Separation of Powers

Introduction

If the Doctrainiere of the rule of law hampered the recognition of

Administrative law in England, the doctrine of separation of powers had similar
impact on the thinking of Administrative process in the United States.

Davis observed, " probably the principal doctrinal barrier to the development
of Administrative process has been the theory of separation of powers."

Meaning:

There are generally three categories of powers

a. The legislative
b. The executive
c. The judicial

At the same time there are three organs of the government in a state

i. The legislative
ii. The executive
iii. The judiciary

The theory of separation of powers postulates that these three e powers of the
government must in a free democracy, always be kept two separate a and be
exercised by separate organs of the government. Accordingly the legislature cannot
exercise executive or judicial powers, the executive cannot exercise legislative or
judicial powers and Judiciary cannot exercise legislative or executive powers of the
government.

Historical Background:

The doctrine of separation of powers is of ancient origin. The history of

origin can be traced to Aristotal.
 In the 16th and 17th centuries the French philosopher John Bodin and
British politician Johlocke respectively had expanded the doctrine of separation of
power.

But, it was montesquieu who for the first time give it a systematic and
scientific formulation in his book La Esprit de Lois meaning the state of the Lost
published in 1748.

Montesquieu Theory:

According to this theory, powers are of three kinds legislative executive and
Judiciary and each of these powers must 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 an apprehensive that the organ concerned may enact
tyrannical manner.

Again, there can be no Liberty if the judicial power be not separated from
the legislative and executive. Where it is joined with the legislative the life and
liberty of the subject would be e exposure to arbitrary control for the judge would
then be the legislator. When it is joined with the executive power the judge may
behave with violence and oppression.

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

According to wade and Philips:

1. That the same persons should not form part of more than one of the three
organs of government, that is, ministers should not sit in parliament.
2. That one organ of the government should not control or interfere with the
exercise of functions by another organ, that is, the judiciary should be
independent of the executive or that ministers should not be responsible to
parliament and,
3. That one organ of the government should not exercise the functions of
another that is, ministers should not have legislative powers.
Effect of the Theory:

The theory of separation of powers as pronounced by Montesquieu had

tremendous impact on the growth of administrative law and functioning of
governments. It attracted America and English jurists as well as politicians.

Blackstone, in 1765 observed that, if the legislative, the executive and

judicial functions were given to one man, there was an end of liberty.

According to Merdison, “the accumulation of all powers, legislatuve

executive and judicial functions in one hand, whether of one, a few or many and
whether hereditary, self-appointed or elective may justify be pronounced the very
definition of tyranny.”

This doctrine influenced the makers of Indian Constitution. Thus, the

constituent Assembly of France had announced in 1789 there would be nothing
like a constitution in the country where the theory of separation of powers was not
accepted. This doctrine in America is the base of the whole structure of the
constitution. In this way it exercised a derisive influence in the minds of the
framers of U.S. constitution.

Criticism:

In theory the doctrine of separation of powers may sound well. However, in

practice many defects surfaced when it was sought to be applied in real life
situation. The defects which were found in this doctrine when applied were mainly
the following,

1. Historical Incongruity:
i. Historically speaking, the theory was not correct. His exposition of this
theory is based on the British constitution of the first part of the eighteenth
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 separation
of powers.”
 Similar is the observation of Donoughmore committee.

“In British constitution there was no such thing as the absolute separation of
legislative, executive and judicial functions.

ii. Division of Functions:

The assumption behind the doctrine is that the three functions of the
government, namely, legislative, executive and judicial are dividable from each
other. The fact, however, it is not so easy in reality. There are no watertight
compartments. There is overlapping with each other.
As friedman and Benjafield, says, “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 government.

iii. 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 overseer of the executive, the
administrative organ has legislative function. The judiciary has not only judicial
functions but also has rule making powers.

iv. Adhere to it not possible in a 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.
Justice Frankfutter says, “Enforcement of rigid conception of separation of
powers would make modern government impossible.”
v. Organic Separation:
According to D. D. Basu, “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 the government cannot usurp
or encroach upon the essential functions belonging to another organ, but may
exercise some incidental functions thereof.”
Doctrine of separation of Powers in Practice:

1. Indian 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 Indian Constitution only executive power is vested with 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. Functional Overlapping:

If one study’s the constitutional provisions carefully, it is clear that the

doctrine of separation of powers has not been accepted in India in its strict sense
and there is functional overlapping. The president of India is vested exercises
legislative power in the shape of ordinance making power and also the judicial
power under Article 103(1) and Article 217(3) to mention a few.

The Supreme Court has the power to declare void the laws passed by the
legislature and the action taken by the executive if they violate the provision of the
constitution or the laws passed by the legislature in case of executive actions. Even
in 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 the legislative powers but also judicial
powers in the case of breach of privilege impeachment of the president and
removal of judges.

3. Constitutional Recognition:
The question of constitutional recognition of the doctrine of separation of
powers was at length considered by the Supreme Court in Indira Gandhi v/s Raj
Narain. Chief justice Ray observed that, our constitution recognizes division
between three organs of the government. Judicial power is vested in the judiciary.
Similarly in the case of executive and legislature. However, it is not the intention
that the powers of the judiciary should be passed on to or to be shared by the
executive or legislature or the powers of the legislature or executive should pass to
or be shared by the judiciary.

4. Source of the doctrine of separation of powers:

Under the Indian jurisprudence the source of the doctrine of separation of
powers is constituent power comprises legislative, executive and judicial 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 authority defines the authorities or demarcates the areas that separation
of powers is discussed. The constituent power is sovereign. It creates the organs
and distributes the powers.

5. 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 n
significance today. It has not lost its political influence in the sense that the centre
of authority must be dispersed to avoid absolutism. Hence, this doctrine can be
appreciated as a system of checks and balances.