Authored by Virat Raj Mishra, a 4th-year law student at Symbiosis Law School, Pune
Introduction
Separation of Powers is a phenomenon on which India has been running for thousands of years. The famous Indian polymath Chanakya had thought about and laid down various institutions for the enforcement of justice, for example- The ‘Dharmasteya’, i.e., the civil court and ‘Kantakasodhana’ i.e., the criminal court. Since a legislative body was absent back then, the King used to make the rules after the advice of his council and the Vedas. The significance of the Separation of Powers and the demarcation of such powers has been given utmost importance from the era of empires till the present age where a democratic system is followed in the country. In this piece, we shall discuss the demarcation of separation of power between the judiciary and legislature and whether it is a precautionary method or not.
Separation of Powers and Its Demarcation: An Analysis
The concept of Separation of Powers has been elucidated in Article 50, which the Constitution also explicitly provides. The article states that “The state shall take steps to separate the judiciary from the executive in the public services of the State.”
In Article 53(1), the President of India is vested with the executive functions of the nation. Similarly, Article 154(1) vests executive power in the Governor.
Article 105 of the Indian Constitution makes the legislative an independent body, it provides the member of parliament with certain privileges, powers and immunities which are not granted to the other organs. Such are some examples of provisions which support the doctrine of Separation of Powers, maybe not explicitly but the foundation of such provisions is the doctrine of Separation of Powers.
Reasons Highlighting the Importance of Separation of Powers
There is a need to enforce the doctrine of Separation of Powers in a densely populated country like India, with more than 140 crore people to be governed. There are various reasons which emphasise the importance of Separation of Powers in a country like India.
The first is the system of Checks and Balances; the separation of powers allows each branch to operate as a check on the other's capabilities. This system ensures accountability and prohibits any branch from exceeding its jurisdiction and overriding the other organ’s jurisdiction. The system also oversees if each organ is performing its duties with diligence and honesty.
Next, from a judicial perspective, the Separation of Powers leads to the Independence of the Judiciary, this helps in ensuring that the Judiciary can make decisions on various matters without being interfered with. It can also be said that this doctrine also supports and upholds democratic principles by allocating authority among the several parts of government that are chosen or appointed through democratic procedures. These principles include accountability, transparency, and the rule of law. Furthermore, the prevention of authoritarianism by any organ is very crucial for any country to function properly. An example of a failed country by this means is Pakistan, where the executive which is the Army has hijacked the functioning and governing of the entire country. Separation of Power prevents countries from falling into a similar situation.
Each organ of the state has been prescribed with separate functions, the Legislature consists of lawmakers elected by the people’s mandate who make laws for the people of the nation.
There are various cases which explain the importance of the separation of powers. In P Ramchandra Rao v. State of Karnataka, JT 2002 (4) SCC 572, the case was that the Appellant was working as an Electrical Superintendent and was found to have assets which weren’t proportionate to the salary he was receiving and hence he was charged under the Prevention of Corruption Act, 1980. The special court granted the accused an acquittal which was later overturned by the High Court in an appeal by the state.
Herein, it was held by the Hon’ble Court that giving decisions/ judgements which are of a legislative nature is not a true and legitimate function of the judiciary. If Article 50 is looked at with a prima facie perspective, of the Indian Constitution, it would seem that the concept of separation of powers is followed in its truest and strictest sense, but when analysed with different cases it can be derived that rather than a strict sense of separation of powers, a system of checks and balances is followed. This theory can be better explained in the case further discussed.
Akin to the above, in Ram Jawaya Kapur and Ors. v. State of Punjab, AIR 1955 SC 549, six people via a writ petition who worked in the field of printing, publishing and selling books for different standards in the schools of Punjab claimed that their right to carry on trade under Article 19(1)(g) was being infringed without any proper executive order or legislation. This claim was made due to the fact that the Punjab government in accordance with their policies of nationalisation issued many notifications pertaining to printing and publishing of these books and the selling of such books was putting unreasonable restrictions on other traders in this business. The Hon’ble court, herein, opined that the doctrine of separation of powers has not been accepted in India in a rigid/strict manner, and all three organs have been duly identified and differentiated. Other than Article 50 of the constitution there is no other provision which talks about separation of powers, but the concept is appropriately followed in the nation, while every organ has its distinctive functions they can interfere in each other’s functions whenever it is believed to be necessary and maintain a system of checks and balances for the same.
Judicial Review
While the judiciary does not have the authority to override or hijack the functions of the legislature, as per Article 13 of the Indian Constitution the judiciary has the power to refer laws and decisions for Judicial Review; this allows the court to declare a law or any act void if it is inconsistent with the fundamental rights as prescribed in the Indian Constitution. This method is to maintain checks and balances over the functioning of the Legislature. Judicial review is one of the most important aspects of the organ of the judiciary as it does not allow any organ to dominate or make laws which are violative of public interest and the basic structure and fundamental rights of the constitution.
This case of Indira Gandhi v. Raj Narain, 1975 SCC (2) 159 is a piece of history in the politics of post-independent India. This case highlights the lows to which politicians go in pursuit of power. Someone said very rightly, absolute power absolutely corrupts. In the 1971 Lok Sabha elections, the incumbent Prime Minister Indira Gandhi who was representing the Congress party, ran as a candidate in the Rae Bareilly constituency. Her opponent was Raj Narain, who ran from SSP. Indira Gandhi won the Rae Bareilly seat as well as the general elections securing re-election as Prime Minister. However, Raj Narain challenged her victory, alleging a violation of the election rules and the Representation of People’s Act, 1951.
The Allahabad High Court found Indira Gandhi guilty under Section 123(7) of the Representation of People’s Act, 1971, and declared her election void. She was disqualified from holding office and contesting in elections for a period of six years. The court gave the Congress party twenty days to appoint a new Prime Minister for the country.
Indira Gandhi appealed to the Supreme Court, and the Court issued a stay order allowing her to attend parliamentary sessions but did not allow her to participate in debates or votes. During the appeal, President Fakhruddin Ali Ahmed declared a National Emergency. The 39th Constitutional Amendment introduced Article 329A, which legally granted immunity to the Prime Minister and the Speaker from being tried in any Indian Court. This deprived the Supreme Court of authority over the case. This amendment's validity was later challenged.
The court herein decided that pertaining to clause (4) of Article 329A the decision was given in accordance with the case of Kesavananda Bharti v Union of India.
It said that this clause was not valid. The clause was violative of the fundamental structure of the Constitution and the court declared the 39th Constitutional Amendment as illegal. The Parliament cannot amend the basic structure of the Constitution irrespective of any situation. The court also said that holding free and fair elections in a dynamic democracy like India is a fundamental concept enshrined in the constitution and the introduction of Article 329A violates this concept.
In regards to the election of Indira Gandhi, the court said that she could continue as the Prime Minister of India and she won the seat of her constituency fairly. The court further emphasized the importance of Judicial Review and said that it is a fundamental part of the Constitution.
In relation to The Representation of People’s (Amendment) Act 1974 and The Election Laws (Amendment) Act, 1975, the court said that the constitutionality of a law completely depends on the fact that if there is the presence of a legislative authority, and aside from the restrictions specified in Article 13 of the Constitution, there were no other constraints or restrictions on the Legislature. The court upheld that the Parliament possessed the power, under Article 368 of the Constitution, to create laws regarding elections.
Apart from Judicial Review, which is important from a Judicial Perspective, it is important to know about various other facets pertaining to Separation of Powers which are not of Judicial nature.
Legislative Perspective of Separation of Powers
When we analyse the Legislative Perspective of Separation of Powers, one of the most important legislative facets which has the doctrine as its base is the authority of making the law by the representatives elected by the people’s mandate. The Parliament makes laws for the benefit and progress of the nation and this power only belongs to the Legislature, neither the judiciary nor the executive has the power to make laws.
Article 245(1) of the Constitution allows the Parliament to make laws for the whole territory of India and also allows the State Legislature commonly known as the ‘Vidhan Sabha’ to make laws for the entire state. The judiciary has been explicitly refrained from making laws through their judgements, or rule upon matters where the question is political in nature. But this is where the system of checks and balances plays its role, as the Constitution allows the Judiciary to rule upon the validity of a law, but not make the law.
Another very important function of the legislature is the allocation of finances and providing a budget for the running of the country. Every government operation from making roads to buying and maintaining arms, to education and technology and even investing in upcoming technology like Artificial Intelligence; all of it comes under the ambit of the Legislature. The legislature has to very carefully allocate these resources to avoid any economic tension in the future and for the smooth functioning of the nation. This function can’t be performed by any other organ of the country, as no other organ possesses the resources or the capability to do so. These examples elucidate various facets of the doctrine of Separation of Powers when the legislative perspective is taken into consideration. The doctrine acts as a silent support and coupled with the democratic values of the nation, assists the smooth governance of the dynamic and vibrant democracy that India is.
Conclusion
Various incidents like the emergency, elections and other landmark cases highlight the importance of the doctrine of separation of powers and how the demarcation of the powers of these organs works. After analysing the cases given above it can be said that the system of demarcation of powers between the judiciary and executive is a precautionary method which helps in avoiding any of these organs exercising dominance over each other and high-jacking each other’s functions. The lawmakers have attempted to strike a balance between the powers of both the legislature and the judiciary through Article 50 of the Indian Constitution. It has also been made clear via the cases discussed above that the doctrine of separation of powers which is applied in India, is not applied strictly or rigidly but in a very equitable manner and also consists of a system of checks and balances which is very beneficial to make sure that the organs are fulfilling their duties fairly and freely without having dominated or being dominated by each other.