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Definition, Nature and Concept of Separation of Powers

When we go through the strict connotation of the doctrine of separation of powers it
implies that powers of the three organs of the government viz, legislature, executive
and judiciary should be kept separate from each other. The legislature should make
the laws, the executive should execute and the judiciary should interpret them. None
of these should exercise the function of any of the remaining two organs. Nor should
any of these organs interfere in any way with the independent functioning of the
other two organs. Theory of separation of powers propounded by the French political
thinker Baron de Montesquieu in his Esprit des Lois exercised great influence on the
French legal system. This doctrine has not been recognized in its absolute rigidity in
the Indian constitution. However, it has time and again reiterated that the functions of
the different branches of the government has been sufficiently demarcated in our
constitution and consequently it can be very well said that the constitution does not
contemplate assumption, by one organ of the state, of functions that essentially
belong to the other. The concept of separation of powers or of divided authority is
clearly woven in the fabric of American Constitutional law. This doctrine has been
most directly incorporated in the US Constitution by its provisions like, all legislative
powers shall be vested in the congress.(Article I Section I)the executive powers shall
be vested in the president (Article II Section I) and the judicial powers shall be in one
supreme court and in such inferior courts as congress may from time to time ordain
and establish (Article III Section I) In theory, no one organ of the government can
encroach upon the power of the other. Separation of powers may, therefore, be a
plausible constitutional doctrine but as a matter of practice a complete separation is
never possible. In a modern governmental setup the legislative, the executive and
the judicial functions may overlap, and the power exercised by three branches are
potentially coextensive as viewed by Marshal, C.J. in Osborn v. Bank of United
States 6 L.Ed 204. Frankfurter, J. of US Supreme Court also observed that,
enforcement of rigid concept of separation of powers would make modern
government impossible. Doctrine of separation of power has an intimate impact on
the growth of administrative law and administrative process. It is generally accepted
that there are three main categories of governmental functions, Legislative,
Executive & Judicial. According to theory of separation of powers the three powers
and functions of the government in a democracy always be kept free & separate and
be exercised by three separate organs of the government. Thus, the legislature
cannot exercise the executive or the judicial power, the executive cannot exercise
legislative or judicial power and similarly the judiciary cannot exercise legislative or
executive powers of the government. Montesquieu in 1748 said that, When the
legislative and the executive functions are united in the same person together or in
the same body of magistrates, there can be no liberty, because apprehensions may
arise, lest the same monarch or senate shall enact tyrannical laws, to execute them
in tyrannical manner. Again, there is no liberty if the judicial power be not separated
from that of the legislative and the executive, were it joined with the legislative
functions, the life and the liberty of the subjects would be exposed to arbitrary
control, for the judge would be the legislator. Were it joined to the executive power,
the judge might behave with violence and oppression?
There would be an end of everything, were the same man, whether of the nobles or
of the peoples, to exercise those three powers, that of the enacting laws, that of
executing public resolutions and of trying the cause of the individuals.
According to Wade and Phillips Separation of Powers may mean three different
things:
1. That the same should not form part of more than one of the three organs of
the government; for example, the ministers should not sit in the parliament.
2. That one organ of the government should not control or interfere with
the exercise of its functions by another organ for example judiciary should be
independent of the executive or the ministers should not be responsible to
Parliament and
3. That one organ of the government should not exercise the functions of the
other. For example, ministers should not have legislative powers.
Blackstone observed that if the legislative, executive and judicial functions were
given to one man, there was an end to the personal liberty. The Constituent
Assembly declared in 1789 that there would be nothing like a constitution in the
country where the doctrine of separation of powers was not accepted. Doctrine of
Separation of Powers as propounded by Montesquieu had tremendous impact on
the development of Administrative law and the functioning of the government.
Rationale of Separation of Powers
The rationale of the doctrine of separation of powers is to uphold the individual liberty
and rule of law. Vesting of all power in one authority obviously promotes tyranny.
The value of this doctrine lies in the fact that it seeks to preserve the human liberty
by avoiding the concentration of powers in one body or one person. Brandies, J.
scientifically explained the purpose of separation of powers and said, the rationale of
division of powers or the separation of powers is not to promote efficiency in the
administration but to preclude the exercise of arbitrary power. He further emphasized
that its purpose is not to avoid friction amongst various organs of the state by
keeping them separate but to protect people from autocracy by means of inevitable
friction due to distribution of powers. Therefore, the basic purpose of the doctrine is
to divide governance against itself by creating distinct centers of power so that they
could prevent each other from threatening tyranny. The purpose of the doctrine of
separation of powers is to have ‘a government of law rather than of official will or
whim’ Montesquieu emphasized that if the total power of the government is divided
among autonomous organs, one will act as a check on the other and in such a way
liberty can survive. The logic behind the doctrine is polarity rather than strict
classification meaning thereby that the centre of authority must be dispersed to avoid
absolutism. Most important aspect of the doctrine of separation of power is judicial
independence from the administrative discretion. There is no liberty if the judicial
power be not separated from the legislative and the executive. The logic behind this
doctrine is that if all the power is concentrated in one and the same organ, there
would arise the danger that it would enact tyrannical, execute them in the despotic
manner and interpret them in an arbitrary fashion without any external control.
Merger of all the powers or functions in one body will lead to autocracy and negation
of liberty. Pointing towards political usefulness of the doctrine. Chandrachaud, J. in
the case of Indira Nehru Gandhi v. Raj Narain 1975 SCC 1, 260 observed that the
doctrine of separation of powers is now widely recognized. No constitution can
survive without a constitutional adherence to its fine checks and balances.. R.
Coelho v. State of T.N. 2007 SCC a landmark judgment delivered by the apex court.
In this case, the court has emphasized on the importance of separation of powers
and the system of checks and balances envisaged in our Constitution. It observed
that for preservation of liberty and prevention of tyranny, it is absolutely essential to
vest separate powers in three different organs. The court has reiterated that the
separation of powers between legislature, executive and the judiciary constitutes one
of the basic features of Constitution. It was further observed that constitutional
amendments are subject to limitations and if question of limitation is to be decided by
parliament itself which enacts the impugned amendments and gives that law a
complete immunity; it would disturb the checks and balances in the Constitution. The
authority to enact the law and decide the legality of limitations cannot vest in one
organ. The validity of the limitation of the rights in part-III of constitution of India can
only be examined by another independent organ, namely, the judiciary.
Historical background of Doctrine of Separation of Powers.
The doctrine of separation of powers has emerged in several forms at different
periods. This doctrines normally associated with the French Philosopher
Montesquieu, but the origin of this principle can be traced back to Aristotle who
opined that government should be composed of three organs of the government
namely the deliberative (Legislative) the magisterial (executive) and the judicial.
However the scope of this doctrine was not worked out fully until Locke and
Montesquieu elaborated this concept in 18th century. Following this principle John
Locke, James Madison wrote in the federal papers that:
‘the accumulation of all the powers, legislative, executive and judiciary, 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’. Montesquieu gave
it a basis on which modern attempts to distinguish between legislative, executive and
judicial power is grounded. French philosopher John Bodin and British Politician
Locke respectively had expressed their views about the theory of separation of
powers. But it was Montesquieu who for the first time formulated this doctrine
systematically, scientifically and clearly in his book ‘Esprit des Lois’ (The Spirit of
Laws) published in the year 1748.
Locke distinguished between what he called
a) Discontinuous Legislative Power,
b) Continuous Executive Power,
c) Federative Power.
1. Discontinuous legislative power includes the general rule making power called
into action from time to time and not continuously.
2. Continuous executive power includes all that power included all those powers
which we now call as executive and judicial powers.
3. By Federative powers, Locke meant the power of conducting Foreign affairs.
The constitutional law of England recognizes this doctrine but this was not given the
constitutional status nor was it theoretically accepted. However, in several
judgments, the existence of this doctrine has been acknowledged.
The American constitution basing itself on this doctrine vests the executive power in
the president who is elected for a fixed term of four years, legislative powers are
vested in the congress and the judicial powers is vested in a system of courts with
the Supreme Court at the apex.
Separation of powers in India
In the Indian constitution there is no such defined and express incorporation of the
doctrine of separation of powers, save and except that the executive power of the
union is vested in the president under article 53(1). Article 53(1) provides that the
executive power of the union shall vest in the president and it shall be exercised by
him in accordance with the constitution either directly nor indirectly or through
officers’ subordinates to him. Similarly executive power of the state is vested in the
governor under article 154(1). But so far as legislative and judicial powers are
concerned, they are not vested on any authority. under article 50 one of the
directives of the state policy, state is to take steps to separate judiciary from the
executive in the public services of the state, but this has nothing to do with the
vesting of power. However, it is the constitutional duty of the judiciary to adjudicate
the disputes between the citizens, citizens and the states and the states inter se and
the states and centre in accordance with the constitution and the lawKartar Singh v.
State of Punjab 1994 (3) SCC569.
Subha Roa C.J. observed in the case of GolakNath v. State of PunjabAIR 1967SC
1643 that the constitution brings into existence different constitutional entities,
namely the union, the states 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 their limits. They should function within the spheres
allotted to them.
Indra Nehru Ghandi vs. Raj Narayan 1975 SCC 1, Ray, C.J. observed that in Indian
constitution there is separation of powers in the broad sense only .A rigid separation
of powers as under US Constitution or Australian constitution does not apply to India.
The constitution of India does not recognize the division of powers in its strict sense.
In the case of Ram Jwaya Kapur v. State of Punjab AIR 1955 SC 549, the Indian
Constitution has not indeed recognized the doctrine of separation of powers in its
absolute rigidity but the function of different parts or the branches of the government
have been sufficiently differentiated and consequently it can very well be said that
the constitution cannot contemplate assumption, by one organ or part of the state, of
the functions that essentially belong to another. Theory of separation of powers
indeed broadly holds the field in our constitutional scheme. In the case of
Keshvananda Bharti v. State of Kerela AIR 1973 SC 1461,Separation of powers
came to be recognized as one of the basic features of the constitution and thus
cannot be altered. In the case of Asif Hameed V. State of Jammu & Kashmir (1989)
SCC 364the court observed that although the doctrine of separation of powers has
not been recognized under the constitution in its absolute rigidity but the
constitutional makers have meticulously defined the functions of various organs of
the state. Legislature, Executive and Judiciary has to function within their own
sphere demarcated under the constitution. No organ can usurp the functions
assigned to another.
Bhagwati, J. in the caseof Minerva Mills Ltd v. Union of India(1980) 3 SCC observed
under our constitution we have no rigid separation of powers as in the United States
of America but there is a broad demarcation, though , having regard to the complex
nature of the governmental functions, certain degree of overlapping is inevitable. The
reason for this broad separation of powers is that the ‘concentration of power in any
one organ may destroy the fundamental premises of a democratic government to
which we are pledged. Under our constitution the executive is endowed with certain
legislative powers, for instance the ordinance making powers under article 123 and
213.it also has certain judicial powers under article 103 and under article
192. The legislature is also empowered to exercise certain judicial powers under
article 105 and 195. The judiciary also exercises certain legislative and executive
powers under article 145, 146, 227 and 229. In addition the executive exercises
substantial quasi-judicial powers under several statutory provisions whereby
tribunals have been setup. Parliament, the highest legislative body in the country
also exercises quasi-judicial powers in the case of impeachment of judges article
124(1) and article 217 of the constitution and also in respect of contempt of
legislatures article 194(3). In the case of Kartar Singh v. State of Punjab (1994) 4
SCC k.Ramaswamy, J stated, it is basic postulate under Indian constitution that the
legal sovereign power has been distributed between the legislature to make the law,
the executive to implement the law and the judiciary to interpret the law within the
limits set down by the constitution.
The constitution of India recognizes the doctrine of separation of powers but not in
the strict sense of the term. Professor wade writes that the objection of Montesquieu
was against accumulation and monopoly rather than interaction. Montesquieu never
used the word ‘separation’ therefore not impassable barriers and alterable frontiers
but mutual restrain in the exercise of powers by the three organs of the state is the
soul of the doctrine of separation of powers.
Working of Doctrine of Separation of Powers in modern constitutions
The working of this doctrine can be studied under three heads;
a) With respect to separation of personnel.
b) With respect to separation of functions.
c) Non-interference in each other’s function.
a) With Respect to Separation of Personnel: The first requirement is that no
person should form part of more than one of the three organs of the government. In
USA the executive organ consists of the president and his cabinet. In England it is
king and his cabinet, in India it is president and council of ministers. The legislative
organs consist of two houses, house of representatives and senate in USA. In
England it consists of two houses, House of commons and house Lords and
president and two houses (house of people and council of states) in India. The
judicial organ in India and USA consists of supreme and its subordinate courts and in
England House of Lords Court of Appeal and subordinate courts.
Legislature and Executive: In USA neither the president nor his cabinet can sit or
vote in any house of congress. The English sovereign and Indian president is an
integral part of both executive and the legislature and ministers are also the
members of the legislature.
Executive and Judiciary: In U.S.A as well as in India Judges do not form part of the
Executive and no members of the executive are judges of the courts, in England
there is some overlapping. The judicial committee of Privy Council which is a part of
the executive is also the highest court of appeal for British colonies.
Judiciary and Legislature: Between judiciary and legislature also there is complete
separation of personnel in India and U.S.A. Neither the members of the houses are
the members of the court nor do the judges sit in the houses of the legislature. But in
England appellate committee of the House of Lords (upper house of legislature) is
final appellate court for the United Kingdom’s.
b) Separation as to functions: The second requirement of the doctrine is that
one should not exercise the functions of the other organ. In the constitution of USA
under article 1 it says that all the legislative powers shall be vested in the Congress,
article 11 says that all the executive power shall be vested in the president of and
article 111 provides that judicial powers shall vest in the supreme court and in such
inferior courts as the congress mar from time to time ordain. Under Indian
constitution executive power of the union shall be vested in the president and
executive power of the state shall be vested in the governor. There is no express
vesting of the legislative or the judicial powers in similar terms but the jurisdiction of
the courts and legislatures is clearly defined.
Legislature and Executive: Essentially legislation is the business of legislature but
the president possess some of the legislative powers under article 123 during the
recess of the parliament. Besides this legislature nowadays lays down broad
outlines. The detailed rules are made by the executive under the delegated powers
of legislation. However, the legislature cannot abdicate essential legislative powers
and provides guidelines within which executive
should make rules. The executive rules are also required to be laid down before the
houses. Thus, the legislature exercises sufficient control.
Executive and Judiciary: Although judicial functions are performed by the courts
certain matters are adjudicated by some special tribunals manned by the persons
from administrative wing. However, in India the adjudication by these tribunals is
subject to appeal to the Supreme Court whose verdict will be final. Article 103
provides that on matters of disqualification of members of either house of parliament
the decision of president shall be final.
Legislature and Judiciary: There is no overlapping of functions as o as under English
constitution. Their House of Lords, a legislative wing is also a highest court of appeal
for United Kingdom. But in India also parliament or state legislatures have power to
punish for contempt of house. The courts also have some rule making powers for
regulating their procedure.
c) Non- interference in each other’s functions: Lastly it is to be considered
how far one organ controls or interferes with the functions of other organ because
rigid application of the doctrine requires that one organ should not control the
functions of another.
Legislature and Executive: Under parliamentary system executive is responsible to
the legislature. Ministry cannot survive if it loses the confidence of the legislature.
The president can also be impeached. To this extent legislature controls the
executive. On the other hand mostly bills are initiated by ministers and they can
defeat any measure if they choose to do so. In that way they control the legislature.
The executive has also prerogative to summon and prorogue the houses and to
dissolve the house of people.
Executive and Judiciary: The judiciary has the power to interpret the laws and to
decide upon the validity of rules made by the executive and thus controls the
executive actions. On the other hand judges are appointed by the executive and thus
judiciary can be controlled by the executive. However once they are appointed the
judges of high and Supreme Court cannot be terminated by the executive and can
work independently if they choose.
Judiciary and Legislature: Judiciary interprets laws made by the legislature and can
declare them unconstitutional. Judiciary is also controlled by the legislature in
various ways. Judges of the Supreme Court and high court can be removed by
impeachment process as given in article 124 (4) and article 218. Salaries allowances
and privileges of judges of the supreme court and now prescribed by law made by
parliament. This can work as an inducement but not as threat because privileges
accorded to them cannot be varied to their disadvantage after their appointment.
Conclusion
Under the traditional theory of separation of powers, the legislature, the judiciary and
the executive enjoy separate and distinct domain. Policy making and the
implementation are conventionally regarded as the executive domain of legislature
and the executive respectively with the judiciary performing supervisory function. The
Indian constitution does envisage distinct roles for the three organs of the state. It
absorbs the theory of separation of powers but to an extent. Specific provisions of
the constitution vest in each of these organ’s powers and functions to be exercised in
manner laid down in the differentiation of functions in the constitution itself. But this
division of powers does not carve out mutually exclusive domain. The Supreme
Court has itself recognized the differentiation of functions between the legislature,
the executive and the judiciary and reasoned that although the constitution did not
incorporate a rigid separation of powers, no organ could constitutionally assume the
powers that essentially belonged to other organ. Thus, the doctrine of “separation of
powers” is acknowledged as an integral part of the basic features of our Constitution.
It is also commonly agreed that all the three organs of the State, i.e., the Legislature,
the Judiciary, and the Executive are bound by and subject to the provisions of the
Constitution, which demarcates their respective powers, jurisdictions, responsibilities
and relationship with one another. It is assumed that none of the organs of the State,
including the judiciary, would exceed its powers as laid down in the Constitution. It is
also expected that in the overall interest of the country, even though their
jurisdictions are separated and demarcated, all the institutions would work in
harmony and in tandem to maximize the public good. In today’s concept of
liberalization, privatization and globalization the doctrine separation of powers cannot
be interpreted to mean absolute division of powers in the strict sense but community
of powers exercised in the spirit of cooperation by various organs of the state in the
best interest of the people. In any modern constitution the powers of the government
cannot be kept in watertight compartments nor can any government run on the
principle of strict separation of powers. That is why the Indian constitution has not
recognized the separation of powers in the absolute rigidity.