DOCTRINE OF SEPARATION OF POWERS – COMPARATIVE STUDY BETWEEN USA & INDIA
– Jyoti Sencha1
This article deals with the Doctrine of Separation of powers and its importance with regards to the Constitution of USA and India. The doctrine has provided with the basic and very important principle that ultimately aims towards the achievement of liberty and principle of checks & balances. Also, this article includes limitations associated with separation of powers in USA and India.
Doctrine of Separation of powers aims at ratifying powers between Legislature, Executive and Judiciary. Doctrine of separation of powers is applicable in both the Nations but question arises as how far it is applicable i.e. whether fully adopted or otherwise. This paper tries to answer above question in descriptive manner.
Doctrine of Separation of Powers deals with division of powers amongst the organs of the government and their mutual relationship. Separation of Powers is also referred to as “triaspolitica”, which simply indicates the three authorities of political system i.e. legislative, executive and judiciary. The principle of separation of powers was given byCharles-Louis de Second ate, baron de La Brede et de Montesquieu.
He was 18th century French political and social philosopher. He provided this principle in his famous book namely, ‘Espirit des Louis’ in the year 1747. This publication of Montesquieu’s “Spirit of laws” is considered as one of the greatest works in the jurisprudence and political theories. The objective of Montesquieu through separation of powers is to distribute powers among different branches of the government and also no interference of one branch in the functions and work of other branch. He ultimately aims at free and independent government authorities. Separation of powers has two points i.e. one side it provides for separation of responsibilities and powers among organs of government, and on the other side it limits the one branch to interfere in the functions of another branch.
1 B.B.A.LL.B.,VIIth Sem., Indore Institute of Law
It simply indicates that Montesquieu thought of complete separation and no interference. Though principle ofseparation of powers has been adopted by various countries of the world, but it is not fully and absolutely adopted by any country. Along with the wide acceptance and great significance of the theory of separation of powers it has drawbacks in itself.
The practical implication of this theory is its biggest drawback because for the smooth working and coordination between the organs of government there is need for cooperation and overlook in the system. The system of checks and balances was not provided by Montesquieu in his theory. However this system is necessary for the proper governance in any country. Legislative, executive and judiciary keep checking the functions of each other so that arbitrariness could be removed and fair system could be established.
SEPARATION OF POWERS IN CONSTITUTION OF USA
Separation of powers given by Sir Montesquieu is considered as an essential principle and thus adopted by various nations in their Constitutions. Constitution of USA is taken as very strong document and has various features that add to its value. Separation of powers is taken as an important principle because it provides for better functioning of the organs of federal government and also prevents the concentration of powers in one hand.
This gives all the branches their own authority and powers along with the capacity to not to have interference from other branches in their work. The Constitution does not contain in it about the separation of powers in explicit and clear way. The Constitution does not declare in it that powers of the three organs of the government are to be separated.
This does not means that the USA does not adapt to the principles of the separation of powers, in the Constitution of USA there are provisions for three branches of the government
i.e. the legislature, executive and the judiciary. Article 1 provides the provisions related to legislature, Article 2 provides Executive andArticle 3 includes in it, Judiciary.
Article 1 ofConstitution of USA deals with provisions related to legislature. It provides legislative authorities, powers, duties, functions and procedure. In United States ofAmerica, legislative body is Congress and it is responsible and also authorized for all the legislative powers.
Section 1 ofArticle 1 reads as: all the powers herein granted shall be vested in a congress of the United States, which shall consist of a Senate and House of Representatives. Hence, all the legislative powers are vested in the congress. Section 2 and 3 provides in it with the qualification to become the member of the house of representative and process. Section 5 deals with sole power of impeachment.
Article 2 of the Constitution provides the provisions related to the executive body of the state (country). It states, all executive powers vested in the President. ThisArticle includes tenure of office, powers, duties, roles and responsibilities along with due procedure of exercising the powers, i.e. procedure lay down in the provisions of the Constitution.
Section 1 of this Article states as; the executive powers shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and together with the Vice-President, chosen for the same term be elected through different process.
Article 3 of Constitution deals with the provisions related to the Judiciary. It provides that all the judicial powers are vested in Supreme Court. It includes in it, different sections which provides with the powers, duties, tenure & removal of judges, judicial authorities and all the functions and roles of judiciary. Judicial powers are given to Supreme Court of the United States of America and such other court as Congress provides for.
LIMITATIONS TO SEPARATION OF POWER IN USA
The principle of Separation of Powers is adopted by USA in its Constitution, but it is not mentioned explicitly in the Constitution. The exact and actual meaning of the Separation of Powers requires limitations & restrictions and imposed boundaries among different Organs of Government. Thus, in the modern system of Governance; Separation of Powers is partially adopted and hence the system of checks and balances is introduced2.
2 Ailenkavanagh, The Constitutional separation of powers, (June 6 2018,6:24 am) https://www.law.ox.ac.uk/sites/files/ oxlaw/ak_separation_of_powers_philfounds_book.pdf
The question that arises is that, up to what extent the Principle of Separation of powers is adopted? Whether it is adopted absolutely or partially? So, from the practical approach and functions ofthe system it can be alleged that the separation of power is not adopted absolutely, because there is interference of one organ of government into another. Also, in order to maintain proper controland coordination in the country it is important to have interference of different organs so that there cannot be misuse of powers and arbitrariness.
i. A bill passed by the congress may be vetoed by President in exercise of his legislative powers.
ii. President has power to make treaty but it is not applied unless approved by the Senate.
iii. The Supreme Court has power to declare the laws made by Congress as Unconstitutional.
There are judgments given by the court in certain cases that proves that there is absolute Separation of powers, but with checks and balances, there is encroachment of one organ of Government in other. In Marbury v. Madison it was for the first time when Supreme Court of United States ofAmerica interfered in the legislative branch and declared a law Unconstitutional and established the principle of judicial review in U.S. This initiated checks and balances in USA.
SEPARATIONOF POWERS IN INDIAN CONSTITUTION
Constitution of India involves in it a Federal System of Government. Although Centre and State works separatelybut, there are problems in practical implication of separation of powers doctrine, as it is not fully adopted by the Constitution. The system of checks and balances is widely accepted byvarious nations as it provided a proper system ofgovernance, that enhanced the efficiency of control and coordination system.
Thus, Indian Constitution has partially adopted the principles of Separation of Power. The concept is used and interpreted in order to establish a strong coordinated nation and also to maintain supremacy of law and Constitution, over the organs of Government. There are three organs of Government i.e. legislature, executive and the judiciary.
Parliament at the Centre (Article 79-122)3 and State Legislature at State Level (Article 168-
212) are legislative and law-making bodies in India. The functions, structure, powers and duties of executive at both the levels whether Union Executive (Article 52-78 & Article 123) or at the State Level (Article153-167 & Article 123) are explicitly mentioned in the Constitution.
The judiciary at Union is the Supreme Court and provisions regarding its powers, functions, etc. are given under Article 124-147 and the provisions regarding state judiciary i.e. High Courts in India are given under Article 214-237 of the Constitution. “The judiciary was to be an arm of the social revolution upholding the equality that Indians had longed for”4.
In Indian Constitution the doctrine of separation of power is explicitly mentioned inArticle 50 under Directive Principles of State Policy. Under this Article the provision is made regarding “separation of judiciary from executive”, it states that, state to take step to separate the judiciary from the executive in the public services of the state. To promote the rule of law, this is very essential.
Though there are unambiguous provisions regarding the separation of powers in Article 50, but only this does not mean that India has absolutely adopted the Separation of Powers Doctrine. In Indian system there are certain powers which are exercised by the particular authorized body and in such matters, there is no interference of other body.
ENCROACHMENT BY VARIOUS GOVERNMENT ORGANS INTO EACH OTHER SPHERES
Indian Constitutionfollows the federal systemof Government. Hence the powers are distributed to legislature executive and the judiciary and their scope is decided. Separation of powers is applicable but in a restricted manner. In practical aspect there is intrusion of one system into another in order to have check over system and to avoid the misuse of powers. The encroachment is already given in the Constitution under different Articles. The Constitution of India provides checks and balances over the separation of power but also in partial form.
3 J.N. PANDEY, Constitutional law of India, 503, (54th ed. 2017)
4 Supra note 2 at 521
RELATIONS BETWEEN EXECUTIVE AND LEGISLATIVE:
There are certain provisions that show the interference of executive in legislative and vice versa and there is no strict applicability of doctrine of separation of powers.
• The executive head i.e. President is part of parliament under Constitution. Though he is not the Member of Parliament but an integral part of the parliament.
• President summons the two houses of parliament, and dissolves the Lok Sabha.
• President gives his assent to the bills passed by both the houses. Here, for passing any bill his assent is important because no bill can become a law without the assent of the President even if it has been passed by both the houses.5
• In the appointment of members of the Lok Sabha under Article 331, President may nominate not more than two members of the Anglo-Indian community, if in his opinion that community is no represented in the house.6
• In Rajya Sabha, out of 250 members, 12 shall be nominated by the President under Article 80(1) having special knowledge or practical experience in different fields, given under Article 80(3).
• President’s power to prorogue the Lok Sabha under Article 85(9).
• Though the executive power is vested in the President but he exercises this power with the aid and advice of the council of ministers, they are members of legislature.
• The emoluments and allowances of the President are given under second schedule, and are decided by the parliament by law given under Article 59(3).
• Parliament is given power of impeachment of President in case of violation of the Constitution. The procedure for the process of impeachment is given under Article 61 of the Constitution.
• The parliament is empowered to regulate or control the exercise of the military powers by the President. This is President’s executive power which is exercisable by him on the advice of the cabinet.
• There are certain matters on which the legislative works on the recommendation of the President, i.e. for the recognition of a new state or alteration of stat boundaries (Article
3) and bills for imposing restrictions on freedom of trade and commerce (Article 304).
5 Article 111 of the Constitution of India 1949
6 Supra note 2 at 505
• The most important legislative power of the President is the ordinance making power- Article 12.
• Emergency power of President (Article 352-360). Though President has power of proclamation of emergency and revokes it, but such proclamation must be laid before each house of parliament and ceases to operate at the expiration of one month unless approved by the two houses.
• Under the delegated legislation, the powers are given to the executives to make laws in certain conditions.
RELATION BETWEEN EXECUTIVE AND THE JUDICIARY
In India, Judiciary is an independent body and guardian of Constitution of India and Executive body that implements the laws and executes in order to administer and control the system. However, there are provisions that allow the fair interference of executive into Judiciary and vice-versa.
• In appointment of Judges of Supreme Court and High Court. Every judge of Supreme Court shall be appointed by the President by warrant under his hand and seal, provided under Article 124A. Judges of the Supreme Court are appointed by the executive with the consultation of legal experts. The Constitution does not leave the appointment of the Supreme Court judges to the unguided discretion of the executive. That is how the Constitution put limits on the powers given by it to the executive.
• In the matter of removal of judges of Supreme Court, President’s order is final in case of misbehavior and incapacity.
• When the office of the chief justice of India is vacant, or by reason of absence or otherwise, unable to perform his duties then such other judge of supreme court as the President has appointed, shall perform the duties [Article 126].
• Under Article 143 the Advisory Jurisdiction of the Supreme Court is given, that if any time it appears to the President that a question of law or fact has arisen or is likely to arise, and in matters related to public importance.
• Under Article 145 the Supreme Court has power, with the approval of the President, to make rules to regulate its own procedure, like rules of court etc.
• Disputes regarding the President’s election-Article 71 provide that alldoubts and disputes arising in the appointment of the judges shall be inquired into and decided bythe Supreme Court whose decision shall be final.
• Though Article 361 of the Constitution guarantees certain privileges to the President like he shall not be answerable to any court for the exercise of the powers and duties in tenure of his office, but the conduct of President may be brought under review by any court, tribunalor body appointed byeither house of parliament in process ofimpeachment.
• Pardoning power of President is given under Article 72. It states as the President has power to grant pardons, reprieves, respites or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. This judicial power is conferred in the hands of executive to correct the possible judicial errors.
• Pardoning power-subject to judicial review- this is limitations on the powers given to executive i.e. President and the governor of state under Article 72 and Article 161.
• Tribunals and the executive bodies exercise judicial powers and thus they are also called as the quasi-judicial authority.
• Under Right to Information, person has rights to have informationregarding the functions of Government. This is what known as the system of checks and balances.
RELATION BETWEEN THE LEGISLATIVE AND THE JUDICIARY
In order to maintain the supremacy of law and Constitution, there must be an authority which is independent and unprejudiced to decide the disputes between Center and State or within states only. But here also, powers are within limits so that there cannot be arbitrariness and misuses. Though judiciary is independent to function and work according to Constitution but in some affairs, there is interference of legislative in the judiciary.
• In the composition of Judges of Supreme Court, the parliament can increase the number of judges by law.
• In appointment of judges under the functions of the national judicial appointments commission, it is given that procedure to be regulated by the parliament (Article 124C).
• An ordinary legislation can be invalidated for violating the Constitutional provisions, amendment of Constitution that negate the basic structure cannot would be invalid. That is judiciaryinterferes in such matters in order to protect and safeguard the supremacy of grand norm, Constitution.
• The parliament has power regarding the removal of judges under Article 124 (4) (5).
• Judges are entitled to such privileges and allowances as may be determined by the parliament by law.
• Article 138 (1) empowers parliament to confer on the supreme court with such additional jurisdiction and powers with respect to any matters mentioned in the Union list as it thinks fit.
• Parliament may, however, regulate the procedure for presentation of the address and for investigation and proof of the misbehavior or incapacity of judges. But parliament cannot misuse this power, because the special procedure for their removal must be followed.
• The amendments made by the parliament in the Constitution can be challenged, if it violates the provisions ofArticle 368 and made beyond its powers.
Hence these relations between the executive, legislative and judiciary makes it clear that Indian Constitution has adopted the federal structure, i.e. separation of powers between the Centre and the state. Also, the principles of separation of powers given by Montesquieu are applicable in India, but partially. That is there is checks and balances over certain functions and somehow whether directly or indirectly these organs are related to each other.
CASE LAWS: LIMITATION TO SEPARATION OF POWERS
In order to maintain Justice and Rule of Law there are constitutional provisions and landmark judgments that limits the powers of governmental organs in order to eliminate the arbitrariness from the system and have suitable and fair system, to have transparency in the system there is checks and balances put into practice.
• In Keshavnanda Bharti v. State of Kerala, it was held that the powers given to legislature are not unlimited and thus parliament cannot amend the Constitution in such a way that it demolishes the basic structure of Constitution. So here is the intervention of judiciary in legislative procedure and restrict the parliament to misuse and arbitrary use of their powers.
• In Epuru Sudhakar v. Government of Andhra Pradesh7, it was held by the Supreme Court that the pardoning powers of the President under Article 72 and the Governor under Article 161 is subject to judicial review. Hence restrictions on the executive powers by the judiciary.
• In Ram Jawaya Kapur v. State of Punjab8, it was observed by the court that the President is the executive head [Article 53(1)] and Article 74 states that there is to be council of ministers with prime minister as a head to aid and help the President in exercise of his powers. The cabinet enjoying, as it does, a majority in the legislature, concentrate in it the virtual control of both legislative and executive functions.
COMPARISON BETWEEN THE CONSTITUTION OF USA & INDIA
The Constitution makers of United States ofAmerica and India have adopted the basic and important principle of Separation of Powers in the Nation. The Constitution of USA has adopted the Doctrine of Separation ofpowers absolutely i.e. judiciary, executive and legislature works in their own scope and authority and does not interfere in one another’s work.
In India powers are separated but in restricted manner, hence in matters where there might be misuse of powers then, there may be interference of other organs is allowed.
There is difference in the functioning and procedure of works of the organs of system in both the countries.
• Judicial powers in USA are given to courts and none other than Courts can exercise such powers. But in India, judicial powers are given to the courts and also to the tribunals (quasi-judicial authority), in some matters to the executive (pardoning power of the President and the governor) and also to the legislature (to decide on matters of removal of executive and judicial officers by law).
• The legislative powers in USA are given only to the Congress i.e. the senate and the House of Representatives, and in India, legislative power is given to Parliament and the State Legislature. But in India, legislative powers are also exercised by executive (ordinance making power of the President and the Governor) and the Judiciary in some matters.
7 AIR 2006 SC 3385
8 AIR 1955 SC 549
• In USA the executive powers are given to the President, who is the executive head of the United States ofAmerica. In India executive powers are given to President and the Governor but in certain cases there is interference of legislature and the judiciary in executive functions.
• USA has absolutely adopted the doctrine of separation of powers whereas India has partially adopted Separation of Powers.
• Both the countries practice the checks and balances in the functioning of branches of Government.
• Separation of powers is a rigid concept that expects absolute separation without any intervention but as per the need of time and circumstances the USA and India has interpreted and incorporated the principle as per the need and practical use.
The above study deals with doctrine of separation of powers in USAand India. Along with it, one more question arises that is, how far the doctrine is implemented in the Constitutions of both nations? The Constitution of India has partially adopted the doctrine of separation of power, because it allows intervention of executive, legislative and judiciary in each other’s work in certain cases. The checks and balances are applied in order to avoid the arbitrary exercises and misuse of powers. Also, in India these three bodies of system are related to each other. In USA there is separation of powers and hence the powers are used by the authorized body only and hence they work in complete separation. But checks and balances is applicable in USA also.
The principle of separation of power, given by Montesquieu is aimed at complete separation of powers so that there would be free and independent work of system, but limitation to absolute separation of power is that, there could be misuse of powers and capricious in the system and that was not mentioned in his principles. Thus, in modern context, various nations have adopted the separation of power but they interpreted and applied this principle with the checks and balances. Separation of power along with checks and balances requires a proper execution of the powers. If powers are given in one hand and interference from any side is not provided than this would bring new queries and controversies. So, there is always need to have eyes on every functioning body of Government.