(This article is written by Vibhor Tewari, a second-year student of Maharaja Agrasen Institute of Management Studies)
Introduction
We as human beings have always wanted our rights to be well protected, and therefore, from time to time we have revolted against the then rulers and changed and modified the concept of the state. If we go back to the stone age era, there was no ruler and no concept of the state as such, people used to live cooperatively or independently depending on their needs, there was no law governing them but the law of nature and they just lived to fulfill their basic needs i.e. food, clothing, and shelter, but with time came the concept of the acquisition of property and power and people started fighting with each other to acquire property or to show their dominance. The weak people were always dominated and the stronger would always get what he desire. The philosophers of that time decided that if the weaker were to protect, the intervention of a third party was must and therefore the most powerful person among them was chosen as the chief or the head and he started formulating policies and laws for everyone around, he had the judicial powers and he was the one deciding a dispute between the two parties. But the lust of acquisition never stopped and these chiefs started attacking other areas and established their dominance and the concept of Kingdom was evolved, with all the powers being vested in the king.
But when all the power is concentrated in one person, there are always some chances of anarchy and tyranny and it did happen. Kingship was hereditary and the kings were tyrannical and therefore the people decided that it is their right that is being violated and they had a right to claim them back and a Magna Carta was signed which gave some rights to the people but later the entire system was changed and we started choosing our own political head and we named the system as a democracy. The philosophers of that time realized that it does not matter who the ruler is, the main reason of the tyranny is the concentration of the power in one person and therefore this power needs to be separated and this is how we came up with the concept of separation of power.
What is Separation of Power?
The term separation of power was coined in the 18th century by a French Philosopher Charles-Louis de Secondat, Baron de La Brede et de Montesquieu, in his famous book De l’esprit des loix ( The Spirit of laws) and as per his model, the power is to be separated between three distinct organs i.e. the executive, the legislature and the judiciary. This is a doctrine under constitutional law which means that the three abovementioned branches of the government are to be kept separate, not only are they kept separate but they cannot interfere in the functioning of the other branch as well. The legislature will perform the law-making function, the executive branch will perform the executive function and the judicial branch will function the judicial function and if any branch of the government misuses its power then the other branches of the government have the right to restrain that branch from doing that act and therefore this doctrine is also known as the system of checks and balances.
History of the Doctrine of separation of power.
The doctrine of separation of power has a historical background and its origin could be traced back to Aristotle. Aristotle studied 158 constitutions of Greece and concluded his research in his famous book called “The Politics.” In this book Aristotle has talked about mixed government, he writes “There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; of these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the official; and third the judicial element.” The ancient theory of the ‘Mixed Constitution’ is a mix of and balance between three forms of the constitution, according to the number of its ruling body. These included: monarchy (rule by the one), aristocracy (rule by the few), and democracy (rule by the many).
This theory was further propagated by John Locke and Edward Coke, but the credit of the origination of this theory goes to Montesquieu because he gave a scientific approach to this theory by giving a distinction between the three organs of the government i.e. the executive, the legislature and the judiciary in his book the spirit of laws. He believed that if all these powers or any two of these powers are united in the same organ or an individual then there can be no liberty. If, for instance, legislative and executive powers unite, there is a fear that the organ concerned may pass tyrannical laws and execute them in an oppressive manner. Again, there can be no liberty if the judicial powers are not separated from the legislative and the executive. Where it is joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Where it joined with the executive powers, the judge might behave with violence and oppression. Though we see that this system has widely been enacted in various parts of the world but it has been criticized as well.
Criticism of Separation of Power.
Various political scientists are of the view that Montesquieu took the concept of separation of power from the British System as it was the first system that demarcated the power between the monarchs and the legislature but in the real sense, there is no separation of power in the British model. Other philosophers criticize the concept claiming that there can be no watertight compartment when it comes to the separation of power because if there is no overlapping between the functions of the government the entire government system will collapse. The philosophers also believe that it is almost impossible to practically apply this doctrine because when we talk about a welfare state there are many socio-economic problems and such separation will defeat the purpose of a welfare state.
Separation of power as practiced in the USA and India.
Even though there is various criticism of this doctrine but the same is widely followed in various countries of the world. The United States of America was the first country to adopt this doctrine and its constitution has the foundation in this theory. Article 1 of the US constitution says that there shall be a congress for making law (Legislature). Article 2 says that the president shall be the head of the Executive ( Executive) and Article 3 says that the Supreme court will have all the judicial powers ( Judiciary). This clearly follows the doctrine of separation of power. The US Supreme court in the case of Marbury vs. Madison, which established the concept of judicial review, declared the Judiciary Act of 1789 unconstitutional. This case helped in defining the concepts of checks and balances and defined the separation of power. In this case, William Marbury who had been appointed by President John Adams as justice of the peace in Columbia and whose commission was not delivered filed a petition in the Supreme Court to force Secretary of State James Madison to deliver the document but the Supreme Court declined his petition declaring the above statute as unconstitutional. The sole law-making body n the US is the US Congress and in the case of Wayman Vs. Southard (1825) where the congress delegated to the court the power to prescribe the judicial procedure, it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers and this was considered unconstitutional. Also in a number of cases, the US Supreme court has held that the functions of the executive are to execute laws and not to frame policies hence specifying the separation of power.
Talking about the Indian scenario on the doctrine of separation of power, we follow the British model of governance which does not clearly support the doctrine of separation of power, the Indian Constitution though has demarcated the three organs of the government but we do not follow separation of power in its rigid sense as is followed in the United States. Our constitution, however, has defined the powers of the different organs of the government in detail. For example, Article 50 puts an obligation over the state to separate the judiciary from the executive. However, Article 50 falls under the Directive Principles of State Policy (DPSP) and hence is not enforceable. Also, as per Article 121 and 211, the legislatures cannot discuss the conduct of a judge of the High Court or Supreme Court. They can do so only in matters of impeachment. Also as per Article 122 and 212, the courts cannot inquire about the validity of the proceedings of the legislature. Similarly, article 361 states that the president and the governor will be immune from the courts proceeding while in office. The doctrine of separation of powers is a part of the basic structure of the Indian Constitution even though it is not specifically mentioned in it. Hence, no law and amendment can be passed violating it. The system of checks and balances is essential for the proper functioning of three organs of the government. Different organs of the state impose checks and balances on the other and it is clear from the following examples -:
- The judiciary exercises judicial review over legislative and executive actions. Judiciary has the power to void laws passed by the Parliament. Similarly, it can declare unconstitutional executive actions as void.
- Legislatures review the functioning of the executive.
- The executive appoints the judges.
- The legislative branch removes the judges. It can also alter the basis of the judgment while adhering to the constitutional limitation.
Checks and balances act in such a way that no organ of the state becomes too powerful. The constitution of India makes sure that the discretionary power bestowed upon any organ of the state does not breach the principles of democracy. For instance, the legislature can impeach judges but as per the condition i.e. two-third majority. The supreme court of India has commented on the doctrine of separation of power in various cases for example in Keshavanand Bharti’s case (1973), the Supreme Court held that the amending power of the Parliament is subject to the basic features of the constitution. So, any amendment violating the basic features will be held unconstitutional. This scheme cannot be altered by even resorting to Art.368 of the constitution. Also, in the case of Ram Jawaya Kapoor vs. The sate of Punjab (1955) the Supreme Court held up the observation that the executive is derived from the legislature and is dependent on it for its legitimacy. Cabinet ministers in India both executive and legislative functions. Art. 74(1) gives the upper hand to the cabinet ministers over the executive by making their aid and advice mandatory for the President, who is the formal head of the State. Also, in the case of Indira Nehru Gandhi v. Raj Narain (1975), the Supreme Court held that adjudication of a dispute is a judicial function, and parliament cannot even under constitutional amending power is competent to exercise this function.
Conclusion.
To conclude we could say that, Power is something that could corrupt anyone, and therefore concentration power in one individual or an organization might lead to tyranny and therefore it is important to divide power amongst the different organs of the government. And therefore most of the countries in the world adopted this doctrine so that the rights of the individual are protected. But if we look at the welfare state it becomes almost difficult to have such a separation because the cooperation between the different wings of government is important and therefore separating and distributing powers between the different organs of the government is practically not possible. Therefore the best alternative that we could come up with is that we could follow separation of power along with checks and balances but the same should not be followed in a rigid sense.
