By Bani Mahajan
Editor’s Note: The Doctrine of Separation of Powers, was proposed by Montesquieu, in his work, De l’espirit des lois, although the first thought of separating the legislative power was proposed by John Locke, into: discontinuous legislative power, continuous legislative power and federative power. In 1787, The founding fathers of the United States of America, incorporated this principle into their constitution. Montesquieu proposed the basic principle to be that the same person should not form part of more than one of the three organs of the government. Ideally, that means that Ministers should not be elected. This is one principle that is different between the Indian and United States government, where the Secretaries to the President are non-legislative appointees.Accumulation of power in any more than one of the branches of the government, would amount to the base of tyrannical rule, whether self-appointed or elected. The Indian Constitution has not expressly recognized the Doctrine of Separation of Powers, but there is also the assumption that one wing of the government will not interfere with the other. Cases like I.R Coelho v. State of Tamil Nadu and Indira Gandhi v. Raj Narain, observed the separation of powers was limited, unlike the United States. However, none of the three separate organs of the Republic can take over the functions assigned to the other, even by resorting to Article 368.
“Power corrupts and absolute Power tends to corrupt absolutely.”
The separation of powers is based on the principle of trias politica. The Doctrine of Separation of Power is the forerunner to all the constitutions of the world, which came into existence since the days of the “Magna Carta”. Though Montesquieu was under the erroneous impression that the foundations of the British constitution lay in the principle of Separation of Power, it found its genesis in the American Constitution. Montesquieu had a feeling that it would be a panacea to good governance but it had its own drawbacks. A complete Separation of power without adequate checks and balances would have nullified any constitution. It was only with this in mind the founding fathers of various constitutions have accepted this theory with modifications to make it relevant to the changing times.[i]
The Doctrine of “Separation of Powers”, a vintage product of scientific political philosophy is closely connected with the concept of “judicial activism”. “Separation of Powers” is embedded in the Indian Constitutional set up as one of its basic features. In India, the fountain-head of power is the Constitution. The sovereign power has been distributed among the three-wings:
The doctrine of separation of powers envisages a tripartite system. Powers are delegated by the Constitution to the three organs and delineating the jurisdiction of each.[ii]
The position in India is that the doctrine of separation of powers has not been accorded 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.[iii]
The tripartite model of governance has its origin in Ancient Greece and Rome. Though the doctrine is traceable to Aristotle the writings of Locke and Montesquieu gave it a base on which modern attempts to distinguish between legislative, executive and judicial power is grounded.
The doctrine may be traced to ancient and medieval theories of mixed government, which argued that the processes of government should involve the different elements in society such as monarchic, aristocratic, and democratic interests. The first modern formulation of the doctrine was that of the French writer Montesquieu in De l’esprit des lois (1748), although the English philosopher John Locke had earlier argued that legislative power should be divided between king and Parliament.[iv]
Locke distinguished between what he called:
- Discontinuous legislative power
- Continuous executive power
- Federative power.
He included within ‘discontinuous legislative power’ the general rule-making power called into action from time to time and not continuously. ‘Continuous executive power’ included all those powers, which we now call executive and judicial. By ‘federative power’ he meant the power of conducting foreign affairs. Montesquieu’s division of power included a general legislative power and two kinds of executive powers; an executive power in the nature of Locke’s ‘federative power’ and a ‘civil law’ executive power including executive and judicial power. [v]
It was Montesquieu who for the first time gave it a systematic and scientific formulation in his book ‘Esprit des Lois (The Spirit of the laws) published in the year 1748.[vi] Locke and Montesquieu derived the contents of this doctrine from the developments in the British constitutional history of the 18th Century. In England after a long war between the Parliament and the King, they saw the triumph of Parliament in 1688, which gave Parliament legislative supremacy culminating in the passage of Bill of Rights. This led ultimately to a recognition by the King of legislative and tax powers of the Parliament and the judicial powers of the courts. At that time, the King exercised executive powers, Parliament exercised legislative powers and the courts exercised judicial powers, though later on England did not stick to this structural classification of functions and changed to the parliamentary form of government.[vii]
After the end of the war of independence in America by 1787 the founding fathers of the American constitution drafted the constitution of America and in that itself they inserted the Doctrine of separation of power and by this America became the first nation to implement the Doctrine of separation of power throughout the world.
The Constituent Assembly Of France in 1789 was of the view that “there would be nothing like a Constitution in the country where the doctrine of separation of power is not accepted”. In France, where the doctrine was preached with great force by Montesquieu, it was held by the more moderate parties in the French Revolution.[viii]
However, the Jacobins, Napoleon I and Napoleon III discarded the above theory for they believed in the concentration of power. But it again found its place in the French Constitution of 1871.
Later Rousseau also supported the said theory propounded by Montesquieu. England follows the parliamentary form of government where the crown is only a titular head. The mere existence of the cabinet system negates the doctrine of separation of power in England as the executive represented by the cabinet remains in power at the sweet will of the parliament.
In India, under the Indian constitution, there is an express provision under Article 50 of the Constitution which clearly states that the state should take necessary steps to separate the judiciary from the executive i.e. independence of the judiciary should be maintained.
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 these powers, 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 is not separated from the legislative and the executive. Where it joined the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Where it joined with the executive power, the judge might behave with violence and oppression.[ix]
Writing in 1748, Montesquieu said:
“When the legislative and the 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 exact tyrannical laws, to execute them in a tyrannical manner. Again there is no liberty if the judicial power be not separated from the legislative and the executive. Where it joined with the legislative, the life and the liberty of the subject would be exposed to arbitrary control; for the judge would be then a legislator. Where it joined to the executive power, the judge might behave with violence and oppression.
There would be an end of everything, where the same man or the same 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.”[x]
The theory of separation of powers signifies three formulations of structural classification of governmental powers:
- The same person should not form part of more than one of the three organs of the government. For example, ministers should not sit in Parliament.
- One organ of the government should not interfere with any other organ of the government.
- One organ of the government should not exercise the functions assigned to any other organ.[xi]
Now the question in the subject is whether this doctrine finds a place in England?
In England, the King being the executive head s also an integral part of the legislature. His ministers are also members of one or other Houses of Parliament. This concept goes against the idea that the same person should not form part of more than one organ of the Government.
In England House of Commons control the executive. So far as the judiciary is concerned, in theory, House of Lords is the highest Court of the country but in practice, judicial functions are discharged by persons who are appointed specially for this purpose, they are known as Law Lords and other persons who held judicial post. Thus we can say that the doctrine of separation of powers is not an essential feature of the British Constitution.[xii]
Principle of Checks and Balances
The doctrine of separations of powers may be traced back to an earlier theory known as the theory of mixed government from which it has been evolved. That theory is of great antiquity and was adumbrated in the writings of Polybius, a great historian who was captured by the Romans in 167 BC and kept in Rome as a Political hostage for 17 years in his history of Rome.
Polybius explained the reasons for the exceptional stability of the Roman Government which enabled Rome to establish a worldwide empire. He advanced the theory that the powers of Rome stemmed from her mixed government. Unmixed systems of government that is the three primary forms of government namely, Monarchy, Aristocracy, and Democracy – were considered by Polybius as inherently unstable and liable to rapid degeneration.
The Roman constitutions counteracted that instability and tendency to degeneration by a happy mixture of principles drawn from all the three primary forms of government. The consuls, the Senate and the popular Assemblies exemplified the monarchical, the aristocratic and the democratic principles respectively.
The powers of Government were distributed between them in such a way that each checked and was checked by the others so that an equipoise or equilibrium was achieved which imparted a remarkable stability to the constitutional structure. It is from the work of Polybius that political theorist in the 17th Century evolved that theory of separation of powers and the closely related theory of Checks and Balances. [xiii]
The doctrine of separation of powers as propounded by Montesquieu had a tremendous impact on the development of administrative law and functioning of Governments. It was appreciated by English and American jurists and accepted by politicians. In his book ‘Commentaries on the Laws of England’, published in 1765, Blackstone observed that if legislative, executive and judicial functions were given to one man, there was an end of personal liberty. Madison also proclaimed: “The accumulation of all powers, legislative and executive and judicial, in the same hands, whether of one, a few or many and whether hereditary, self-appointed or elective may justly be pronounced the very definition of tyranny.” The Constituent Assembly of France declared in 1789 that there would be nothing like a Constitution in the country where the doctrine of separation of powers was not accepted.[xiv]
The doctrine of separation of power in its true sense is very rigid and this is one of the reasons why it is not accepted by a large number of countries in the world. The main object as per Montesquieu in the Doctrine of separation of power is that there should be government of law rather than having will and whims of the official. Also, another most important feature of the above-said doctrine is that there should be the independence of judiciary i.e. it should be free from the other organs of the state and if it is so then justice would be delivered properly.
The judiciary is the scale through which one can measure the actual development of the state if the judiciary is not independent then it is the first step towards a tyrannical form of government i.e. power is concentrated in a single hand and if it is so then there is a cent percent chance of misuse of power. Hence the Doctrine of separation of power does play a vital role in the creation of a fair government and also fair and proper justice is dispensed by the judiciary as there is the independence of the judiciary.
Also, the importance of the above-said doctrine can be traced back to as early as 1789 where The constituent Assembly Of France in 1789 was of the view that “there would be nothing like a Constitution in the country where the doctrine of separation of power is not accepted”. Also in 1787, the American constitution inserted the provision pertaining to the Doctrine of separation of power at the time of the drafting of the constitution in 1787.[xv]
Though theoretically, the doctrine of separation of powers was very sound, many defects surfaced when it was sought to be applied in real life situations. Mainly, the following defects were found in this doctrine:
- Historically speaking, the theory was incorrect. There was no separation of powers under the British Constitution. At no point in time, this doctrine was adopted in England.
As Prof. Ullman says: “England was not the classic home of separation of powers.” It is said: “Montesquieu looked across foggy England from his sunny vineyard in Paris and completely misconstrued what he saw.”
- This doctrine is based on the assumption that the three functions of the Government viz legislative, executive and judicial are independent of distinguishable from one another. But in fact, it is not so. There are no watertight compartments. It is not easy to draw a demarcating line between one power and another with mathematical precision.
- It is impossible to take certain actions if this doctrine is accepted in this entirety. Thus, if the legislature can only legislate, then it cannot punish anyone, committing a breach of its privilege; nor can it delegate any legislative function even though it does not know the details of the subject-matter of the legislation and the executive authority has expertise over it; nor could the courts frame frame rules of procedure to be adopted by them for the disposal of cases. Separation of Powers thus can only be relative and not absolute.d) Modern State is a welfare State and it has to solve complex socio-economic problems and in this state of affairs also, it is not possible to stick to this doctrine. Justice Frankfurter said; “Enforcement of a rigid conception of separation of powers would make modern Government impossible.” Strict separation of powers is a theoretical absurdity and practical impossibility.[xvi]
- The modern interpretation of the doctrine of Separation of Powers means that discretion must be drawn between ‘essential’ and ‘incidental’ powers and one organ of the Government cannot usurp or encroach upon the essential functions belonging to another organ but may exercise some incidental functions thereof.[xvii]
- the Fundamental object behind Montesquieu’s doctrine was liberty and freedom of an individual, but that cannot be achieved by mechanical division of functions and powers. In England, the theory of Separation of Powers is not accepted and yet it is known for the protection of individual liberty. For freedom and liberty, it is necessary that there should be Rule of Law and impartial and independent judiciary and eternal vigilance on the part of subjects.[xviii]
In India, the doctrine of separation of powers has not been accorded constitutional status. Apart from the directive principle 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.[xix]
The Supreme Court in Ram Jawaya Kapur v. State of Punjab[xx], held:
“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 functions that essentially belong to another.”
In Indira Nehru Gandhi v. Raj Narain[xxi], Ray C.J.also observed that 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. However, the Court held that though the constituent power is independent of the doctrine of separation of powers to implant the story of basic structure as developed in the case of Kesavananda Bharati v. State of Kerela[xxii] on the ordinary legislative powers will be an encroachment on the theory of separation of powers. Nevertheless, Beg, J. 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.
In India, not only is there a functional overlapping but there is personnel overlapping also. The Supreme Court has the power to declare void the laws passed by the legislature and the actions taken by the executive if the violate any provision of the Constitution or the law passed by the legislature in case of executive actions. Even the power to amend the Constitution by Parliament is subject to the scrutiny of the Court. The Court can declare any amendment void if it changes the basic structure of the Constitution.[xxiii] The President of India in whom the Executive Authority of India is vested exercises lawmaking 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 Council of Ministers is selected from the Legislature and is responsible to the Legislature. The Legislature besides exercising law-making powers exercises judicial powers in cases of breach of its privilege, impeachment of the President and the removal of the judges. The Executive may further affect the functioning of the judiciary by making appointments to the office of the Chief Justice and other Judges. [xxiv]
Judicial Opinion on the Doctrine of Separation of Powers
The separation of power there were times where the judiciary has faced tough challenges in maintaining and preserving the Doctrine of separation of power and it has in the process of preservation of the above said Doctrine has delivered landmark judgments which clearly talks about the independence of judiciary as well as the success of judiciary in India for the last six decades.
The first major judgment by the judiciary in relation to Doctrine of separation of power was in Ram Jawaya v State of Punjab[xxv]. The court in the above case was of the opinion that the Doctrine of separation of power was not fully accepted in India. Further, the view of Mukherjea J adds weight to the argument that the above-said doctrine is not fully accepted in India. He states that:
“The Indian constitution has not indeed recognized the doctrine of separation of powering its absolute rigidity but the functions of the different parts or branches of the 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, of functions that essentially belong to another”.
Later in I.C. Golak Nath v State of Punjab[xxvi], Subha Rao, C.J opined that
“The constitution brings into existence different constitutional entitles, namely the union, the state and the union territories. It creates three major instruments of power, namely the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping there limits. They should function with the spheres allotted to them”
The above opinion of the court clearly states the change in the court’s views pertaining to the opinion in the case of Ram Jawaya v State of Punjab related to the doctrine of separation of power. The came one of the most landmark judgments delivered by the Supreme Court in Keshvananda Bharti v Union of India the court was of the view that amending power was now subject to the basic features of the constitution. And hence, any amendment tampering these essential features will be struck down as unconstitutional. Beg, J. 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 7. Hence this further confirmed the opinion of the court in relation to the doctrine of separation of power.
Then in Indira Gandhi Nehru v. Raj Narain, where the dispute regarding P.M. election was pending before the Supreme Court, opined that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise i.e. the parliament does not have the jurisdiction to perform a function which the other organ is responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions of the three organs of the state. Also, the constituent Assembly Of France in 1789 was of the view that “there would be nothing like a Constitution in the country where the doctrine of separation of power is not accepted.” So if there is a provision then there should be proper implementation and this judgment emphasis on that point only.
Also in I.R. Coelho vs. State of Tamil Nadu[xxvii], S.C. took the opinion opined by the Supreme court in Kesavananda Bharati case pertaining to the doctrine of basic structure
and held that the Ninth Schedule is violative of the above-said doctrine and hence from now on the Ninth Schedule will be amenable to judicial review which also forms part of the basic structure theory.
From the above few case laws right from Ram Jawaya v state of Punjab in 1955 to I.R. Coelho v. State of Tamil Nadu in there has been a wide change of opinion as in the beginning the court was of the opinion that as such there is no Doctrine of Separation of Power in the constitution of India but then as the passage of time the opinion of the Supreme Court has also changed and now it does include the above said Doctrine as the basic feature of the Constitution.
Evaluation of the Doctrine
In a strict sense, the principle of separation of powers cannot be applied in any modern Government either may be U.K., U.S.A., France, India or Australia. But it does not mean that the principle has no relevance nowadays. Government is an organic unity. It cannot be divided into watertight compartments.
History proves this fact. If there is a complete separation of powers the government cannot run smoothly and effectively. The smooth running of government is possible only by co-operation and mutual adjustment of all the three organs of the government. Prof. Garner has rightly said, “the doctrine is impracticable as a working principle of Government.” It is not possible to categorize the functions of all three branches of Government on a mathematical basis. The observation of Frankfurter is notable in this connection. According to him “Enforcement of a rigid conception of separation of powers would make Government impossible.”
It is my opinion that the doctrine of Montesquieu is not merely a “myth” it also carries a truth, but in the sense that each organ of the Government should exercise its power on the principle of “Checks and Balances” signifying the fact that none of the organs of Government should usurp the essential functions of the other organs. Professor Laski has aptly remarked: “It is necessary to have a separation of functions which need not imply a separation of personnel.”[xxviii]
Formatted on 3rd March 2019.
[iii]Upadhyaya : Administrative law,(Central Law Agency,8th edition) p.48
[v] Massey, I.P; Administrative Law, p.38
[vii] Massey, I.P; Administrative Law, p.39
[viii]Bertrand Russell, “A History Of Western Philosophy”
[ix]Upadhyaya; Administrative Law (Central Law Agency; 8th edition), p.46
[x] THE SPIRIT OF THE LAWS, p.151-152, quoted in Thakker, C.K Administrative Law (Eastern Book Company), p.31
[xi] Massey, I.P ; Administrative Law, p.39-40
[xiv]Takwani, C.K; Lectures on Administrative Law (Eastern Book Company 4th edition)
[xvi]Friedmann, Law in a Changing Society(1996)
[xvii]Basu, Administrative Law(1996) p.26
[xviii]Takwani, C.K : Lectures on Administrative Law (Eastern Book Company, 4th edition)
[xix]UpendraBaxi: Developments in Indian Administrative Law, in PUBLIC LAW INDIA.
[xx]AIR 1955 SC 549.
[xxi]1975 SCC 1, 61, para 136.
[xxii] (1973)4 SCC 225: AIR 1973 SC 1461.
[xxiii]KesavanandaBharati v. State of Kerela, (1973) 4 SCC 225
[xxiv] Massey. I.P Administrative Law
[xxv] AIR 1955 SC 549
[xxvi] AIR 1967 SC 1643
[xxvii] AIR 2007 SC 8617