The Concept of Separation of Power: A Comparative Analysis Between India and USA
Mar. 16, 2024 • Ritu Sharma
Student's Pen
ABSTRACT
In a democracy, the government exercises its sovereign power on behalf of the people with three primary functions that is to make laws, to execute laws and to interpret the laws. The doctrine of separation of powers implies that these three functions should be kept separate A large number of nations around the world have embraced the theory of separation of powers. Some nations have fully adopted it, while others have only partially.
According to the provisions of the Constitution of India, legislative power is vested with both houses of Parliament as per Article 79, executive powers are vested with the President at the centre level and with the Governor at the state level and the judicial power lies with the Supreme Court, High courts and subordinate courts. The US was the first country to adopt the doctrine of separation of powers and it is followed in a rigid and strict sense, unlike India. The Constitution of the USA expressly provides for the three departments and the separation of powers between them is absolute. Article 1 deals with the power of the legislature, Article 2 deals with the executive powers which vests with the president and Article 3 deals with the judicial power.
However, the separation of powers in India is not absolute. If there is any misuse of power by any organ or the organ doesn’t perform well, other organs can interfere as per the constitution. There are major differences between India and the USA regarding the functioning and procedure of works of the organs which are compared in this paper.
INTRODUCTION
Aristotle, a Greek philosopher, was the first to use the term "doctrine of separation," which was later advanced by Montesquieu. In the year 1747, Montesquieu published his book "Espirit des Louis". His goal was to distribute power among the various branches of government in an independent and interdependent manner, which meant that each branch would have its distinct authority and would not interfere with or impinge upon the authority or function of the others but would instead cooperate.
Montesquieu’s Doctrine of Separation of power:
- Intermittent legislative power- The general rule-making authority is called upon only as and when necessary.
- Constant executive authority- It encompassed all of the authority that the executive and judicial branches wield.
- Federative authority- It was regarded as having the authority to handle international issues.
The French scholar Montesquieu believed that when a society's authority is concentrated in the hands of one person or group, autocracy will result. Therefore, it was considered that power needed to be decentralised to keep arbitrariness in check. Thus, it was believed that the executive, the legislature, and the judiciary were the three main branches of government.
The doctrine of separation of powers, in Montesquieu's view, calls for a complete division of powers, and one organ should not infringe upon or interfere with the authority of the other organ. Although many nations have adopted this ideology, it has not been fully embraced. It is generally acknowledged that Montesquieu advocated total power separation with no interference or intrusion on the authority of the other organ. Although several nations have adopted this ideology, none of them have done so completely or completely. Despite being largely accepted, there are some problems with this hypothesis.
For a better and more efficient operation of a government, the three organs must work in coordination and collaboration. However, this approach is crucial to maintain control over how each party performs and to prevent any sort of arbitrariness.
SEPARATION OF POWER IN INDIA
The Government of India Act, of 1935, established the framework for the federal government. The Constitution does not, in every way, embrace the 1935 Act's proposed division of powers between the union and the states, but the fundamental principles remain the same. According to the Indian constitution, the President is granted executive authority, Parliament is granted legislative authority, and the judiciary (including the Supreme Court, High Court, and Subordinate Court) is granted judicial authority. The Constitution itself explains the role and authority of the President. In addition, the Parliament is empowered to adopt any law under the terms of the Constitution, and its legislative power is unconstrained in any way. The Supreme Court, which is the apex court of India and all High Courts have the authority to declare any law passed by the Parliament illegal if it is found to be unconstitutional by any court of competent jurisdiction. Some jurists believed that the Indian Constitution explicitly recognises the Doctrine of Separation of Power after taking all the relevant considerations into account.
Articles 62 to 72 of the Indian Constitution define the President's authority and duties[1]. The legislative branch and the executive branch are prohibited from interfering with the independence of the judiciary in India. Both the High Courts and the Supreme Court of India have the authority for judicial review thanks to the provisions of Articles 226[2] and 227[3], as well as Articles 32[4] and 136[5]of the Constitution. If such a situation arises that a law enacted by the Parliament is inconsistent with the Fundamental rights as provided under Part III of Indian Constitution, then the judiciary i.e., the High Courts and Supreme Court has the power to declare any law void.[6]
The Union territories, the Union, and the State are three different constitutional entities that are made actual by the Constitution, as stated in the case of I. C. Golakhnath v. State of Punjab.[7] Furthermore, it is noted that the three main branches of government—the judiciary, the administration, and the legislature—share the power. It precisely defines their boundaries and further calls for them to carry out their duties without interfering with those of others. They should carry out their duties within their purview.
If we look at the constitutional provisions, we can see that India does not adhere to the theory of separation of powers in a strict sense. Within the system, there is not only functional overlap but also personnel overlap. The Supreme Court has the authority to declare void any laws passed by the legislature and executive actions that are in violation of the Constitution. This effectively expands the idea that the judiciary has the authority to conduct judicial review of both legislative and executive actions.
The Hon'e Court correctly noted in Indira Nehru Gandhi v. Raj Narain[8] that "the Indian Constitution only recognises the separation of powers in a broad sense. India is not subject to the precise division of powers outlined in the American Constitution or the Australian Constitution. The political value of the theory of separation of powers is not commonly acknowledged, according to Justice Chandrachud. Without intentional obedience to its intricate check and balance, no constitution can endure. As a result, the Constitution of India does not, in its entirety, adopt the theory of separation of powers.
In Ram Jawaya v. State of Punjab, Justice Mukherjee[9] it was noted that "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 a not-for-profit organisation."
An examination of the aforementioned case laws reveals that India doesn't adhere to the separation of powers principle in a particularly stringent way. The three branches of government regularly exceed their authority and interfere with one another's operations, even if it is not explicitly stated in the Constitution, to maintain checks and balances. Even though India's Constitution explicitly states, like the American Constitution, that the President holds executive power under Article 53(1) and the Governor under Article 154(1), there is no provision that mentions the vesting of legislative or judicial authority in any organ. By contrasting the two comparable yet different systems, we can therefore come to the conclusion that there is no tight separation of power.[10]
Doctrine of checks and balances
India has embraced the philosophy, and all of its ministries collaborate with one another to provide effective national governance. The judicial review doctrine is one of the most important tools for conducting checks and balances. The Indian Supreme Court has the authority to conduct judicial reviews and determine whether legislation are in accordance with the fundamental rights protected by Articles 32 and 136. The Supreme Court can determine whether or not the legislation passed by the legislature violate the Constitution's fundamental principles. The higher courts may also review the quasi-judicial activities carried out by institutions like tribunals. In each of the cases mentioned above, the judiciary is monitoring the other divisions of the government.
In order to prevent this department from acting arbitrarily, the Indian constitution ensures that there are sufficient checks on it. The executive participates in the appointment of judges, which keeps the judiciary under control. To avoid the judiciary turning into puppets in the other departments' hands and to guarantee that it continues to operate independently, a balance is sought in this regard. As a result, the president cannot appoint judges without consulting the collegium of judges. Additionally, the judges receive their salary and pension payments directly from the Consolidated Fund of India. The President, who is regarded as the official head of India, must comply with
Constitutional Provisions:
According to Article 53, the President is granted executive authority over the union, and Article 154 grants the Governor similar authority. However, neither of these individuals are permitted to exercise their authority without the support and counsel of the council of ministers at the Centre (Article 74) or at the State, depending on the circumstances. By using their constitutionally granted authority to enact laws, the president and governor are acting legislatively. Following the imposition of the President's Rule (Article 356) and the dissolution of the State Legislature, the President establishes legislation for the State. A member of the house may be disqualified by the president in accordance with Article 103.
According to Article 75, the Lok Sabha is responsible for the Union Council of Ministers. This house has the authority to initiate impeachment proceedings under Article 61 of the Indian Constitution against the President and any Supreme Court judge. According to Article 75(5), the members of the Council of Ministers must be members of one of the two houses of Parliament. In some ways, the Parliament's judicial role is highly significant. Any parliamentary privilege that is known to have been violated could be discussed, and if proven, they have the authority to penalise for contempt.
Furthermore, it is crucial to note that the High Court carry out administrative functions in some situations rather than judicial. They have more administrative than judicial authority under Article 227 to oversee other subordinate courts. While they are permitted to transfer cases under Article 228. In some states, they also have administrative supervision over the district courts. The High Courts and the Supreme Court have been given the authority to enact laws with a very broad legislative scope.
In India, the Executive has the power to enact laws under the power of delegated legislation. The administrative agencies, which are statutory tribunals and domestic tribunals, adjudicate individual citizens' rights and perform judicial functions.[11]
SEPARATION OF POWER IN USA
The theory of separation is the basic foundation of the constitution of United States of America.
- Section 1 of Article-I vests sole legislative authority in Congress.
- All executive power is vested in the President of the United States under Section 1, Article II
- All judicial power is vested in the Supreme Court under Section 1, Article III.[12]
In order to prevent the establishment of a tyrannical government, the American Constitution's framers thought that applying the separation of powers principle in practise would make it impossible for a single party or combination of people to exercise excessive power. As a result, they anticipated that the balance of power would be achieved through checks and balances between various governmental institutions. As a result, this doctrine of separation alternate structure prohibits any organ from gaining power supremacy. This means that the functioning of one organ is checked by another organ so that no organ abuses its power. Therefore, the United States of America's constitution, although lists the doctrine of separation of powers in its provisions, does not adhere to it in a stringent manner, unlike India, and has instead chosen to dilute powers, like India.
The Legislative:
Article 1 of the Constitution of The United States discusses the legislative provisions. It establishes legislative authorities and outlines their authority, responsibilities, and even the procedure. Congress is the only entity with the authority to exercise all legislative powers in the United States of America. It is also completely responsible for all legislative actions. All the powers herein provided shall be vested in a congress of the United States, consisting of a Senate and House of Representatives, according to Section 1 of Article 1 of the Constitution of the United States of America. Therefore, the congress has complete authority over all legislative matters. The requirements to become a member of the House of Representatives are outlined in Sections 2 and 3.[13]
The Executive:
The provisions in Article 2 of the Constitution relate to the state's executive branch. It states that the President has full executive authority, including all duties, positions, and obligations, as well as the duration of his or her term in office as laid down in the procedures outlined in the Constitution's provisions. The executive powers shall be vested in a President of the United States of America, according to Section 1 of this Article. He will serve a four-year term in office and, along with the Vice-President and both will be chosen through separate electoral processes.
The Judiciary:
The laws concerning the judiciary are included in Article 3 of the American Constitution. It assumes that the Supreme Court will hold full judicial authority. Numerous sections of Article 3 address the authority, responsibilities, tenure, and dismissal of judges as well as all other judicial duties and responsibilities. The Supreme Court of the United States of America and any other courts that Congress may designate are granted significant judicial authority.[14]
LIMITATIONS TO SEPARATION OF POWER IN USA:
The United States of America adopted and upholds the separation of powers principle due to its Constitution however, its Constitution makes no reference to the same in any place. Limitations, constraints, enforced boundaries, and a system of accountability among various government organs are necessary for the actual, exact, and precise application of the separation of powers. Thus, in the separation of powers is only partially implemented and a contemporary form of governance is leading to the introduction of the checks and balances system.
It might be argued that the division of powers is not adhered to absolutely and intervention by one organ of government into another is seen if we try a practical approach and carefully evaluate the functioning of the system. Additionally, many organs must participate in maintaining effective control and coordination within the nation so that there can never be any kind of power abuse or arbitrary behaviour.
a) The President may use his legislative authority to veto a measure that has been enacted by Congress.
b) The President has the authority to make treaties, but they cannot be implemented without Senate approval.
c) The Supreme Court has the authority to deem Congress' laws unconstitutional. With checks and balances, there is encroachment of one government organ into another, yet there are court decisions that fundamentally and unmistakably demonstrate that there is absolute separation of powers.
Principle of Checks And Balances
However, the U.S. Constitution includes a few exceptions to the separation of powers idea to establish a system of checks and balances. For instance, the President may veto a measure enacted by Congress, in which case the President is deemed to be acting in a legislative capacity. Again, the Senate must approve the appointment of some high officials. Additionally, the Senate might be seen as performing executive powers to the extent that the President's treaties must first be authorised by it before they take effect. Through its numerous committees, Congress regularly examines how the executive branch is operating. It also has the authority to levy taxes and impose financial penalties for governmental spending. Acts passed by Congress may be declared unconstitutional by the Supreme Court. However, the President appoints the Supreme Court's judges with the Senate's approval. The theory of checks and balances serves as the foundation for this exercise of a portion of the function of one type by an organ of the other type. It indicates that one organ's operation is somewhat regulated by another organ so that no one organ can abuse its authority.[15]
COMPARISON BETWEEN USA AND INDIA:
The doctrine of separation of powers has been incorporated into the constitutions of both India and the United States of America. The United States Constitution adopted this doctrine in its entirety, which means that the three branches of government—executive, legislative, and judicial—all operate effectively within their respective spheres of influence and without interfering with or encroaching upon the duties of the other branches.
In contrast, according to Indian law, although the powers are divided, they are not completely or uniformly so. If ever a situation of abuse of power by any state organ emerges, or if one organ doesn't operate effectively or within its purview, then the other organs would be fully within their rights.
Broad differences prevail over functioning and procedures of both India and USA:
- In the United States, courts have been granted judicial authority, and only courts may work on such cases. However, in India, judicial authority is divided among the legislature, the executive (the President and the governor have the power to pardon), the courts and tribunals (which are essentially quasi-judicial bodies), and in some cases, the executive (the courts and tribunals).
- In the United States, the Senate and the House of Representatives are the only bodies with legislative authority. In India, however, the Parliament and state legislatures have such authority and executive (ordinance making power of President and Governor) and even in some cases judiciary through special inherent powers under Artcile 143 of the Constitution, and through the law of precedents.[16]
CONCLUSION
The contemporary understanding of the doctrine of separation of powers is not merely a philosophical theory. It is a useful working principle. The three branches of government are not three watertight chambers, as its detractors would have us believe. The separation of powers doctrine is adopted although not with the same strictness that philosophers like Montesquieu have discussed and thoroughly outlined in their theories. In today's age, this concept has a much more practical interpretation and approach. The power structure is also less rigid than previously suggested. Instead of implementing the doctrine strictly in terms of the functioning machinery and procedures of the government, it is claimed that the doctrine should be understood to include a system of checks and balances between the three different government departments, rejecting the concentration of governmental authority in each of the three departments. It can be claimed that the Indian Constitution partially adopts the doctrine of separation of powers because it permits all three branches of government—the Executive, the Legislative, and the Judicial—to act independently of one another. Both the administration and the court employ checks and balances in order to prevent the arbitrary use or abuse of authority. These three categories of knowledge are interconnected and complementary in India.
In the United States of America, it is clear that this doctrine has been fully adopted, and the three branches of government have total power separation. However, there is also a system of checks and balances in place to ensure that no power abuse occurs. Therefore, the checks and balances system conveys the idea that, despite the USA's perfect separation of powers, one organ may intrude onto the operations of another in order to prevent any kind of arbitrary behaviour or abuse of authority. Both countries place a high priority on defence and foreign policy, but India seems to have more external influence than the United States.
Therefore, it is acceptable to say that many nations, including India, have not fully embraced and incorporated the theory of separation of powers. By comparing the Indian Constitution to that of the United States of India, we can sum up with certainty that while both nations have a division of authority in carrying out their political operations, practically, this doctrine has not been strictly applied. The three organs of the state have the authority to trespass upon or interfere with the operation of the other organ in situations where there has been any abuse of power or when the state deems it necessary.
REFERENCES
[1] Part V of the Constitution of India.
[2] Power of High Courts to issue certain writs
[3] Power of superintendence over all courts by the High Court.
[4] Remedies for enforcement of rights conferred in Part III
[5] Special leave to appeal by the Supreme Court
[6] Article 13- Laws inconsistent with or in derogation of the fundamental rights
[7] 1967 AIR 1643
[8] AIR 1975 SC 2299
[9] AIR 1955 SC 549
[12]“ Library of Congress”, WILLIAM JACKSONhttps://www.loc.gov/collections/century-of-lawmaking/articles-and-essays/century-presentations/constitution/?loclr=bloglaw
[13] “ Library of Congress”, WILLIAM JACKSONhttps://www.loc.gov/collections/century-of-lawmaking/articles-and-essays/century-presentations/constitution/?loclr=bloglaw
[14] “ Library of Congress”, WILLIAM JACKSON https://www.loc.gov/collections/century-of-lawmaking/articles-and-essays/century-presentations/constitution/?loclr=bloglaw
[15] Upadhaya J.J.R, “Administrative Law”, Central Law Agency, Allahabad, 2006, p 32, 33.
The author affirms that this article is an entirely original work, never before submitted for publication at any journal, blog, or other publication avenue. Any unintentional resemblance to previously published material is purely coincidental. This article is intended solely for academic and scholarly discussion. The author takes personal responsibility for any potential infringement of intellectual property rights belonging to any individuals, organizations, governments, or institutions.