Separation of
Power
Montesquieu (Spirit
of the laws)
• Constant experience shows us that every man invested with power is
apt to abuse it, and to carry his authority as far as it will go….To
prevent this abuse, it is necessary from the very nature of things that
power should be a check to power.
• In every government there are three sorts of power: the legislative;
the executive in respect to things dependent on the law of nations;
and the executive in regard to matters that depend on the civil law. By
the third, he punishes criminals, or determines the disputes that arise
between individuals. The latter we shall call the judiciary power, and
the other simply the executive power of the state.
• When the legislative and executive powers are united in the same
person, or in the same body of magistrates, there can be no liberty;
because apprehensions may arise, lest the same monarch or senate
should enact tyrannical laws, to execute them in a tyrannical manner.
• Again, there is no liberty, if the judiciary power be not separated
from then legislative and executive. Were it joined with the legislative,
the life and liberty of the subject would be exposed to arbitrary
control; for the judge would be then the legislator. Were it joined to
the executive power, the judge might behave with violence and
oppression.
(Federalist
Papers)
• He (Montesquieu) did not mean that these departments
ought to have no PARTIAL AGENCY in, or no CONTROL over,
the acts of each other.
• Unless these departments be so far connected and blended
as to give to each a constitutional control over the others,
the degree of separation which the maxim requires, as
essential to a free government, can never in practice be
duly maintained .
• It is agreed on all sides, that the powers properly belonging
to one of the departments ought not to be directly and
completely administered by either of the other
departments. It is equally evident, that none of them ought
to possess, directly or indirectly, an overruling influence
over the others, in the administration of their respective
powers. If the three departments have no constitutional
control over one another, the degree of separation essential
to a free government cannot be exercised.
Madison (Federalist Papers)
• The legislative department derives a superiority in our
governments from other circumstances. Its constitutional
powers being at once more extensive, and less susceptible of
precise limits, it can, with the greater facility, mask, under
complicated and indirect measures, the encroachments which
it makes on the co-ordinate departments….. On the other
side, the executive power being restrained within a narrower
compass, and being more simple in its nature, and the
judiciary being described by landmarks still less uncertain,
projects of usurpation by either of these departments would
immediately betray and defeat themselves.
• Nor is this all: as the legislative department alone has access
to the pockets of the people, and has in some constitutions
full discretion, and in all a prevailing influence, over the
pecuniary rewards of those who fill the other departments, a
dependence is thus created in the latter, which gives still
greater facility to encroachments of the former.
Other justifications of SOP:
Efficiency Articulated Governance
One aspect of efficiency is division of Leads to better articulation
labor. between an individual and
different organs of the state.
The other aspect is efficiency in the
form following function and vice-
versa: different functions require
different institutional requirements
for their fulfilment. Some institutions
are structurally better suited to do
certain work.
Separation of Power under US
Constitution
Principle doctrinal barrier against development of administrative law in the US.
Article 1 (1): All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and House of
Representatives.
Article 2(1): The executive Power 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, as
follows….
Article 3(1): The judicial Power of the United States, shall
be vested in one supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish. The Judges, both of the supreme
and inferior Courts, shall hold their Offices during good behavior, and shall, at
stated Times, receive for their Services, a Compensation, which shall not be
However…
As J. Frankfurter said, complete SOP makes modern government impossible…..
Checks and balances:
President can veto a legislation
Congress can control budget (The Budget and Accounting Act, 1921 makes the president
make a budget request to the Congress. Then the process of budget starts in the
Congress and eventually passed by both the House of representatives and senate. The
president then can veto or sign the budget).
Strong system of Judicial Review (the federal supreme court can review laws made by
the Congress as well as executive actions)
The Congress can impeach president.
The Congress can also impeach judges.
Separation of Power in the United
Kingdom
The Parliament is Supreme and consists of the House of Commons and the
House of Lords. The ministers are appointed from both the houses. The monarch
is the head of both the legislature and the executive.
The House of Lords was the apex court till 2009. It comprised of Law Lords
appointed in the House of Lords by the monarch.
In 2009, the UK Supreme Court comprising of 12 judges has been established.
For the first time separation of legislature from the judiciary is established.
Separation of Power in India
Keshavananda Bharati v. State of Kerala, (1973) 4 SCC 225
establishes SOP as a basic structure. However the scope of SOP is
not laid down in the same.
No strict separation is enshrined under the constitution. Three
members in the constituent assembly, namely: KT Shah, Kazi Syed
Karimuddin and K. Hanumanthaiya proposed a separate provision
for SOP. But this was rejected on the ground that in a British
system of Parliamentary democracy it is impossible to separate the
legislature from the executive. Hence Dr. Ambedkar suggested
Article 50 to be introduced under the DPSPs stating that the state
shall endeavor to separate the executive from judiciary. That is
why u/a 125 judges salaries and privileges cannot be altered to
their disadvantage. They hold office till the age of 65 unless
impeached u/a 124(4).
Judiciary Executive Legislative
J NA Art. 13: Can Judicially review Art. 13: Can Judicially
Administrative actions. review Laws
E Nil (after NJAC is scrapped). NA NA
The president is supposed to
appoint judges under Art.
124(2) with consultation with
CJI. But now the SC has moved
to the collegium system in
which the Executive has no
say, even though it may reject
the collegium’s proposal, but
must accept if collegium re
asserts.
L Article 124: Can impeach Article 61: May impeach a NA
judges. president.
Article 75 (3): The Council of
ministers shall be collectively
responsible to the lower house.
Rai Sahib Ram Jawaya Kapoor v.
State of Punjab, AIR 1955 SC 549
The State Government in Punjab by notifications in 1952 nationalized
publishing, printing and selling of text books to be taught in government
recognized schools. The government started inviting authors to submit
their books to the government according to government prescribed
requirements, and then chose from those books and entered into
contract with the selected authors. It was up to the headmaster of a
school to select which one to be taught in a school.
Previously the government used to invite publishers to submit books
according to government guidelines and used to choose from them. The
contract used to be between the government and the chosen publishers.
It was again up to the school to choose their book. These publishers
being aggrieved by the notification filed a writ petition in the SC u/a 32.
Contd.
The petitioners argued on the following grounds (Mr. Pathak):
The executive Government of a State is wholly incompetent,
without any legislative sanction, to engage in any trade or
business activity and that the acts of the Government in
carrying out their policy of establishing monopoly in the
business of printing and publishing text books for school
students is wholly without jurisdiction and illegal.
His second contention is, that assuming that the State could
create a monopoly in its favor in respect of a particular trade or
business, that could be done not by any executive act but by
means of a proper legislation which should conform to the
requirements of article 19(6) of the Constitution.
It was not open to the Government to deprive the petitioners of
their interest in any business or undertaking which amounts to
property without authority of law and without payment of
compensation as is required under article 31 of the Constitution
Contd.
Mukherjea, C.J.:
What Mr. Pathak says, however, is, that as our Constitution clearly
recognizes a division of governmental functions into three categories,
viz., the legislative, the judicial and the executive, the function of the
executive cannot but be to execute the laws passed by the legislature or
to supervise the enforcement of the same. The legislature must first
enact a measure which the executive can then carry out.
Article 73 of the Constitution relates to the executive powers of the
Union, while the corresponding provision in regard to the executive
powers of a State is contained in article 162: "Subject to the provisions
of this Constitution, the executive power of a State shall extend to the
matters with respect to which the Legislature of the State has power to
make laws”
Contd.
They do not mean, as Mr. Pathak seems to suggest, that it is only when the
Parliament or the State Legislature has legislated on certain items appertaining to
their respective lists, that the Union or the State executive, as the case may be,
can proceed to function in respect to them. On the other hand, the language of
article 162 clearly indicates that the powers of the State executive do extend to
matters upon which the state Legislature is competent to legislate and are not
confined to matters over which legislation has been passed already. The same
principle underlies article 73 of the Constitution.
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. The executive
indeed can exercise the powers of departmental or subordinate legislation when
such powers are delegated to it by the legislature. It can also, when so empowered,
exercise judicial functions in a limited way. it does not follow from this that in order
to enable the executive to function there must be a law already in existence and
that the powers of executive are limited merely to the carrying out of these laws.
Contd.
Our Constitution, though federal in its structure, is modelled on the British
Parliamentary system where the executive is deemed to have the primary
responsibility for the formulation of governmental policy and its transmission
into law though the condition precedent to the exercise of this responsibility
is its retaining the confidence of the legislative branch of the State. The
executive function comprises both the determination of the policy as
well as carrying it into execution. This evidently includes the initiation of
legislation, the maintenance of order, the promotion of social and economic
welfare, the direction of foreign policy, in fact the carrying on or supervision
of the general administration of the State.
Suppose now that the Ministry or the executive Government of a State
formulates a particular policy in furtherance of which they want to start trade
or business. Is it necessary that there must be a specific legislation legalizing
such trade activities before they could be embarked upon ? We cannot say
that such legislation is always necessary. If the trade or business involves
expenditure of funds, it is certainly required that Parliament should authorize
such expenditure either directly or under the provisions of a statute.
Contd.
Suppose now that the Ministry or the executive Government of a State
formulates a particular policy in furtherance of which they want to start trade or
business. Is it necessary that there must be a specific legislation legalizing such
trade activities before they could be embarked upon ? We cannot say that such
legislation is always necessary. If the trade or business involves expenditure of
funds, it is certainly required that Parliament should authorize such expenditure
either directly or under the provisions of a statute as:
Under article 266(3) of the Constitution no moneys out of the consolidated funds of
India or the consolidated fund of a State shall be appropriated except in accordance
with law and for the purposes and in the manner provided in this Constitution (The
manner is prescribed under/articles 202, 203 and 204).
In the present case it is not disputed that the entire expenses necessary for
carrying on the business of printing and publishing the text books for recognized
schools in Punjab were estimated and shown in the annual financial statement
and that the demands for grants, which were made under different heads, were
sanctioned by the State Legislature and due Appropriation Acts were passed.
Contd.
This does not amount to an infraction of the fundamental right guaranteed by
article 19(1)(g) of the Constitution as:
So long as this system was in vogue the only right which publishers, like the
petitioners had, was to offer their books for inspection and approval by the
Government. They had no right to insist on any of their books being accepted
as text books. So the utmost that could be said is that there was merely a
chance or prospect of any or some of their books being approved as text
books by the Government. Such chances are incidental to all trades and
business and there is no fundamental right guaranteeing them.
Rule of Law
(Coke, C.J.: King must be under the God and the law)
Rule of law:
La Principle de ligalitte: Government based on law and not on men.
• Supremacy of the Law: Government under
strict legal rules. No discretionary power with
the government.
• Equality before the law: Law is same for
everyone and such law must be administered
by ordinary courts of law. No special law or
court for special groups or individual.
• Pre-dominance of legal spirit: If an A. V. Dicey: An
individual’s rights are taken away, such rights Introduction to the
are to be enforced by the courts. study of the Law of
the Constitution
(1885).
Rule of law:
International Congress of Jurists (Rule of Law in a free society): Delhi Declaration,
1959-
Legislature must provide dignity of an individual. This must be done by recognizing
certain civil and political rights and creating conditions for realization of those rights.
This means there should be certain constitutional limitations on the legislature:
against retroactive penal legislation, equality before law, providing fundamental
freedom to citizens like freedom of speech, assembly and religion and provide the
procedural mechanisms to protect the above-mentioned freedoms ("procedure of due
process").
The executive power must be narrowly tailored by the legislature. Judicial review
should be applied to executive actions. If not, then at least hearing/consultation
opportunity must be given to affected party.
An independent judiciary needs to be established. Also, there must be equal access to
justice.
Rule of Law:
• Laws must be:
• Open (Public)
• Clear (unambiguous)
• Prospective
• Consistent (Not contradicting)
• Stable (unchanging)
• General
• Independent judiciary to administer the law. Review
power with the courts. Courts easily accessible.
• PNJ must be followed.
• Discretion of crime preventing agencies cannot
subvert the law.
• This ensures dignity of an individual as he can form his
expectations from the law and act accordingly.
• Rights are virtues of a ‘good’ legal system and not ROL.
Even the legal system of the Nazis had ROL if they
followed the desiderata.
