Separation of Powers

The United States: strict separation

The Constitution of 1787 is built on the doctrine. Article I vests all legislative powers granted in Congress, Article II vests the executive power in the President, and Article III vests the judicial power in the Supreme Court and such inferior courts as Congress establishes.

The consequences are real and are worth stating precisely.

• The President is not a member of Congress and neither are the Secretaries. A minister cannot sit in the legislature, which is the opposite of the position in India.
• The President cannot dissolve Congress, and Congress cannot remove the President except by impeachment.
• The non-delegation doctrine follows from Article I: since legislative power is vested in Congress, Congress may not give it away. American courts require the legislature to lay down an intelligible principle for the delegate to follow.
• Judges are appointed for life and cannot be removed except by impeachment.

Even there the separation is not complete, and the qualification is examinable. The system is one of checks and balances: the President has a veto over legislation, which is a legislative act; the Senate confirms appointments and ratifies treaties, which is an executive act; and the courts exercise judicial review over both, which is a check no other constitution had at the time. So the American doctrine separates the organs and then deliberately makes each dependent on the others.

England: no formal separation at all

England has the doctrine in substance for the judiciary and almost nowhere else.

• The executive sits in the legislature. By convention the Prime Minister and ministers are members of Parliament, and a government exists only so long as it commands the confidence of the House of Commons. Fusion, not separation, is the organising idea.
• Parliament is sovereign, so there is no question of the courts striking down an Act.
• Until 2009 the highest court was a committee of the House of Lords, and the Lord Chancellor was simultaneously a minister, the speaker of a legislative chamber and the head of the judiciary. The Constitutional Reform Act 2005 ended that, created a separate Supreme Court and reformed the office, so judicial independence is now structurally secured.

The English answer is therefore: separate the judiciary, fuse the legislature and the executive, and rely on political accountability and judicial review of executive action for the rest.

India: the modified doctrine

This is the part the examiner is really asking about, and the answer has two halves that must both be given: the doctrine is not applied rigidly, and yet it is part of the basic structure.

Where the Constitution departs from the doctrine

Where the Constitution insists on it

• Article 50 directs the State to separate the judiciary from the executive in the public services. It is a Directive Principle, so it is not enforceable, but it states the policy.
• Articles 121 and 211 forbid discussion in Parliament and in a State legislature of the conduct of a judge in the discharge of his duties.
• Articles 122 and 212 forbid the courts to inquire into the validity of proceedings in the legislature on the ground of irregularity of procedure.
• Article 361 protects the President and Governors from court proceedings while in office.

Read together, those provisions do exactly what the classical doctrine asks for at the point where it matters most: they keep the legislature out of judicial business and the courts out of legislative business.

What the Supreme Court has held

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, was a petition under Article 32 by six persons who prepared, printed, published and sold school text books in Punjab. They complained that the Education Department, pursuing a policy of nationalising text books, had issued notifications from 1950 onwards which restricted their right to carry on business under Article 19(1)(g) and had practically driven them out of the trade. Their argument was that such restrictions could not be imposed by executive orders without legislation.

Held. Mukherjea CJ said that it may not be possible to frame an exhaustive definition of what an executive function means, and that ordinarily executive power connotes the residue of governmental functions remaining after legislative and judicial functions are taken away. He then stated the proposition that is quoted in every later case: the Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity, but the functions of the different branches of Government have been sufficiently differentiated, so that our Constitution does not contemplate assumption by one organ of functions that essentially belong to another. The executive may exercise subordinate legislative power when the legislature delegates it, and judicial functions in a limited way when empowered, but can never act against the Constitution or any law; and it does not follow that a law must exist before the executive can act. The petitions were dismissed.

Why it matters. It is the authority for the Indian position in a single sentence, and it does two jobs at once: it defines executive power as the residue, and it states the modified doctrine.

Facts. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, arose after the Allahabad High Court set aside the Prime Minister's election for corrupt practice and appeals were pending. Parliament then passed the Constitution (Thirty-ninth Amendment) Act 1975, inserting Article 329A, clause (4) of which declared the pending appeals and the High Court's judgment void and provided that the election of a person holding the office of Prime Minister or Speaker could not be called in question except before a body constituted by Parliament.

Held. Clauses (4) and (5) of Article 329A were unconstitutional and void as destroying the basic structure. The amending power under Article 368 is a constituent power and cannot be used to decide an individual dispute, because deciding a dispute is the exercise of judicial power; and the clause withdrew the validity of a particular election from every judicial forum.

Why it matters here. It is the case in which separation of powers was treated as a feature of the basic structure and used to strike down a constitutional amendment. It is also the clearest illustration of the vice the doctrine exists to prevent: a legislature deciding a case about a named person.

Facts. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, concerned admissions to the two government medical colleges in Jammu and Kashmir for 1988-89. In an earlier case the High Court had directed the State to entrust selection to a statutory independent body and, until that was done, to a body free from executive influence. The State issued a procedure order in 1987 constituting a Competent Authority. Unsuccessful candidates challenged the selection as violating those directions, and the High Court allowed their petitions and issued a mandamus.

Held. Although separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers meticulously defined the functions of the various organs, and the legislature, executive and judiciary have to function within their own spheres. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and the executive; but while their power is subject to judicial restraint, the only check on the court's own power is the self imposed discipline of judicial restraint. In exercising judicial review of administrative action the court is not an appellate authority, and the Constitution does not permit it to direct or advise the executive in matters of policy, or to sermonise on a matter within the sphere of the legislature or executive, provided those authorities stay within their constitutional and statutory limits. The High Court's direction to constitute a statutory independent body was in substance a direction to the legislature to enact a law, which the court could not give.

Why it matters. It is the modern statement of the Indian position and the one that shows what the doctrine forbids a court to do. Most students can say that a court may strike down executive action; far fewer can say that a court may not direct the legislature to legislate.

Facts. In re The Delhi Laws Act, 1912, AIR 1951 SC 332, was a reference by the President under Article 143(1) asking whether three provisions were valid: section 7 of the Delhi Laws Act 1912 and section 2 of the Ajmer-Merwara (Extension of Laws) Act 1947, each allowing the Government to extend to a territory, with such restrictions and modifications as it thought fit, any enactment in force elsewhere; and section 2 of the Part C States (Laws) Act 1950, which did the same and further allowed an extended enactment to repeal or amend any corresponding law already applicable.

Held. By a majority, the first two provisions were wholly valid. The later portion of section 2 of the Part C States (Laws) Act 1950, allowing the repeal or amendment of a law other than a Central Act already applicable, was held ultra vires. Kania CJ stated the test that has governed ever since: the essentials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct, and those essentials are the characteristics of a legislature itself; once the legislature has made its law, the detail of working it out may be left to a subordinate agency, and that kind of delegation is different in essence because it does not hand over the power to determine policy. An abdication by a legislature need not be complete effacement; it may be partial.

Why it matters here. It is where the Indian compromise on separation of powers was actually worked out. The legislature may delegate, because a rigid separation is impossible, but it may not delegate the essential legislative function, because that would be abdication. The case is treated in full in [Constitutional Validity of Delegated Legislation].

The three systems compared

A worked example

The State legislature passes an Act constituting a Rent Authority, empowering it to make rules fixing standard rents, to decide disputes between landlords and tenants, and to evict a tenant who defaults. The Housing Secretary is made the Authority.

• The rule making power is a legislative function performed by the executive. It is valid so long as the Act lays down the policy and does not delegate the essential legislative function: In re The Delhi Laws Act, 1912, AIR 1951 SC 332.
• Deciding disputes is a judicial function performed by the executive. It is valid, because Articles 323A and 323B and the general practice permit adjudication outside the courts, but the Authority must act judicially: [Distinguishing Legislative, Judicial, Quasi-judicial and Administrative Functions] and [Audi Alteram Partem].
• Eviction is an executive act.
• If the Act said that the Authority's decisions "shall not be called in question in any court", that provision runs into the basic structure, because judicial review is part of it: [The Working of Tribunals: the Administrative Tribunals Act 1985].
• If the legislature passed a resolution declaring that Mr Karve's tenancy specifically was terminated, that would be the legislature exercising judicial power over a named individual, which is what Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, struck down.

One statute, and the doctrine bites at four different points with four different answers. That is the shape of a good exam answer on this topic.

What it does NOT mean

It does not mean India rejects the doctrine. A common error is to write that India does not follow separation of powers. India does not follow it rigidly. The functions are demarcated, the courts enforce the demarcation, and the doctrine is part of the basic structure.

It does not mean the three organs never touch. They constantly do, and the Constitution provides for it: ordinances, delegated legislation, contempt powers, the removal of judges and the advisory jurisdiction are all overlaps written into the text.

It does not mean a court may correct every failure of the other organs. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that a court may not direct the legislature to enact a law or advise the executive on policy.

Quick revision

1. Montesquieu, The Spirit of the Laws, 1748. Three limbs: function, personnel, non-interference.
2. United States: strict separation with checks and balances; ministers are not legislators; non-delegation doctrine and intelligible principle.
3. England: no formal separation; executive sits in the legislature; Parliament is sovereign; judicial independence secured by the Constitutional Reform Act 2005.
4. India: modified. Departures include Articles 75(3), 164(2), 123, 213, 105, 194, 124(4), 145, 146, 143, 323A and 323B. Insistence in Articles 50, 121, 122, 211, 212 and 361.
5. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: executive power is the residue; the doctrine is not recognised in absolute rigidity, but no organ may assume functions essentially belonging to another.
6. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299: separation of powers is part of the basic structure; Article 329A(4) and (5) struck down.
7. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899: the court is not an appellate authority and may not direct the legislature to legislate or advise the executive on policy.
8. In re The Delhi Laws Act, 1912, AIR 1951 SC 332: the essential legislative function, the determination of policy and its formulation as a rule of conduct, may not be delegated.

Test yourself

1. Explain the doctrine of separation of powers and examine its application in India. The doctrine, stated classically by Montesquieu in 1748, requires that the legislative, executive and judicial functions be vested in three separate organs, that no person be a member of more than one, and that no organ interfere with another. India applies it in a modified form. There are many textual departures: ministers must be members of the legislature under Articles 75(3) and 164(2); the President and Governors legislate by ordinance under Articles 123 and 213; the executive makes delegated legislation; the legislature punishes for contempt under Articles 105 and 194 and removes judges under Article 124(4); the judiciary makes rules under Articles 145 and 146 and advises under Article 143. But the Constitution insists on the doctrine where it matters: Article 50 directs separation of the judiciary from the executive, and Articles 121, 122, 211 and 212 keep each organ out of the other's proceedings. The Supreme Court's position is that stated in Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: the doctrine is not recognised in its absolute rigidity, but the functions are sufficiently differentiated that no organ may assume functions essentially belonging to another. In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, it was held to be part of the basic structure.

2. Compare the doctrine in the United States and in England. In the United States it is a rule of the written Constitution: Articles I, II and III vest the three powers separately, ministers cannot sit in Congress, judges hold office for life, and Congress may not delegate legislative power without laying down an intelligible principle. The separation is qualified by a deliberate system of checks and balances, including the presidential veto, Senate confirmation of appointments and judicial review. In England there is no formal separation at all between the legislature and the executive: ministers sit in Parliament and the government survives only while it commands the confidence of the Commons, and Parliament is sovereign, so there is no judicial review of legislation. England does secure judicial independence, and did so structurally by the Constitutional Reform Act 2005.

3. How does the doctrine of separation of powers affect delegated legislation? On a strict view, delegation is unconstitutional: if legislative power is vested in the legislature it cannot be given away. India resolved the conflict in In re The Delhi Laws Act, 1912, AIR 1951 SC 332, by distinguishing between the essential legislative function, which is the determination of policy and its formulation as a rule of conduct and which may not be delegated, and the working out of detail, which may. The United States reached a comparable result through the requirement of an intelligible principle.

4. Can an Indian court direct the legislature to make a law? No. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that although the doctrine is not applied in absolute rigidity, the organs must function within their own spheres, that in judicial review the court is not an appellate authority, and that the Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonise on matters within the legislature's sphere. On the facts, the High Court's direction that a statutory independent body be constituted amounted to a direction to legislate, and could not be given.

5. "India follows the doctrine of separation of powers only in a modified form." Explain with provisions. The statement is accurate. Departures written into the Constitution include ministers sitting in the legislature (Articles 75(3), 164(2)), ordinance-making by the executive (Articles 123, 213), legislative punishment for contempt (Articles 105, 194), removal of judges by the legislature (Article 124(4)), rule-making and establishment powers of the courts (Articles 145, 146, 229), the advisory jurisdiction (Article 143), and adjudication by tribunals (Articles 323A, 323B). Insistence on the doctrine appears in Article 50, and in Articles 121, 122, 211, 212 and 361. The judicial formulation is that of Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, and its status as part of the basic structure comes from Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.