Re-Imagining Separation of Powers

Separation of powers refers to the division and separation created between government institutions by an allocation of authority to each institution within their respective domains. The traditional understanding of Separation of powers originates from Montesquieu’s work Spirit of Laws (1748) where he developed a model advocating for distribution of powers by creating three branches of government: legislature, executive and judiciary. Each branch to carry out its own specified functions and activities and avoid any collusion or collision with each other. It also entails the separation of the power to appoint the heads/members of each branch as that itself is a ‘source’ of power. Montesquieu based his model on the Roman and British system of governments where state powers were not centralized or confined to a single monarch or position. The need for separation is many: it forms a system of checks and balances over the other branches of government; prevents the concentration of power in the hands of a single entity; retains political freedom, and establishes a functional division.

The said dissection of authority is not absolute, and it must contain checks and balances to curb the other branch from exceeding its competency. Provisions like judicial review, the promulgation of executive orders, bicameralism and veto powers could serve as instruments for the said purpose. This understanding of separation of powers enumerated by Montesquieu and other political scientists like Locke, Constant, Aristotle, forms the concept that could be considered the ‘old’ separation of powers. It focuses largely on the accumulation of powers among the different government branches and the exercise of the same. This ‘old’ model can be seen to be applied both in presidential and parliamentary forms of government, such as in India, United Kingdom, Australia, United States of America, etc.

American scholar Bruce Ackerman has brought in the concept of ‘new’ separation of powers in his work, ‘The New Separation of Powers’. Prof. Ackerman argues against exporting the American separation of powers system of an independently elected presidency to check and balance a popularly elected Congress but rather calls in favour of a “constrained parliamentarianism” model, in which a prime minister and his cabinet are authorized to remain in power as long as they can retain the support of a democratically elected chamber of deputies. Other independent institutions, including a constitutional court, take a checking function. The old and new separation of powers, although not fundamentally dissimilar, have their own distinctive features.

Constrained Parliamentarianism

‘Constrained parliamentarianism’ refers to a more developed form of parliamentarianism that aims to adhere to the separation of powers doctrine without losing the state\’s efficiency to perform its functions. Prof. Ackerman bases his new concept by critiquing the American presidential, and the British Westminster model of government. In the United States, the public chooses a candidate for the House of Representatives, the Presidency, and a Senator for a period of two, four and six years respectively. Therefore, Americans elect not a government, but particular candidates for office and if their choices happen to confer control of all three political institutions on the same party, it can only be assured of keeping that control for two years as the other party may gain control of the House, the Senate, or both, in the next election. These constitutional arrangements are disadvantageous to governance and could lead to legislative deadlock when voters’ choices do not create a unified government. Presidential systems, in Latin America, have often succumbed to autocracy due to such features.

The British Parliamentary system has a five-year term where the prime minister enjoys power in confidence of the Cabinet, which usually consists of the same political party members. Therefore, it succumbs to the same fallacy as that of ‘cult’ of an individual. If the prime minister is not popular s/he may be replaced by a different individual, as it did with Margaret Thatcher.

Beyond the two systems of governance, Ackerman finds a third way, constrained parliamentarianism. The basic characteristics of this conceptualization are as follows: 

1. A written constitution creating governmental institutions that legislation cannot alter and judicial institutions (a constitutional court) responsible for enforcing it. It may include making judicial appointments, and how governmental controls over judicial tenure and jurisdiction are to be exercised.
2. Provisions for conducting Referenda for the exercise of important measures such as constitutional amendments and domestic policies affecting the general public.
3. Provision for the enjoyment of sovereign authority by states in a federal union in some respects can directly control the membership of an upper legislative house with significant ability to influence or even block legislation that a lower house representing the national population would prefer.
4. A formal executive head, a President or a Governor-General, holding limited powers but can act in emergency or national importance cases.
5. Bureaucracy as the fourth branch of the government.
6. Non-majoritarian institutions acting as watchdogs.
7. An international institution or body whose laws apply to the concerned country. For example, the European Union.

The most striking example of Ackerman’s constraint parliamentarianism is Australia’s governmental system: federal character, a written constitution, referendum and possibilities for “cohabitation”.

Differences between the ‘old’ and the ‘new’

• A pigeon eye look at both the concepts would give an understanding that while the old separation of powers is a broad concept aimed for general implementation across all systems of governance, the new separation of powers is a more detailed approach and is the next step to take after implementing the old system.
• The new concept moves beyond the traditional methods of constraining the organs\’ powers and speaks of alternative systems of limiting power that could be more effective. In constrained parliamentarianism, practices such as a national level referendum, representation of provincial governments, etc., could be made to use for more effective separation of powers.
• While the old system speaks of checks and balances by the three different branches, the new system suggests checks and balances by a watchdog fourth branch: bureaucracy and the identification of bureaucracy as separate from the government.
• It speaks of the important role of non-majoritarian professional institutions and professional judiciary in implementing the laws and the adherence to the principles of Separation of powers.
• The ‘new’ system recognizes that the source of authority flows from the general public and, therefore, attempts to create some form of space where the public can participate, or their validity could be retained. The old system focuses entirely on segregation of sovereign authority.

Indian Context

India adheres to the Westminster model of governance, much being an influence of the colonial past, in a quasi-federal setting. Here, a written Constitution enumerates three branches of the government and each is distinct from one another but having provisions of checks and balances in respect of each other’s competence. Features of both ‘old’ and the ‘new’ separation of powers can be found in the Indian context. A check on the legislature is performed by a strict and strong judicial review by the Indian High Courts and the Supreme Court. The independence of the judiciary from the executive is enshrined in the Constitution itself. While the Executive formally appoints the judges, the actual power of appointment rests largely with the judiciary, and the Law Ministry has little role to play in it, as opposed to the appointment of judges in UK or USA. To prevent the concentration of powers in the hands of the legislature, there are two houses of Parliament, where one house (Lok Sabha) has representatives directly elected by the public in a national election and second house (Rajya Sabha) consists of representatives of the states elected by indirect elections. A Bill, other than a money bill, mandatorily needs to be passed by both houses for becoming a legislation.

Elements of ‘new’ separation of powers in Indian governance could be identified as follows:

1. A written Constitution, perhaps the longest written Constitution in the world. It mentions all important matters such as the appointment of judges, election, the appointment of President, the council of ministers and functional division of the three branches of government and proceedings within the Parliament.
2. A second house representing the states possessing sovereign powers to block legislation or legislative outreach, or to introduce a legislation. The house runs indefinitely and one-third of its members retire every two years, as opposed to the Lok Sabha which has a fixed term and tenure.
3. The existence of institutional watchdogs such as Comptroller and Auditor General (CAG), Election Commission (ECI), Chief Vigilance Commission (CVC) and Chief Information Commission (CIC) performing checks over the governmental functions.
4. Indian President is the executive head of the State who works in aid and advice of the Council of Ministers. The president is only the nominal head and the real power resides in the hands of the council of ministers and the prime minister. In a situation such as state emergency, the President holds the power to impose the President’s rule and remote control the respective state for the time being.
5. An independent judiciary having firm judicial review provisions and powers to declare any legislation, order or activity unlawful if found in contravention of fundamental rights.

Adherence

Although both old and new separation of powers is evidenced in the Indian constitutional system, it is not enforced in a strict manner. Rather it is a functional separation of power, where each branch works both independently and inter-dependently. For example, a legislation cannot be law if the court declares it to be violating the fundamental rights enumerated in the Constitution of India. At the same time, judges’ appointment, salary and the court’s jurisdiction depend upon the executive and the legislature. And the executive can bring an ordinance or the legislature can bring in a legislation to overturn a court decision, as has happened several times since independence. Further, members of the institutions that perform checks on government like CAG, CVC, ECI, etc., are appointed by the Executive. Thus, this inter-dependency is a major area of conflict and could be seen as a weak implementation of the principle of separation of powers.

The Indian adoption of the Westminster model provides less separation of powers and more functional overlap among the three branches of the government. In her work, Justice Ruma Pal provides a comprehensive study of the coinciding boundaries of the legislature, executive, and judiciary. These include the Speaker’s powers to act as a tribunal, the executive’s dominance in the legislative process, delegated legislation by the executive, and courts’ act of laying new laws via orders and judgments.

Another area of mismatch is the limited powers granted to autonomous bodies and the Executive’s lawful interference in the same. Tenure and salary provisions are in the hands of the legislature, and appointments in the hands of Executive. For example, the Election Commission is dependent on the Executive for being provided with staff for the discharge of its duties. The CAG is only supposed to lay its annual report before the Parliament and it cannot initiate an inquiry or proceedings if discrepancies are found in the auditing. One big giveaway of judicial scrutiny is the Ninth Schedule to the Constitution of India which contains specific legislations that would be out of the purview of judicial review from the courts, thereby granting legislative immunity to the government. In her work, Justice Pal concludes that India has out-rightly rejected the traditional Montesquieu theory of an equal trinitarian separation of powers.

Observations on Indian adaptation: A Comparative Probe

Indian constitutional set up discards neither the new nor the old separation of powers but allows elements of both to coexist in a limited setting. Contrary to a presidential system of government in the USA where the elections are focused on an individual (i.e. the Presidential candidate), Indian elections are political party-based. The Constitution does not allow for an individual driven national election. Rather, there are representatives elected to the House of People and the party or the coalition of parties having a majority of the elected members decide on the prime minister\’s name. While Lok Sabha is usually dominated by the members belonging to the prime minister’s party, the Rajya Sabha consists of members of the ruling government in the states, in proportion to the number of seats a political party holds legislative assembly of that state. Coming to the states, they are usually governed by regional parties and not national parties (although the trend is now changing). This prohibits undemocratic accumulation and centralization of authority. However, the distinct tenure of both the Houses of Parliament in India can be compared to American and French systems where a similar practice is followed to ensure less accumulation of power and unnecessary insecurity of losing power. Indian system is somewhat better as it gives the majority party the freedom to rule for five years and adds a minor inconvenience of Rajya Sabha. Nevertheless, if the political party in power performs well in subsequent state government elections, they may gain the majority in Rajya Sabha and exercise ‘full’ governmental power. A perfect example would be the Bhartiya Janta Party (BJP) which presently holds the majority in Lok Sabha and Rajya Sabha in India.

The Constitution provides for an autonomous Election Commission (ECI) who is at par with the Supreme Court judge regarding tenure, salary and conditions of the service, and removal from office. ECI conducts various functions relating to elections and prescribes the amount to be spent by candidates during campaigning. However, there is little the Commission can do to check and prohibit the same. On similar lines, US’ Federal Election Commission, established post the infamous Watergate scam, is an independent institution to regulate campaign finance laws in the US but has a structure that virtually guarantees administrative failure as it contains people who it is supposed to regulate; members of Congress and the two major political parties. ECI, on the other hand, consists of senior members of the bureaucracy (civil services officers). While the ECI has been granted constitutional recognition, it’s incapability is similar to the FEC as both are dependent on the Executive majorly. The dependency of a watchdog institution should not be on the person it is supposed to be watching. A better understanding of separation of powers would recognize that institutions like FEC and ECI deserve special recognition as a distinct part of the system of checks and balances.

Both the UK and India have a nominal head (Crown and the President respectively) having practically only seal value and very few independent powers. The nominal head is often used as a tool for political propaganda. The head of the executive, therefore, requires a revisit as its existence is only to be supported by the council of ministers and hence performs no special distinct function.

Looking Beyond

While the ‘constrained parliamentarianism’ or the ‘new’ separation of powers calls for a larger role of bureaucracy and civil servants in the process of decentralization of authority and performing checks and balances on the incumbent government, it does not take into account that at the end of the day elections determine the outcome of the decision making of all the branches. The Executive is most powerful of all the departments and has an exclusive monopoly over several functional areas. The legislature (which is again dominated by the executive) and the executive determine the appointment, salary, tenure, and other branches\’ transfer. As long as this prevails, only minimal settings could be configured within the existing system. The ‘new’ separation of powers speaks of supplementing the ‘old’ system and adding more features to it, like a bureaucracy branch or the distributive justice branch. However, what is required is re-arrangement of the branches and the dilution of the Executive’s almost unlimited powers and lawful but unnecessary interference over other branches.

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