Separation Of Powers Under Different Constitutions

By | December 16, 2019
Relationship between Fundamental Rights and Emergency Provisions

ABSTRACT

This article talks about the Separation of Powers in different Constitutions. It involves a peek into the Constitution of the United States, United Kingdom and India. The reason for the comparative study of these three specifically is because the doctrine of separation of powers was inspired by the British Constitution and had a major impact on the American Constitution, which were both taken into consideration when forming the Constitution of India.

INTRODUCTION

This doctrine of Separation of Powers, with whom the French political philosopher Baron de Montesquieu’s name is attached, was given by him in his book the Spirit of Laws, in which he talks extensively in Part XI, Chapter 6 of the Constitution of England, where he states that every government has three types of powers: the executive, the legislative and the judiciary.

In his time, France was under the Bourbon monarchy and had a highly despotic regime, where the citizens had no power. During his travels to other Countries, he got influenced by their models and believed that such a model of separation will help uphold the liberty of people.

According to him, the concentration of power with one organ or one individual in the government will inevitably result in the abuse of power. For example, if the judiciary and executive are possessed by the same people, then the life and liberty of people are at stake due to arbitrary rule. If judiciary and executive exercise power together then the judges might become biased and oppressive.

Hence Montesquieu believed that the three organs of the government should have a clear separation of power, and the power given to different individuals, all working interdependently for the betterment of the governance of a country.

USA

The United States Constitution adopted Montesquieu’s theory of separation of power and structured it in such a way that it prevents any one branch from becoming too powerful. Article I, II and III of the Constitution talk about the various functions of the three organs i.e. the legislative, the executive and the judiciary.[1]

As the influential James Madison argued in its support, Montesquieu “did not mean that these departments ought to have no partial agency in, or no control over, thee acts of the other … [but] no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.”[2]

In this division the Congress has the legislative power, the President with the executive power and The Supreme Court and other courts established by law, have the judicial power. A general statement of the separation of powers as established in the United States has been made by Justice Miller of the United States Supreme Court.

In the case of Kilbourn v. Thompson, he says “It is believed to be one of the chief merits of the American system of written constitutional law that all powers entrusted to the government, whether state or national, are divided into grand departments, the executive, the legislative, and judiciary the functions appropriate to each of these branches of government shall be vested in a separate body of servants, and that this separation of the system requires that the lines which separate these departments shall be broadly and clearly defined.

It essential to the successful working of the system, that they entrusted with the power in any one of these branches shall be permitted to encroach upon the powers confided to the other, that each shall by the law of its creation be limited to these of the powers appropriate to its department and no others. To these general propositions, there are in the Constitution of States some important exceptions.”

Each of the branches has possession of specific powers, for example, the powers of the Executive include veto power over all bills; appointment of judges and other officials; making of treaties; ensuring all laws are carried out; commander in chief of the military and pardon power.

The powers of the Legislature are to pass all federal laws, establish all lower federal courts,  can override a Presidential veto and can impeach the President. These are the powers of the Judiciary: the power to try federal cases and interpret the laws of the nation in those cases; the power to declare any law or executive act unconstitutional.

But each of these powers is limited and checked by another branch. For instance, when the President appoints judges they need to be approved by the Senate. The President can veto a law passed by Congress. The Supreme court can rule a law to be unconstitutional but the power to amend the Constitution is with the Congress. By forcing the various branches to be accountable to the others, no one branch can usurp enough power to become dominant.[3]

UNITED KINGDOM

The United Kingdom has a partially unwritten and uncodified constitution, thus there is no rigidity. When the question came of applying this doctrine of separation of powers there were 2 sets of objections, first claimed that the separation of powers was not applicable to the British constitution as it is a parliamentary executive, which is a clear opposition of a part of the doctrine that the same person should not form part of more than one of the organs of the government.

A second, stronger, set of objections challenged the integrity of the separation of powers as a principle. The separation of powers rests on a mistake: there is no natural division of power between the three institutions of the state. The stronger version of the objection argued that there was no material distinction between legislative, judicial and executive powers.[4]

As Geoffrey Marshall put it, perhaps the separation of powers is ‘a jumbled portmanteau of arguments for policies which ought to be supported or rejected on other grounds.’[5]

Traditionally, the British Parliamentary system had two houses of the Legislature, the Upper house and the House of Lords, which consisted of the nobility of Britain: dukes, earls, viscounts, barons and bishops.  In 1999, the House of Lords had over 1300 members.

Today, there are just over 700 members. The House of Lords served as a judicial function as a court of final appeal, but as a legislative body, it was widely regarded as ineffectual. The most obvious and widely discussed constitutional reform linked to the separation of powers has been the ending of the judicial role of the House of Lords and the creation of the supreme court.

Although new Justices are given a courtesy title of Lord or Lady, they are not influenced by politics, cannot sit in the House of Lords and do not have a peerage, maintaining the separation of powers. They will thereby not be easily influenced by politics or be involved in the creation of legislation. Nor will there be any perception thereof.

 

This also applies to former Law Lords who became the inaugural Supreme Court Justices’, they can only return to the House of Lords once they have retired from their judicial position. The new court has much greater accessibility with its own building open to the public transparent court procedures and educational programme. This allows for a greater understanding of the work of the court and has boosted the profile of the highest level of the judiciary.

The lower house, the House of Commons, consists of MPs (Members of Parliament) elected from one of the electoral districts. In the Commons, majority rules. The majority party makes all the laws. The minority has little voice. The Prime Minister, Britain’s closest approximation of the American President, is an MP chosen by the majority.

The judiciary has no power of review as in the U.S. Since Britain has no formal, written constitution, no law can be unconstitutional. Professor Cane’s characterizes the United Kingdom and Australia as governments with high “concentration” of power, parliamentary supremacy constrained chiefly by “accountability” rather than checks and balances.[6]

INDIA

The India Government has three wings that are the legislative, executive and judiciary. Article 50 of Indian constitution[7] enjoys the separation of judiciary from the executive. But the Indian constitution does not confer the doctrine of the separation of power in a watertight compartment.

The executive power of the union and of a state is vested by our constitution is the President and the Governor, respectively, by Arts.53(1) and 154(1), there is no corresponding provision in the Indian Constitution vesting the legislative and judicial powers in any particular organ. India has a type of dilution of powers instead of a rigid separation.

The executive power of the union is held as given in our constitution by the President and the Governor, respectively, by Arts.53(1) and 154(1). But there is no specific role of the executive and legislative that is vested in one organ or individual in the constitution. Therefore it has been held that there is no rigid separation of powers[8]

In Indira Nehru Gandhi v/s Raj Narain, Chief Justice Ray[9] also observed that in the Indian constitution there is the separation of powers in a broad sense only.

In the case of Kesavananda Bharati v/s State of Kerala,[10] one of the landmark cases for the Indian judiciary, Justice Beg added that separation of power is a part of the basic structure of the constitution.

Regarding the separation of power Justice Beg added that “separation of powers is a part of the basic structure of the constitution. None of the three separate organs of the Republic can take over the function assigned to the other. The scheme of the constitution cannot be changed even by restoring to Article 368 of the Constitution”[11]

Functionally the President’s or the Governor’s assent is required for all legislation. The President is a part of the Legislature though he is not a member of Parliament and no bills relating to issues like boundaries, taxation, monetary bills, etc can be introduced without the assent of the President.[12]

The judges of Supreme court are appointed by the President in consultation with the Chief Justice of India and such of the judges of the Supreme Court and the High Courts, as he deems necessary for the purpose.

The judges of the Supreme Court and the High Courts cannot be removed except for misconduct or incapacity and unless an addressed supported by two-thirds of the total membership of the House is passed in each House of Parliament and Presented to the President[13]

CONCLUSION

It is noticed through this comparative study of the three main countries that have been influenced and had a major influence on the separation of powers doctrine in various other countries that, none of the Constitutions has applied the doctrine in its pure form.

But as Montesquieu had already suggested, rather predicted that every country has to apply this doctrine on the basis of their nature and characteristics and hence it is seen that this has been done well. This doctrine has helped the people by maintaining a government of checks and balances and thus not letting it become despotic and tyrannical, and continues to safeguard the life and liberty of the citizens.

REFERENCES:

  1. CONSTITUTIONALISM AND THE SEPARATION OF POWERS by M.J.C Vile
  2. Separation of power: A comparative study By Sk Jahangir Ali
  3. “There Is No Absolute Separation of Powers in the UK; It Is Invisible, Complex and Strict” By Rashad Lecuyer
  4. Separation of Powers Source: https://www.supremecourt.uk/docs/separation-of-powers-post-visit-worksheets-for-students.pdf
  5. The Separation of Powers by John A. Fairlie
  6. Separation of Governmental Powers by Frederick Green
  7. The Separation of Powers in British Jurisdictions by W. Jethro Brown
  8. The Separation of Powers and the British Constitution by N.W. BARBER
  9. CONSTITUTIONS IN CRISIS: A COMPARATIVE APPROACH TO JUDICIAL REASONING AND SEPARATION OF POWERS by Adam Shinar
  10. Separation of Powers in Comparative Perspective: How Much Protection for the Rule of Law? By Peter L. Strauss

[1] Separation of Powers in Action, US COURTS

[2] Federalist Papers 47

[3] THE SEPARATION OF POWERS By JOHN A. FAIRLIE

[4] I. Jennings, Law and the Constitution, 5th ed.

[5] G. Marshall, Constitutional Theory

[6] Gerangelos 2018, Goss 2018

[7] Art. 50 separation of judiciary from the executive – The State shall take steps to separate the judiciary from the executive in the public services of the states

[8] Ram Jawya v/s State of Punjab, ARI 19955 S.C. 549

[9] AIR 1975 SC 2299

[10] (1973) 4 SCC 225

[11] 1975 Supp SCC 1, 61, para 136.

[12] Arts. 111, 200 and 368.

[13] Art. 124(3)


  1. Constitutional Provisions Embodying The Rule Of Law(Opens in a new browser tab)

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