SEPARATION OF POWERS

Separation of Powers to Avoid Abuse of Power

Separation of Powers to Avoid Abuse of Power

A strict Separation of Powers would lead to a constitutional deadlock. Nevertheless, there must be sufficient Separation of Powers to avoid abuse of power. It is a great privilege for me to deliver the Third Nani A. Palkhivala Memorial Lecture before this distinguished audience. I am grateful to Mr. Malegam, one of the most thoughtful and dedicated persons that I know, for giving me this opportunity.

On this occasion, with your permission, I would like to eschew the professional temptation to give a discourse on the state of India's economy or its economic future! Instead, I propose to briefly share some thoughts with you on a larger political and constitutional issue which figured prominently in the public debate in Mr. Palkhivala's time, namely, that of the “Separation of Powers” between legislature and the judiciary in our country. The issue has once again been debated recently and has attracted the attention of some of the leading legal luminaries and political leaders. It was also the principal item on the agenda of the Emergent Conference of Presiding Officers of Legislative Bodies in March 2005.

I should clarify that, unlike several others who have recently commented upon this subject, my views are largely that of a citizen-observer who has no particular professional background in law or in electoral politics. I am sure you will agree that constitutional issues on the functioning of our democracy are far too important to be left to be determined by legal and academic experts, or for that matter, by the institutions involved. As citizens, we have an equal, if not greater, stake in the outcome of the recent debate on separation of powers among the vital organs of our State.

As is well-known, the debate about the doctrine of separation of powers, and exactly what it involves, is as old as the Constitution itself. It was extensively debated in the Constituent Assembly. It also figured in various judgments handed down by the Supreme Court after the Constitution was adopted. Although the controversy on defining the precise boundaries of powers of different institutions has recurred from time to time, there is nonetheless a broad agreement among all concerned on some fundamental points.

Thus, the doctrine of “separation of powers” is acknowledged as an integral part of the basic features of our Constitution. It is also commonly agreed that all the three organs of the State, i.e., the Legislature, the Judiciary, and the Executive are bound by and subject to the provisions of the Constitution, which demarcates their respective powers, jurisdictions, responsibilities and relationship with one another. It is assumed that none of the organs of the State, including the judiciary, would exceed its powers as laid down in the Constitution. It is also expected that in the overall interest of the country, even though their jurisdictions are separated and demarcated, all the institutions would work in harmony and in tandem to maximise the public ...