Separation of Powers

Introduction	jurisprudence
Provisions	Schedule 7th, articles 50, 53, 154, 211, 121, 123, 361 of constitution
Case Laws	Rai Sahib Ram Jawaya Kapur v. State of Punjab(1955) 2 SCR 225 Asif Hameed v. State of J. & K. AIR 1989 SC 1899 State of M. P. & Another v. Thakur Bharat Singh 1967 AIR 1170: 1967 SCR (2) 454
conclusion	present problem

Meaning of Separation of Powers

The doctrine of separation of powers is a fundamental principle in constitutional governance. It proposes that the three main functions of government — legislative, executive, and judicial — should be exercised by different bodies, independently and without overlap. This structure aims to prevent the concentration of power and to safeguard liberty and democracy. Separation of powers means dividing the government into three branches, each responsible for distinct functions:

1. Legislative: Makes laws (e.g., Parliament or Congress)
2. Executive: Implements and enforces laws (e.g., President, Prime Minister, Ministers)
3. Judiciary: Interprets and applies laws (e.g., Courts and Judges)

The idea can be traced back to Aristotle, but it was formally developed by Montesquieu in his book The Spirit of Laws (1748). Montesquieu argued that tyranny arises when the legislative, executive, and judicial powers are united in the same person or body.

1. Each organ should have different persons in capacity, i.e., a person with a function in one organ should not be a part of another organ.
2. One organ should not interfere in the functioning of the other organs.
3. One organ should not exercise a function of another organ (they should stick to their mandate only).

Legislative Function

The chief function of the legislature is to enact laws. The legislative function involves the creation, framing, and enactment of laws that govern society. Legislatures or parliaments (e.g., the U.S. Congress, Indian Parliament, British Parliament) makes the law. It’s purpose is to express the will of the people through rules and policies.

Types of Laws Made: Statutory laws (passed by legislature), Constitutional amendments, Delegated legislation (rules made under the authority of statutes). Examples: Passing a law banning child labor, Approving budgets and taxation laws.

It is the basis for the functioning of the other two organs, the executive and the judiciary. It is also sometimes accorded the first place among the three organs because until and unless laws are enacted, there can be no implementation and application of laws.

Executive function

The executive function is the implementation and enforcement of laws made by the legislature. The head of the state and government (e.g., President, Prime Minister, Ministers, Administrative agencies) implement the laws. It’s purpose is to ensure that the laws are properly applied in real life. Laws without implementation are meaningless; the executive translates written law into action and service to the people.

Powers include: Managing day-to-day administration (e.g., public services, security), Enforcing decisions made by legislature and judiciary, Conducting foreign affairs, defense, and policymaking. Examples: The police enforcing traffic rules, The government launching welfare schemes for the poor.

Judiciary Function

The judiciary is that branch of the government that interprets the law, settles disputes and administers justice to all citizens. Courts and judges (e.g., Supreme Court, High Courts, Lower Courts) performs this function. The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution. It comprises of the Supreme Court, the High Courts, District and other subordinate courts. It’s purpose is to uphold the rule of law, protect rights, and deliver justice.

Main duties include: Interpreting ambiguous laws, Resolving conflicts and disputes, Judicial review (checking if laws/executive actions are constitutional). Examples: The Supreme Court striking down a law that violates human rights, A civil court resolving a property dispute.

Purpose of Separation of Powers

1. Prevent abuse of power
2. Promote efficiency in governance
3. Ensure fairness and justice
4. Protect individual rights and freedoms

Advantages

1. Prevents authoritarian rule
2. Encourages specialization and expertise
3. Promotes transparency and accountability
4. Protects minority rights

Disadvantages

1. Can lead to inefficiency or deadlock between branches
2. Potential for power struggles
3. Complexity in decision-making

Constitutional status of separation of powers

1. Article 50: This article puts an obligation over the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable.
2. Article 123: The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions.
3. Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.
4. Article 361: The President and Governors enjoy immunity from court proceedings.

Checks and Balances

There is a system of checks and balances wherein the various organs impose checks on one another by certain provisions.

1. Legislature Checking Executive: Approval of Budget: Executive needs Parliament’s approval for spending money. No-Confidence Motion: Legislature can remove the Executive by passing a vote of no-confidence. Question Hour: Ministers are answerable to Parliament during sessions. Impeachment: Legislature can impeach the President for misconduct.

2. Executive Checking Legislature: Veto Power: The President can refuse assent to a bill (absolute or suspensive veto). Summoning or Dissolving Parliament: Executive can summon and even dissolve the lower house (in some systems). Ordinance-making Power: In emergencies, the Executive can issue ordinances (e.g., Article 123 in India).

3. Judiciary Checking Legislature and Executive: Judicial Review: Courts can declare laws unconstitutional if they violate the Constitution. Protection of Fundamental Rights: Judiciary can strike down actions violating individual rights (Article 32 in India — Right to Constitutional Remedies). Review of Executive Action: Courts can quash illegal executive orders.

4. Legislature and Executive Checking Judiciary: Appointment Process: In some countries, Executive and Legislature play a role in appointing judges. (e.g., U.S. President appoints judges with Senate approval.) Impeachment of Judges: Judges can be removed through a rigorous impeachment process if found guilty of misconduct.

Case Laws

Rai Sahib Ram Jawaya Kapur v. State of Punjab

Facts: Ram Jawaya vs State of Punjab is one such case that reshaped our understanding of executive power within the Indian democracy. The State of Punjab, aiming to monopolize the educational publishing sector, issued an executive order that threatened the livelihoods of private publishers. Rai Sahib Ram Jawaya Kapur, a private publisher, challenged this move, arguing that it violated fundamental rights and exceeded the government’s executive authority. The conflict highlighted the urgent need to define the boundaries of executive power within a parliamentary democracy. Issue: whether the Government of a State has the authority under the Constitution of India to engage in trade or business activities without any legislative backing? whether the executive branch could undertake commercial activities without an explicit legislative mandate, relying solely on its executive power? Judgment: The court emphasized that the Indian Constitution is a written document, ensuring that even the legislature cannot override the fundamental rights guaranteed to citizens. The business in question, carried out by the petitioners, involved printing and publishing books, including textbooks for schools in Punjab. The petitioners had no right to demand that their books be accepted as textbooks by the government. The publishers retained their right to print and publish books and sell them, but they had no right to compel the government to approve their books as textbooks. This distinction was crucial in determining that the government’s actions did not infringe upon any fundamental rights. The court also noted that the executive government of a state has the constitutional power to carry on trade or business, subject to legislative control. If the trade or business involves the expenditure of public funds, parliamentary authorization is necessary, either directly or through statutory provisions. In cases where the government needs to encroach upon private rights to conduct its business, specific legislation would be required to sanction such actions. However, in this case, the petitioners did not have any fundamental rights infringed upon by the government’s actions. The Supreme Court held that the business of printing and publishing textbooks was within the competence of the executive government without needing specific legislation. The petitioners did not possess a fundamental right under Article 19(1)(g) of the Constitution, making the question of government monopoly under Article 19(6) irrelevant. Consequently, the court dismissed the petition with costs.

Asif Hameed v. State of J. & K.

Facts: Jyotshana Sharma and other unsuccessful students didn’t get admission into the Medical Colleges of Jammu & Kashmir and they filed a writ petition against 2 medical colleges.High Court upheld the selections but required for an independent statutory body for the entrance of MBBS/BDS course which shall be free from executive influence, handled by 3 members.Again some discrepancies arose with the admission process in 1988-89. The selection process was governed by the Jammu & Kashmir Government Medical Colleges Procedure Order, 1987, which outlined the roles of the Competent Authority and an expert committee. Consequently, a case was filed before the High Court. The Jammu and Kashmir High Court set aside the 1988-89 MBBS/BDS admissions, ruling that the selection process violated its earlier directive to assign an independent body to conduct the admission free from executive control. Further found that the competent authority, required to consist of three members, did not appropriately convene to review candidates, making the selection invalid. The State and selected candidates have appealed against this decision before the Supreme Court. Issue: Does the High Court have power to issue directions to the State Government to constitute a “statutory body” for making admissions? Whether the admission process held to be valid under the said Order? Judgment: The Apex Court discussed the functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State.It was determined that the competent authority could function with two members instead of three, as it was not a statutory body and was performing executive, rather than quasi-judicial, functions. The selection process to the medical college in J&K is valid which is held by the competent authority.Both the medical colleges at Jammu and Srinagar are government institutions.Entry 25 List III of Seventh Schedule, Article 246(2) and Article 162 of the Constitution of India and Section 5 of the Constitution of Jammu & Kashmir are relevant.Besides, the method of conducting the written examination and viva voce (interview) for admissions was found to be objective and fair, minimizing the risk of favouritism. Court held that the High Court erred in issuing directions in 1987 and reiterating them in the judgment under appeal. Finally, the court upheld the fairness of the selection process.

State of M. P. & Another v. Thakur Bharat Singh

Facts: On 24/4/1963, Madhya Pradesh made an order directing Thakur Bharat Singh under section 3 of MP Public Security Act-(i) that he shall not be in any place in Raipur district(ii) that he shall reside in the municipal limits, Jhabua(iii) that he shall notify his movements and report personally every day to the Police StationRespondent filed a petition in the High Court stating that section 3 & 6 and other provisions which authorized imposition of restrictions on movements and actions of person were ultra vires because they infringed the fundamental freedoms guaranteed under Art. 19(1) (d) & (e) of the Constitution of India and that the order was “discriminatory, illegal and violated principles of natural justice.Court held that the clauses (ii) and (iii) were invalid as it violates the fundamental guarantee and (i) could lawfully be made by the State. State of MP filed a petition to the Supreme Court against the order of the High Court. Issue: Whether the order issued by the State of Madhya Pradesh under the Madhya Pradesh Public Security Act, 1959 is valid or not? Judgment: Supreme Court held that section 3 & 6 and other provisions which imposed restrictions on the movement is ultra vires and invalid as it infringes the fundamental rights guaranteed under article 19(1)(d) & (e). Section 3(1)(b) is held void when enacted and not revived when emergency was made by the President.Article 358 did not provide to validate legislative provision which was invalid because of constitutional inhibition before emergency proclamation.In the opinion of the Court, the person might not be able to get means of livelihood in the specified place, and the statute made no provision that the person would be provided with any residence or means of livelihood. The Supreme Court invalidated a statutory provision which gave power to an executive authority to specify the area where an externee was to stay, because of the absence of procedural safeguard of hearing.Appeal dismissed.