Separation of Powers

The concept of Separation of Powers is not explicitly mentioned in the Constitution of India. It was given by Montesquieu providing that powers of the three organs of State i.e. Legislature, Executive and the Judiciary should be separated so that no one organ becomes dominant. In India, there is a system of checks & balances where the powers of the organs overlap. For instance the Council of Ministers (Executive) are part of the Parliament (Legislature) and President (Executive) has the power to promulgate ordinances which is a legislative function. Article 50 of the Constitution of India provides for separation of roles of the Judiciary from that of the executive and legislature for independent functioning. This lose form of separation of powers allows for effective flexible functioning upholding the principles of the Indian Constitution.

The concept of separation of powers traces its origins back to ancient civilizations, notably the Romans and Greeks, who introduced it through their uncodified constitutions. Aristotle, in his seminal work 'Politics,' mentions that there should be separation of powers between the General Assembly, the Judiciary, and Public officials. Additionally, the French philosopher Montesquieu advocated for this principle in his influential work 'De L‘ Espirit des Lois' (The Spirit of Laws) in 1748, aiming for better governance transparency.

Furthermore, the roots of the separation of powers can also be found in ancient Indian texts like the Vedas. However, following independence, K.T. Shah's proposal for a strict doctrine of complete separation of powers in the constituent assembly was rejected by Dr. B.R. Ambedkar. Which is why the doctrine is not explicitly mentioned in the Constitution of India but certain provisions underscore the importance of separating the roles of the legislature, executive, and judiciary for effective governance in the country.

Separation of powers is the best safeguard of liberty in a liberal democracy. The aim of the doctrine of Separation of powers is ensuring transparency, accountability and balance of power within the government. This doctrine is significant in maintaining the democratic values by providing independence to the three branches of government- The Executive, The Legislative and The Judiciary. However, the branches also have overlap in their responsibilities to ensure checks and balances.

1. Distinct roles and powers : The doctrine of separation of powers emphasises on the division of powers and functions between the three branches of the constitution. No one branch should have unchecked authority over the others.
2. Independence of the branches of government : As per the doctrine of separation of powers, the area of responsibilities of a branch is independent of the others.This independence ensures that no single branch can unduly interfere in the role of the others.
3. Checks and balances : The three branches of the government have overlapping powers to keep a check on the powers of others. For example, Judiciary can decide the constitutionality of a legislation passed by the Legislature through Judicial Review.
4. Accountability: Though the powers of the three branches are independent to the others, yet one branch is accountable to the others. For example, the Council of Ministers (Executive) are accountable to the Lok Sabha (Legislature) in India.
5. Constitutional supremacy : The constitution establishes the framework for the division of powers and sets limits on the authority of each branch of government. Constitutional supremacy is a must to maintain the doctrine of separation of powers.

The Constitution has some provisions for establishing distinct responsibilities of Legislature and Executive.

• Article 74 : It establishes the relationship between the Council of Ministers and President. It states that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions
• Article 79 (1) : There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People.
• Article 79 (2) : The President shall not be a member of either House of Parliament or of a House of the Legislature of any State.

The separation of powers between legislature and Executive is not water-tight.

• In the Parliamentary form of government in India, any minister should be a member of the Parliament or should become one within 6 months otherwise he/she must resign.
• Article 75, The Council of Ministers is collectively responsible to the Lok Sabha. Therefore, a minister is part of both executive and legislature.
• The President being the Head of Executive also has legislative functions to perform.
  • The President can summon or prorogue the Parliament and dissolve the Lok Sabha.
  • Addresses the Parliament at the commencement of the first session of the Parliament.
  • Nominates 12 members of the Rajya Sabha.
  • President who is the Head of Executive has the power to promulgate ordinances whose nature is that of parliamentary legislature (Article 123)
• In India, the executive is allowed to promulgate delegated legislation in the form of rules and regulations.

• Article 50 requires that the State separate the judiciary from the executive in functioning. This ensures non-interference in the work of the judiciary.
• The Criminal Procedure Code, 1973 enacted by the Parliament also has provisions which separate Executive from Judiciary.
  • According to CrPC, the Police, part of the executive, is responsible for the investigation of crimes while the Judiciary has the sole responsibility of adjudicating the cases and delivering justice. Their roles and responsibilities in the criminal procedure are independent of each other.
• Immunity to President and Governor against court proceedings
  • According to Article 361(1), the President shall not be answerable to any court for the exercise and performance of the powers and duties of his office.
  • Article 361(2) of the Indian Constitution provides immunity to Governors of states from legal proceedings while in office. The extent of immunity provided to the Governor is same as the immunity provided to the President.
  • The immunity to the Head of executive in center and state is to avoid the interference of judiciary. This maintains separation of powers between the Executive and Judiciary.

• President who is the head of Executive is also responsible for some judicial roles
  • He appoints the Chief Justice and judges of Supreme Court and High courts.
  • He can seek advice from the Supreme court on any question of law. However, advice given by the Court is non-binding on the President (Article 143)
  • The President has the power to grant the pardon, reprieve, respite remission or suspension of punishment of any convict in the criminal case (Article 72).
• Tribunals: Article 323-A and Article 323-B empower the Parliament to establish Tribunals to adjudicate disputes in specific areas of law outside the court system. Tribunals are part of the Executive created by a legislation or executive order while the role they perform is quasi-judicial. Tribunal is the perfect example of the power overlap between Executive and Judiciary.
• The District Magistrate (Executive) while acting as Election Returning officer acts in a Quasi-judicial capacity.

• Distinct roles: The Indian Constitution clearly delineates the roles and functions of the legislature and the judiciary. The legislature, comprising the Parliament at the national level and the State Legislatures at the state level, is responsible for making laws and amending existing laws. On the other hand, the judiciary, headed by the Supreme Court at the apex level and High Courts in the states, is responsible for interpreting laws, ensuring their constitutionality, and adjudicating disputes.
• Independent Judiciary: Judiciary’s independence is ensured through many provisions like transparent appointment through Collegium and security of tenure.
• Article 121: No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. This independence enables the judiciary to adjudicate cases impartially and uphold the rule of law.
• Article 122 : The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.

• Quasi-judicial powers of Parliament
  • Impeachment power: Parliament has the power to impeach the President. It has also the power to remove the Supreme court and high court judges for violation of the constitution (Article 61).
  • Contempt of Parliament: Parliament has the power to punish the individuals for the actions that are deemed disrespectful and obstructive for the functioning of the Parliament.
• Parliamentary privileges: According to Article 105, Parliament has the authority to enforce its own rules by regulating its own proceedings, freedom of speech within Parliament, and has the right to exclude strangers from its proceedings.
• Judicial review: Judicial review is the principle which empowers the Judiciary to ensure the constitutionality of the legislations or rules framed by the Legislature. Judicial review in India extends to all governmental actions, including legislative enactments, executive orders, administrative decisions, and even constitutional amendments. The courts have the authority to strike down laws or actions that violate the Constitution or infringe upon fundamental rights.

1. Sankari Prasad Singh Deo v. Union of India (1951) : In this case, the Supreme court upheld the constitutional validity of the 1st Amendment to the constitution which curtailed the judicial review power of the court. However, the court also affirmed that the certain fundamental provisions of the original constitution including the Separation of powers are immune from the amendment power of legislature.
2. S.P. Gupta vs. Union of India (1975) : This case dealt with the executive interference in the appointment of judges. In 1973, the government led by Prime Minister Indira Gandhi transferred a group of judges including Chief Justice A.N. Ray to different high courts. In 1975, a Supreme court bench ruled that the action of executive was against the doctrine of Separation of powers and hence unconstitutional. The Court held that in the matters of appointment or transfer of judges the Chief Justice must be consulted.
3. NJAC case: The National Judicial Appointments Commission(NJAC) case dealt with the issue of appointment of judges to the higher judiciary.
   • In 2014, Parliament passed a Constitutional Amendment Act to replace the existing Collegium system to appoint the judges with the NJAC. NJAC was intended to be a body composed of judicial and non-judicial members to recommend candidates to be appointed as judges to the Supreme court and High courts.
   • Several petitions were filed challenging the constitutionality of the NJAC Act, arguing that it violated the basic structure of the Constitution including the doctrine of Separation of powers.
   • In 2015, the Supreme court in its judgement struck down the NJAC Act as unconstitutional. It reaffirmed the Collegium system for the appointment of judges. The court in its judgement highlighted the importance of judiciary as an independent and separate branch of government, free from executive interference.

It is rightly said that ‘Absolute Power corrupts absolutely’. Hence, to maintain the spirit of the democracy, three branches of government were given separate powers. The doctrine of separation of powers is to maintain the independence of the 3 branches - The Executive, The Legislature and The Judiciary. This division of powers aims to prevent the concentration of power in any single institution, thereby safeguarding against tyranny and abuse. However, the separation of powers is not water-tight. All the 3 branches have overlapping powers which keep check and balances on the other branches and maintain accountability and transparency. Hence, not a strict separation of powers works well for Indian democracy to function in an efficient way.