Separation of powers: a nuanced modern doctrine - Indian Laws - General

Separation of powers: a nuanced modern doctrine- Separation of powers between the legislature, the executive and the judiciary covers a large swathe of constitutional history spanning the writings of Montesquieu and Blackstone, to the work of Dicey and Jennings. Gerangelos (2009) laments that in the UK, parliamentary sovereignty has prevented the principle of separation from emerging as a judicially enforceable standard : Britain's unwritten constitution and the influence of Diceyan orthodoxy, emphasising parliamentary sovereignty and a fusion of powers which did not countenance judicial invalidation of legislative action, has meant that the separation of powers has not become a source of judicially-enforceable constitutional limitations. The precise status of the doctrine has varied from time to time and the extent to which the doctrine nevertheless provides some restraint on legislative interference with judicial process cannot be determined with precision. It can be said, however, that constitutional entrenchment of the separation doctrine has not been part of the Westminster constitution tradition; a tradition which has not, in any event, placed much store by written constitutions with their accompanying legalism and rigidities. The prevailing influence from that quarter has been the maintenance of judicial independence in terms of institutional independence through the protection of tenure and remuneration, and afforded statutory protection in the Act of Settlement in 1701, as opposed to the protection of judicial power in a functional sense. The impact of the doctrine is seen best in terms of the institutional independence of the judiciary from other organs of the state. The doctrine is stated to have been overshadowed in the UK by the more dominant constitutional principles of parliamentary sovereignty and the Rule of law . For instance, in the UK, Ministers of Crown are both part of the executive and members of the Parliament. Until the Constitutional Reform Act, 2005 the Lord Chancellor was a member of the Cabinet and was eligible to sit as a judge in the Appellate Committee of the House of Lords. The Judicial Committee of the House of Lords was the highest court, even though the House constituted the Upper House of the legislature. In the enforcement of parliamentary privileges, the House exercises judicial functions. Delegated legislation enables the executive to exercise legislative functions. The interpretation of the doctrine of separation of powers has evolved from being a one branch-one function approach with limited exceptions, to a concept which involves an integration of the 'division of work' and 'checks and balances' . The primary aim of the doctrine today is to ensure the accountability of each wing of the State, while ensuring concerted action in respect of the functions of each organ for good governance in a democracy. The doctrine of separation of power has developed to fulfill the changing needs of society and its growing necessities. Many of these considerations are significantly different from those which were prevalent when Montesquieu originally formulated the doctrine. In 1967, MJC Vile in his book titled 'Constitutionalism and the Separation of Powers' defined the 'pure doctrine' of separation of powers thus: [a] 'pure doctrine' of the separation of powers might be formulated in the following way: It is essential for the establishment and maintenanc e of political liberty that the government be divided into three branches or departments, the legislature, the executive, and the judiciary. To each of these three branches, there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way, each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State. This definition becomes important to facilitate an understanding of the reconstructed and modern view on separation of powers vis- -vis its traditional understanding. Vile essentially proposes that 'division of labor' and 'checks and balances' are intrinsic to the theory of separation of powers. In his view, a scheme of checks and balances would involve a degree of mutual supervision among the branches of government, and may therefore result in a certain amount of interference by one branch into the functions and tasks of the other. Aileen Kavanagh, has presented a scholarly analysis of separation of powers in a chapter titled 'The Constitutional Separation of Powers'. She concurs with the view expressed by MJC Vile that separation of powers includes two components, that of 'division of labour' and 'checks and balances'. These two components are strengthened by the deep-rooted ethos of coordinated institutional effort and joint activity between branches of the government in the interest of good governance. Instead of an isolated compartmentalization of branches of government, she highlights the necessary independence, interdependence, interaction and interconnection between these branches in a complex interactive setting. Kavanagh acknowledges that in view of the stronghold of the pure doctrine over our understanding of separation of powers, the idea of a collective enterprise between the branches of the government for the purpose of governing may seem jarring. However, she argues that this idea of branches being both independent and interdependent-distinct but interconnected-also has some pedigree in canonical literature. Kavanagh thus opines that the tasks of law-making, law-applying and law-executing are collaborative in nature, necessitating co-operation between the branches of the government in furtherance of the common objective of good governance. Kavanagh explains this as follows: In some contexts, the interaction between the branches will be supervisory, where the goal is to check, review and hold the other to account. At other times, the interaction will be a form of cooperative engagement where the branches have to support each other's role in the joint endeavor. Jeremy Waldron has dealt with the relationships among officials or institutions in a State. He proposes that separation of powers is not just a principle involving the division of labour and the distribution of power but also includes inter-institutional relationships between the three branches when carrying out their distinct roles as part of a joint enterprise. This is in order to facilitate, what Waldron called the 'Principle of Institutional Settlement'. Further, inter-institutional comity, which is the respect that one branch of the state owes to another, is also a significant factor, which calls for collaboration among branches of the government to ensure that general public values such as welfare, autonomy, transparency, efficiency and fairness are protected and secured for the benefit of citizens. Thus, in a comparative international context, authors have accepted separation of powers to widely include two elements: 'division of labour' and 'checks and balances'. The recent literature on the subject matter encourages inter-institutional assistance and aid towards the joint enterprise of good governance. The current view on the doctrine of separation of powers also seeks to incorporate mutual supervision, interdependence and coordination because the ultimate aim of the different branches of the government, through their distinct functions is to ensure good governance and to serve public interest, which is essential in the background of growing social and economic interests in a welfare state. This stands in contrast with the former and original interpretation of the doctrine, which sought to compartmentalize and isolate the different branches of the government from one another, with limited permissible exceptions. Eoin Carolan's book titled 'The New Separation of Powers' (2009) reflects an attempt to reshape the traditional doctrine of separation, to make it relevant to the practical realities of modern government. He notes that while the tripartite separation of powers between the legislature, executive and judiciary had conceptual simplicity with an impeccable academic pedigree , the doctrine has obvious limitations in the sense that it does not satisfactorily explain the emergence and growth of the modern administrative State we see today. The author contends that an institutional theory like the separation of powers can no longer be accepted in its original form if it cannot account for this 'significant tranche of government activity'. Among the characteristics of the modern administrative State is that public power is exercised in a decentralized manner and on an ever-growing discretionary basis. While the Indian Constitution has been held to have recognized the doctrine of separation of powers, it does not adopt a rigid separation. In Ram Jawaya Kapur v. State of Punjab- 1955 (4) TMI 35 - SUPREME COURT, this Court held: 12. ...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. Reduced to its core, separation entails that one organ or institution of the state cannot usurp the powers of another. In Re: Powers, Privileges and Immunities of State Legislatures (1965) 1 SCR 413, this Court held that whether or not the Constitution brings about a distinct and rigid separation of powers , judicial review is an inseparable part of the judicial function. Whether legislative authority has extended beyond its constitutional boundaries or the fundamental rights have been contravened cannot be decided by the legislature, but is a matter entrusted exclusively to judicial decision. While the separation of powers, as a principle, constitutes the cornerstone of our democratic Constitution, its application in the actual governance of the polity is nuanced. The nuances of the doctrine recognize that while the essential functions of one organ of the state cannot be taken over by the other and that a sense of institutional comity must guide the work of the legislature, executive and judiciary, the practical problems which arise in the unfolding of democracy can be resolved through robust constitutional cultures and mechanisms. The separation doctrine cannot be reduced to its descriptive content, bereft of its normative features. Evidently, it has both normative and descriptive features. In applying it to the Indian Constitution, the significant precept to be borne in mind is that no institution of governance lies above the Constitution. No entrustment of power is absolute. [KALPANA MEHTA AND ORS. VERSUS UNION OF INDIA (UOI) AND ORS.- 2018 (5) TMI 2068 - SUPREME COURT]