With Executive
    • Under Article 142, the Supreme Court functions as an executive in order to bring about the complete justice.
    • Article 146 >> lays the provisions for the appointment of the servants and officers of the Supreme Court by the Chief Justice of India with consultation from President and the UPSC (Article 229 in case of High Court)
  • With Legislature
    • Judicial review i.e. the power to review legislative action to determine if it violates the Constitution.
    • Article 145 >> allows the Supreme Court to make laws with approval of the President for the court proceedings and the practices.

VIOLATION OF THE PRINCIPLE OF SEPARATION OF POWER IN INDIA

• By Judiciary:
• Judicial legislations:
  • The Supreme Court has been accused time and again of pronouncing judgements that are often termed as judicial legislation. For example:
    • In the Judges cases Court created the collegium system for judicial appointments.
    • By laying down the basic structure doctrine >> the Supreme Court has put limitations on the legislature’s power to make and amend laws.
    • In K. Puttaswamy v. Union of India, it created a right to privacy, which is nowhere mentioned in the fundamental rights laid down in the Constitution.
    • In State of Tamilnadu v K. Balu, the Supreme Court banned liquor shops within 500 m of highways, which was a legislative order.
    • In Subhash Kashinath Mahajan it amended the SC/ST Act
• Assuming the power of executive:
  • Supreme Court through its directives and guidelines assume the powers of the executive. For example:
    • Supreme Court directed the union government to create a new policy to handle drought in 2016
    • Vishakha Guidelines where the SC issued guidelines on sexual harassment.
    • SC directed union government for interlinking rivers
    • SC directed the Centre government to set up a bad loans panel in 2016
    • SC laid down regulations for the Board of Control for Cricket in India.
    • SC brought seven directives for police reforms in 2006.
• By Executive:
• Undermining legislature:
  • Over-reliance on ordinance route:
    • Practice of issuing ordinances to make law and that of re-issuing ordinances without getting them ratified by Parliament.
    • Historically, in the 1950s, central ordinances were issued at an average of 7.1 per year. However, the number peaked in the 1990s at 19.6 per year. The last couple of years has also seen a high spike in ordinance promulgation (16 in 2019, 15 in 2020).
    • The ordinance mechanism, in effect, is designed to remedy situations of legislative urgency when Parliament is not in session
    • However, Article 123 places no numeric limits on ordinances.
    • In this way, the repromulgation of ordinance undermines the separation of powers, as it effectively allows the executive to make permanent legislation without legislative input or approval.
  • Making rules beyond the scope of Acts:
    • There were allegation that the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules issued in 2021 was beyond the scope of existing law under which it was issued i.e Information Technology Act, 2000
• Threatening Judicial Independence:
  • Post-Retirement appointment of Judges
    • The clear demarcation between the judiciary and executive got blurred as many judges over the years began to accept posts offered by the government.
    • It is often feared that a judge who is nearing retirement could decide cases in a manner that pleases the government in order to get a favourable post-retirement position.
  • Executive delaying judicial appointment:
    • Central Government had made it almost routine to delay judicial appointments recommended by the Supreme Court collegium
• By Legislature
• Undermining Judiciary through Constitutional Amendments:
  • First Amendment Act, 1951
    • Added Ninth Schedule to protect the land reforms and other laws included in it from the judicial review.
  • Twenty Fourth Amendment Act, 1971:
    • It was brought in response to the Golaknath ruling (1967) of the Supreme Court which held that the Parliament does not have the power to take away any fundamental rights through amendment to the Constitution.
    • This amendment act affirmed the power of Parliament to amend any part of the Constitution including fundamental rights by amending Article 13 and 368.
    • It also made it compulsory for the President to give his assent to a Constitutional Amendment Bill.
  • Thirty-Eighth Amendment Act, 1975
    • Made the declaration of emergency by the President non-justiciable.
    • Made the promulgation of ordinances by the President, governors and administrators of Union territories non-justiciable.
• Undermining judiciary through legislations:
  • Example: The Tribunals Reforms Act, 2021
    • It aims to abolish nine tribunals and further, vests various wide powers regarding appointments, tenure, salaries etc. of the members of tribunals with the Central Government.
    • With the enactment of this Act, there has been unjustifiable transgression into the domain of the judiciary by the legislature.
    • The Act was introduced in the Parliament only a few days after the Supreme Court, in the Madras Bar Association (2021), struck down certain provisions of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, a predecessor to the Act with similar provisions.
    • The present Act has been passed by the legislature as an attempt to reverse the judicial pronouncement by re-enacting the provisions which were struck down by the Supreme Court.
  • Example:
    • A similar situation has come before the constitutional bench of the Supreme Court in State of Kerala v State of Tamil Nadu.
    • In this case, the Kerala legislature attempted to nullify the Supreme Court judgement which had fixed the level of water at 142 feet in the Mullaperiyar dam. However, the Kerala legislature reduced it to 136 feet.
    • The court invalidated the legislation for being violative of the doctrine of separation of powers and intervening with the judicial process

CONCLUSION

• For a democratic polity and diverse society like India, a Constitutional system with strict separation of powers is undesirable and impracticable.
• However judicious and calculated constitutional functional overlapping makes way for democratic collaboration of the three organs of the government.
• Such mutual cooperation bridges the executive, legislative and judicial gap facilitating smooth functioning of government.

PRACTICE QUESTION:

Q. “Although the Constitution of India provides for the three organs of the government with well-defined functions, it does not advocate a rigid separation of powers”. Discuss.