SEPARATION OF POWERS
Montesquieu, Spirit of the Laws | M. P. Jain & S. N. Jain, Principles of Administrative Law Ch. 2
MONTESQUIEU- SPIRIT OF THE LAWS
Doctrine of separation of powers is traceable to Aristotle. The writing of Locke and Montesquieu gave it a base on which
modern attempts of distinguishing between the legislature, executive, and judiciary are grounded.
Montesquieu’s division of power:
General legislative power
Executive power to conduct foreign affairs (federative power)
Civil law executive power which included remaining executive and judicial powers.
Montesquieu’s doctrine was derived from developments in the British constitutional history of the early 18th century-
England after a long war between the parliament and the King saw a triumph of the parliament. The King was compelled to
recognize the legislative and taxing powers of the parliament and the judicial powers of the court.
At that point in time, the King exercised executive powers, the parliament exercised legislative powers, and the courts
exercised judicial powers- England later changed this to the parliamentary form of government.
England now follows the Westminster-type model of democracy where legislature and executive are not separate- only the
judiciary is treated as separate from the rest.
MONTESQUIEU- SPIRIT OF THE LAWS
If the Executive and the legislature are the same person or body of persons, there would be a danger of the legislature
enacting oppressive laws which the executive will administer to attain its own ends.
When the legislative and executive powers are united in the same person, there can be no liberty. The apprehension
may arise that the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
In the case where the judiciary is joined with the legislative, the life and liberty of the subject would be exposed to
arbitrary control- for the judge would then be the legislator, rather than an interpreter of the law.
When the judiciary is joined to the executive, the judge might behave with violence and oppression.
The value of the doctrine lies in the fact that it seeks to preserve human liberty by avoiding the concentration of
powers in one person or body of persons- the objection was against accumulation and monopoly of one arm of the
government.
Montesquieu did not object to the interaction between the organs.
DOCTRINE OF SEPARATION OF POWER
The doctrine of separation of powers treats the accumulation of power as the definition of tyranny.
Purpose: divide governance against itself by creating distinct centres of power so that they could prevent each other from
threatening the public with tyranny or arbitrary action- No significant deprivation of life, liberty, and dignity of any person
can take place unless all the organs of the government are combined together.
Doctrine of separation of powers is based on four principles:
Exclusivity- a structural division in all the three organs of the state, for example, the U.S.
Functionality- prohibits amalgamation and usurpation by one organ of the other.
Check and balance- each organ of the state may check the other to keep it within the constitutional bounds.
Mutuality- creating concord not discord amongst organs of the government. Engagement and cooperation between the
different arms.
Doctrine can be used in a negative and positive sense:
Negative sense: Puts limits on the exercise of power by each organ
Positive sense: Defines minimum content of powers within those limits which a court can enforce to achieve constitutional
values.
SEPARATION OF POWER: UNITED STATES
Early settlers had very strong sentiments about the violation of their life, liberty, and dignity by the Monarchs in England- where they
saw an unchecked amalgamation of powers in the King. Hence Doctrine of separation was chosen as the fundamental norm upon
which the American constitution was framed.
The US constitution is based upon the concept of Separation of Power- Articles I, II, and III vests legislative power in the Congress,
President, and judiciary respectively.
The doctrine in its classic sense is not followed even in the U.S.- yet the logic behind it is still valid- to check polarity. Threat to liberty
arises not from blended powers, but unchecked powers. American constitutional developments show that with the rising complexity
of governance, strict structural classification of powers is not feasible.
The president of the US interferes with the exercise of powers by Congress through the exercise of veto power.
The president also interferes with the functioning of the judiciary through the exercise of his power to appoint judges.
Parliament interferes with the powers of the president through a vote on the budget, approval of appointments by the Senate, and
the ratification of treaties.
Parliament also interferes with the powers of the court by passing procedural laws, creating special courts, and approving the
appointment of judges.
Judiciary interferes with the powers of Congress and the president through judicial review- the US Supreme court has made more
amendments to the constitution than Congress itself.
SEPARATION OF POWER: INDIA
Doctrine of Separation of powers not accorded constitutional status. Apart from Article 50 (DPSP enjoining
separation of judiciary from the executive), there is no formalistic division of powers.
In the Indian scheme, the three organs have both functional and structural overlaps. The Union Executive includes the
council of ministers- who are members of the legislature.
Functional overlaps:
Any executive action, or law passed by the parliament can be declared void by the SC if it violates the provisions of
the constitution/or the law passed by the legislature in case of executive actions.
Even the power to amend the constitution is subject to judicial scrutiny.
President in whom the executive vests, exercises law-making power in the form of ordinances.
The council of ministers (Union executive) is selected from the legislature and are responsible to the legislature.
The legislature exercises judicial powers in cases of breach of privileges, impeachment of the President, and removal
of judges.
Executive interferes with the judiciary by making appointments to the office of the Chief Justice and other judges.
SEPARATION OF POWER: INDIA
RAM JAWAYA KAPOOR V. STATE OF PUNJAB [AIR 1955 SC 549]
The Education department of the Government of Punjab, issued executive orders under the policy of nationalizing the
publication of prescribed school textbooks. As a result, any textbook recognized as mandatory by the school board or
department of education would be published by the state government.
The petitioner approached the Supreme Court under Article 32 of the Constitution, claiming that the executive
order infringed on the petitioner’s fundamental rights, as guaranteed by Article 19 (1) (g) of the
Constitution, and that the state’s executive power does not extend to undertaking such executive action
without legislative sanction.
The Court held that the policy did not violate the petitioner’s fundamental rights- since no one was forbidden from
printing textbooks.
While discussing the issue of what is the extent of executive power, the Court mentioned that:
The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but
the factions 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.
SEPARATION OF POWER | ADMINISTRATIVE LAW
Growth of administrative law is criticized on the ground that it violates the principles of the doctrine of separation of
powers.
Increase in the number of regulatory bodies necessitates that a particular organ of the state, i.e. the executive be vested with
powers of rule-making and rule adjudication. This is seen as a threat to the neat functional demarcations that the doctrine of
separation of powers prescribes.
How to reconcile the delegation of legislative and judicial powers to the administrative agencies with the doctrine of
separation of powers?
Highlighting that the rule-making and adjudicatory functions are merely quasi-legislative or judicial.
Modern administrative law has helped the doctrine to evolve to a rule against unrestricted delegation circumscribed by the
power of judicial review.
The logic behind the doctrine is premised on ensuring that the center of authority is dispersed to avoid absolutism- it does
not intend to create impassable barriers but underlines the importance of mutual restraint in the exercise of powers by
the three organs.
It has grown into a doctrine of check and balance.
