Day 6 – Q 5.How did the doctrine of separation of powers with particular reference to the legislature and the executive take place during the British period? Analyse.

5. How did the doctrine of separation of powers with particular reference to the legislature and the executive take place during the British period? Analyse. 

ब्रिटिश काल में विधायिका और कार्यपालिका के विशेष संदर्भ में शक्तियों को अलग करने का सिद्धांत कैसे आया? विश्लेषण करें।

Introduction:

Separation of power (SOP) is a principle of constitutionalism wherein the power is distributed to different branches of the government (Legislature, Executive, Judiciary) to ensure independent functioning of each organ. SOP between legislature and executive during the colonial period was weak due to the parliamentary form of government that prevailed and also as a means to safeguard colonial interest.

Body

Separation of power during the British period:

• The regulating act of 1773 became the basis for government functioning until 1853 under which 
  • The governor general acted as the supreme executive and along with his council acted as the legislative authority. At times, he also acted as judicial authority as well (Executive + Legislative).
  • Further, the company directors were required to submit all correspondence with respect to revenue and civil administration to British cabinet which acted as the final approval authority of the actions taken with veto power.
  • Furthermore, the supreme court in Bengal provided redressal against governor general actions. However, in practice it had debatable jurisdiction vis-a-vis council which affected SOP.
• A Board of control was established under Pitt’s India acting as the approval authority of executive (governor general) actions – a de-facto legislative authority.
• Under the charter act of 1833, the regulations made were to be laid before the British parliament which acted as the final legislative authority after the governor general council (Deliberative body).

Until 1853, there was no separation of power per-se between executive and legislature. Governor general council acted both as an executive and legislative body.

• 1853 Charter act established Imperial legislative council as a central legislative body with sex members. However, a law to be promulgated needed the assent of the governor-general (executive), and the governor general could veto any Bill of the legislative council.
• Under 1858 act, Viceroy and his council along with Secretary of state and his council acted as the executive authority. The council acted as legislative body with powers including discussion of laws, budget and so on but with limited powers.  
• The legislative power to hold the executive accountable evolved progressively in the subsequent council acts of 1861,1892 and so on.
• The 1919 act introduced Bicameral system with additional powers to central legislature. However, even after the enactment of 1935 act, the executive was largely not responsible to the legislature and held veto powers in legislation and financial fields.
• The supreme court of Calcutta was established under 1935 GOI act which acted as a federal court upholding doctrine of diffused powers.
• At the provincial level, SOP was absent until the 1919 act.
  • The 1919 GOI act established partial separation of powers with responsible government under dyarchy.
  • Under 1935 GOI act, Autonomous and responsible provincial government was established with defined powers of legislature and executive 
• At the district level, District magistrate was vested with all the powers including the judicial – without much separation of powers. District courts acted as appellate authority over DM’s decisions.
• Further, the ordinance power was given to Governor-general/Viceroy which diluted the separation of powers in practice. For instance, Viceroy issued series of ordinances like Defence of India ordinance, public safety ordinance etc., which were opposed by the Indian legislative council.

Conclusion

Thus, the doctrine of SOP remained as a means of occasional check and balance which could be over-ruled by the Governor/Viceroy. As Subhash Kashyap observes, The Indian legislative council remained a non-sovereign law-making body and was powerless before the executive. However, the doctrine evolved over time and culminated under 1935 GOI act which became the basis of Indian constitution which incorporated the doctrine of separation of powers.