Re-Imagining Traditional Paradigms in Separation of Powers: A Comparative Constitutional Study of the UK and India

Separation of powers, as an ideal, is regarded as a concept which underpins both the constitutional arrangements of India and the United Kingdom. Whilst the doctrine is of classical antiquity, its traditional conception can be found within the writings of Montesquieu and other philosophers. However, within both jurisdictions, there are differing academic and judicial opinions as to the extent to which the doctrine exerts a normative influence on both constitutions. This article explores the theoretical and practical significance of the doctrine in modern day constitutional law. In a recent contribution by Masterman and Wheatle it was argued that separation of powers manifests itself in judicial discourse through variants that are hierarchical, weakly normative, strongly normative and constitutionally fundamental. This article rejects this imprecise stance, and instead suggests the reasons for these variants are primarily the absence of a clear statutory definition of separation of powers. If the legislature was to take such measures, a clear benchmark could be established in both jurisdictions so as to outline what the doctrine necessitates, as well as provide a defined remit of where the limits for each of the three arms of State sits. This paper also adopts the line of thought that by comparatively considering how features of separation of powers manifest themselves in India and the UK, both jurisdictions can learn from each other’s approach in order to better achieve the doctrine’s historical and philosophical objectives. In making such comparisons, this research proposes three informed measures for new law reform: (1) the need to redefine the role and powers of party Whips in both jurisdictions; (2) the need to reconsider how the UK could learn from India’s approach to limiting the number of ministers within the legislature; and (3) India could benefit from introducing an independent body to oversee judicial appointments, so as to more clearly delineate the independence of the judiciary; in a similar fashion to that which the UK did with the Judicial Appointments Commission following the Constitutional Reform Act 2005. It is argued that implementing reforms in these areas will allow separation of powers to more readily achieve its intended historical and philosophical objectives, as well as definitively reaffirm the importance of the doctrine in both jurisdictions, so as to settle prolonged academic and judicial disagreement as to the doctrines relevance today.