1. Introduction

The change in times has seen the doctrine of separation of powers take form in different ways. Plato and Aristotle came up with the doctrine. John Bodin, a French Philosopher and Locke, a British Politician in the 16^th and 17^th centuries also passed forth their understanding of the doctrine of separation of powers. Montesquieu is the one who structured the doctrine in an orderly and scientific way.  This was in his book, ‘Esprit des Lois’ which means The Spirit of the Laws in 1748.

M.P Jain said the doctrine of the rule of law that was expressed by Dicey had an effect on the administrative law in Britain in terms of its growth. The doctrine of separation of powers, on the other hand, had an empirical effect on the growth of administrative law in the U.S.A.

Davis’ theory of separation of power was likely a cause of principle barrier to the growth of an administrative process.

 

2. Definition of Separation of Powers-

The State has an obligation to carry out the following major things:

1. Legislative
2. Executive
3. Judicial

These brings about the three arms of the State with every one of them having a unique, distinct or say; separate function:

1. Legislature – Empowered to make the law.
2. Executive – Maintains law and order.
3. Judiciary – Judges over disputes.

The theory of separation of powers maintains that the three arms of power of the government should run as separate parts of the Government in a democratic country. In that way, no arm will and should get into matters of the other, for instance: the executive should not practice judicial powers.

The doctrine of separation of power is a way to exercise authority.

There are three forms of structural categorization that are signified by the theory of separation of powers:

1. Individuals in one arm of the government must not be allowed to take part in more than one of the three arms of government. For instance: A member of parliament should not be a judge in court at the same time.
2. One arm of the government must not interrupt the affairs of another arm of the government.

• One arm of the government must practice the obligations given to another arm of government.

 

3. Montesquieu’s theory of Separation of Powers

In the book he wrote in 1748, Montesquieu illustrated the doctrine of separation of power in detail. He said that apprehensions may occur when the powers of the executive and legislature are unified. In the same way, there is no actual freedom when the judiciary joins forces with the legislative and the executive. The life and freedom of the subject would be subdued to the control of arbitrariness.

Lord Action happened to say that power has a tendency to corrupt and absolute power can corrupt absolutely. Just like in France, the monarchy and King were arbitrary in their actions which caused the subjects to have no liberty or rights in any way.

Having been intrigued by the sentiments of Locke, Montesquieu established his doctrine on Locke’s analyzation of the constitution of Britain during the initial years of the 18^th century. In Montesquieu’s views, the key to the liberty of the Englishman was the separation of the three major powers of the government.

Wade and Phillips came up with three different meanings of separation of powers:

1. The same individual is not obliged to be a part of more than one organ of the government.
2. One arm of the government ought not to come in between the affairs of another arm.

• One arm of the government ought not to practice the given duties of another arm.

 

4. The doctrine of Separation of Powers-

The constitution of U.S.A. has accepted and is making use of the doctrine of separation of powers. The doctrine happens to form the basis of the entire structure of the constitution. Art. I, section 1 of the constitution denotes the legislative authorities in the Congress. Art. II, Section I denotes the executive authorities of the President and Art II, Section I denotes the judicial authorities in the Supreme Court.

• The Supreme Court does not have the mandate to have a say in political issues because of the theory of the separation of powers. The excess power of judicial review has been restricted from the Supreme Court by the Constitution of America. The strict categorization of the authority of the government has no chance of possibility because of the complexity of the modern Government indicated by the American Constitutional developments.
• The Congress can be interfered with by the President through the use of his veto powers. He also interferes with the Supreme Court by the use of his authority to select Judges.
• The Congress interferes with the authority of the president through their votes on the budget, approving appointments by the Senate and ratifying the treating in the same way; The President; the executive interferes with the functions of the legislature and judiciary. Furthermore, the Congress come in between the authority of the courts when they pass procedural laws, create special courts and approve the selection of judges.
• The judiciary is also able to interfere with the authority of the President and Congress by the use of it power of judicial review. The Supreme Court of the United States has amended the American Constitution more than the Congress has.

Having been drafted in 1787, the Constitution of America employed the doctrine of separation. The doctrine has however been loosened with the development of the administrative process. The Congress has continually given legislative authority to other administrative bodies and regulatory agencies but the Supreme Court has never flagged that as being against the constitution.

 

1. England

The doctrine of separation of powers has never been adopted in England even though Montesquieu established his doctrine after the British System. Essentially, the theory of concentration or integration of power is what was employed in England. The three arms of the government do exist in England however. They all have their unique functions but there is still a mix of power in the arms of the government.

The judges in England practice some functions of the executive through the Trust Act. They also practice legislative functions when they make rules of courts and govern their own procedure. The three authorities of the government were integrated. For instance, Lord Chancellor was in charge of the judiciary, the chairman of the House of Lords (legislature) and a member of the executive.

 

1. India

The doctrine of separation of powers has not been granted a Constitutional status. However, the separation of the judiciary from the executive has been stated in Art. 50 of the Indian Constitution in the fourth part of the Directive Principles of State Policies.

The Indian Constitution provides that the President holds executive powers, the parliament holds the legislative powers and the judiciary holds judicial powers.

The president stays in office for a particular duration of time and his duties and extents of authority are stated in the Constitution.

Parliament has the mandate to make laws under what is provided in the constitution. It bears no other boundary to its legislative authority. Parliament has the authority to regulate laws but has no authority to render any judgment as void.

The judiciary, on the other hand, cannot have any interference in its duties. They can term laws passed by the parliament as contrary to the constitution.

All these have made jurists say that the doctrine of separation of powers has been adopted in the constitution of India and makes the major structure thereof.

 

5. The effect of the doctrine of separation of powers

The development of the administrative law and the way governments function was greatly impacted by Montesquieu’s doctrine of separation of powers. English and American jurists positively took in the doctrine with politicians welcoming it as well.

The conclusions of Blackstone in his book ‘Commentaries on the Laws of England’, 1765 stated that if it happened that the duties of the legislative, executive and judiciary were accorded to the same man, the personal liberty of the people would come to a grinding halt.

Madison also said that the very definition of tyranny would be if all the powers of the government were brought together into the same hands, be it of one, a few or numerous and if it would also be hereditary, self-appointed or elective.

In 1789, the Constituent Assembly of France made it clear that a constitution would be void in a country where the doctrine of separation of powers has not been employed.

 

6. Defects of the doctrine of separation of powers

When the doctrine of separation of powers is applied in reality, not only the effects but also the defects are noted from it. The defects are as follows:

1. Historically, the theory was not correct. The British constitution did not have the separation of powers. It had never been employed at any time. Professor Ullman proclaimed that England had never been the origin or even a practitioner of the separation of powers.
2. The doctrine is displayed in such a manner that the three organs of the government work independently from each other which is not really the case. There can never be a line of boundary between the legislative, executive and the judiciary. This was supported by the President of Great Britain, Woodrow Wilson when he said the government is a living thing that like all other living things, it cannot live by itself. He went on to say that the functioning of one arm of government requires the cooperation of another functioning organ.

• The doctrine of separation of powers cannot be fully accepted since for instance, if the work of the legislature is to only legislate, then no one can be punished and neither can it assign any legislative duty. This makes the doctrine lack absolution.

1. The Modern State is a State of welfare which has to cater for numerous socio-economic issues. This doctrine cannot, therefore, be fully relied on.
2. In modern practice, the theory of separation of power implies a distinct separation as stated by Dr. D. D. Basu. He continued to say that a line of the boundary has to be drawn between ‘essential’ and ‘incidental’ powers. One arm of government may not touch the essential duties of another arm of government though they may practice some incidental duties.
3. The literal division of duties and powers cannot bring about liberty and freedom which was the main aim of the doctrine of separation of powers. Freedom and liberty can be ensured through an impartial and independent judiciary.

 

7. Case laws-

Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299,

There is only a wide sense of separation of powers in the Indian Constitution as noted by Ray, C.J. A firm separation of powers in not applicable in India as it is in other constitutions as the American and Australian Constitutions. J. Mathew has taken in this theory.

Kartar Singh v. State of Punjab, AIR 1995 SC 1726,

Ramaswamy J. stated that in the Indian Constitution, power has been demarcated in such a manner that the law is created by the legislature, implemented by the executive and interpreted by the judiciary which also presides over adjudications of conflicts.

 

8. Conclusion-

The Indian Constitution has not fully employed the doctrine of separation of powers. Its existence is in a very general aspect. A rigid application of the separation of powers is in the American and Australian Constitutions. The England Constitution has never recognized it.

The doctrine all in all does not provide the ability to be employed fully in any country. This does not render it of no value, however. Montesquieu’s opinion was that the doctrine he came up with was to give rise to a governmental power that is divided into arms where one will watch over the other and in that way, liberty will have a chance to live.