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Published : December 29, 2010 | Author : prachishah
Category : Constitutional Law | Total Views : 26656 | Rating :



 Separation of Power-India & USA

Charles de Montesquieu -“To become truly great, one has to stand with people, not above them.”

The separation of powers is a model for the governance of both democratic and federative states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic. The doctrine of separation of powers has emerged in several forms at different periods. Its origin is traceable to Plato and Aristotle. In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers. But it was Montesquieu who for the first time formulated this doctrine systematically, scientifically and clearly in his book ‘Esprit des Lois’ (The Spirit of the Laws), published in the year 1748.

Contribution of Montesquieu in the development of the Concept of Separation of Power
Meaning of Separation of Power
Understanding that a government's role is to protect individual rights, but acknowledging that governments have historically been the major violators of these rights, a number of measures have been derived to reduce this likelihood. The concept of Separation of Powers is one such measure. The premise behind the Separation of Powers is that when a single person or group has a large amount of power, they can become dangerous to citizens. The Separation of Power is a method of removing the amount of power in any group's hands, making it more difficult to abuse.
It is generally accepted that there are three main categories of governmental functions-a) legislative b) executive, and c) judicial. Likewise, there are three main organs of the Government in a State-a) Legislature, b) Executive and c) Judiciary. According to the theory of separation of powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and be exercised by three separate organs of the Government. Thus, legislature cannot exercise legislative or judicial power; the Executive cannot exercise legislative or judicial and the Judiciary cannot exercise legislative or executive power of the Government.

Montesquieu’s Doctrine
Though the doctrine of Seperation of Power is traceable to Aristotle but the writings of Locke and Montesquieu gave it a base on which modern attempts to distinguish between legislative, executive and judicial power is grounded. Locke distinguished between what he called:

i) Discontinuous legislative power;
ii) Continuous executive power;
iii) Federative power.

He included within ‘discontinuous legislative power’ the general rule making power called into action from time to time and not continuously. ‘Continuous executive power’ included all those powers which we now call executive and judicial. By ‘federative power’ he meant the power of conducting foreign affairs.

Montesquieu, a French scholar, found that concentration of power in one person or a group of persons results in tyranny. And therefore for decentralization of power to check arbitrariness, he felt the need for vesting the governmental power in three different organs, the legislature, the executive, and the judiciary. The principle implies that each organ should be independent of the other and that no organ should perform functions that belong to the other.

Montesquieu in the following words stated the Doctrine of Separation of Powers “There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”

This theory has had different application in France, U.S.A., England and India. In France, it resulted in the rejection of the power of courts to review the acts of the legislature or the executive. The doctrine was never accepted in its strict sense in England. About U.S.A and India it will be further dealt in brief.

Constitutional Status of Separation of Power in USA
Doctrine in USA
The doctrine of Separation of Powers forms the foundation on which the whole structure of the Constitution is based. It has been accepted and strictly adopted in U.S.A. Article I; Section 1 vests all legislative powers in the Congress. Article II; Section 1 vest all executive powers in the President and Article III; Section 1 vests all judicial powers in the Supreme Court.

Jefferson quoted, “The concentration of legislative, executive and judicial powers in the same hands in precisely the definition of despotic Government.”

On the basis of this theory, the Supreme Courts was not given power to decide political questions so that there was not interference in the exercise of power of the executive branch of government. Also overriding power of judicial review is not given to the Supreme Court. The President interferes with the exercise of powers by the Congress through his veto power. He also exercises the law-making power in exercise of his treaty-making power. He also interferes in the functioning of the Supreme Court by appointing judges.

The judiciary interferes with the powers of the Congress and the President through the exercise of its power of judicial review. It can be said that the Supreme Court has made more amendments to the American Constitution than the Congress. To prevent one branch from becoming supreme, protect the "opulent minority" from the majority, and to induce the branches to cooperate, governance systems that employ a separation of powers need a way to balance each of the branches. Typically this was accomplished through a system of "checks and balances", the origin of which, like separation of powers itself, is specifically credited to Montesquieu. Checks and balances allow for a system based regulation that allows one branch to limit another, such as the power of Congress to alter the composition and jurisdiction of the federal courts.

Legislative power
Congress has the sole power to legislate for the United States. Under the non-delegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not delegate a "line-item veto" to the President, by which he was empowered to selectively nullify certain provisions of a bill before signing it. The Constitution Article I, Section 8; says to give all the power to Congress. Congress has the exclusive power to legislate, to make laws and in addition to the enumerated powers it has all other powers vested in the government by the Constitution. Where Congress does not make great and sweeping delegations of its authority, the Supreme Court has been less stringent. One of the earliest cases involving the exact limits of non-delegation was Wayman v. Southard (1825). Congress had delegated to the courts the power to prescribe judicial procedure; it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers.

Executive Power
Executive power is vested, with exceptions and qualifications, in the president by Article II, Section 1, of the Constitution. By law the president becomes the Commander in Chief of the Army and Navy, Militia of several states when called into service, has power to make treaties and appointments to office -- "...with the Advice and Consent of the Senate"-- receive Ambassadors and Public Ministers, and "...take care that the laws be faithfully executed" (Section 3.) By using these words, the Constitution does not require the president to personally enforce the law; rather, officers subordinate to the president may perform such duties. The Constitution empowers the president to ensure the faithful execution of the laws made by Congress. Congress may itself terminate such appointments, by impeachment, and restrict the president. The president's responsibility is to execute whatever instructions he is given by the Congress.
Congress often writes legislation to restrain executive officials to the performance of their duties, as authorized by the laws Congress passes. In INS v. Chadha (1983), the Supreme Court decided (a) The prescription for legislative action in Article I, Section 1—requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives—and Section 7—requiring every bill passed by the House and Senate, before becoming law, to be presented to the president, and, if he disapproves, to be repassed by two-thirds of the Senate and House—represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers. Further rulings clarified the case; even both Houses acting together cannot override Executive veto’s without a 2/3 majority. Legislation may always prescribe regulations governing executive officers.

Judicial power
Judicial power — the power to decide cases and controversies — is vested in the Supreme Court and inferior courts established by Congress. The judges must be appointed by the president with the advice and consent of the Senate, hold office for life and receive compensations that may not be diminished during their continuance in office. If a court's judges do not have such attributes, the court may not exercise the judicial power of the United States. Courts exercising the judicial power are called "constitutional courts." Congress may establish "legislative courts," which do not take the form of judicial agencies or commissions, whose members do not have the same security of tenure or compensation as the constitutional court judges. Legislative courts may not exercise the judicial power of the United States. In Murray's Lessee v. Hoboken Land & Improvement Co.(1856), the Supreme Court held that a legislative court may not decide "a suit at the common law, or in equity, or admiralty," as such a suit is inherently judicial. Legislative courts may only adjudicate "public rights.

Even though of above all, Separation of Powers is not accepted in America in its strict sense, only it has attracted the makers of most modern Constitution, specially during 19th Century.

In a leading case: Marbury v. Madison,
Marbury v. Madison is a landmark case in United States law. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution.

This case resulted from a petition to the Supreme Court by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia but whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force Secretary of State James Madison to deliver the documents, but the court, with John Marshall as Chief Justice, denied Marbury's petition, holding that the part of the statute upon which he based his claim, the Judiciary Act of 1789, was unconstitutional.

Marbury v. Madison was the first time the Supreme Court declared something "unconstitutional", and established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the "checks and balances" of the American form of government.

Separation of powers has again become a current issue of some controversy concerning debates about judicial independence and political efforts to increase the accountability of judges for the quality of their work, avoiding conflicts of interest, and charges that some judges allegedly disregard procedural rules, statutes, and higher court precedents.

It is said on one side of this debate that separation of powers means that powers are shared among different branches; no one branch may act unilaterally on issues, but must obtain some form of agreement across branches. That is, it is argued that "checks and balances" apply to the Judicial branch as well as to the other branches.

It is said on the other side of this debate that separation of powers means that the Judiciary is independent and untouchable within the Judiciaries' sphere. In this view, separation of powers means that the Judiciary alone holds all powers relative to the Judicial function, and that the Legislative and Executive branches may not interfere in any aspect of the judicial branch.

Constitutional Status of Separation of Power in India
Doctrine in India
On a casual glance at the provisions of the Constitution of India, one may be inclined to say that that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution, executive powers are with the President, legislative powers with Parliament and judicial powers with Judiciary (Supreme Court, High Courts and Subordinate Courts).

The President’s function and powers are enumerated in the Constitution itself. Parliament is competent to make any law subject to the provisions of the Constitution and there is no other limitation on it legislative power. The Judiciary is independent in its field and there can be no interference with its judicial functions either by the Executive or by the Legislature. The Supreme Court and High Courts are given the power of judicial review and they can declare any law passed by the Parliament or the Legislature unconstitutional. Taking into account these factors, some jurists are of the opinion that the doctrine of Separation of Powers has been accepted in the Indian Constitution.

In I.C.Golak Nath v. State of Punjab, it was observed: “The Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them.

If we study the constitutional provisions carefully, it is clear that the doctrine of Separation of Powers has not been accepted in India in its strict sense. In India, not only there is functional overlapping but there is personnel overlapping also. The Supreme Court has 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. The executive can affect the functioning of the judiciary by making appointments to the office of Chief Justice and other judges. One can go on listing such examples yet the list would not be exhaustive.

In Indira Nehru Gandhi v. Raj Narain, it was 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. Chandrachud J. also observed that the political usefulness of doctrine of Separation of Power is not widely recognized. No constitution can survive without a conscious adherence to its fine check and balance. The principle of Separation of Power 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.”

Thus doctrine of separation of powers is not fully accepted in the Indian Constitution. It can be said with the observation of Mukherjee, J. in Ram Jawaya v. State of Punjab: “The 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 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 referring to the above content it proves that Separation of Power is practiced in India but not that rigidly. It is not embodied in the constitution though practiced. The three main powers do cross their limit and interfere in each other’s task whenever necessary.

Importance of the Doctrine
The doctrine of separation of power in its true sense is very rigid and this is one of the reasons of why it is not accepted by a large number of countries in the world. The main object as per Montesquieu in the Doctrine of separation of power is that there should be government of law rather that having will and whims of the official. Also another most important feature of the above said doctrine is that there should be independence of judiciary i.e. it should be free from the other organs of the state and if it is so then justice would be delivered properly. The judiciary is the scale through which one can measure the actual development of the state if the judiciary is not independent then it is the first step towards a tyrannical form of government i.e. power is concentrated in a single hand and if it is so then there is a cent percent chance of misuse of power. Hence the Doctrine of separation of power do plays a vital role in the creation of a fair government and also fair and proper justice is dispensed by the judiciary as there is independence of judiciary. Also the importance of the above said doctrine can be traced back to as early as 1789 where the constituent Assembly Of France in 1789 was of the view that “there would be nothing like a Constitution in the country where the doctrine of separation of power is not accepted”.

Conclusion & Observation
The Modern State has transformed from Police State to Welfare State. Earlier the State functions were confined to defense, administration of justice or maintenance of law and order. With the gradual change in time, state undertook the responsibility to provide social security and social welfare for the common man, regulate industry, trade etc with a view to protecting as well as promoting public interest. Thus with such a workload it is not possible for the State to stick to the doctrine of Separation of powers. Theory of Separation of power cannot be practically possible in reality.

It is rightly said by Madison that, “The accumulation of all powers, legislative, executive and judicial, in the same hands of one, a few or many, and whether hereditary, self appointed or elective, may justly be pronounced the very definition of tyranny”.

From this it can be concluded that the doctrine of separation of powers in the strict sense is undesirable and impracticable and therefore till now it has not been fully accepted in any of the country. In theory under the Constitution of United States of America the doctrine of separation of power has been strictly adopted but there also gradually the Supreme Court is relaxing the policy. In India also on casual viewing of the Constitution it can be said that India has adopted the doctrine of separation of power but in reality it is not so. The three organs in some or the other way perform the task of other. For e.g. the legislature delegate some powers to executive, thus executive the function of the legislature, in the same way the Parliament other than making laws also have judicial power which it can exercise when its contempt take places.

The researcher after considering all the aspects have come to the conclusion that the doctrine of separation of power is not accepted in any country till now due to many critical issues involved in it. And on comparing the Indian Constitution and U.S.A Constitution it can be said that on face it seems that both the Constitution has adopted the doctrine of separation of power but after through study it can be said that the doctrine is not strictly accepted in both the countries.
Available at en.wikipedia.org/wiki/Separation_of_powers, visited on September24,2010
C.K.Takwani, Lectures on Administrative Law, (Lucknow: Eastern Book Company), 4th
Edition, p32
Available at www.importanceofphilosophy.com/Politics_SeparationPower.html,
visited on September 24,2010
Supra note 2 at p. 32
I.P.Massey, Administrative Law, (Lucknow: Eastern Book Company), 7th Edition, p38
Available at www.legalserviceindia.com/article/l16-Separation-Of-Powers.html, visited on
September 24,2010
Supra note 5 at p. 40
Supra note 2 at p. 36
Supra note 5 at p. 40
Available at en.wikipedia.org/wiki/Separation_of_powers, visited on September 24,2010
Available at Constitution">en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_Constitution visited on September 25,2010
Available at Constitution">en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_Constitution, visited on September 28,2010
Available at Constitution" target="_blank">en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_Constitution, visited on September 29, 2010
Supra note 5 at p. 41
5 U.S. (1 Cranch) 137 (1803)
Supra note 2 at p. 38
AIR 1967 SC 1643
Supra note 5 at p. 42
AIR 1975 SC 2299
AIR 1955 SC 549
Available on www.docstoc.com/docs/15808747/CRITICAL-ANALYSIS-OF-THE-DOCTRINE-OF-SEPERATION-OF-POWER , visited on October 12, 2010.
Supra note 2 at p. 18.

Authors contact info - articles The  author can be reached at: prachishah@legalserviceinida.com

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