rticles

> Online Author Submission

Doctrine Of Separation Of Powers And Working Of Three Organs Of The State Doctrine Of Separation Of Powers And Working Of Three Organs Of The State
Introduction Cases have been reportedly coming up where judges were unjustifiably trying to perform executive or judicial functions. This is clearly unconstitutional. In the name of judicial activism judges can not cross their limits and try to take over their functions which belong to other organs of the state. There is no liberty if the judicial powers be not separated from the legislative, were it joined with the legislature the life and liberty of the subject would be expose to arbitrary control: for the judge would be then the legislature, were it joined to the executive powers the judge might behave with violence and oppression. Therefore in the light of this context it is desirable to analyze the concept of separation of powers and its application in various legal systems around the globe. Normally under any constitution, the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the state to encroach upon the domain of another, otherwise the delicate balance in the constitution will be upset and there will be a reaction. Judges must know there limits and must not try to run the Government. They must have modesty and humanity and not behave like emperors. There to put check and balances on every organs of the state it is necessary to demarcate the powers of three branches of the Government. i.e. legislature, judiciary and executive. Theory of separation of powers was propounded and popularized by the French political analyst Montesquieu. It provides the vesting of judicial, executive and legislative functions in three separate organs of the Government. It contemplates an absence of overlapping of these separate organs of the Government.inn modern times it has been substituted by more flexible theory i.e. the theory of check and balances. The theory of separation of powers signifies three formulations of governmental powers.
1 2

The same person should not form part of more than one of the three organs of the Govt. i.e. ministers should not be sit in to the parliament. One organ should not interfere with any other organ of the Govt. i.e. policies formed by the executives must not be intervened by the judiciary. One organ of Govt. should not exercise the functions assign to any other organ i.e. law making must not be done by the executives.

However the effective implementation of this doctrine is not possible in modern days in view of growth of delegated legislation and administrative tribunals.

Comparative perspective British Constitution It can be seen from British constitutional convention that, the king who is an executive head is also an integral part of the legislature and all his ministers are members are parliament. The Lord Chancellor is a member of the House of Lords, member of the Govt. and at the same time a senior most member of the judiciary. The judiciary is independent but the judges of the superior courts can be removed on an address from both the houses of parliament. The House of Lords exercises both judicial and legislative functions the courts can apply and interpret the laws made by legislature Thus we can say that there is no effective separation of powers between the three organs of the Government.
3

Constitution of U.S.A According to US constitution all legislative powers vest in congress, all executive powers vest in the president, and all judicial powers vest in the supreme court. However still there is no separation of powers, because o the following features like, President has the power to override the legislation passed by the congress by veto . The power of the senate to confirm the appointments made by the president or to reject the same . Power of the Supreme Court to review the act of the congress and the president .
4 5 6

Therefore in the above context to secure the independence of the judiciary it is necessary to remove it from the political or administrative process. However the constitutional trade-off for independence is that judges must restrain themselves from the areas reserved for other branches. Thus judicial restraint contemplates the twin overreaching values of the separation of powers and independence of judiciary. In Lochner v. New York Justice Holmes of the US Supreme Court in his dissenting judgment criticized the majority of the court for becoming a super legislature by intervening in to policy decision of the Govt. similarly in his dissenting judgment inGrisswold v. Connecttcut Mr. Justice Hugo Black warned that unbounded judicial authority would make of these courts members day-to-day constitutional conventions.
7 8

During the era of Franklin Roosevelt when he was president the country was passing through a terrible economic crises, to overcome this, President Roosevelt initiated a series of legislation called the New Deal, which were mainly economic regulatory measures. When these were challenged in the US Supreme Court the courts begins striking them down on the ground that they violated the due process clause in the US Constitution. As a reaction, President Roosevelt proposes to reconstitute the court with six more judges to be nominated by him. This threat was found to be enough and it was not necessary to carry it out. The court thereafter suddenly changed its approach and began upholding the laws . The moral of this story is if the judiciary does not exercise restraint and overstretches its limits
9

there is bound to be a reaction from politician and others. The politician will then step in and curtail the powers, or even the independence, of the judiciary. The judiciary should, therefore confine itself to its proper sphere, realizing that in a democracy many matters and controversies are best resolved in non-judicial setting.
10

Indian Scenario Apart from the directive principles laid down in Part-IV of the constitution which provides for separation of judiciary from the executive, the constitutional scheme does not provide any formalistic division of powers. The Supreme Court observed that the Indian constitution has not recognized the doctrine of separation of powers. InIndira Nehru Gandhi v.Raj Naryan chief Justice Ray observed that, Indian constitution recognizes the theory of separation of powers in broad sense only. however prior to that In Keshvanand Bhari v. State of Kerla out of thirteen judges justice Beg held that separation of power is a part of basic structure of the constitution, however it was not approved by the other judges or in subsequent cases by the Supreme Court.
11 12 13

In Ram Jawaya Kapoor v. State of Punjab the Indian constitution had not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of different parts or branches of the Govt. 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 belongs to another. Similarly in Asif hamid v. state of Jammu & Kashmir Legislature, executive and judiciary have to function within their own sphere as demarcated under the constitution. No organ can usurp the functions assigned to another. The functioning of the democracy depends upon the strength and independence of each of its organs. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. However the only check on judicial power is the self-imposed discipline of judicial restraint. Therefore this doctrine cannot be liberally applied to any modern government, because neither the powers can be kept in water tight compartments nor can any government can run on strict separation of powers. Nowadays this doctrine is shaken by the judicial review and judicial activism. Recently the Maharashtra government passed a regulation for the increase of result of S.S.C. students and to curb the menace of students suicide in he wake of unexpected results, it provides for the Best of five formula according to which the percentage of the students are to be calculated on the basis of only those five subjects in which the students have secured the maximum marks. This regulation was challenged by the parents of the student who were studying in the C.B.S.E. and I.C.S.E. Boards, providing education in Maharashtra state in the High court of Bombay on the ground of violation of fundamental rights i.e. right to equality. High court rejected the formula of best of five holding the classification between students of S.S.C. and C.B.S.E. as unreasonable and contrary to the principle of equality here court intervene in the policy decision of the government, government again approached to the supreme court for appeal against the order of high court and the supreme court modified the order of High court and in its interim order and directed the Government to apply the alleged rule for both the students of S.S.C. and I.C.S.E. In such kind of cases court must have to exercise a self
14 15 16 17

imposed restraint. Because the statement of marks are already distributed among the students and now it is not practically possible to deduct those marks or to prepare a fresh statement of marks, therefore High court ought to have apply the doctrine of prospective overruling. Which was earlier applied by the supreme court in Golaknath v.State of punjab in this case the policy of the govt. to distribute the lands under land reform scheme was challenged before the supreme court on the ground of violation of fundamental right Justice Subba Rao of the supreme court held such distribution of land as unconstitutional but apply its decision prospectively and stated that it is not practically possible to collect the land which are already distributed to the farmers or for the welfare of the state therefore it is desirable in the interest of justice to apply the decision with prospect5ive effect and held that after the date of this decision government cannot acquire the property of any person and parliament doesnt have the power to amend the fundamental right. Similarly in Suman Gupta v. State of Jammu and Kashmir The respective state government reserved certain seats in medical colleges for the students residing in the particular state on reciprocal basis, this policy of state was challenged on the ground that it discriminate among the students on the ground of place of birth The supreme court rejected the policy on the ground of discrimination but meanwhile the students who are the beneficiaries of this policy had completed their substantial education, and now it is not in the interest5 of justice to cancelled their admission, therefore here also supreme court applied the doctrine of prospective overruling and held that the government must not apply the impugned policy from next academic year.
18 19 20 21

Therefore by using the doctrine of prospective overruling in the above to cases Supreme court maintained the balance between judiciary and other organs of the government. It can also be maintained by using the self restraint by the judges. In Divisional Manager, Aravali Golf club v. Chander Hass and Another Supreme court warned the High court for its over activism. The appellant in the present case appointed the respondents as malis on daily wages, subsequently they were asked to perform the duties of tractor drivers, though there was no post of tractor drivers in the establishment. They were continued to be paid wages for the post of mail .after A few years appellant started paying them wages of tractor driver on daily wage basis. Though they continued to work for about a decade as tractor drivers, their services were regularized against the post of mail and not as tractor driver. The respondents then filed a civil suit claiming regularization against the post of tractor driver. The appellant contested the suit on the ground inter alia; that there was no sanctioned post off tractor driver hence there was no question of appointing the plaintiff on the post of tractor driver accepting that plea the trial court dismissed the suit.
22

However the first appellate court reversed the order of trial court and directed the defendants to get the post of tractor driver sanctioned and to regularize the plaintiff on that post. A single judge of high court upheld the judgment of the first appellate court. The appellant club then filed the appeal before Supreme Court by special leave before the Supreme Court the club submitted that there was no post of tractor driver, and therefore, there was no question of regularizing the respondents in the said post. Allowing the appeal the Supreme Court held that since there was no sectioned post of tractor driver against which the respondents could be regularized as tractor driver, the direction of the first

appellate court and the single judge to create the post of tractor driver and regularizing he services was completely beyond their jurisdiction. The court cannot direct the creation of post. Creation and sanction of post is a prerogative of the executive or legislative authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organization. The court further said that the creation of a post is an executive or legislative function and it involves economic factors. Hence, the courts cannot take upon themselves the power of creation of post. similarly InMadhu Holmagi v. Union of India wherein one Advocate filed a public interest litigation challenging the Agreement 123 i.e. Indo-US nuclear treaty proposed to be entered by the Indian government, petitioner contended that court must have to scrutinize the all documents relating to the agreement123 and must have to prevent the Indian government from entering in to the nuclear deal. In this court dismissed the petition and also imposed a cost of Rs 5000 on the petitioner stating that it is an abuse of court proceeding. Because the question raised by the petitioner is a question of policy decision, which is to be decided by the parliament and not by the judiciary.
23

Conclusion Constitution of India provides for the establishment of three organs i.e. judiciary, executive, and legislature each organ has its own area of functioning. However constitution does which organ is superior to another, in this context the relation between judiciary, executive, and legislature became complex from last few decades. The legislature and judiciary are acting like an assembly and they want supremacy over each other, it should be noted that the absolute balance of powers between the different organs of the government is an impracticable thing in practice and the final say must belong to one of them. The constitution of India tried to adopt the middle path between the American system of judicial supremacy and the English principle of parliamentary supremacy. For this judiciary was empowered with power of judicial review, so that it can determine the constitutionality of executive and legislative actions but at the same time the judiciary was not empowered to review wisdom of legislative and executive policies.

Doctrine of separation of powers

Doctrine of separation of powers is structural rather than functional. Examine its impact on development of administrative law in India. [16]Dec 07, 03, Dec 99, 2K Critically examine the doctrines of Rule of Law and Separation of Powers and discuss their impact on the development of Administrative Law in India. [16] Oct 2K Introduction: According to Jain and Jain, If the Rule of Law, as enunciated by Dicey, affected the growth of Administrative Law in Britain, the doctrine of Separation of Powers had an intimate impact on the development of Administrative Law in USA.

Davis also stated, Probably, the principal doctrinal barrier to the development of the administrative process has been the theory of separation of powers." Meaning It is generally accepted that there are three main categories of governmental functions Legislative, Executive, and Judicial. Likewise, there are three main organs of the Government in a State - Legislature, Executive and 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, the Legislature cannot exercise executive or judicial power; the Executive cannot exercise legislative or judicial power and the Judiciary cannot exercise legislative or executive power of the Government. Defects Though, theoretically, the doctrine of separation of powers was very sound, many defects surfaced when it was sought to be applied in real life situations. Mainly, the following defects were found in this doctrine: 1. Historically speaking, the theory was incorrect. There was no separation of powers under the British Constitution. At no point of time, was this doctrine was adopted in England. As Prof. Ullman says, England was not the classic home of separation of powers. Donoughmore Committee also observed, In the British Constitution there is no such thing as the absolute separation or legislative, executive and judicial powers. 2. This doctrine is based on the assumption that the three functions of the Government, viz. legislative, executive and judicial are independent and distinguishable from one another. But in fact, it is not so. There are no watertight compartments. It is not easy to draw a demarcating line between one power and another with mathematical precision. 3. It is impossible to take certain actions if this doctrine is accepted in its entirety. Thus, if the legislature can only legislate, then it cannot punish anyone, committing a breach of its privilege; nor can it delegate any legislative function even though it does not know the details of the subject-matter of the legislation and the executive authority has expertise over it; nor could the courts frame rules of procedure to be adopted by them for the disposal of cases. Separation of Powers, thus, can only be relative and not absolute. 4. Modern State is a welfare State and it has to solve complex socio-economic problems and in this state of affairs also, it is not possible to stick to the doctrine. 5. The modern interpretation of the doctrine of Separation of Powers means that discretion must be drawn between essential and incidental powers and one organ of the Government cannot usurp or encroach upon the essential functions belonging to another organ, but may exercise some incidental functions thereof. 6. The fundamental object behind Montesquieu's doctrine was liberty and freedom of an individual; but that cannot be achieved by mechanical division of functions and powers. In England, theory of Separation of Powers is not accepted and yet it is known for the protection of individual liberty. For freedom and liberty, it is necessary that there should be the Rule of Law and impartial and independent judiciary and eternal vigilance on the part of the subjects. Importance On the whole, the doctrine of Separation of Powers in the strict sense is undesirable and impracticable and, therefore, it is not fully accepted in any country. Nevertheless, its value lies in the emphasis on those checks and balances which are necessary to prevent an abuse of enormous powers of the executive. The object of the doctrine is to have a Government of Law rather than of official will or whim. Montesquieu's great point was

that if the total power of the government is divided among autonomous organs, one will act as a check upon the other and in the check liberty can survive. Again, almost all the jurists accept one feature of this doctrine that the judiciary must be independent of and separate from the remaining two organs of the Government, viz., Legislature and Executive. Separation of Powers in India On a casual glance at the provisions of the Constitution of India, one may be inclined to say that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution, executive powers are with the President, legislative powers with the Parliament and judicial powers with the Judiciary (Supreme Court, High Courts and subordinate courts). The President holds his office for a fixed period. His functions and powers are enumerated in the Constitution itself. Parliament is competent to make any law subject to provisions of the Constitution and there is no other limitation on its legislative power. It can amend the law prospectively or even retrospectively but it cannot declare a judgment delivered by a competent court void or of no effect. The Parliament has also inherited all the powers, privileges and immunities of the British House of Commons. Similarly, 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 Parliament or Legislature ultra vires or unconstitutional. Taking into account these factors, some jurists are of the opinion that the doctrine of Separation of Powers has been accepted in the Constitution of India and is a part of the basic structure of the Constitution. Separation of functions is not confined to the doctrine of Separation of Powers. It is a part of essential structure of any developed legal system. In every democratic society, the process of administration, legislation and adjudication are more clearly distinct than in a totalitarian society. But 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. There is no provision in the Constitution itself regarding the division of functions of the Government and the exercise thereof. Though, under Articles 53(1) and 154(1), the executive power of the Union and of the States is vested in the President and the Governors respectively, there is no corresponding provision vesting the legislative and judicial power in any particular organ. The President has wide legislative powers. He can issue Ordinances, make laws for a State after the State Legislature is dissolved, adopt the laws or make necessary modifications and the exercise of this legislative power is immune from judicial review. He performs judicial functions also. He decides disputes regarding the age of a judge of a High Court or the Supreme Court for the purpose of retiring him and cases of disqualification of members of any House of Parliament. Likewise, Parliament exercises legislative functions and is competent to make any law not inconsistent with the provisions of the Constitution, but many legislative functions are delegated to the executive. In certain matters, Parliament exercises judicial functions also. Thus, it can decide the question of breach of its privilege and, if proved, can punish the person concerned. In case of impeachment of the President, one House acts as a prosecutor and the other House investigates the charges and decides whether they were proved or not. The latter is a purely judicial function. On the other hand, many powers which are strictly judicial have been excluded from the purview of courts. Though judiciary exercises all judicial powers, at the same time, it exercises certain executive or administrative functions also. The High Court has supervisory powers over all subordinate courts and tribunals and also power to transfer cases. The High Courts and the Supreme Court have legislative powers, they also frame rules regulating their own procedure for the conduct and disposal of cases.

Thus, the doctrine of separation of powers is not accepted fully in the Constitution of India, and one may agree with the observations of Mukherjea, 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.