Search
  • The L word Blog

The Dilemma Of Separation Of Power

Written by: Abhiroop Chakravarty, LLM Student, Rajasthan University

‘Power corrupts and absolute power corrupts absolutely’. -Lord Acton

INTRODUCTION

Trias Politica or the separation of power was formulated by Montesquieu in his book ‘The spirit of the laws’. The doctrine was originated by Aristotle and further developed by Locke but made popular by Montesquieu at the time of French revolution. It refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.

He made a scientific division of powers of the state as –

  • Legislative

  • Executive

  • Judicial


These three must be vested in three distinct and different authorities if the liberty of the individual is to be guaranteed.

According to Wade and Phillips the theory of separation of power signifies the following three different things- (propositions of Montesquieu)


  • That the same person should not form part of more than one of the three organs of government.

  • That one organ of the government should not interfere with any other organ of the government.

  • That one organ of government should not exercise the functions assigned to any other organ. [1]

Separation of power in U.S. and U.K.

In US constitution Article I, II, III vest the legislative, executive and judicial powers in the congress, The President and The Supreme Court respectively. Subject to checks and balances.

The doctrine strictly says that powers vested to one should not be exercised by others. But various provisions show that the doctrine has gone many modifications in US.

  • President has veto over bills passed by the congress.

  • Congress having the power to impeach the president.

  • Senate having executive power to ratify treaties.

  • Congress may delegate its powers to administrative authorities.

  • A rigid application of the theory is not found in US.

In England Separation of power has no place. The functions have been divided between Judiciary, House of Lord, Cabinet and Executive. But Lord Chancellor has the ultimate power being the Head of judiciary, Chairman of Upper House and Prominent member of the Cabinet.

Hence application of Separation of power in its rigid sense is not found in the constitution of any country because that will make it impossible to run the government. [2]

Separation of power in INDIA

In India, we don’t find separation of power explicitly been followed in our constitution. But we find various provisions through which it can be interpreted been adopted by the constitution. Three organs essentially perform these three classes of government functions. The function of legislature is to enact law, executive is to administer law and judiciary is to interpret the law and to declare what the law is.


These provisions involve-

  • Article 50: State shall take steps to separate the judiciary from the executive. This is for the purpose of ensuring the independence of judiciary.

  • Article 122 and 212: validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court. This ensures the separation and immunity of the legislatures from judicial intervention on the allegation of procedural irregularity.

  • Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be discussed in the Parliament and the State Legislature, according to Article 121 and 211 of the Constitution.

  • Articles 53 and 154 respectively, provide that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.

  • 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.

But there is ambiguity regarding the function of executive. Today the executive performs various functions. –

  • To investigate, to prosecute, to prepare and to adopt schemes, to issue and cancel licences etc. (administrative)

  • To make rules regulations, byelaws, to fix prices etc. (legislative)

  • To adjudicate on disputes, to impose fine and penalty etc. (judicial)

So, this give rises to various concepts –

  • Legislative or quasi legislative or delegated legislation.

  • Judicial or quasi judicial or adjudicative

  • Administrative ( purely)

Legislative function by Executive

When any administrative authority exercises the law making power delegated to it by legislature it is known as the rule making action of the administration or quasi legislative action.


Distinction between legislative and administrative function is very difficult to draw. In Baldev Singh v. State of HP an action of inclusion of certain areas within the municipal corporation was held to be administrative while in Sundejas Bhatija v. Collector such action was held to be legislative.


The power to make rules of general application is a legislative power and the rule is a legislative rule. Power to give order in specific cases is an executive power and the order is an executive action.


Legislative act is the creation and promulgation of a general rule of conduct without reference to particular conduct while administrative act is the application of general rule to particular case.

Judicial function by Executive

Donoughmore Committee on Ministers power reported that, what is Judicial Function?

  • · There must be two parties in dispute.

  • · Parties must have presented their claims in fact.

  • · Evidence to prove facts.

  • · Legal arguments from both sides.

  • · Decision on basis of law of land.

“Quasi” means “not exactly”. Generally an authority is described as quasi judicial when it has some attributes or trappings of judicial functions but not all.


Griffith and Street stated that quasi judicial function stands midway between judicial and administrative function. Quasi judicial has been explained in detail in the case of Indian National congress v. Institute of social welfare.

  • A statutory authority empowered under statute to do any act.

  • Which will prejudicially affect the subject.

  • Although there is no lis and the contest is between the the authority and the subject.

  • The statutory authority to act judicially under the statute, the decision of said authority is quasi judicial


The characteristics of a quasi judicial authority were explained in the case of Radhe Shyaam v. State of MP.

  • Legal Authority

  • Affecting rights of subjects

  • Under duty to act judicially


Distinction between quasi judicial and judicial function is No lis and Lis, not bound by rules of evidence and strictly bound procedure, not bound by precedents and bound by precedents, can be party still decide the dispute while cannot be judge in his own case, respectively apply to quasi and purely judicial.


Distinction between Administrative and quasi judicial function is based on two expressions-

LIS- Province of Bombay v. Khushaldas Advani- If a statute empowers an authority to decide dispute arising out of claim by one party which is opposed by another party.


Quasi LIS- Lis decided not between two or more parties but between itself and another party. (Not lis inter parties). Thus where an authority makes an order dismissing employee, cancelling admission to student refusing unfair means, rusticating students, such decisions are extra judicial in nature.

Pure Administrative Function by Executive

In Ram Jawaya Kapoor v. State of Punjab[3] it was observed that it may not be possible to frame an exhaustive definition of what executive functions means and implies.

Ordinarily the executive power connotes the residence of government function that remains after Legislative and Judicial functions are taken away.

Following characteristics are inherent in administrative functions.

  • Generally based on govt policy.

  • No legal obligation to adopt judicial approach.

  • Not bound by rules of evidence of procedure.

  • Can take decision in exercise of statutory powers or the absence of statutory provisions.

  • Delegated and sub-delegated

  • May consider evidence, even use discretion.

  • Not always bound by principle of natural justice unless statutory provision.

  • May be held invalid on ground of unreasonableness.

  • Writs are not always available.

Can be classified into-

· Administrative discretion

· Ministerial action

· Administrative instruction

The interference among the three machineries (overlapping)

· Article 50, 121,122,211and 212 are giving the autonomy to all the machineries and differentiating and separating the powers among executive judiciary and legislature so that there is no interference from one wing into the functioning of the other wing but at the same time our constitution under article 105 and 194 giving special powers, privileges etc.


· Article 53,154,361 is vesting the executive power to President, Governor and protecting them while there is no such provision of vesting of judicial and legislative power into any personnel or authority. At the same time under article 74 and 163 council of ministers have been given power to aid and advise president and governor creating a conflict of interest between the executive and legislature as ministers being the part of composition of parliament and state legislature.


· The interpretation of constitution provides that the legislative powers rest with parliament and state legislature as provided under article 79-122 and 168-212. But it can be interfered by the power of judicial review given to the judiciary under article 226, 227, 32, 136 and 13(2). Similarly President and Governor has been given special power of ordinance under article 123and 213.


· The interpretation of constitution provides that the judiciary consists of The Supreme court, High court and the subordinate courts as provided under article 124-147 and 214-237. But article 368 gives the power of amendment to the parliament.


· President is vested with the executive powers but his election and impeachment is into the hands of legislative heads under article 54 and 61.


· The judicial heads CJI and SC judges who have the responsibility of our judicial system are been appointed and removed by President who works under the aid and advice of council of ministers as provided under article 124(1) and 124(4).

THE DILEMMA

On one end we have the doctrine which protects the liberty of an individual from the arbitrary rule and prevents the organs from usurping the essential functions of the other organs and on the other end for the smooth functioning of any government, cooperation and coordination among all the three wings are necessary which is impractical in the modern functioning if strict application of the doctrine is followed.


This overlapping is giving a scope of manipulation to the political parties. When a party is in majority such loophole is been used so that they can fulfil their agendas on the cost of an individual’s rights and interests or to be said derogating the welfare of the community, the people.

If we go deep into the provisions we will find the machinery into the hands of the ruling party. They are having the power to manipulate the functioning of judiciary, executive and the legislature. This is not just on papers or in a literal sense but practically it has been done from very long and this can be supported by quoting these few incidents.

· National Emergency on June 25, 1975. The Darkest day of Indian democracy. A loss in court of judiciary in the case of Raj Narain v. State of UP[4] resulted into an emergency. Where the power of a personnel and majority in LS and RS vandalised the rights of citizens and made a mockery of the government mechanisms.[5]


· The 39th Amendment of Constitution on August 10, 1975. The attempt to kill the very essence of constitution for political benefits. It was violative of the basic structure formulated in the case of Keshvananda Bharti[6]. It was later stuck down in the case of Indira Nehru Gandhi v. Raj Narain.[7][8]


· The 42nd Amendment of the constitution in 1976 where the objective was to give ultimate power of amendment to the parliament without any judicial review. The most controversial amendment in history. Provides for curtailment of fundamental rights imposes fundamental duties and changes the basic structure making India into a Socialist Secular Republic. [9]

· The antidote to these amendments were also the result of supremacy of political parties as in 1977Janta Party winning the general elections and resulting into the 43rd and 44th amendments with a supportive judgement of Minerva Mills v. UOI[10][11].


· The recent amendment of article 370, by manipulating the provisions given under article 367,368,370and 35A was a clear representation how the machinery is within the hands of those who have power. A clear incident where the distribution of powers between executive judiciary and legislature failed.[12]


· The Ram Mandir Verdict. A long battle in the court. Why was it so long? Whether the judiciary was not worthy before or is it not worthy now? Whatever it is but shows the influence of politics in the judicial machinery.[13]


· The Hyderabad encounter case December2019 and Vikas Dubey encounter case recently. Yes they were criminals but isn’t this show the failure of our administration (the police) who were unable to act accordingly or to say chose to act in this particular manner. And isn’t this the failure of our legislative and judicial system that instead of favouring the laws and law fraternity people are happy to support these incidents and vigilantes. [14]


· We live in a democracy, and what we get in return- Political crisis and floor tests. Maharashtra, Karnataka, MP and now Rajasthan. Instead of having the anti defection laws what we get is an unstable government. At the end it is those who have power will make the government not what we chose for. [15]

These all incidents illuminates the fact power corrupts and absolute power corrupts absolutely. The “separation of power” has its pros and cons. The ultimate motive of protection of individuals is not possible either by a rigid or a flexible application of the doctrine. To curb the influence of power the enlightenment of democracy is to be enshrined which is of, by and for the people. So, instead of getting divided for the ulterior motives of powerful people it is our duty to create a balance and chose wisely. Only we and we have this right.

--------------------------------------------------------

REFERENCES

1. Administrative Law, Lexis Nexis, SP Sathe.

2. Lectures on Administrative Law, CK Takwani.

3. AIR 1955 SC 549 1955 2 SCR 225

4. 1975 AIR 865

5. https://en.wikipedia.org/wiki/The_Emergency_(India)

6. AIR 1973 SC 1461

7. AIR 1975 SC 2299

8. https://en.wikipedia.org/wiki/Thirty-ninth_Amendment_of_the_Constitution_of_India

9. https://en.wikipedia.org/wiki/Forty-second_Amendment_of_the_Constitution_of_India

10. AIR 1980 SC 1789

11. https://en.wikipedia.org/wiki/Forty-second_Amendment_of_the_Constitution_of_India

12. https://thewire.in/rights/neither-abrogated-nor-removed-the-ploy-behind-centres-article-370-move

13.https://scroll.in/article/943586/readers-comments-ram-has-finally-quit-not-just-ayodhya-but-the-very-quality-he-embodies-justice

14. https://blog.ipleaders.in/encounters-police-administration-losing-faith-judiciary/

15. https://theleaflet.in/supreme-court-addresses-the-lacunae-in-anti-defection-laws/

Opinions expressed in the blogs are the sole responsibility of the author(s) and do not necessarily reflect the views of The L Word Blog

Subscribe Now

Contact Us

 © 2020 All Rights Reserved. Created by Paras and Team