Constitutionalism vis-à-vis Separation of Power
Divyansh Dubey, Nyayshastram.
There is one accentuates legal proverb which says “Power corrupts; Absolute power corrupts absolutely”. This is a 19th-century proverb popular among the legal professionals and politicians. It is a much relevant thought when one is studying about the administration and the governance of a state. The proverb talks about despotism of power and depicts the absoluteness of power in the negative sense, which is pretty much relevant because when the person has the absolute authority, his moral sense diminishes. For example, during the reign of the Mughal Empire, one of the prominent ruler Shah Jahan ordered to slaughter the hands of architectures after they were done with the construction of Taj Mahal. This was done to prevent them from constructing a replica of Taj Mahal anywhere else. The act of the Mughal emperor can in no way be regarded as a moral act, and the proverb as mentioned earlier sounds logical when it is applied in this aspect of power.
In furtherance to prevent the absoluteness of power, several states adopted Constitutionalism and separation of power. As per Section 16 of French Declaration of Rights of Man- “any society where there is no custodian of rights and nor has any separation of power has no Constitution ”. Thereby, the doctrine of separation of power is one of the pre-requisites for Constitutionalism which suggests that the power and the functions of governance shall be strictly separated among the three organs that is Executive, Legislative and Judiciary. This doctrine is also known to be the system of checks and balances because it allows one organ to keep a check over the functioning of the other organ of the government.
The separation of power as the concept was propounded in the 18th century by a philosopher named Montesquieu, but its history and the etymological roots can be traced ages back that is in the era of Aristotle. During ancient ages, the concept of balanced government and the mixed government was developing in Greece, wherein Aristotle divided the political science into two subheads viz. Legislative science which was mainly concerned with law-making; and Juridical science which was primarily concerned with judicial functions but, there was nothing like executives in his theory. Further, by the middle ages, the introduction of Magna Carta in England came with the new reforms regarding limiting the absolute power of the king and distributing his power. These developments also led to the emergence of Constitutional spirit or the Constitutionalism in the European continent and further emerged as the transcontinental idea as the different American and Asian countries, including India adopted these doctrines.
The article will further discuss the evolution of separation of power in the Indian aspect, how Indian separation of power is different from American separation of power?
Separation of Power: Indian Perspective
Till independence, India remained in absolute monarchy and tyranny. There used to be the sole ruler of the country who used to hold absolute power in his hand, and no one could challenge his supremacy. As soon as India gained independence, the country gained freedom from the totalitarian system of governance that was being enforced in the country since her origin. After independence, India got dominion status and got her own Constitution which was like a sin for the people of India because from then the people were in democracy, they had fundamental rights, the rule of law emerged and most accentually the introduction of separation of power which is the subject matter of this article.
In Indian Constitution, there is series of provisions under part 5 and 6 which depict the separation of power likewise, Article 52-78 deals with the functions and the powers of Union Executives, Article 79-123 deals with the affairs and functions of Union Legislature and Article 124-146 deals with the establishment and judicial functions of Supreme Court. Similarly, there is a series of provisions in part 6 which project the separation of power within the province level. Although the Constitution constitutes the principles of separation of power, still it is interesting to note that it does not support the rigid and the strict separation of power.
There are provisions in the Constitution that allow the overlapping and intervention of functions and powers of the one organ over the other. For example, Article 53 states that all the executive powers are vested with the President, and similarly, Article 126 empowers the President to appoint the acting Chief justice of the Supreme Court. This shows that the President, who is the part of the executive, has overlapping power with the judiciary. The President of India also has the ordinance making power under Article 123, which allows the President to make laws if in case, the parliament is not in session. Thus, the powers of the President may even overlap with the power of parliament in needful situations.
The functional overlapping of one organ over the other is against the Montesquieu principles which suggest that “there shall be a strict separation of functions and powers of the organs”. The major issue arising here is that, why the separation of power hasn’t been enforced in its strict sense and why there is functional overlapping in India? Shri K. Hanumanthaiya, the member of the constituent assembly, provides the rationale and the main intention of constituent assembly behind keeping the dynamic and flexible separation of power rather than the rigid one. He says the house has built up a consensus of accepting the parliamentary form of government over the presidential form. Thereon, harmony among the three organs of governance is a pre-requisite of keeping the parliamentary form. He further argues, that if the strict separation of power is enforced that may result in a conflict between the three organs which may hinder the progress of the nation as the whole and disrupt the peace. Therefore, in the country, it is mandatory to keep harmony among the three organs.
Later on, in a landmark Supreme Court case, In Re: Delhi Laws act, 1951 came. It was 7-judges case just after the introduction of Constitution of India and first of its kind in which the Indian separation of power was in question, wherein Justice Kania, the first Chief Justice of India justified keeping the overlapping power in the separation of power. He held that though the Constitution has elaborated the separation of power still, the spirit of the doctrine is missing. Each organ is interconnected with one another because there shall be a system of checks and balances in the functioning of the organs. Thus, the separation of power can’t be regarded as part of the Constitution because it hasn’t been enforced in a strict sense. The majority of 5:2 judges appreciated the same rationale.
Further, in the case of Ram Jawaya Kapur v. State of Punjab, the judgment of In Re Delhi Laws Act was appreciated and Supreme Court held that there is not only functional overlapping but, also the personal overlapping as well. The Constitution was framed in such a way that the one organ can keep the check-in the functioning of the other and ensure check and balance.
And finally, in the landmark case of Keshavananda Bharati v. State of Kerala, the doctrine of separation of power was held to be the part of the basic structure. This was done to prevent one organ from creating hegemony over the other organs. Thus, any amendment which transfers the control of one organ over another would amount to unconstitutional and annul under the light of the Constitution.
The Separation of Power in the United States
The doctrine of separation of power forms the basic foundation for the Constitution of America. Article 1, Section 1 of the Constitution vests all the legislative power in the congress, Article 2, Section 1 vests all the executive power over the President and Article 3, Section 1 vests all the judicial powers and functions over the Supreme Court of United States but, the court didn’t have the power to decide the political matters. Unlike India, the US Constitution does not provide the powers of judicial review to the Supreme Court.
The Constitution of US demarcated the strict separation of the functions of all the three organs that is why the US system of separation of power is regarded as the closest to Montesquieu idea but, still, the state of US found the need of check and balance, thereon the American Constitution went through a long development and as a result projected the complex structure of government, wherein the strict structural classification isn’t possible.
Now on, there are some functional overlapping and intervention of one organ over the other, even in the United States. Some facts are evident in the overlapping of power in the US. fFr example; President has the veto power, using which the President may intervene in the authority of congress. Similarly, after the landmark case of Marbury v. Madison, the court constructed the doctrine of Judicial review and struck down an act passed by the congress by using that power. Thereby, the courts also get the authority to intervene into the law-making power of President and congress by using its power of judicial review.
The idea of separation of power by Montesquieu was a revolutionary in the field of administrative laws. The idea decentralized the power and separated the functions of organs of governance in a stricter sense. The separation of power is also one of the basic tenets of liberal democracy and Constitutionalism but, as it is a saying that everything in this world has some limitations and hence, this concept is no exception. The only issue with the Montesquieu theory was its inability to apply in the modern world. Due to this issue, the idea went through some changes with time.
In the modern world, the strictness of the concept was diluted to some extent to prevent the conflict among the three organs. Eventually, the separation of power was not only limited to the three organs that are the legislature, executive and judiciary but also included press as its fourth organ. Thereon, enforcing the whole idea of Montesquieu is almost impossible in such a liberal system of administration.
In India, the diligence of the framers of the Constitution shall be appreciated because, they augustly drew a lot of principles from the idea but, didn’t accept it in its entirety and came with the best suited administrative framework for the nation which is indeed dynamic and efficient for the people who were under the British rule for 200 years.
 The meaning and origin of the expression: Power corrupts; absolute power corrupts absolutely, the phrase Finder, available at https://www.phrases.org.uk/meanings/absolute-power-corrupts-absolutely.html,.  S. 16, The French Declarations of Rights of man 1789, (France).  M.J.C Vile, Constitutionalism and the separation of Power, 24 (2nd ed., 1998).
 Part 5, the Constitution of India.
 Part 6, the Constitution of India.
 Article 53, the Constitution of India.  Article126, the Constitution of India.  Article 123, the Constitution of India.  Constituent Assembly Debate, Statement by Shri K. Hanumanthaiya, Statement regarding Separation of power, Constituent Assembly (10/12/1948)  In re Delhi laws act, 1951 AIR 332.  Rai Sahib Ram Jawaya Kapur v. the State Of Punjab, AIR 1955 SC 549.  Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461, 1480.  U.S. Constitution, Article I, S. 1.  U.S. Constitution, Article II, S. 2.  U.S. Constitution, Article III, S. 3.  Marbury v. Madison, 5 U.S. 137 (1803, Supreme Court of United States).  Indian Constitution and Separation of power, Law Teachers, available at https://www.lawteacher.net/free-law-essays/constitutional-law/indian-constitution-and-separation-of-powers-constitutional-law-essay.php, 16/08/2019.