DOCTRINE OF SEPARATION OF POWERS
DOCTRINE OF SEPARATION OF POWERS- HOLISTIC APPROACH NEEDED IN THE PUBLIC INTEREST
By K P C RAO.,B.Sc.,LL.B., FICWA.,FCS.,
Practising Company Secretary
kpcrao.india@gmail.com
Introduction
The Separation
of Powers, is a model for the governance of democratic states. The model was
first developed in ancient Greece and came into widespread use by the Roman
Republic as part of the un-codified Constitution of the Roman Republic. Under
this model, the state is divided into branches, each with separate and
independent powers and areas of responsibility so that no one branch has more
power than the other branches . The normal division of branches is into an executive,
a legislature, and a judiciary.
Different Models
Constitutions
with a high degree of separation of powers are found worldwide. The UK system
is distinguished by a particular entwining of powers. In Italy the powers are
completely separated, even if Council of Ministers needs the vote of confidence
from both chambers of Parliament, that's however formed by a wide number of
members. A number of Latin American countries have electoral branches of
government.
Countries
with little separation of power include New Zealand and Canada. Canada makes
limited use of separation of powers in practice, although in theory it
distinguishes between branches of government.
Complete
separation-of-powers systems are almost always presidential, although
theoretically this need not be the case. There are a few historical exceptions,
such as the ‘Directoire’ system of revolutionary France.
Switzerland offers an example of non-Presidential separation of powers today:
It is run by a seven-member executive branch, the Federal Council. However,
some might argue that Switzerland does not have a strong separation of powers
system, as the Federal Council is appointed by parliament (but not dependent on
parliament), and the judiciary has no power of review.
Theory of Classification of powers
The
theory of separation of powers signifies three formulations of structural
classification of governmental powers:
(i) The
same person should not form part of more than one of the three organs of the
government. For example, ministers should not sit in Parliament.
(ii) One
organ of the government should not interfere with any other organ of the
government.
(iii) One
organ of the government should not exercise the functions assigned to any other
organ.
In the Indian Context
In
a welfare State, the State performs important functions as a Provider,
Entrepreneur and Economic Controller, and the objective of the rule of law
should be to see that these multifarious and diverse encounters are fair, just
and free from arbitrariness. Therefore, it is important to structure and
restrict the power of the executive government so as to prevent its arbitrary
application or exercise. The rule of law which runs like a golden thread,
through every provision of the Constitution and indisputably constitutes one of
its basic features requires that every organ of the State must act within the
powers conferred upon it by the Constitution and the law.
In
India, the doctrine of separation of powers has not been accorded a
constitutional status. Apart from the directive principle laid down in Article
50 which enjoins separation of judiciary from the executive, the constitutional
scheme does not embody nay formalistic and dogmatic division of powers. The
Supreme Court in Ram Jawaya Kapur v. State of Punjab[1], held.
“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 said that our Constitution does not contemplate assumption by one
organ or part of the State of functions that essentially belong to another.”
In Indira
Nehru Gandhi v. Raj Narain[2], Ray C.J. observed
that in the Indian Constitution there is separation of powers in a broad sense
only. A rigid separation of powers as under the American Constitution or under
the Australian Constitution does not apply to India. However, the court held
that though the constituent power is independent of the doctrine of separation
of powers to implant the theory of basic structure as developed in the case of Kesavananda
Bharati v. State of Kerala[3] on the
ordinary legislative powers will be an encroachment on the theory of separation
of powers. Nevertheless, Beg, J. 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. This scheme of
the Constitution cannot be changed even by resorting to Article 368 of the
Constitution.
Overlapping
In
India, not only is there a ‘functional overlapping’ but there is ‘personnel
overlapping’ also. The Supreme Court has the power to declare void the laws
passed by the legislature and the actions taken by the executive if they
violate any provision of the Constitution or the law passed by the legislature
in case of executive actions. Even the power to amend the constitution by
Parliament is subject to the scrutiny of the Court. The Court can declare any
amendment void if it changes the basic structure of the Constitution[4]. The President
of India in whom the executive authority of India is vested exercises
law-making power in the shape of ordinance-making power and also the judicial
powers under Article 103(1) and Article 217(3), to mention only a few. The
council of Ministers is selected from the legislature and is responsible to the
legislature. The legislature besides exercising law-making powers exercises
judicial powers in cases of breach of its privilege, impeachment of the
president and the removal of the judges. The executive may further affect the
functioning of the judiciary by making appointments to the office of chief
Justice and other judge. One can go on listing such examples yet the list would
not be exhaustive.
Check and Balance
The
separation of powers is a doctrine which provides a separate authority, which
makes it possible for the authorities to check each other’s checks and
balances. The Supreme Court in Indira Nehru Gandhi v. Raj Narain, it held
that adjudication of a specific dispute is a judicial function which
Parliament, even acting under a constitutional amending power, cannot exercise.
The
Constitution has invested the constitutional courts with the power to
invalidated laws made by parliament and State Legislature transgressing
constitutional limitations. Where an Act made by the legislature is invalidated
by the courts on the ground of legislative incompetence, the legislature cannot
enact a law declaring that the judgment of the court shall not operate; it
cannot overrule or annual the decision of the court. This is what is meant by “check
and balance” inherent in a system of government incorporating separation of
powers[5].
If
the doctrine of separation of powers in its classical sense, which is now
considered as a high school textbook interpretation of this doctrine, cannot be
applied to any modern government, this does not mean that the doctrine has no
relevance in the world of today. The logic behind this doctrine is still valid.
Therefore, not impassable barriers and unalterable frontiers but mutual
restraint in the exercise of power by the three organs of the State is the soul
of the doctrine of separation of powers. Hence the doctrine can be better
appreciated as a ‘doctrine of check and balance’ and in this sense
administrative process is not an antithesis of the ‘doctrine of separation of
powers’.
In Indira
Nehru Gandhi v. Raj Narain[6], Chandrachud,
J. (as he then was) also observed that the “…political usefulness of
the ‘doctrine of separation of powers’ is now widely recognised…” No
Constitution can survive without a conscious adherence to its fine checks and
balances. “Just as courts ought not to enter into problems entwined in the ‘political
thicket’, Parliament must also respect the preserve of the courts. The
principle of separation of powers is a principle of restraint which ‘has in it
the precept, innate in the prudence of self-preservation…that discretion is the
better part of valour’.
Conclusion
Therefore,
the “Doctrine of separation of Powers” in today’s context of Liberalisation,
privatisation and globalisation cannot be interpreted to mean either ‘separation
of powers’ or ‘check and balance’ or ‘principle of restraint’ but
community of powers exercised in the spirit of cooperation by various organs of
the State in the best interest of the people.
Source:http://kpcraoindia.blogspot.in/2011/03/doctrine-of-separation-of-powers.html
[2] Indira Nehru Gandhi v. Raj Narain; 1975 Supp SCC 1
[3] Kesavananda Bharati v. State of Kerala; (1973) 4 SCC 225
[4] Kesavananda Bharathi v. State of Kerala, (1973) 4 SCC 225: AIR 1973 sc 1461
[5] P . Kannadasan v. State of T N, (1996) 5 SCC 670.
[6] Indira Nehru Gandhi v. Raj Narain; (1975) Supp SCC 1, 260
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