Doctrine of Separation of Powers

    INTRODUCTION

    Doctrine of Separation of Powers has a premise behind it which is that when a single person or group has a large amount of power, they can become dangerous to citizens. The separation of Power is a method of removing the amount of power in any group’s hands, making it more difficult to abuse. It is generally accepted that there are three main categories of governmental functions:

    • the legislative,
    • the Executive, and
    • the Judicial.

    At the same time, there are three main organs of the Government in state i.e. legislature, executive and judiciary. According to the theory of separation of powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and exercised by separate organs of the Government.  Thus, the legislature cannot exercise executive or judicial power; the executive exercise legislative or judicial power of the Government. Accordingly, the legislature cannot exercise executive or judicial powers, the executive cannot exercise legislative or judicial powers, and the judiciary cannot exercise legislative or executive powers of the government.[1]

    The separation of powers is a model for the governance of a state. Under this model, a state’s government is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches.

    Separation of powers, therefore, refers to the division of responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent of separation of powers is to prevent the concentration of unchecked power by providing for “checks” and “balances” to avoid autocracy, over-reaching by one branch over another, and the attending efficiency of governing by one actor without need for negotiation and compromise with any other.

    The separation of powers model is often imprecisely and metonymically used interchangeably with the trias politica principle. While the trias politica is a common type of model, there are governments which utilize bipartite, rather than tripartite, systems as mentioned later in the article.

    The term “trias politica” or “separation of powers” was coined by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an 18th century French social and political philosopher. His publication, Spirit of the Laws, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United States. Under his model, the political authority of the state is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently.[2]

    Separation of Powers are also pillars of rule of law, where government by the law not based in single power Monarchy alone could bring tyranny, aristocracy alone could bring oligarchy, and Democracy could bring anarchy. Liberty exist not only from personal freedom and rights but with limitations in accordance to law so there would not be abuse of powers on other individual liberty as Lord Acton says power corrupts and absolute power corrupts absolutely.  A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits. This is the importance of check and balance.

    Aristotle

    The doctrine of separation of powers is of ancient origin. The history of the origin of the doctrine is traceable to Aristotle.[3] Aristotle first mentioned the idea of a “mixed government” or hybrid government in his work Politics where he drew upon many of the constitutional forms in the city-states of Ancient Greece. In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke respectively had expounded the doctrine of separation of powers. But it was Montesquieu who for the first time give it a systematic and scientific formulation in his book ‘Esprit des Lois’ (The Spirit of the laws) published in the year 1748.

    CHECKS AND BALANCES

    Further for using the theory of Separation of Powers, we need the adoption of another theory i.e. the theory of Checks and Balances. Under this theory each organ, along with its own power, enjoys some checking powers over the other two organs. In the process a system of checks and balances governs the inter-organ relations.

    The theory of Checks and Balances holds that no organ of power should be given unchecked power in its sphere. The power of one organ should be restrained and checked with the power of the other two organs. In this way a balance should be secured which should prevent any arbitrary use of power by any organ of the government.

    The legislative power should be in the hands of the legislature but the executive and judiciary should have some checking powers over it with a view to prevent any misuse or arbitrary use of legislative powers by the legislature. Likewise, the executive powers should be vested with the executive but legislature and judiciary should be given some checking powers over it.

    The same should be the case of the judiciary and its power should be in some respects checked by the legislature and executive. In other words, each organ should have some checking power over the other two organs and there should prevail, a balance among the three organs of government.

    In fact, the theories of Separation of Powers and Checks and Balances always go together.

    MONTESQUIEU’S THEORY

    MONTESQUIEU

    Montesquieu was one of the great political philosophers of the Enlightenment. Insatiably curious, he constructed a naturalistic account of the various forms of government, and of the causes that made them what they were and that advanced or constrained their development. He used this account to explain how governments might be preserved from corruption.

    He saw despotism, in particular, as a standing danger for any government not already despotic, and argued that it could best be prevented by a system in which different bodies exercised legislative, executive, and judicial power, and in which all those bodies were bound by the rule of law. This theory of the separation of powers had an enormous impact on liberal political theory, and on the framers of the constitution of the United States of America.[4]

    Baron de Montwsquieu

    The name most associated with the doctrine of the separation of powers is that of Charles Louis de Secondat, Baron Montesquieu. He did not invent the doctrine of the separation of powers but he contributed new ideas to the doctrine; he emphasized certain elements in it that had not previously received such attention, particularly in relation to the judiciary, and he accorded the doctrine a more important position than did most previous writers.

    The doctrine of the separation of powers is embedded in examination of cause and effect in the political system. It is no longer an isolated doctrine, taken up when political advantage makes it expedient, and put off when no longer needed; it is part of the relationships of a particular type of legal system; and furthermore, it is a necessary characteristic of that system which has political liberty as its direct aim. De l’Esprit des Loix was hailed as the first systematic treatise on politics since Aristotle.

    Esprit des Lois was published in 1748, and so became available at the beginning of a period of great change and development in Europe and America. Ideas which had blossomed in the English Civil War, but which had been premature and unrealistic in terms of the then existing society, could now find fertile ground in the British colonies of North America and in France.

    Esprit des lois (The Spirit of Laws)

    THEORY

    According to this theory, powers are of three kinds: Legislative, executive and judicial and that each of these powers should be vested in a separate and distinct organ, for if all this power, or any two of them, are united in the same organ or individual, there can be no liberty. If, for instance, legislative and executive powers unite there is apprehension that the organ concerned may enact tyrannical laws and execute them in a tyrannical manner. Again, there can be no liberty if the judicial power be not separated from the legislative and executive. Where it joined with the legislative, the life and liberty of the subject would be exposed to the arbitrary control, for the judge would then be the legislator. Where it joined with executive power, the judge might behave with violence and oppression.

    There would be end of everything if the same man or the same body were to exercise those three powers, that of enacting laws, that of executing the public resolutions and of trying the causes of individuals.

    In the British constitutional system, Montesquieu discerned a separation of powers among the monarch, Parliament, and the courts of law.

    In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the judiciary in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other, simply, the executive power of the state.

    — The Spirit of the Laws, Book XI

    Montesquieu argues that each Power should only exercise its own functions, it was quite explicit here:

    When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may 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 separated 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 every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”

    — The Spirit of the Laws, Book XI

    Separation of powers requires a different source of legitimization, or a different act of legitimization from the same source, for each of the separate powers. If the legislative branch appoints the executive and judicial powers, as Montesquieu indicated, there will be no separation or division of its powers, since the power to appoint carries with it the power to revoke.

    The executive power ought to be in the hands of a monarch, because this branch of government, having need of dispatch, is better administered by one than by many: on the other hand, whatever depends on the legislative power, is oftentimes better regulated by many than by a single person. But, if there were no monarch, and the executive power should be committed to a certain number of persons, selected from the legislative body, there would be an end of liberty, by reason the two powers would be united; as the same persons would sometimes possess, and would be always able to possess, a share in both.”

    — The Spirit of the Laws, Book XI

    According to Wade and Philips[5], separation of powers may mean three different things:

    • that the same persons should not form part of more than one of the three organs of government e.g. the Ministers should not sit in Parliament;
    • that one organ of the government should not control or interfere with the exercise of function by another organ, e.g. the judiciary should be independent of the executive or that ministers should not be responsible to Parliament; and
    • that one organ of the government should not exercise the functions of another, e.g. the Ministers should not have legislative powers.

    EFFECT

    The theory of separation of powers as propounded by Montesquieu had tremendous impact on the growth of administrative law and functioning of governments. It attracted English and American jurists as well as politicians. Writing in 1765, Blackstone had observed that if the legislative, the executive and the judicial functions were given to one man, there was an end of personal liberty.

    According to Madison: “The accumulation of all powers, legislative, executive and judicial, in the same hand, whether of one, a few or many and whether hereditary, self-appointed or elective may justly be pronounced the very definition of tyranny.

    The doctrine had influenced the makers of Constitution. Thus, the Constituent Assembly of France had an ounce in 1789 that they would be nothing like a Constitution in the country girl the city of separation of powers was not accepted point this doctrine in America is the base of the whole structure of the Constitution point in this way it exercise and excessive influence in the minds of framers of the Constitution of the United States.

    Separation of power

    CRITICISM

    In theory, the doctrine of separation of powers was very sound. However, in practice many defects surfaced when it was sought to be applied in real life situations. The defects which were found in this doctrine when applied were mainly the following: –

    1.Historical Incongruity

    Historically speaking, the theory was not correct. His exposition of this theory is based on the British Constitution of the first part of the 18th century as he understood it. In reality there was no separation of powers under the constitution of England. In British constitution, this doctrine was never adopted. Professor Ullman rightly says, “England was not the classic home of the separation of powers.” Similar is the observation of Donoughmore Committee. “In British Constitution there was no such thing as the absolute separation of the legislative, executive and judicial powers.”

    2.Division of functions

    The assumption behind the doctrine is that the three functions of the government, namely, legislative, judicial and the executive are divisible from each other. The fact, however, is that it is not so in reality. There are no watertight compartments. There is overlapping with each other. As Friedmann and Benjafield say, “The truth is that each of the three functions of the government contains elements of the other two and that any rigid attempt to define and separate those functions must either fail or cause serious inefficiency in the government.”

    3.Practical difficulties in its acceptance

    It is difficult to take certain actions if this doctrine is accepted in its entirety. In practice it has not been found possible to concentrate power of one kind in one organ only. The legislature does not act merely as a law-making body, but also acts as an overseer of the executive, the administrative organ has legislative function. The judiciary has not only judicial functions but also has some rule making powers.

    4.Adherence to it not possible in welfare state

    The modern state is a welfare state and it has to solve many complex socio-politico-economic problems of a country. In this state of affairs, it is not possible to stick to this doctrine. As Justice Frankfurter says: “Enforcement of rigid conception of separation of powers would make modern government impossible.”

    5.Organic Separation

    Basu’s view is that “in modern practice, the theory of separation of powers means an organic separation and the distinction must be drawn between ‘essential’ and ‘incidental’ powers and that one organ of government cannot usurp or encroach upon the essential functions belonging to another organ, but may exercise some incidental functions thereof.”

    Thus, the position is that the doctrine of separation of powers in the strict sense is undesirable and impracticable. Therefore, it is not fully accepted in any country of the world. Nevertheless, its value lies in the emphasis on those checks and balances which are necessary to prevent an abuse of the enormous powers of the executive. The goal of the doctrine is to have a “government of law rather than of official will or whim.”

    One feature of this doctrine is accepted by all the jurists that the judiciary must be independent of and separate from the remaining two organs of the government viz. legislative and executive. In the Report of International Congress of jurists held at New Delhi in 1959, it is stated:

    “An independent judiciary is an indispensable requisite of a free society under the Rule of Law. Such independence implies freedom from interference by the Executive or the legislature with the exercise of the judicial function.”

    DOCTRINE OF SEPARATION OF POWERS IN INDIA

    Doctrine of separation of powers in India

    1.Constitutional Conspectus

    The position in India is that the doctrine of separation of powers has not been accorded a constitutional status. In the Constituent Assembly there was a proposal to incorporate this doctrine in the constitution but it was knowingly not accepted and as such dropped. Apart from the directive principles laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers.

    The Indian Constitution does not speak of the functions of the three organs of state. Under the entire Constitution only executive power is vested in the President while provisions are simply made for a Parliament and Judiciary without expressly vesting the legislative and judicial powers in any person or body.

    2.Parliamentary Executive

    Although the executive power of the Union is vested in President, the Constitution provides for parliamentary executive. Under the Constitution, provisions have been made for Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The Council of Ministers including the Prime Minister are members of the Parliament and collectively responsible to the House of the People. Thus, the President is not head of the executive. The only validity of the doctrine of separation of powers is in the sense that one organ of the state should not assume the essential function of the other. This was the view of the Supreme Court as expressed in Ram Jawaya v. State of Punjab.

    “The 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 Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the state, or functions that essentially belong to another.”

    3.Broad Division of Functions

    On a casual glance at the provisions of the Constitution of India, one may be inclined to say the doctrine of broad division of power of state has been accepted under the Constitution of India. In Golaknath v. State of Punjab, Subba Rao, C.J. observed:

    “The Constitution brings into existence different constitutional entities, namely, the Union, the States and Union Territories. It creates three major instruments of power, namely, the Legislature, the Executive and Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them.”

    In Bandhuva Mukti Morcha v. Union of India, Pathak J. said:

    “The Constitution envisages a broad division of the power of state between the legislature, the executive and the judiciary. Although the division is not precisely demarcated, there is general acknowledgement of its limits. The limits can be gathered from the written text of the constitution, from conventions and constitutional practice, and from an entire array of judicial decisions.

    4.Functional overlapping

    If we study the constitutional provisions carefully, it is clear that a doctrine of separation of powers has not been accepted in India in its strict sense and there is functional overlapping. The President of India in whom the executive authority of India is vested exercises legislative power in the shape of ordinance making power and also the judicial powers under Article 103 (1) and Article 217 (3) to mention only a few.

    The Supreme Court has the power to declare void the laws passed by the legislature and the actions taken by the executive if they violate any provision of the Constitution or the law passed by the legislature in case of executive actions. Even the constituent power to amend the Constitution by the Parliament is subject to judicial review. The court has power to declare any constitutional amendment void if it changes the basic structure of the constitution.

    The legislature exercises not only legislative powers but also judicial powers in cases of breach of its privilege, impeachment of the president and removal of the judges.

    5.Constitutional Recognition

    The question of constitutional recognition of the doctrine of separation of powers was at length considered by Supreme Court in Indira Nehru Gandhi v. Raj Narain. In this case Ray C.J. has observed that our Constitution recognizes division between three main powers of the government. Judicial power in the sense of judicial power of the state is vested in the Judiciary. Similarly, powers are vested in the executive and legislature in their respective spheres. However, it is not the intention that the powers of judiciary should be passed on to or be shared by the executive or the legislature or that the powers of the Legislature or the executive should pass to or be shared by the judiciary.

    6.Source of the doctrine of separation of powers-Constituent Power

    Under the Indian Jurisprudence the source of the doctrine of separation of powers is constituent power which is an amalgam of all the powers. when the constituent power exercises powers, the constituent power comprises legislative, executive and judicial powers. All powers flow from the constituent power through the Constitution to the various departments or heads. In the hands of constituent authority there is no demarcation of powers. It is only when the constituent authorities define the authority or demarcates the areas that separation of power is discussed. The constant power is sovereign. It creates the organs and distributes the powers.

    7.Separation of powers as a basic feature

    In Indira Nehru Gandhi v. Raj Narain, Beg J. has observed that separation of powers is a feature of the basic structure of the Constitution. None of the three separate organs of the Republic can take over the functions assigned to the other. This constitutional scheme cannot be changed even by resorting to amending process under Article 368 of the Constitution.

    8.System of checks and balances

    If the doctrine of separation of powers in its classical sense cannot be applied to any modern government, this does not mean that the doctrine has no significance to day. It has not lost its political significance in the sense that center of authority must be dispersed to avoid absolutism. Accordingly, Professor Wade writes that the objection of Montesquieu was against accumulation and monopoly rather than interaction. In this sense the doctrine can be rather better appreciated as a system of checks and balances.

    In Indira Nehru Gandhi v. Raj Narain, Chandrachud J. also remarked that political usefulness, of the doctrine of separation of powers is now widely recognized. No Constitution can survive without a conscious adherence to its fine checks and balances. Just as courts ought not to enter into problems entwined in the ‘political thicket’, Parliament must also respect the preserve of the courts. The principle of separation of powers is a principle of restraint which has in it the precept, innate in the prudence of self-preservation, the discretion is the better part of valor.

    The Supreme Court has observed in Asif Hamid v. State of J. & K. “Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive.

    The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint.”

    Thus, in Krishan Kumar v. Union of India, the Constitution Bench of the Supreme Court observed :- “In the matter of expenditure includible in the Annual Financial Statement, this Court has to be loath to pass any order or give any directions, because of the division of functions between the three coequal organs of the government under the Constitution.”

    No Court can issue direction to the legislature to enact a particular law. Similarly, a court cannot direct an executive authority to enact a law which it has been empowered to do under the delegated legislative authority.

    In Mallikarjuna v. State of A.P., the facts were that the Andhra Pradesh Administrative Tribunal directed the State Government “to evolve proper and rational method of determination of seniority among the veterinary surgeons in the matters of promotions to next higher rank of Assistant Director of Veterinary surgeons.” The Supreme Court quashed the aforesaid direction and observed that the power under Article 309 of the Constitution to frame rules is the legislative power which has to be exercised by the President or the Governor of State as the case may be. The High Court or Administrative Tribunals cannot issue a mandate to the State Government to legislate. In this way the principle of restraint prevents any organ of the state from becoming superior to another or others in action.


    [1] Dr. J.J.R. Upadhyaya, Administrative Law 45 (10th ed., 2016)

    [2] http://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx

    [3] Vanderbilt, The Doctrine of Separation of powers and Its Present Day Significance 38-45 (1953)

    [4] https://plato.stanford.edu/entries/montesquieu/

    [5] Dr. J.J.R. Upadhyaya, Administrative Law 46 (10th ed., 2016)