How far has this ‘Doctrine of separation of powers’ been Accepted in India?

Doctrine of separation of powers:

The powers of government are divided in three branches namely, executive, legisla­tive and judicial.

It is the essence of free and good government that each of these branches is kept separate without the one interfering with the other.

Montesquieu (a French jurist) was of the view that it was the es­sence of a good government of a country that:

(i) The powers of the government are classified into the said three water-tight compartments; and

(ii) These branches function separately and none should encroach upon the other.

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The doctrine of separation of power means that:

(i) The executive should never exercise the judicial or the legislative powers; and

(ii) The Legislature should never exercise the judicial or the executive powers; and

(iii) The judicial branch should never exercise the executive or the legislative powers.

Therefore according to the view of the said French jurist, the doctrine means that a body or any person should not exercise all the three kinds of powers.

According to Wade and Phillips, this doctrine means:

(i) The same persons should not compose more than one branch of the three branches,

(ii) One branch should not control, and interfere with the acts of the other two branches.

(iii) One branch should not discharge the functions of the other two branches.

In the opinion of Donoughumore Committee, in the British Con­stitution, there is no such thing as the absolute separation of execu­tive, legislative and judicial powers. In practice, it is inevitable that they overlap.

In the United States of America, the doctrine of separation of powers has been raised to the constitutional level. There the executive powers are exercised by the President, the legislative powers by the House of Representatives and the judicial powers by the Courts.

Therefore, the powers vested in a branch of the government cannot be vested in any other branch. But real position is much different. This doctrine was again interpreted and it was observed:

“The doctrine of separation of powers is a fundamental dogma of American Constitution. Its object is to preserve political safeguards against the capricious exercise of power.

It lays down the broad lines of an efficient division of functions. But in many cases where there is a pressure for the transfer of old or the creation of new functions or for the better implementation of the old ones, the logical implications of the doctrine are conflicting.”

Application of Doctrine of Separation of power in India:

Under the Constitution of India, the executive power of the Union and the State is vested in the President and the Governors. The Presi­dent is the executive head of India.

The Constitution recognises the functional division of governmental power into executive, legislative and judicial organs. Article 50 provides that the State shall take step to separate the judiciary from the executive; this is a principle of State policy.

The President has legislative powers. He also performs the judicial functions. By Article 103, power has been conferred upon him to decide questions of disqualification of members of the Parlia­ment.

In certain spheres, the High Court’s perform administrative rather than judicial function. They have power to make rules and thus exercise legislative functions.

They can judi­cially decide whether any Act is constitutionally valid or not and this is inconsistent with the French doctrine of separation of powers.

The Council of Ministers is collectively responsible to the House of the People. This is a direct negation of the doctrine of separation of powers.

Indian Parliament, like the British Parliament, is not supreme. Indian Constitution does not believe in rigid separation of powers but in certain checks and balances.

In the Supreme Court case of Delhi Laws Act. A.I.R. 1951 S.C. 332 at p. 346: (1951) S.C.R. 747 Mr. Justice Mahajan observed:

“It does not admit of serious dispute that the doctrine of separa­tion of powers has strictly speaking, no place in the system of government that India has presently under our Constitution.

Un­like the Australian and the American Constitution, the Constitution of India does not expressly vest the different sets of powers in different organs of the State.

Our Constitution, though federal in form, is modeled on the British Parliamentary system, the essential feature of which is the responsibility of the executive to the legisla­ture.

In the Supreme Court case of Ram Jawaya Kapur v. State of Punjab, (1955) 2 S.C.R. 225, Mukherjee, the Chief Justice made the following observations:

“The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts of 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 indeed can exercise the powers of departmental or subordinate legis­lation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law.”

In another Supreme Court case of Ram Krishna Dalmia v. Jus­tice S R. Tendolker, A.I.R. 1958 S.C. 538, it was observed by Chief Justice, S.R. Das:

“The elaborate discussion of the American authorities founded on the categorical separation of powers expressly provided by, and under, the American Constitution, appears to us wholly inappropriate and unnecessary.

We need not express any opinion on the question whether, even in the absence of a specific provision for separation of powers in our Constitution, such as there is under the American Con­stitution, some such division of powers legislative, executive and judicial is nevertheless implicit in our Constitution.”