Separation of Powers: Before and After Independence

The legislature judges. Each House has the power to punish for contempt of itself, and articles 122 and 212 provide that the validity of proceedings in Parliament and in a State Legislature shall not be called in question on the ground of any alleged irregularity of procedure.

And the judiciary makes rules and administers. Articles 145, 146, 229 and 235 give the courts rule-making and administrative powers over their own establishments and over the courts below.

Where India applies the doctrine

The rule in Ram Jawaya Kapur. The Court, deciding whether the Punjab Government could carry on the business of printing and publishing school textbooks without a specific statute, said in paragraph 14 that the executive power connotes the residue of governmental functions remaining after legislative and judicial functions are taken away, and then laid down the proposition that governs the whole topic:

The Indian Constitution has not indeed recognised 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 Court added, in the same paragraph, that the executive may exercise delegated legislative power, and judicial functions in a limited way when empowered, but can never go against the provisions of the Constitution or of any law.

The rule applied: Indira Nehru Gandhi v. Raj Narain. The Thirty-ninth Amendment inserted article 329A, clause (4) of which took the election of a person holding the office of Prime Minister or Speaker out of every court, abated pending proceedings and made an existing judgment void. The Court declared clause (4) and the connected clauses invalid. Among the grounds argued and accepted was that the clause was an exercise of purely judicial power, which is not included in the constituent power conferred by article 368: an amendment lays down general principles governing the organs of the State and does not decide individual cases.

Put the two together and the Indian rule is precise. The organs overlap, and that is by design; what is forbidden is one organ taking over the essential function of another, and deciding a particular dispute between particular parties is the essential function of a court.

And article 50 directs the State to take steps to separate the judiciary from the executive in the public services of the State. It is a Directive Principle, and it was given effect for the criminal courts by the separation of judicial from executive magistrates under the Code of Criminal Procedure 1973, and in the Constitution itself by article 236's definition of "judicial service" as one consisting exclusively of persons intended for judicial posts.

Before independence: the contrast this book supplies

MU's topic asks for the position before independence as well, and this is where a student of History of Courts has an advantage over a student of constitutional law. The answer is not a general statement; it is a list of institutions in which the three powers were held by the same body, and every one of them has been worked in an earlier chapter.

1726 to 1773, the Presidency Towns. The Governor and the five senior members of Council were the executive government of the settlement, its principal traders, and, as Justices of the Peace and Commissioners of Oyer and Terminer and General Gaol Delivery, its criminal court; and they were also the court of appeal from the Mayor's Court.

1772 to 1780, Bengal. The Collector was the revenue officer of his district and the judge of its civil court. The Governor-General and Council were the executive government, the legislature under section 36 of the Regulating Act, and the Sadar Diwani Adalat and the Sadar Nizamat Adalat.

1775 to 1780. The Provincial Councils collected the revenue and sat as the appellate courts over the amils who judged revenue disputes, which is why the Patna case and Sarup Chand's case were possible.

1787 to 1793. Cornwallis deliberately reunited the offices, making the Collector the judge of the district civil court and of the Mal Adalat, so that the people would "look to one master".

1793. Cornwallis reversed himself, and Regulation II of 1793 states the doctrine as clearly as any modern authority: that if the regulations for collecting revenue are infringed the revenue officers must themselves be the aggressors, that individuals wronged by them in one capacity can never hope for redress from them in another, and that Government must divest itself of the power of infringing in its executive capacity the rights and privileges which, as exercising the legislative authority, it has conferred.

And 1793 to 1801. Even after that separation, the Sadar Diwani Adalat and the Sadar Nizamat Adalat remained the Governor-General and the members of Council, until Regulation II of 1801 gave them a Chief Judge and puisne judges and, in Cowell's words, they thereafter exercised their functions distinct from the legislative and executive authority of the State.

That last date is the one to remember: 1801 is when the highest courts in the Company's territories stopped being the executive government, and it is a hundred and forty-nine years before article 50.

A worked example

Apply the Ram Jawaya Kapur rule to four situations.

A State Government starts a bus service without a statute, having obtained the money through the Appropriation Act. Permissible. Executive power is the residue of governmental functions, and no specific legislation is needed unless additional powers or an encroachment on private rights is required. That is the actual decision in Ram Jawaya Kapur.

Parliament passes an Act declaring that a named person's conviction is set aside. Not permissible. Deciding a particular case is the essential function of a court.

A constitutional amendment provides that the election of a named office-holder shall not be questioned in any court and that an existing judgment is void. Struck down: Indira Nehru Gandhi.

A statute empowers the executive to make rules prescribing the details of a scheme. Permissible. Delegated legislation is expressly contemplated by Ram Jawaya Kapur, provided the executive does not go against the Constitution or any law.

What beginners get wrong

"India follows the separation of powers." Not in its absolute rigidity, and the Court has said so. What India has is a differentiation of functions with a rule against one organ assuming the essential functions of another.

"Article 50 is the separation of powers." Article 50 is a Directive Principle about separating the judiciary from the executive in the public services of a State. The general doctrine comes from the structure of the Constitution and from Ram Jawaya Kapur.

"There was no separation of powers before independence." Too crude. The separation of the courts from the revenue administration was achieved in 1793 and completed at the top in 1801, and it is stated in Regulation II of 1793 in terms a modern court would accept. What was absent throughout was the separation of the legislature from the executive, because the Governor-General in Council was both.

"Ram Jawaya Kapur is about separation of powers." It is about the extent of executive power, and paragraph 14 states the separation principle on the way. Say what the case decided, and then quote the paragraph.

Limits and criticism

Two criticisms, and both are more interesting than the usual ones.

The Indian executive's dominance of the legislature is structural, not accidental. Ram Jawaya Kapur says so: the Cabinet, enjoying a majority in the legislature, "concentrates in itself the virtual control of both legislative and executive functions". A doctrine of separation that leaves two of the three powers in one set of hands has really only one separation to protect, and that is the judicial one. Which is why Module III has spent five chapters on judicial independence and one on separation of powers.

And the boundary is policed only by the judiciary. It is the courts that decide whether an organ has assumed a function essentially belonging to another, and the courts are one of the three organs. That is the standing objection to judicial review everywhere, and the answer given in Kesavananda Bharati and Indira Nehru Gandhi is that the alternative, a power capable of being used against the people themselves, is worse.

Handing over to Module IV

Module III has been about the courts under the Constitution and about the three ideas they are supposed to serve. Every one of those ideas has been tested in this chapter against the institutions of Modules I and II, and the comparison has repeatedly turned on the same fact: that the Governor-General in Council was the executive, the legislature and the highest court all at once.

Module IV takes that fact and follows one half of it. How did the legislature separate itself out? From the Charter of 1600, which gave a trading company power to make laws for its own servants, through the Charter Acts, the Indian Councils Acts and the Government of India Acts, to the Indian Independence Act 1947. And then it follows the other institution this book has met at every stage without describing: the legal profession, from the vakils of the Mughal courts to the Advocates Act 1961.

Quick revision

• Montesquieu: same persons not in more than one organ; no organ to control another; no organ to exercise another's functions. No modern constitution applies all three strictly.
• India departs: the executive sits in the legislature (arts. 74, 75); the executive legislates by delegation and by ordinance (arts. 123, 213); the legislature's proceedings are protected from question (arts. 122, 212); the judiciary makes rules and administers (arts. 145, 146, 229, 235).
• India applies: Ram Jawaya Kapur (1955), paragraph 14: the doctrine is not recognised in absolute rigidity, but the functions are sufficiently differentiated and the Constitution does not contemplate assumption by one organ of functions that essentially belong to another; and the executive can never go against the Constitution or any law.
• Indira Nehru Gandhi (1975): an amendment deciding an individual election dispute is an exercise of judicial power outside the constituent power. Clause (4) of article 329A struck down.
• Article 50: a directive to separate the judiciary from the executive in the public services; given effect by the Code of Criminal Procedure 1973 and by article 236's definition of judicial service.
• Before independence: the same body was executive, legislature and highest court from 1726 to 1801. Regulation II of 1793 states the principle; Regulation II of 1801 completes the separation of the Sadar courts from the executive.

Test yourself

1. Quote the proposition from Ram Jawaya Kapur that governs this topic. That the Indian Constitution has not recognised the doctrine of separation of powers in its absolute rigidity, but that the functions of the different parts or branches of Government have been sufficiently differentiated, so that the Constitution does not contemplate the assumption by one organ or part of the State of functions that essentially belong to another.

2. Give three ways in which India departs from a strict separation. The executive sits in the legislature and is drawn from it; the executive legislates through delegated legislation and through the ordinance power under articles 123 and 213; and the legislature exercises judicial functions in punishing contempt of itself, its proceedings being protected from question by articles 122 and 212.

3. How was the doctrine applied in Indira Nehru Gandhi v. Raj Narain? The Court struck down clause (4) of article 329A on the ground, among others, that it was an exercise of purely judicial power, which is not within the constituent power conferred by article 368: an amendment lays down general principles and does not decide an individual case.

4. Describe the position before independence in three examples. From 1726 the Governor and the five senior members of Council in a Presidency Town were the executive, the criminal court and the court of appeal from the Mayor's Court; from 1772 the Collector was the revenue officer and the judge of his district's civil court, and the Governor-General in Council was the executive, the legislature under section 36 of the Regulating Act and both Sadar Adalats; and from 1787 Cornwallis deliberately reunited the offices so that the people should look to one master.

5. When did the highest courts in the Company's territories cease to be the executive government? By Regulation II of 1801, which directed that the Sadar Diwani Adalat and the Sadar Nizamat Adalat, until then composed of the Governor-General and members of Council, should consist of a Chief Judge and puisne judges, and from that time they exercised their functions distinct from the legislative and executive authority of the State.