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2023 | OriginalPaper | Chapter

Separation of Power and Judicial Independence in the Context of the United States and the Indian Constitution: A Cratologial Critique

Author : Irfan Rasool Najar

Published in: Comparative Approaches in Law and Policy

Publisher: Springer Nature Singapore

Abstract

Separation of power and judicial independence is invoked as an ideal to which the legal and constitutional arrangements of a modern state conform, if at all they confirm, and it occupies a position of deep ambivalence, the least that can be said. The relationship between power holders and power addresses is to be based on a purpose-driven arrangement of power. Power, being the ability to affect another by its exercise, needs to be structured and directed if the law is to serve as an instrument of social transformation. Political power, the ability to take decisions on behalf of other people is a primary power which is basically raw and unstructured and governed by fact, where its ability to affect another by its exercise will alone matter. On the other hand, Constitutions indicates the legally permitted matrix of power and to ensure that the set limits of power are respected by power-holders, it is distributed and channelized among different organs of the State. Also the creation of the culture of judicial independence has been a combined process of theory separation of power, and the ability of the judges to declare authoritatively what the law is. It may be noted that the duty in terms of cratology is to contain an unequal flow of power and within which it would be mandatory for the courts to eschew the model of leviathan in the study of power. Against this background, this article is an attempt to comparatively analyze the power mapping in the US and the Indian Constitution and to argue that a different power spectrum mapping is required to contain the unequal flow of.

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Footnotes
1
According to Aileen, it is a legal and constitutional arrangement to which modern states confirm to. See Kavanagh [1].
 
2
According to Gwyn, the concept of separated powers as a political doctrine has, of course, existed at least since the middle of the seventeenth century. Of the various theorists who wrote of the need to divide governmental powers among different institutions, Montesquieu most influenced the Framers.” See Gwyn [2]. See also THE FEDERALIST No. 78, 523 (J. Cooke ed. 1961) (recognizing the celebrated status of Montesquieu on the issue of separation of powers). For further details refer to Burns and Markman [3].
 
3
Aileen Kavanagh expounds what he calls ‘the pure view’ of the separation of powers comprising of a separation of institutions, a separation of functions, and a separation of personnel. See supra note 1, at 225.
 
4
See for details Robinson [4].
 
5
With the birth of Parliament, the theory of three branches of government reappeared, this time embodied in John Locke’s Two Treatises of Government (1689), where these three powers were defined as “legislative,” “executive,” and “federative.” Locke, however, did not consider the three branches to be co-equal, nor were they designed to operate independently. Locke considered the legislative branch to be supreme, while the executive and federative functions-internal and external affairs, respectively-were left within the control of the monarch, a scheme which obviously corresponded with the dual form of government prevailing in England at the time, the Parliament and the King. See for example See Gwyn [2]; see also Shestack [5]. It is stated by Jerome that “the theory of three branches of government was embodied in John Locke’s Two Treaties of Government which was refined and expanded by Baron de Montesquieu, whose Spirit of the Laws and made a clear delineations among the three branches.”
It may be noted that John Locke did not treat judging as a separate power in the Two Treatises of Government.
 
6
The doctrine was refined and expanded by Baron de Montesquieu, whose Spirit of the Laws appeared in 1748 and was well known to many members of the Constitutional Convention. Montesquieu wrote:
When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehension might arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separate from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or the people, to exercise those three powers, that of enacting the laws, that of executing the public resolutions, and of trying the cases of individuals.
See generally THE SPIRIT OF LAW: CHARLES DE SECONDAT BARON DE MONTESQUIEU 173 (Tr., Thomas Nugent, 1752) (available at: https://​socialsciences.​mcmaster.​ca/​econ/​ugcm/​3ll3/​montesquieu/​spiritoflaws.​pdf) (Last visited 10 Dec. 2021).
 
7
Vile [6].
 
8
See Arnold supra note at 575.
 
9
Separation of power does not operate alone, as identified by Jeremy Waldron, as a canonical principle of constitutionalism but work both separately and together, which include ‘checks and balances principle’, as one among the other four, as touchstone of institutional legitimacy. See Waldron [7].
 
10
According to M P Singh, “the independence of the judiciary is not a new concept but its meaning is still imprecise. The starting and the central point of the concept is apparently the doctrine of the separation of powers. Therefore, primarily it means the independence of the judiciary from the executive and the legislature… The independence of the judiciary does not mean just the creation of an autonomous institution free from the control and influence of the executive and the legislature. The underlying purpose of the independence of the judiciary is that judges must be able to decide a dispute before them according to law, uninfluenced by any other factor.” See Singh [8]. See also Shetreet who has argued that judiciary is “the organ of government not forming part of the executive or the legislative, which is not subject to personal, substantive and collective controls, and which performs the primary function of adjudication.” He has further argued that by judicial independence, it connotes both the “judge’s substantive”, meaning subjection to no power other than the law and “personal independence”, meaning securing terms of tenure and office. See for details Shetreet [9]. See also Shetreet [10]. Shetreet argues that the “principles of independence in the judiciary are essential for ensuring the rule of law, protecting human rights, and securing the continued preservation and development of democratic societies.”
 
11
For a details classification of constitutions based on the power and control of power, refer to LOEWENSTEIN [11]. See also Jenkins [12] (describing constitutions either to be paradigmatic, operating primarily upon the underlying normativity or definitive, operating on the basis of institutional structures and procedures, circumscribe the limits of government actions beyond where they cannot stray, as opposed to where they should not stray.)
 
12
The principle of separation of powers may be said to “define the very character of the American political system,” WOOD [13].
See for example observation of the Supreme Court in the case of Nixon v. Administrator of Gen. Servs. (1977) that “Indeed, the principle of separation of powers was “the characteristic that distinguished our system from all others conceived up to the time of our Constitution.”
See also Cooper [14]. Cooper has stated that “the doctrine of separation of powers continues to shape American constitutional structure.”
 
13
For contra see Manning [15]. Manning make a proposition that separation of power was not a principle of the US Constitution and it unmistakably lies behind the Constitution, but it was not adopted as a wholesale. See also Burns and Markman [3]. Arnold and Stephen has argued that “it would be a mistake to assume that Montesquieu’s view of separation of powers - or any other particular view, for that matter - was specifically incorporated into the Constitution or intended to dictate our understanding of the constitutional structure of our government.”
 
14
Ervin [16].
 
15
In Buckley v. Valeo, 424 U.S. 1, 124 (1976), it was observed the court that “the principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787.” Also in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) Frankfurter, J., in a concurring opinion held that “to be sure, the content of the three authorities of government is not to be derived from an abstract analysis …. The Constitution is a framework for government.”
 
16
See supra note 14.
 
17
Fellman [17].
 
18
See for example Entin, who argued that though “the term “separation of powers” appears nowhere in the Constitution. Nevertheless, the division of federal authority among three distinct but interdependent branches is one of the defining features of the American governmental system.” See Entin [18].
 
19
For details see Fairlie [19]; see also Ervin [20].
 
20
It may be noted that at many occasions the United States Supreme Court held that powers assigned to each organ are to be performed alone by vestees only. See for example the decision of the Supreme Court in the case of Field v Clark (1892) in which the court ruled in accordance with Locke’s principle and states that “Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” See also in the case of J W Hampton & Co v United States in which the court ruled that “the rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the State executive, the Governor, the executive power, and the Courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President.”
 
21
See for example as observed by Bakshi that “there is no express declaration of the doctrine of separation of powers in the Indian Constitution.” See Bakshi [21].
 
22
It has been laid down by the Supreme Court in the case of Ram Jawaya Kapoor v State of Punjab that:
Indian constitution has not indeed recognized 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 be very well said that our constitution does not contemplate assumption by one organ or part of the state of the functions that essentially belong to another.
Also in the case of Sub-Committee on Judicial Accountability v. Union of India & Ors, Justice B.C. Ray opined that:
Although the powers of State have been distributed by the Constitution amongst the three limbs, that is the Legislature, the Executive and the Judiciary, the doctrine of Separation of Powers has not been strictly adhered to and there is some overlapping of powers in the gray areas...that rigid Separation of Powers as under the American Constitution or under the Australian Constitution does not apply to our country and many powers which are strictly judicial have been excluded from the purview of the courts under our Constitution.
The same view has been taken by Y V Chandrachud J., in the case of A. K. Roy v. Union of India that:
There is no place in our Constitution for the doctrine of the political question, since that doctrine is based on, and is a consequence of, a rigid separation of powers in the U.S Constitution and our Constitution is not based on a rigid separation of powers.
 
23
In Keshvananada case, the Supreme Court has however held that without detailing, that the separation of powers is basic structure of the Constitution. In Indira Gandhi v. Raj Narian where one of the grounds for the challenge was separation of powers, among others. The court in this case noted that there is a broad separation of powers in India, as opposed to the strict separation of powers as recognized in America.
 
24
See for example the observation of Chandrachud J., in the case of Indira Nehru Gandhi v. Raj Narain that “political usefulness of the doctrine of separation of powers is now widely recognized…”
 
26
For a general discussion, see A. STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE (2000). Also see Kelsen [22].
 
27
In conceptualizing the Austrian Constitutional Court Hans Kelsen followed in the footsteps of Georg Jellinek. Back in 1885 Jellinek had demanded a Constitutional Court for Austria. In his view such a court was sorely needed, given the existence of numerous cases of parliamentary injustice. See for further details Ehs [23].
 
28
It is defined by Alec Stone Sweet as ‘a constitutionally established, independent organ of the state whose central purpose is to defend the normative superiority of constitutional law within the juridical order’. See Stone [24].
 
29
Kelsen always used the design of constitutional courts in Austria as a prime example to justify the Pure Theory of Law against the allegation of being too abstract.…. The practical reason for introducing the term “constitutional court” for the first time in a constitution has been to defend the constitution itself against unconstitutional acts. See for details Tetzlaff [25].
 
30
Article 141 of the Constitution reads as:
The law declared by the Supreme Court shall be binding on all courts within the territory of India.
 
31
In this context, it is pertinent to note that Article 247 of the Indian Constitution empowers the Parliament to establish additional courts for the better administration of justice. Also Article 32(3) empowers the Parliament to confer on any other court the power to exercise all or any powers of the Supreme Court. However even in this situation only the Supreme Court will have the power to declare the law by virtue of Article 141 of the Constitution.
 
32
For detailed discussion on the concept of independence of the judiciary. Refer to Salzberger [26].
 
33
See for example the dissenting opinion of Justice Brandeis in the case of Myers v United States (1926) where he used the concept as an essential safeguard against tyranny:
The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.
 
34
See Shetreet [27].
 
35
As Harold J. Laski has observed “Judicial independence is the first requisite of judicial purity; it is the primary consideration to be satisfied in the making of selective criteria. Laski [28].
 
36
Initially established under the Judiciary Act of 1789, the Federal Supreme Court of United States is the highest court in the federal structure and has historically been regarded as one of the most powerful and influential judicial institutions of the world.
 
37
See Miller [29].
 
38
Tushnet [30].
 
39
Austin [31].
 
40
In respect of judges of the Supreme Court of India, Article 124(2) provides:
Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the chief Justice, the Chief Justice of India shall always be consulted.
 
41
In respect of judges of the High Courts, Article 217(1) provides:
Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.
 
42
In this case the above stated appointment was challenged and the Hon’ble Supreme Court gave verdict in favour of upper hand in appointment given to the executive. The court stated that the constitution has provisions regarding ‘consultation’ with the CJI and judges of the SC and the HC and it does not imply ‘concurrence’ with the recommendation of the CJI. Hence, the executive continued to have final say in the appointment procedure.
 
43
This is the landmark judgment of the Apex Court that gave birth to the system for appointment of judges of the Supreme Court and the High Court, called the Collegium System.’ A nine judge Constitution bench over-ruled the verdict of SP Gupta case and brought the system of Collegium in place, whereby the CJI along with two senior most judges of the court was give power to recommend the names for the appointment. According to the Supreme Court, this recommendation was to be given effect by the executive. However, the executive was authorized to question the recommendation once and thereafter if the same decision is reached by the collegium again, that was supposed to be declared final. The court stated that, “The role of CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. The word ‘Consultation’ should be understood as ‘concurrence.’
 
44
The decision of the constitution bench in the Second Judges Case was upheld by the Supreme Court. The court however increased the number of judges to be consulted by the CJI to four from existing two. The CJI was required to consult each and every one of the four judges and the same could be sent to the executive, only if passed unanimously. Hence, this collegium system is still in practice.
 
45
Articles 124A, 124B and 124C were inserted in the Constitution, through the Constitution (Ninety-Ninth Amendment) Act, 2014.
 
46
The challenge was on the ground that by virtue of the said amendment and the said Act, the basic structure of the Constitution of India has been altered and therefore, they should be set aside. However, the Union government defended the introduction of the new law saying that the two-decade-old collegium system where judges appointed judges was not free from defects and demanded a re-look at the 1993 and 1998 judgments in the Second and Third Judges’ Cases. The Bench, by a majority of 4:1, rejected the NJAC Act and the Constitutional Amendment as “unconstitutional and void.” And the Supreme Court rejected the government’s demand to take a re-look at the Second and Third Judges’ Cases, which ushered in the Collegium system. The Court held that the Collegium system, as it existed before the NJAC, would again become “operative.” And the Court also rejected the plea of the Central Government that the petitions challenging the NJAC Act be referred to a larger bench.
 
47
Islami [32].
 
Literature
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4.
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Metadata
Title
Separation of Power and Judicial Independence in the Context of the United States and the Indian Constitution: A Cratologial Critique
Author
Irfan Rasool Najar
Copyright Year
2023
Publisher
Springer Nature Singapore
DOI
https://doi.org/10.1007/978-981-99-4460-6_4