Understanding the Doctrine of Separation of Powers

The concept of Separation of Powers in its truest sense refers to a structural and functional framework, where all the powers are not concentrated in an individual, but systematically divided into various branches and organs of governance. This principle was intended to prevent arbitrary use of powers and manifest a system of checks and balances in the governance. The Doctrine is focused on establishing exclusivity in the functioning of the three main organs[1], through complete decentralization of powers.

It is broadly based on the theory of a French scholar Montesquieu who observed that concentration of power in a single authority or a few persons is deemed to result in tyranny in the state. Hence, propounded the delegation of powers between three organs namely: a) the legislature for making laws; b) the executive for enforcing laws and c) the judiciary to interpret laws. The principle in its rigid framework implies that each organ should be independent of the other, focusing on its specific functions without interfering with the working of the other organ[2].

However, through further analysis the author will establish how the strict division of powers proves incompetence and the functioning of the governmental organs is overlapping in nature.

The Evolution of the theory Separation of Powers:

The Doctrine has evolved from continuous deliberation of various scholarly political and philosophical thinkers, it can trace its ancient origin in the 4th Century itself. This period was marked by Aristotle’s, treatise of politics, where he specifically categorized the three agencies of the government:

1. The General Assembly,
2. The Public officials and
3. The Judiciary.

This model was first developed in Ancient Greece[3] and gradually became widespread in the Roman Empire as part of their uncodified constitution. It was specifically considered a model for the democratic states, however, with the fall of the Roman Empire the entire Europe witnessed a government structure that consisted of concentration of power in the Monarch. In the 17th Century, Britain proved to be the sole exception to this structure, as it comprised of the Parliamentary form of the government.

The Parliament again saw the emergence of this Doctrine in Locke’s, Two Treatise of government[4], however, in his structure the three organs were not co-equal in nature, the legislature according to him had a supreme stance in the governance. Another feature of this model, was the larger connotation given to the executive than the contemporary implication. The executive functions were left within the control of the monarch, corresponding with the dual form of government prevailing in England at that time- The Parliament and The King.

The final development to the Doctrine in the Modern History is credited to Baron-de-Montesquieu[5], for his systematic codification of the concept. In addition to the separation of powers, he also emphasized upon the importance of ‘Political Liberty’ of a citizen. He highlighted the necessity of an independent judiciary to prevent the power holders from abusing their authority.

The Application of Separation of Powers in Administrative Law:

The author has extensively discussed the origin and the meaning of the Doctrine of Separation of Powers, the theory behind encompassing it and the structural framework of the government under such a scheme.

However, the functioning and interpretation of the Principle varies in each democracy and the machinery has overlapping nature for the purpose of administration. While the constitutions provide for the structural set-up and de- centralization of power, the administrative agencies are often seen to be performing multiple functions at the same time. This can be observed through the manifestation of judicial and legislative powers in the hands of the executive agencies. For instance, the Council of Ministers, who are also an integral part of the Parliament- The Legislature; actively involved in regulating and formulating policies.

Under the scope of administration law, we aim to understand the functionality and practicality of this Doctrine, which if applied in its rigid sense, can cause various agencies to be redundant in their administration. The overlapping delegation of power is justified on the grounds of increasing efficiency in administrative agencies, as without some legislative power, they usually fail to fulfill their purpose of incorporation.

The overlapping delegation violating the Separation of powers, can be termed as a necessary evil. However, such violation should be performed in under absolute necessity through a narrow lens. This scope is constantly interpreted for every quasi- judicial agency in an individual manner.

The U.S.A Model Of Separation Of Powers

1. Separation of Powers in the Constitution:

   The Model of Separation of Powers is strictly followed in the Constitution of USA. It forms the core of the constitution of USA with the segregation of powers into three independent organs.
   
   

   The distinction of powers under Section 1 are as follows:

   • Article I: Legislative Powers vests solely with the Congress

     The Non- Delegation doctrine is strictly complied with, under which the Congress is barred from delegating any authority for law making to other government agencies. The first development in the interpretation of this doctrine could be traced back to the case of Wayman[1], where the Congress delegated the authority to legislate the judicial procedure to the courts. Such an action was found to be in violation of the Doctrine of Separation of Powers and completely unconstitutional.
      

   • Article 2: Executive Powers vested in the President

     The application and scope of the Doctrine of Separation of Powers varies on the basis of the form of government established in a country. In U.S.A, the form of government is Presidential, marking a clear distinction of powers between the executive and the legislature. The President is the head of the state and the chief executive, responsible for appointment and dismissal of other executive officers, exercising a control over the policies and actions of government departments.
     
     The President is not bound to accept the advice of a Secretary and the ultimate decision rests with the President. Neither the President nor any member of the executive is a member of the Congress and a separation is maintained between the legislative and executive organs. This system of government is fundamentally different from the parliamentary system prevailing in India.
      

   • Article 3: Judicial Powers with the Supreme Court and Subordinate courts

     The Judges in the Courts are appointed by the President, on the advice of the Senate, they hold office for a fixed tenure and compensations, for independently exercising their judicial power. The courts with such judges are termed as ‘constitutional courts’ and the other category of courts established is the ‘legislative courts.’ The Latter category of courts are refrained from performing judicial powers[2] for the U.S.A.
      

2. System of Checks and Balances

   The ideal application of separation, in both its functional and personnel state, is yet not completely balanced but the nearest appropriate attempt to reach the ideal, can be witnessed through the State Constitution of Massachusetts in the U.S. It is said therein, that:
   … The legislative department shall never exercise the executive or judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative or executive powers, or either of them; to the end it may be a government of law and not of men[3].
   
   In juxtaposition to the Doctrine of Separation of Powers, the system of checks and balance, is aimed at creating some accountability across the government agencies, to prevent abuse of power by one organ. The function of Judicial review forms the core basis of this system, incorporated through the landmark case[4] under which the court exercised its powers to declare some actions of the other branches as ‘unconstitutional’.

Critical Analysis Of The Doctrine Of Separation Of Powers In India

The theory of Separation of Powers is an integral part of the fundamental features of the Indian Constitution. The governance is based on three primary organs of the State namely the Legislature, the Judiciary, and the Executive, bound by and subject to the provisions of the Constitution. It demarcates their respective powers, jurisdictions, responsibilities and co-relation with each other.

This set up runs on the presumption that none of the organs of the State, including the judiciary, would transgress the powers laid down in the Constitution. It is expected that in the best interest of the country, all the three institutions would complement each other and work in harmony in furtherance of the common objective of public welfare.

1. Application of the theory of Separation of Powers in India
   The Constitutional history of India evidently reveals that the framers of the constitution actively adopted the pro-responsibility approach over strict segregation of powers. The theory of Separation of Powers was rejected on the basis of its inefficiency in a Parliamentary form of government.
   
   Despite K.T.Shah actively advocating a strict Separation of Powers inspired from the USA model, the Assembly[1] successfully concluded that for a Parliamentary government, a strict system of regular accountability is necessary.
   
   In India, the executive is accountable to the Legislature on a regular basis through Parliamentary tools during the sessions. Question hours, zero hour, No-confidence motion, adjournment motions and Debates on various matters in the Parliament are effective in creating a robust checks and balance mechanism under which the activities of the government agents are constantly reviewed, as opposed to the Presidential model of government.
   
   The Indian Constitution has adopted the Doctrine of Separation of Powers in an implied manner[2], though the theory in itself finds no mention in the provisions of the constitution, its application can be traced through several provisions defining the powers and functions of the organs of the government.
   
   Upon the bare reading of the provisions of the Constitution, the intention of the framers to divide the powers in three broad organs of government, is reflected. It is the basic postulate of the Constitution that the law- making powers are vested in the Legislature, the executive is responsible for enforcing laws, however, it is a part of the Legislature in India[3]. The judiciary is a complete independent body exercising its power to interpret the law, without any interference from the Legislature and Executive of the country[4].
    
2. The Constitutional provisions delegating and separating powers to the three organs
   Article 50[5] lays down that State shall take steps to separate the judiciary from the executive with the definite purpose of creating an independent judiciary. Further, Article 122 and 212[6] guarantees immunity to the members of the Parliament for the remarks made during the sessions, as the validity of proceedings can not be challenged in any court of law.
   
   This one feature ensures that the Legislature is free from judicial intervention and scrutiny while exercising their functions. Likewise, the conduct of the judges of the Supreme Court and High Court cannot be reviewed and speculated in the Parliament or the State legislature. Articles 53 and 154 respectively, provide that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.
   
   It is well established that the provisions have guaranteed enough immunity to all the three organs of the government to function smoothly in their spheres, without facing any interference from each and other in order to enable efficient discharge of functions. However, in the Indian Model of Separation of Powers the functions of the three organs can be overlapping as well.
   
   For instance, the Legislature performs certain judicial functions in case of impeachment of the President, removal of judges and breach of Parliamentary privilege. The powers to amend the law declared ultra vires by the courts, rests with the Legislature. Th Executive makes appointments to the office of the Chief Justice and other judges, which can affect the functioning of the Judiciary[7]. The requisite for performing such powers which are overlapping in nature, is to exercise them in due process provided by the Constitution. In India, the executive is part of the Legislature, the heads of government ministries are members of the legislature.
   
   The council of ministers on whose aid and advise the President is advised to function, are again elected members of the Legislature. While we analysed the judicial functions of the Legislature, it is imperative to note that even the Legislative functions are delegated to other organs in the Indian model of Separation of powers for administrative purposes. The executive has the powers to promulgate ordinances, when the Parliament is not in session and some circumstance demand immediate action from the government.
   
   The ordinance is deemed to have the same enforceability as an act passed by the Parliament or State legislature[8].The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre and in the States respectively, the authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution. The executive also exercises law making power under delegated legislation.
   
   At this stage, it is necessary to understand that such provisions of overlapping functions, is made in the Indian government set-up to increase efficiency in administration and to secure the sanctity of administrative Law. For such purposes, various tribunals and quasi- judicial bodies are also formulated to assist the executive, however, there functions and powers are again not confined to such executive matters as they discharge various judicial functions as well[9].
   
   It was held by the Supreme Court that higher administrative tribunals should always be supplemented with a member of the judiciary, to discharge supervisory functions for the subordinate courts[10]. Such tribunals are vested with all three kinds of powers, their machinery is executive but they take judicial functions for dispute resolution and legislative function to independently form laws and policies for smooth governance. The sole objective of bestowing such wide powers on the tribunals is to ensure that they are efficient in administration and not mere puppets with no actual powers.
    
3. Practical Application of Separation of Powers in India through judicial pronouncements:
   The development and application of the theory of Separation of powers in India is essentially a result of Judicial interventions and interpretations to maintain the delegation of powers in the spirit of the Constitution[11]. Apart from the directive principles enshrined in Part IV of the Constitution providing for a separate executive and judiciary, the constitution has no explicit mention indicating towards a formal division of powers. Hence, the only recourse to understand the boundaries of applicability of the doctrine, is through these judicial pronouncements, passed from time to time.

The first case to be accessed in this regard, is the re Delhi Laws Act[12], in which the Supreme Court held that, unless specifically provided by the constitution, one organ should refrain from performing the primary functions of the other organ in India. The theory of Separation of powers is not an ingrained feature of the Constitution, but is exceptional circumstances it is clear from the bare provisions that the code of separation of powers exist; this was upheld by a majority of 5:2 in the case.

The judgement was clear on demarcating and segregating the powers between the three organs, however, the feature of the overlapping functions among the organs was not addressed. The extent of powers that can be exercised by the Legislature while making amendments or legislating an act, and to prevent such exercise of powers from becoming arbitrary in nature, was not well substantiated in this judgement.

It was only through the Landmark case of Keshavananda Bharti that the concept of ‘Basic structure’ of the constitution evolved. Through this, it was recognised by the Supreme Court that the Constitution has a basic structure which the legislature cannot meddle with. it was unanimously agreed that under Article 368, the legislature does not have unlimited amending powers, they can not tamper the basic features of the constitution and the amendments made shall be in consonance with the spirit of the constitution. Hence, any amendment found in violation of this structure would be regarded as unconstitutional and the legislature must not attempt to dilute the principle for their convenience.

Another important case to reiterate the system of checks and balances and avoid friction between the parties pertains to the election dispute[13] in Indira Gandhi’s regime. The question regarding the powers of the Parliament to take cognizance of the specific dispute regarding the elections, was addressed by the Supreme Court. The court held that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise.

The foundational ground on which the amendment was held ultravires was that when the constituent body declared that the election of P.M would not be void, it discharged a judicial function which according to the principle of separation is unacceptable.

The aforementioned discourse is axiomatic that the Indian Constitution is not in favour of the application of the ‘pure doctrine’ as its rigidity can render the organs of the government as redundant in its administration[14].

In principle, the doctrine bars the active jurisdiction of organs and in general contemplates no assumption by one organ, of functions pertaining to another organ. The status and functioning of the state had undergone continuous development. It has evolved a great deal from a minimal, non-interventionist state to a welfare state, wherein it has multifarious roles to play, like that of protector arbiter, controller, provider.

This omnipresence of the state has rendered its functions becoming diverse and problems, interdependent and any serious attempt to define and separate those functions would cause inefficiency in government. This can be observed through the increasing establishment of quasi- judicial bodies and administrative forums to assist the three primary organs of government. They seem to have been bestowed with all three sets of responsibilities in order to increase efficiency in the administration.

After a detailed discussion on the doctrine of Separation of Powers and its applicability in India, the author shall pursue the critical analysis of separation of powers in the Competition Commission of India, for the purpose of case specific study. Through this, the practical application of the doctrine in administrative law can be gauged which would potentially aid the discussion of Separation of Powers in India.

Constitutionality Of The Competition Commission Of India – Separation Of Powers In India

The constitutionality of the Competition Commission of India (CCI) has been a matter of contention lately, based on its diverse functioning and apprehensions regarding the judicial nature of the forum, not being independent from the executive.

It is advocated that CCI is mainly a judicial body but the appointments made, are not free from the control of the executive. Rule 3 regarding the appointment of the chairperson and members of the body was considered to be unconstitutional, until the structure was amended in 2003 to gain the present structure[1]. Hence, it is eminent to observe the juxtaposition of administration law and the constitution in the present case, on the matter of separation of powers.

The Delhi High Court had upheld the constitutional validity of the commission, against a petition filed on the premise that the structure of the commission violated the doctrine of separation of powers; through the common judgement[2] in 2019. If the Commission is given the status of the judicial body then the provisions under the law, for the appointment of the members is in violation of the doctrine of separation of power.

The members are selected by the Central government from the list of nominated members prepared by the Selected committee. This committee comprises of the Chief Justice of India or his nominee as per Section 8 and 9 of the Act[3]. The control of appointment is given to the Executive, which marks a clear encroachment over the independence of the commission, hence, bringing into question the judicial nature given to commission in the first place.

Further, it is submitted that upon examination of the functions discharged by the commission that it is not solely a judicial body but performs minor administrative and investigative functions as well. However, a line of argument pertaining to this matter, adopted by the court is that the investigative features of the commission are only a tool to aid its main functioning which is judicial in nature. The author is of the opinion that without such minor diversity in its functioning, the commission would be futile in functioning owing to the overlapping nature of each organ of governance.

It can be concluded that the discourse about the violation of separation of powers, is perpetual in nature and inevitable to an extent; hence, it is necessary to strike a balance between the overlapping functions of a tribunal to ensure that neither the powers are transgressed nor are they scarcely given resulting in redundancy.

Conclusion
On the basis of the aforementioned analysis, it can be conclusively stated that the Doctrine of Separation of Powers is very rigid in its absolute sense and the countries adopt the theory through various interpretations, best suited for their forms of government. The doctrine in India is adopted with a pro- responsibility approach where the functions are divided between the organs and not the powers in the strict sense.

The three organs of government work in co-relation and have overlapping features for the purpose of smooth administration and a robust mechanism of checks and balances. However, in the modern state, it is of utmost importance to prevent the organs from transgressing their powers and authority in discharge of their functions.

The arising concerns about judicial activism which is an extended form of the power of judicial review, is important to be addressed. It is feared that while interpreting the statutes the judiciary is actively engaging in executive matters by discharging administrative orders. The legislature is actively involved in forming legislation and amending the exiting laws, in the past two years we have at least witnessed twenty major amendments such as TADA and Section 377 and so on. The apprehensions regarding the over exercising of powers, by meddling with the structure and foundation of the constitution also exists.

Hence, it is observed that such concerns are inevitable in a type of system adopted by India, it is important that such demarcation of powers is respected by each organ and they carry out their functions in full honesty to avoid friction in the administration. The major point of contention usually arises when the Constitution provisions and practicality of the administrative law, are at odds and can not come to a consensus.

Through the example of CCI it is important to understand that while the Doctrine of Separation of Powers exist, the practical application of it is not always feasible for efficient output. It shall only be complied to an extent that it helps in smooth administration and does not become a restraining factor in the governance.

End-Notes:

1. Brahm Dutt v. Union of India Writ Petition (Civil): 490 of 2003.
2. Mahindra Electric Mobility Limited and Anr. v. Competition Commission of India and Anr W.P.(C) 11467/2018.
3. The Competition Act, 2002, Section 8 & 9.
4. CAD vol.7 at 956 cited in H.R.Khanna, Making of the Indian Constitution 69 (1957).
5. Ram Jawaya Kapur v. State of Punjab AIR (1955) SC 549.
6. Kartar Singh v. State of Punjab AIR (1967) SC 1643.
7. There shall be a complete separation of powers as between the principal organs of the State viz. the legislature, the executive and the judiciary. CAD vol.7 at 958 cited in C.H. Alexandrowics, Constitutional Developments in India 109 (1957)
8. The Constitution of India,1950, Art. 50.
9. The Constitution of India,1950, Art. 122 & 212.
10. Pandit M S M Sharma v. Sri Krishna Sinha, AIR (1960) SC 1186.
11. Keshav Singh v. Speaker, Legislative Assembly, (1965) 1 SCR 413
12. Shiv Kumar Chadha v. MCD, 1993 (3) SCC 161
13. S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 125
14. Shagun Singh, Development of Separation of Powers in Administrative Law in India, National University of Research and Law 2013.
15. re The Delhi Laws Act, 1912 v. The Part C States Act, 1950 1951 AIR 332.
16. Indira Nehri Gandhi v. Raj Narain AIR (1975) SC 2299.
17. Supra Note 10.

References:

1. Wayman v. Southard 23 U.S. 1 (1825).
2. Murray's Lessee v. Hoboken Land & Improvement Co. 59 U.S 272 (1856).
3. Jain Kagzi M.C., The Indian Administrative Law, University Law Publishing Co. Pvt. Ltd. 17 (2002).
4. Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803)
5. G.B.Gwyn, The Meaning of Separation of Powers 3 (1963).
6. C.K. Takwani, Lectures on Administrative Law 31 (2008).
7. Robinson, The Division of Governmental Power in Ancient Greece 18 (1903)
8. Fairlee, The Seperation of Powers 21,393 (1922)
9. Montesquieu, The Spirit of Laws (Nugent) 152 (1748)