Doctrine of Separation of Powers

Meaning and Origin (Montesquieu)

The Doctrine of Separation of Powers is a political and constitutional principle that advocates for the division of governmental power into three distinct branches to prevent the concentration of power in any single entity and thereby safeguard individual liberty. The core idea is that the major functions of government—law-making, law-enforcing, and law-interpreting—should be vested in separate and independent bodies.

While the concept can be traced back to the writings of Aristotle, its modern and systematic formulation is credited to the French philosopher Charles de Secondat, Baron de Montesquieu, in his 1748 work, The Spirit of the Laws (L'Esprit des Lois). Montesquieu, analyzing the English constitution, believed that the key to English liberty was the separation of these three powers.

Distinct functions of Legislature, Executive, and Judiciary

According to Montesquieu's classical formulation, the doctrine has three main aspects:

Separation of Functions: The three branches of government should have clearly distinct and separate functions.
- The Legislature (e.g., Parliament) should have the sole power to make laws.
- The Executive (e.g., the Government/Cabinet) should have the sole power to implement and enforce laws.
- The Judiciary (e.g., the Courts) should have the sole power to interpret laws and adjudicate disputes.
Separation of Personnel: The same person or group of persons should not be a member of more than one branch of government. For example, a member of the legislature should not simultaneously be a member of the judiciary.
Separation of Control: One branch of government should not control or interfere with the work of another. For example, the executive should not be able to dismiss judges, and the judiciary should not be able to interfere with the internal proceedings of the legislature.

Montesquieu warned, "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty... Again, there is no liberty, if the judiciary power be not separated from the legislative and executive."

Check and Balances

In practice, a rigid and absolute separation of powers is neither possible nor desirable, as it could lead to governmental gridlock and inefficiency. Therefore, the doctrine is usually implemented alongside a complementary system of "Checks and Balances."

The system of checks and balances means that while the powers are separated, each branch is given certain powers to check and balance the actions of the other two. This ensures that no single branch becomes too powerful and that they must work in cooperation. It creates a system of mutual accountability.

Branch	Checks on other Branches
Legislature	Checks the Executive: Can question ministers, pass no-confidence motions, and must approve the budget. Checks the Judiciary: Can impeach judges and amend laws to overcome judicial decisions.
Executive	Checks the Legislature: Can veto legislation (in a presidential system) or dissolve the legislature and call for new elections. Checks the Judiciary: Appoints judges and has the power of pardon.
Judiciary	Checks the Legislature: Can declare laws passed by the legislature to be unconstitutional (power of judicial review). Checks the Executive: Can declare executive actions to be unlawful or unconstitutional.

The Constitution of the United States is the classic example of a system based on a strict separation of powers, tempered by an elaborate system of checks and balances.

Application in India

The Indian Constitution does not adopt a rigid, watertight separation of powers. Instead, it embraces a parliamentary system of government, which is based on the cooperation and coordination between the legislative and executive branches. However, the Constitution does differentiate the functions of the three organs and provides for a strong, independent judiciary. The Supreme Court has held that the separation of powers, in a broad sense, is a part of the basic structure of the Constitution.

Not rigidly followed

The Indian system departs from the classical doctrine in several significant ways, particularly in the relationship between the executive and the legislature.

Fusion of Executive and Legislature: In India's parliamentary system, the Executive (the Council of Ministers, headed by the Prime Minister) is drawn from the Legislature (the Parliament). A minister must be a member of either the Lok Sabha or the Rajya Sabha. This is a clear violation of the "separation of personnel" principle.
Collective Responsibility: The Council of Ministers is collectively responsible to the Lok Sabha (the lower house of Parliament) under Article 75(3). The government remains in power only as long as it enjoys the confidence of the Lok Sabha. This interdependence is the hallmark of a parliamentary system and is contrary to a strict separation of powers.

Therefore, unlike the US presidential system where the President (Executive) is elected separately from the Congress (Legislature), the Indian system is characterized by a close link between the two.

Functional overlap

Beyond the fusion of the executive and legislature, the Indian Constitution contains numerous provisions that result in an overlap of functions among the three branches. This reflects a system of checks and balances rather than a strict separation.

Examples of Functional Overlap:

Legislative Power of the Executive: The President of India, who is the head of the executive, has significant legislative powers. He summons and prorogues the houses of Parliament. His assent is required for a bill to become law. Most significantly, under Article 123, he has the power to promulgate ordinances when Parliament is not in session, which have the same force as an Act of Parliament.
Judicial Power of the Legislature: The Parliament has the power to punish for contempt of its house. It also has a quasi-judicial function in the process of impeachment of the President and the removal of judges of the Supreme Court and High Courts.
Judicial Power of the Executive: The President and Governors have the power to grant pardons, reprieves, respites, or remissions of punishment (Article 72 and Article 161). The executive also performs quasi-judicial functions through a vast network of administrative tribunals that adjudicate on various disputes (e.g., service matters, tax disputes).
Executive Power of the Judiciary: The judiciary exercises administrative functions in relation to its own staff and has the power to make rules governing its own procedures.

Example 1. In the case of Ram Jawaya Kapur v. State of Punjab (1955), the Supreme Court observed that, "The Indian Constitution has not indeed recognised 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 very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another."

Thus, while the Indian Constitution does not follow the doctrine in its classical, rigid sense, it upholds a "separation of functions," ensuring that no organ usurps the essential functions of another, which is a key aspect of the Rule of Law.

Separation of Powers and Administrative Action

Delegation of Powers to Executive

The Doctrine of Separation of Powers, in its classical sense, posits that the law-making function belongs exclusively to the Legislature and the adjudicatory function belongs exclusively to the Judiciary. However, the realities of the modern welfare state have made a strict adherence to this doctrine impossible. The vast and complex responsibilities of modern governance have necessitated the delegation of legislative and judicial powers to the Executive branch.

This delegation is a key area where administrative law intersects with the doctrine of separation of powers. Administrative law does not prohibit this delegation but seeks to ensure that it remains within constitutional limits and is subject to proper controls.

Delegated Legislation

Delegated legislation refers to the rules, regulations, and by-laws made by the executive branch under the authority of a primary statute passed by the Legislature. At first glance, this appears to violate the separation of powers, as it involves the executive performing a legislative function.

Permissibility and Limits

The Indian Supreme Court has upheld the practice of delegated legislation as a practical necessity. However, to maintain the essence of the separation of powers, it has laid down a crucial limitation: the Legislature cannot delegate its essential legislative functions. This means:

Policy Formulation: The Legislature must lay down the fundamental policy and the legal principles in the parent act. It cannot give the executive a blank cheque to make whatever law it wants.
Essential Functions: The Legislature cannot delegate powers such as amending the act itself, imposing taxes, or repealing a law.

What can be delegated is the task of "filling in the details" to implement the policy laid down by the Legislature. For instance, the Environment (Protection) Act, 1986, lays down the policy of protecting the environment. It then delegates the power to the Central Government to frame specific rules regarding standards for pollutants, a technical task best handled by the executive.

Administrative functionaries performing quasi-judicial functions

Similarly, the executive branch today performs a vast number of adjudicatory or quasi-judicial functions. This is done through a variety of administrative tribunals, commissions, and other authorities that decide disputes and rule on the rights of individuals.

Examples:

An Income Tax Officer assessing the tax liability of an individual.
The Central Administrative Tribunal (CAT) deciding a dispute between a government employee and the government.
A licensing authority deciding whether to grant or revoke a license.

This practice, known as administrative adjudication, also seems to violate the separation of powers by vesting judicial functions in the executive.

Rationale and Safeguards

The rationale for administrative adjudication is the need for speedy, cheap, and expert resolution of disputes in specialized fields. However, to reconcile this with the Rule of Law and the separation of powers, administrative law imposes crucial safeguards:

Principles of Natural Justice: These tribunals must follow the principles of natural justice (right to be heard and rule against bias), ensuring procedural fairness.
Judicial Review: The decisions of these tribunals are subject to the supervisory jurisdiction of the High Courts (under Article 226/227) and the Supreme Court (under Article 32/136). This ensures that the regular judiciary remains the final arbiter of law and that tribunals act within their legal bounds.

Thus, while the administration performs quasi-legislative and quasi-judicial functions, administrative law ensures that the core functions of the Legislature and the Judiciary are not usurped, and that these delegated powers are exercised under legal control.

Judicial Review of Administrative Actions

Judicial review is the power of the judiciary to examine the actions of the legislative and executive branches of government to determine whether they are constitutional and lawful. In the context of administrative law, judicial review is the primary mechanism through which the courts enforce the Rule of Law and the separation of powers. It is the most powerful tool for ensuring that the administration acts within the limits of its power.

Supervision over executive actions

Judicial review acts as a form of supervision by the judiciary over the executive. It is not an appeal where the court substitutes its own decision for that of the administrative authority. The court is not concerned with the merits of the decision (i.e., whether it was a "good" or "wise" decision). Instead, the court is concerned with the legality and fairness of the decision-making process.

The system of checks and balances, which is a key part of the separation of powers, is put into practice through judicial review. It ensures that the executive, while performing its functions, does not encroach upon the fundamental rights of citizens or overstep the authority granted to it by the legislature.

Grounds for Judicial Review

The courts can strike down an administrative action on several grounds, all of which are rooted in the principles of separation of powers and the Rule of Law:

Illegality: The authority acted ultra vires (beyond its legal powers), made an error of law, or unlawfully delegated its power.
Irrationality (Wednesbury Unreasonableness): The decision is so unreasonable that no reasonable authority could have ever come to it.
Procedural Impropriety: The authority failed to follow the prescribed procedure or violated the principles of natural justice (fair hearing, rule against bias).
Abuse of Discretion: The authority exercised its discretion for an improper purpose, in bad faith, or based on irrelevant considerations.

Example 1. In the case of L. Chandra Kumar v. Union of India (1997), the Supreme Court dealt with the question of whether a constitutional amendment that took away the power of judicial review of the High Courts over the decisions of administrative tribunals was valid.

Answer:

The Supreme Court struck down the provision, holding that the power of judicial review of the High Courts (under Article 226) and the Supreme Court (under Article 32) is an integral and essential feature of the Constitution and part of its basic structure. The Court reasoned that this power is essential for maintaining the supremacy of the Constitution and for safeguarding the Rule of Law. By affirming the inviolability of judicial review, the Court strongly reinforced the separation of powers, ensuring that the judiciary will always retain its supervisory role over the executive branch, including its quasi-judicial tribunals. This case firmly establishes judicial review as the ultimate check on administrative power in India.