Separation of Powers
Chapter Six
Syllabus topic 1, "Constitutionalism, Classification of Constitutions"
Pages 25 to 28 of 676
In one line
Separation of powers means that the making, the executing and the judging of law are put in different hands, so that no one body can do all three.
In the wording a student can write in an exam: the doctrine of the separation of powers requires that the legislative, executive and judicial functions of the State be vested in distinct organs, that the personnel of each be distinct, and that no organ exercise a function belonging to another, the purpose being to prevent the concentration of power that makes tyranny possible.
Why the law has it
Montesquieu, writing in 1748 and describing what he took the English constitution to be, said that when the legislative and executive powers are united in the same person there can be no liberty, and that there is no liberty if the judicial power is not separated from the legislative and the executive.
He was, as a description of England, wrong: the English executive sat in the legislature then and sits in it now. But the Americans read him as prescription rather than description, and in 1787 built the separation into the text.
The underlying insight is about incentives. The body that would gain from an abuse should not also be the body that authorises it or the body that judges it.
The three functions
Legislative. Making law: general rules, prospective, for the future conduct of everyone within the jurisdiction.
Executive. Applying law to particular situations and carrying on the day-to-day government of the State.
Judicial. Deciding disputes about the application of law to past events, by an authoritative determination binding on the parties.
Each of the three organs in practice exercises some part of the others' function, and the doctrine has to accommodate that. A legislature acts judicially when it punishes for contempt of itself; an executive acts legislatively when it makes delegated legislation; a court acts legislatively when it lays down a rule for future cases.
The strict form and the diluted form
The strict American form. Article I section 1 vests all legislative powers granted in a Congress; Article II section 1 vests the executive power in a President; Article III section 1 vests the judicial power in one Supreme Court and such inferior courts as Congress may establish. Personnel are separate: Article I section 6 forbids a person holding any office under the United States from being a member of either House. So a Secretary of State cannot sit in Congress, and a member of Congress cannot serve in the Cabinet.
The diluted Westminster form. In India, the United Kingdom, Canada and Ireland the executive is drawn from the legislature and sits in it. Article 75(5) of the Indian Constitution requires a minister who is not a member of either House for six consecutive months to cease to be a minister, which is to say the constitution insists on the overlap.
Separation of Powers
India's text separates only the judiciary, and even that as a directive principle: article 50 requires the State to take steps to separate the judiciary from the executive in the public services of the State. 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, and articles 122 and 212 forbid a court from inquiring into the validity of proceedings in the legislature on the ground of any alleged irregularity of procedure.
The Swiss form, which is neither. The Federal Assembly elects the Federal Council under article 175 and elects the judges of the Federal Supreme Court under article 168, and article 190 forbids the Court to set aside a federal Act. Article 144 forbids a member of the Federal Assembly, the Federal Council or a federal court from belonging to more than one of them at once, so the personnel are separated even though the functions are not.
A worked example
Parliament passes an Act providing that a named person shall be imprisoned for two years for a described past act.
In the United States this is a bill of attainder, forbidden in terms by Article I section 9. It is legislative in form and judicial in substance: the legislature has tried the person.
In India article 20(1) forbids conviction for an offence except for the violation of a law in force at the time of the act, which deals with retrospectivity, and article 14 and article 21 supply the rest: a law aimed at one named person is a classification with no intelligible differentia, and the deprivation of liberty is not by a procedure that is fair and just.
In the United Kingdom the Act is valid, because no court may go behind an Act of Parliament: British Railways Board v. Pickin, [1974] AC 765.
Three systems and three different reasons, and only the American one is a separation-of-powers reason.
The cases
Facts. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), concerned section 244(c)(2) of the Immigration and Nationality Act, which allowed either House of Congress, acting alone, to veto the Attorney General's decision to suspend the deportation of a named individual. The House of Representatives passed a resolution vetoing the suspension of Chadha's deportation.
Held, by Burger CJ for the Court. The one-House veto was unconstitutional. The purposes underlying the Presentment Clauses of Article I section 7 and the bicameral requirement of Article I sections 1 and 7 governed the case: action that is legislative in character must pass both Houses and be presented to the President.
Separation of Powers
Why it matters here. It shows the strict form doing real work. The device struck down existed in some two hundred federal statutes, and it fell because it was a legislative act performed in a way the constitutional structure did not permit.
Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, was a challenge by publishers to the Punjab government's scheme for the nationalisation of school textbooks, carried on without legislation.
Held, by Mukherjea CJ for the Court. 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 of functions that essentially belong to another. The executive could carry on the trade without a statute so long as no citizen's rights were affected and no expenditure required legislative sanction.
Why it matters here. It is the standard Indian statement, and it is deliberately two-sided: the doctrine is not absolute, and it is not absent.
Distinctions
| Strict separation (USA) | Diluted separation (India, UK, Canada, Ireland) | |
|---|---|---|
| Executive in the legislature | Forbidden, Article I section 6 | Required in practice; article 75(5) in India |
| Removal of the executive | Impeachment only | Vote of no confidence |
| Head of government | Separately elected, fixed term | Holds office on confidence |
| Judicial separation | Article III, life tenure | Article 50 as a directive; secured by articles 124 and 217 |
| Deadlock | Structural, and frequent | Rare, because the executive commands the legislature |
What beginners get wrong
"India follows the separation of powers." India separates the judiciary and fuses the other two. Saying it "follows the doctrine" without that qualification is the single commonest error on this topic.
"Delegated legislation breaches the doctrine." It does not, provided the legislature lays down the policy and the standard. In re The Delhi Laws Act, 1912, AIR 1951 SC 332, settled that essential legislative functions cannot be delegated but subordinate ones can.
"Switzerland has no separation of powers because parliament elects the executive." Article 144 separates the personnel absolutely. What Switzerland lacks is a separation of the executive from parliamentary confidence, and even that is inverted: the Federal Council cannot be dismissed.
Limits and criticism
The three functions do not divide cleanly. Rule-making by the executive, adjudication by tribunals and contempt powers in legislatures are all normal and all cross the lines.
Strict separation produces deadlock. The American government has repeatedly failed to pass a budget, which cannot happen in a Westminster system because a government that cannot pass a budget is not a government.
Separation of Powers
Fusion produces executive dominance. A Westminster executive with a majority controls the legislature's time, its agenda and its outcome, which is why the Indian debate about accountability is a debate about committees and about the Rajya Sabha rather than about the doctrine.
Quick revision
- Montesquieu, 1748: no liberty where the legislative and executive are united, or where the judicial is not separate.
- United States: Article I section 1, Article II section 1, Article III section 1, and Article I section 6 separating personnel.
- India: article 50 as a directive principle; articles 121 and 211 protect judges from legislative discussion; articles 122 and 212 protect legislative proceedings from judicial inquiry.
- Switzerland: article 175 (Assembly elects the Council), article 168 (Assembly elects the judges), article 144 (no dual membership), article 190 (no review of federal Acts).
- INS v. Chadha, 462 U.S. 919 (1983): the one-House veto fails bicameralism and presentment.
- Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: not absolute rigidity, but no assumption by one organ of another's essential functions.
- Strict separation risks deadlock; fusion risks executive dominance.
Test yourself
1. State the doctrine and describe the Indian position accurately. The doctrine requires the legislative, executive and judicial functions to be vested in distinct organs with distinct personnel, none exercising another's function. India does not adopt it in absolute rigidity: the executive is drawn from and answerable to the legislature, and article 75(5) assumes the overlap. What India does separate is the judiciary, by article 50 as a directive and by the appointment, tenure and removal provisions in articles 124 and 217, reinforced by articles 121, 122, 211 and 212.
2. Why could a legislative veto survive in a Westminster system but not in the United States? Because in a Westminster system the executive is answerable to the legislature by confidence, so control of executive decisions by the House is the normal constitutional relationship. In the United States the executive is separate, and Article I permits the House to act on the legal rights of individuals only by legislation, which means bicameral passage and presentment to the President: INS v. Chadha.
3. Does the separation of powers require judicial review? No, and Switzerland is the proof. Article 144 separates the personnel of the Assembly, the Council and the courts absolutely, and article 190 nevertheless binds the Federal Supreme Court to apply federal Acts. Separation is about who exercises which function; judicial review is about who has the last word.
4. Give one respect in which each organ routinely performs another's function, and say why that is tolerated. A legislature adjudicates when it punishes contempt of itself, tolerated because it is incidental to its own proceedings. An executive legislates when it makes rules under a statute, tolerated because the legislature has laid down the policy and the standard: In re The Delhi Laws Act, 1912. A court legislates when it lays down guidelines for future cases, tolerated because it is incidental to deciding the dispute before it, and criticised when it is not.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.