Separation of Powers: The Doctrine

The three functions, defined

Before the doctrine can be applied, the three functions have to be told apart. They differ in what they do to time and to persons.

1. The legislative function is to lay down general rules for the future. A law speaks to everybody in a described class, and it speaks about what has not happened yet.
2. The executive function is to carry those rules into effect and to run the administration: to collect the tax, post the officer, sign the contract, keep order. In Ram Jawaya Kapur the Court described it as "the residue of governmental functions that remain after legislative and judicial functions are taken away", and added that it "comprises both the determination of the policy as well as carrying it into execution".
3. The judicial function is to decide a dispute that has already arisen, between identified parties, on evidence, by applying an existing rule, and to declare the consequence. It looks backwards at particular people, where a law looks forward at a class.

A student who can hold these three apart can answer most questions on this topic, because almost every hard case is an argument about which box a power belongs in.

The provision

The Constitution contains no article which enacts the doctrine. What it contains is one directive principle. Article 50 is headed Separation of judiciary from executive, and reads in full: "The State shall take steps to separate the judiciary from the executive in the public services of the State."

Three things follow from the wording, and each is commonly missed.

• It speaks only of the judiciary and the executive. It says nothing about the legislature and the executive, which in India are deliberately joined.
• It is confined to "the public services of the State". Its historical target was the district officer who was both magistrate and collector, trying the cases that his own administration brought.
• It sits in Part IV. On the reasoning in [The Directive Principles] it is not enforceable by any court, so it is a duty of policy and not a source of a right.

Article 50 is therefore evidence that the makers valued the doctrine. It is not evidence that they enacted it.

The two models the Constitution had before it

The American model. The Constitution of the United States distributes the three powers by three separate opening articles and keeps the personnel apart: a member of the executive may not sit in Congress. The separation is legally enforceable, so a court may hold that Congress has exercised judicial power or that the President has legislated. It is softened by checks and balances, the veto, confirmation of appointments, impeachment, so that the branches restrain one another rather than merely ignore one another.

The British model. There is no separation of the legislature from the executive at all. The Ministry sits in Parliament and holds office only while it commands a majority there. The Court in Ram Jawaya Kapur described the Council of Ministers, adopting an older phrase, as "a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part", and observed that the Cabinet "concentrates in itself the virtual control of both legislative and executive functions". What is separated in Britain is the judiciary, and that by convention and statute rather than by a written constitution.

India took the British executive and the American judiciary, and that combination is what the next chapter has to explain.

The case

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, (1955) 2 SCR 225, decided 12 April 1955. Six publishers of school text books petitioned under article 32. From 1950 the Punjab Government had by a series of executive notifications taken the printing, publication and sale of school text books into its own hands, culminating in a notification of 9 August 1952 which invited only authors, vested the copyright in the Government and left the author a royalty of five per cent. The publishers said the executive could not enter a trade at all without a statute authorising it, that a monopoly could only be created by a law satisfying article 19(6), and that they had been deprived of property without authority of law.

Held. The petition was dismissed. On the constitutional point the Court held that the executive power "connotes the residue of governmental functions that remain after legislative and judicial functions are taken away", and then stated the proposition this chapter turns on: the 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 executive may exercise delegated legislative power, and "can also, when so empowered, exercise judicial functions in a limited way", but it "can never go against the provisions of the Constitution or of any law". No specific statute was needed for the Government to carry on this business, because the expenditure had been sanctioned by appropriation, though "specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law", and in particular "when it is necessary to encroach upon private rights". The petitioners failed because they had no fundamental right that any book of theirs be prescribed: what they had was "merely a chance or prospect", and chances "are incidental to all trades and business".

Why it matters. It is the sentence every later judgment quotes, and it says two things at once. There is no rigid separation, so an argument that a power is bad merely because the executive is exercising it will fail. But the functions are sufficiently differentiated, so an argument that one organ has taken over what essentially belongs to another can succeed. Everything in this module, delegated legislation, judicial review, the amending power, is an argument about where that second line falls.

A worked example

A State legislature passes an Act to relieve congestion in the criminal courts. Section 3 provides that where the State Government is of opinion that a prosecution is causing public inconvenience, it may by order withdraw the case from the court and itself determine the guilt of the accused and the sentence. Bhaskar, prosecuted for an offence under a municipal law, has his case withdrawn and is fined by an order of the Secretary to Government. He challenges section 3.

Step one, name the function. Deciding whether an identified person did an act, and fixing his punishment, is adjudication. It looks backwards, at named parties, on evidence. It is the judicial function as defined above.

Step two, name the organ. The Secretary to Government is the executive.

Step three, is that fatal by itself? No, and this is where a weak answer stops. On Ram Jawaya Kapur the Constitution does not recognise the doctrine "in its absolute rigidity", and the executive may exercise judicial functions "in a limited way" when so empowered, which is why tribunals and departmental adjudications are lawful. Discussed further in [Tribunals].

Step four, ask the real question. Is this the assumption by one organ of a function that essentially belongs to another? Here it is. The Act does not create a tribunal with a procedure, a right to be heard, reasons and an appeal. It takes a pending criminal trial out of a court and hands the verdict to a department that is also the prosecutor. That is the concentration Montesquieu described.

Step five, find the article to hang it on. The doctrine is not itself a justiciable provision, so it is pleaded through the articles that are. Section 3 confers an unguided power to pick which accused loses his court, which offends article 14 on the reasoning in [Reasonable Classification]; it deprives him of liberty by a procedure that is not fair, just and reasonable, on [Article 21: From Gopalan to Maneka]; and it excludes the judicial power in a matter the Constitution assigns to courts. Article 50 supports the argument but cannot carry it.

What it does NOT mean

It does not mean the three organs never touch. They are designed to touch. The President legislates by Ordinance under article 123, the courts make rules of procedure, the executive makes statutory rules. Separation in the workable sense means mutual restraint, not sealed compartments.

It does not mean the doctrine is unenforceable in India. Article 50 is unenforceable. The doctrine is not the same thing as article 50. As [The Indian Scheme] shows, the demarcation of functions has been treated as part of the basic structure, and that is enforceable against a constitutional amendment.

It does not mean separation guarantees good government. It is designed to make power slow and contested. Efficiency is the price, and the criticism that the doctrine obstructs a welfare State is an old and serious one, taken up in [Delegated Legislation].

Quick revision

• The doctrine: the three functions in three organs; no organ to exercise another's essential function; no person in two organs.
• Its object is liberty, not efficiency. Structure, not rights.
• Montesquieu, The Spirit of Laws Book XI chapter 6: no liberty where the legislative and executive are united, and none where the judicial is not separate.
• Legislative equals general rules for the future; executive equals policy and its execution, the residue; judicial equals deciding a dispute between parties on evidence.
• Article 50 is the only textual trace, it is a directive principle, it covers only judiciary and executive, and only in the public services of the State.
• The American model separates and is enforceable; the British model fuses legislature and executive and separates only the judiciary.
• Ram Jawaya Kapur is the governing sentence: not recognised in absolute rigidity, but the functions are sufficiently differentiated, so no organ may assume what essentially belongs to another.
• The executive power is the residue, and includes both formulating policy and carrying it out; it needs a statute only where it must encroach on private rights or take powers beyond the ordinary law.

Test yourself

1. Define the legislative, executive and judicial functions in a way that lets you tell them apart in a problem.

2. Article 50 is in Part IV. What does it therefore prove, and what does it not prove, about separation of powers in India?

3. Set out three differences between the American and the British treatment of the doctrine.

4. Quote the holding in Ram Jawaya Kapur on separation of powers and explain why it cuts both ways.

5. A statute empowers a Minister to decide, without a hearing, whether a licensee has broken a condition, and to cancel the licence. Is that an assumption of judicial function? Set out your reasoning.