Separation of powers is based on tres politica. Doctrine of separation of power is the foundation of all the constitutions of the countries in the world, which came into being since the “Magna Carta”. While Aristotle gave the idea of separation of powers, it was Montesquieu who laid the doctrine systematically, scientifically and clearly in his book “Espirite des Lois” (Spirit of the Laws) in 1748. Montesquieu thought his theory to be the political panacea for all governments however the same is not true. With changing times, the doctrine has been modified by various nations to cater to the political, legal and societal needs.[i]
Historical Background
The three-pronged model had its origin in Ancient Greece and Rome. Though the doctrine can be traced back to Aristotle and Plato, it was Montesquieu and Locke who gave it a base on which distinction has been made between legislature, executive and judiciary.
Locke distinguished between what he called:
1. Discontinuous legislative power
2. Continuous executive power
3. Federative power
Discontinuous legislative power includes the general rule-making power called into action from time to time, in a discontinuous fashion. On the other hand continuous executive power refers to the powers are known to be executive and judicial in modern parlance. Federative power is the power of conducting foreign or external affairs. While Montesquieu’s classification included a general legislative power and two kinds of executive powers, Locke’s classification provided federative power and a civil law in the domain of executive power, which also included judicial powers.[ii]
Both Montesquieu and Locke derived their inspiration for the doctrine from developments in Constitutional History in 18th century England. After the long tussle between the Parliament and the Monarchy, in 1688 the King recognised legislative and taxation powers of the Parliament, judicial powers of the Courts and restricted itself to the executive functions. However, England later switched over to being a Parliamentary democracy.[iii]
The Founding Fathers of American Constitution drafted doctrine of separation of powers into the Constitution itself in 1787. By this the US became the first country to have implemented the doctrine.
The doctrine was on and off in the Constitution of France. While Constituent Assembly in 1789 found the doctrine of separation of power indispensible, Jacobins, Napolean I and Napolean III discarded the theory in favour of concentration of powers. But the doctrine finally found a place in the French Constitution in 1871.[iv]
In Indian Constitution there is express provision under article 50 which states that the State should take necessary steps to separate judiciary from executive, i.e. judiciary’s independence has to be maintained.
Montesquieu’s theory
According to Montesquieu power is of three kinds- legislative, executive and judicial- and that these powers should be vested in separate entities to prevent tyranny of the powerful. There would be an end of everything where the same man or body, whether of 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.[v]
The theory of separation of powers signifies three formulations of structural classification of powers of the sovereign:
1. The same person shouldn’t be part of more than one organ of the government.
2. One organ of the government shouldn’t interfere with the working of the other wing
3. One organ will not exercise the functions assigned to the other organs.[vi]
Principle of Checks and Balances
The doctrine of separation of powers is known to have derived from antique theory knows as the theory mixed government, given by Polybius. He explained the exceptional stability of Roman Government in his theory. He advanced that the strength of Roman administration lied in her mixed government which prevented rapid degeneration. It counteracted instability by having a propitious mix of principles drawn from all three primary forms of government. The powers were distributed amongst the various government entities so that each checked and was checked by others to maintain equipoise in the constitutional structure. This is the principle of checks and balances.[vii]
Blackstone in “Commentaries on the Laws of England” (1765) observed that if legislative, judicial and executive functions were given to one man, there was end of personal liberty. Madison also proclaimed that accumulation of powers in the same hands, whether hereditary, self-appointed or elective may justly be pronounced the definition of tyranny.
Defects
Theoretically, the doctrine of separation of powers is very sound yet many defects crop up once the doctrine is applied in real life, such as;
1. The doctrine is based on the assumption that the three wings of the government are independent and distinguishable of each other. However, there is no such water tight compartmentalising in real life.
2. Certain actions would be impossible to undertake if the doctrine is followed to each detail. For instance, the legislature wouldn’t be able to delegate any function even though it wouldn’t know the details of the subject matter whereas executive would be having expertise over it. Separation of powers cannot be absolute. Frankfurter, J has said, “Enforcement of a rigid concept of separation of powers would make modern government impossible”.[viii]
3. The modern interpretation of the doctrine of separation of powers means that discretion must be drawn between ‘essential’ and ‘incidental’ powers and that one wing cant usurp the essential functions of the other wing but may exercise some incidental functions thereof.[ix]
4. The fundamental object behind Montesquieu’s doctrine was liberty and freedom of individual, which can’t be achieved by mechanical division of functions and powers. In England, for example, separation of powers is not accepted even if it’s known for protection of individual’s liberty. For freedom and liberty, there should be rule of law, independent and impartial judiciary and external vigilance on the part of citizens.[x]
The Indian Approach
In India the principle isn’t laid down in a formalistic way in the constitutional scheme but it has been often referred to by way of Art 50 and judicial pronouncements.
The Supreme Court in Ram Jawaya Kapur v State of Punjab[xi] held that the Indian Constitution hasn’t recognized the doctrine in its absolute rigidity but the different functions of the different branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution doesn’t contemplate that functions of one organ essentially belong to another.
In Indira Nehru Gandhi v. Raj Narain[xii], Ray C.J. observed that even in the Indian Constitution there is separation of powers in a broad sense only. A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India. Beg, J. in Kesavananda Bharati v. State of Kerela[xiii] added that separation of powers is a part 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 scheme of the Constitution cannot be changed even by resorting to Article 368 of the Constitution.
Later in I.C. Golak Nath v State of Punjab[xiv], Subha Rao, C.J opined that the constitution brought different constitutional entities into existence, namely the union, the state and the union territories. It created three major instruments of power, namely the Legislature, the Executive and the Judiciary. There is minute demarcation amongst the three and they are expected to exercise their respective powers without overstepping there limits.
In India there exists a functional and personnel overlapping amongst the wings of the government. The Supreme Court has the power to strike down laws passed by the legislature actions taken by the executive if they are in contravention of the Constitution. The President, executive head of the country has lawmaking powers by virtue of ordinance making power and clemency powers, inter alia. The Legislature apart from exercising its law-making powers exercises judicial control in cases of breach of privileges provided to the legislators, impeachment of the President and judges. The Executive wing also affects the functioning of the judiciary by making appointments to the office of the Chief Justice and other Judges of the High Courts and lower judiciary.[xv]
Analysis of the doctrine
It can be followed from the above discussion that the doctrine of separation can’t be applied in any modern government, like UK, US, India, France or Australia in the strictest sense. But that doesn’t render the doctrine completely irrelevant. The government is an organic entity, ever-changing, not capable of being put into airtight compartment.
If there is a complete separation of powers, the government won’t be able to function efficiently. There needs to be cooperation and mutual adjustment amongst the organs of the government. To quote Prof. Garner, “the doctrine is impracticable as a working principle of a successful government.” It’s not possible to categorize the functions of all three branches into a mathematical equation. It can be observed that Montesquieu’s theory is not completely redundant; rather it needs to be fine tuned as per a country’s socio-political and legal needs. The feature of checks and ensures that governments don’t turn despotic power-wielders. Prof. Laski has rightly put that it is not necessary to have a separation of functions which need not imply a separation of personnel.[xvi]
Frequently Asked Questions
1. Is the doctrine of separation of powers followed in full rigidity?
No, it doesn’t since it makes the smooth functioning of the government impossible.
2. Is separation of powers beneficial for a democratic country?
Separation of powers includes in itself the principle of checks and balances. This principle prevents concentration of powers in the hands of one, thereby ensuring stability of the democracy.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
Reference
[i] Upadhyaya , Administrative law, 48, (Central Law Agency,8th edition)
[ii] IP Massey, Administrative Law, 38
[iii] IP Massey, Administrative Law, 39
[iv] Bertrand Russell, A History Of Western Philosophy
[v] Montesquieu, The Spirit Of The Laws, 151-152
[vi] IP Massey, Administrative Law, 39-40
[vii]VSRD Journal http://www.vsrdjournals.com/vsrd/Issue/2012_06_June/Web/5_Lellala_Vishwanadham_654_Research_Communication_VSRD_June_2012.pdf (last visited 9th August, 2019 10:00 pm)
[viii] Friedmann, Law in a Changing Society, 1996
[ix] Basu, Administrative Law, 26, 1996
[x] CK Takwani, Lectures on Administrative Law, (4th edition), Eastern Book Company
[xi] AIR 1955 SC 549.
[xii] 1975 SCC 161,
[xiii] AIR 1973 SC 1461.
[xiv] AIR 1967 SC 1643
[xv] IP Massey, Administrative Law, 39-40
[xvi] UpendraBaxi, Developments in Indian Administrative Law, Public Law India
