SEPARATION OF POWERS: DOES IT REALLY EXIST?

Nikhil Gupta and Aditya Gogna

Jindal Global Law School, O. P. Jindal Global University, Haryana

ABSTRACT

The theory of separation of power is an ever-evolving theoretical concept where practical implementation
in the absolute sense is difficult to attain. The authors in the present paper attempt to achieve three things.
Firstly, deciphering the doctrine. Secondly, the comparative analysis of various jurisdictions, and lastly,
the creation of similar ideology which inculcates the idea which the doctrine promotes and attempts to
make it workable. The following is an attempt to achieve the aforementioned.

INTRODUCTION

In 1971, an exercise to enunciate an imperative characteristic of human behavior was initiated

under the head of “Stanford Prison Experiment”.1 The experiment explained behavior in terms of
individual personality or environmental factors (situational).2 The study consisted of 10 prisoners
and 11 guards. The experiment extrapolated that the guards and the prisoners quickly adopted
their respective roles. The guards harassed the prisoners thereby behaving in a brutal and sadistic
way. The conclusion derived was that people conform to those social roles which they are
expected to play, especially in positions of authority.3 The narrative that the experiment
established would be on similar grounds as retrospectively examine the history of the world and
narrowing it down to power structures. The theory of separation of power resonates from a
similar understanding of power structures and societal constructs:
“Were the executive power not to have a right of restraining the encroachments of the legislative
body, the latter would become despotic; for as it might arrogate to itself what authority it please,
it would soon destroy all the other powers.”4

1
The Stanford Prison Experiment, THE BBC PRISON STUDY (Jan. 24, 2017), http://www.bbcprisonstudy.org/ bbc-
prison-study.php?p=17.
2
Saul McLeod, Stanford Prison Experiment, SIMPLY PSYCHOLOGY (Jan. 28, 2017), http://www.simply
psychology.org/zimbardo.html.
3
Id.
4
Warren, M.W., Charles Secondat-Baron de Montesquieu, AMERICAS SURVIVAL GUIDE (Feb.3, 2017),
http://www.americassurvivalguide.com/montesquieu.php.

1
In 1748, French Philosopher by the name of Montesquieu wrote a book called “The Spirit of
Law” in which he furnished the idea of separation of power.5 The doctrine was developed by the
great philosopher to counter the despotic regime prevalent at that point of time in France.6 He
was an advocate of human dignity and intended to use the theory as a weapon to uphold the
liberty of the people.7 The presence of the doctrine can be traced back to ancient Greece and the
first constitution of the Roman republic which were prior to Montesquieu’s tripartite system.8
Moreover, Aristotle in his book “The Politics” also reiterated the concept in a peculiar way by
amalgamating an absolutist view which was contrary to Montesquieu’s proposition.9 He stated
that there are precisely three elements in a Constitution which are well arranged and the
differences arising in the Constitution are bound to correspond to the differences between each of
these elements.10 He further stated that the three elements were as follows: the deliberative, the
official and the judicial element.11Further on, in 1960s, John Locke wrote about the doctrine with
a conservative view which was guided towards avoiding centralization of power and not
harmonious functioning of the various branches of the government.12 The doctrine of separation
of power is pivotal in the creation of any centralized structure in a functioning democracy. This
paper will analyze its existence by looking into the evolution of doctrines and implementation.
Lastly, the paper shall revolve around one central question, i.e., is the doctrine both practically
and normatively coherent if it is to operate?

SEPARATION OF POWERS AND UNITED STATES OF AMERICA

5
Dasgupta, R.D, Notes on the Montesquieu theory of separation of power, PRESERVE ARTICLES (Feb. 15, 2017),
http://www.preservearticles.com.
6
Id.
7
Id.
8
Historical Development Of Separation Of Powers, LAW TEACHER (Feb. 7, 2017), https://www.lawteacher.net/free-
law-essays/constitutional-law/historical-development-of-separation-of-powers-constitutional-law-essay.php?cref=1.
9
Id.
10
Id.
11
Id.
12
Braman, C.B, The Political Philosophy of John Locke and its influence on the founding fathers and the political
documents they created, CHUCK BRAMAN (Feb. 26, 2016), http://www.chuckbraman.com.

2
James Madison argues in the federalist papers (No.51), “Ambitions must be made to counteract
ambition. The system of separated powers is not designed to maximize efficiency, it’s designed to
maximize freedom.”13
The United States constitution has no provision that explicitly incorporates the principal of
Separation of power.14 Article I, II and III of the Constitution outlines the power vested in their
respective branches i.e. the legislative, executive and the judiciary.15 The founding father of the
US Constitution adopted the Montesquieu’s theory of separation of power while drafting the
following. He further stated that in order to secure liberty and prevent a government from
becoming corrupt, the powers need to be divided amongst various branches of the government
who would subsequently impose check on each other.16 The framers structured the Constitution
in this way in order to prevent one branch of government from becoming too powerful.17

The case of U.S. v Alvarez is an example of how each branch can exercise their authority.18 The
case law dealt with the issue that was it a crime to lie about receiving military medals under the
Stolen Valor Act (hereinafter referred to as the “Act”) or whether the Act violates the first
amendment right to free speech.19 The case is an example of how the three branches of the
government can exercise their respective power. The legislative branch passed the Stolen Valor
Act of 2005, the judicial branch rules the Act unconstitutional in 2012 and the Executive branch
created a database to rectify the issue of false claims with regards to high military honor.20

The aforementioned case is an example of how the various branches of the government exercise
their respective powers without interfering into each other’s function. With progressing time,
there has been a change in the nature of US government.21 It follows the principle of partial

13
Separation of Powers, LAW2.UMKC (Mar. 2, 2017),
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/separationofpowers.htm.
14
Id.
15
U.S. CONST. art 1, art 2, art 3.
16
Warren, M.W., supra note 4.
17
Separation of Powers in Action, US COURTS, (Feb. 20, 2017) http://www.uscourts.gov.
18
Id.
19
U.S. v. Alvarez, 504 U.S. 655 (1992).
20
Separation of Powers in Action, supra note 17.
21
Importance of Philosophy, IMPORTANCE OF PHILOSOPHY (Mar. 4, 2017),
http://www.importanceofphilosophy.com.

3
separation of powers and the interference of one branch of the government with the other branch
has increased with time.22 The two main case laws which prove the statement are as follows:
a) Executive encroachment on Legislative power – Dames and More v Regan23, the case
deals with an important issue of American politics. It considers the constitutionality of
executive orders which were issued by president Carter directing claims made by
Americans against Iran to a specially created tribunal.24 The court held the orders to be
constitutional under the purview of president powers presiding under Article II.25 The
present decision of the court is an example of the executive performing legislative
functions. It deals with the sensitive issue of American politics. In our opinion, the
judiciary over extended the functions of the executive by declaring the act as
constitutional. The principle of separation of power clearly demarcated the roles of each
branch and lays emphasis on the importance of checks and balance. This case is an
example that the judiciary approved of the executive to perform legislative function as it
deemed that activity to be necessary and within the purview of executive power.
b) Judicial Encroachment on Legislative power – Mistretta v United States26, the case talks
about various issues but the one that is relevant for this discussion is separation of power.
The case dealt with the following issue – Whether congress exceeded its delegation
authority by creating the sentencing commission whose determination is outside the
control of congress and does the impugned legislation contravene the principle of
separation of power?27The court held that congress did not exceed its authority and were
within the ambit of the principles of separation of power.28 The court’s judgement in the
present case law is an indication of how the concept of separation of power has evolved
over the years. The fact that it permitted legislative activities of the judiciary
automatically indicated an intermingling of the branches of the government and the
evolution of the concept of separation of power.

SEPARATION OF POWERS AND UNITED KINGDOM

22
Id.
23
Dames and More v. Regan, 453 U.S. 654 (1981).
24
Id.
25
Separation of Powers, supra note 13.
26
Mistretta v. United States, 488 U.S. 361(1989)
27
Summary of Mistretta v. United States, 4LAWSCHOOL (Mar.3, 2017), http://www.4lawschool.com.
28
Id.

4
It is essential to analyze the constitutional setup of United Kingdom as the colonized countries
have derived various principles from them. William Blackstone stated that the United Kingdom
is a unique system as it does not represent a standard structure but a mixture.29 It was observed
that the legislature is dominated by the executive therefore, instead of the parliament, the
government in power controls the legislative functions. It is also observed that the executive
dominates the judiciary as the appointment of senior judges is in the hands of the Lord
Chancellor.30 Therefore, the British has a weak division of power despite Montesquieu deriving
his doctrine from the British system.

SEPARATION OF POWERS AND INDIA

On 10th of December 1948, the assembly sat down to discuss the insertion of Article 40-A of the
Constitution and debated on the issue of separation of power.31 “There shall be complete
separation of powers between the principal organs of the state, viz, the legislative, the executive,
and the Judicial”, the motion raised was in the negative.32 In India the doctrine was not awarded
constitutional status but it’s clearly evident that it was drafted keeping the doctrine in mind.33
The drafters did mention the doctrine in the Constitution in the form of directive principles under
Article 50 which advocates separation of judiciary from the executive but the reference is not a
formalistic note.34 The doctrine has not been followed in its absolute sense and there are many
instances which support and negate the application of this doctrine.35

29
Separation Of Powers In The UK, LAW TEACHER (Feb. 20, 2017), http://www.lawteacher.net/free-law-
essays/administrative-law/separation-of-powers-in-the-uk-administrative-law-essay.php?cref=1.
30
Id.
31
Constituent Assembly of India, “Constituent assembly of India”, V.II, PARLIAMENT OF INDIA (Feb. 27, 2017),
http://parliamentofindia.nic.
32
Id.
33
Indian Constitution And Separation Of Powers, LAW TEACHER (Mar. 3, 2017), http://www.lawteacher.net/free-
law-essays/constitutional-law/indian-constitution-and-separation-of-powers-constitutional-law-essay.php?cref=1.
34
Yashmita, Separation of Powers: A Comparative analysis of the doctrine India, United States of America and
England, LAWCTOPUS (Feb. 28, 2017), https://www.lawctopus.com/academike/separation-of-powers-a-
comparative-analysis-of-the-doctrine-india-united-states-of-america-and-england/.
35
Id.

5
 1. Articles 53(1) and 154(1) – These articles talk about the executive power of the Union
and State residing with the president and governor.36 Subsequently, there’s no indication
of such a provision for the legislature or the judicial organ.37 Therefore we can conclude
that India does not follow a rigid separation of power.
2. Articles 74(1) and 163 – These articles talk about the functioning of the president and the
governor with the aid and advice of the council of ministers.38 These articles acts as a
check on the functioning of the powers presiding with the President and the governor.
3. Article 123 A – The said article of the Indian Constitution grants the president the power
to promulgate ordinance which is a law making power.39 Though there is limitation to the
delegated power but it still is in the purview of legislative function of making laws.40 The
limitations are, when the legislature is not in session and the need for an immediate
action.41 The article is another instance where the principle of separation of power is
being deviated from it intended application. The case of D.C Wadhwa v State of Bihar42
is an example of the abuse of this power.
4. Kesavananda Bharati v The State of Kerala43 – This was one of the landmark cases for
Indian judiciary as it answered numerous pivotal questions revolving around one central
explanation. The case mainly revolved around the question of the scope of the power of
amendment of the Constitution under Article 368 of the India Constitution. The court
held in the case that the amending power is the basic feature of the Constitution and
further stated that the principle of separation of power is part of the basic structure.44 In
the judgement the court further reiterated that any exercise which gave control of one
organ over another would be unconstitutional, leaving the Executive, the legislature and

36
INDIA CONST., art. 54 and 154.
37
Aman Chhibber, Separation of power: It’s Scope and changing equations, LEGAL SERVICE INDIA (Mar. 1, 2017),
http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html.
38
INDIA CONST., supra note 36, Part VI.
39
INDIA CONST., supra note 36.
40
Anushka Trivedi, Ordinance making power of the president of India: A critical outlook, IPLEADERS (Feb. 27,
2017), https://blog.ipleaders.in/ordinance-making-power-critical-outlook/.
41
Id.
42
Dr. D.C. Wadhwa & Ors v. State of Bihar & Ors, AIR 1987 SC 579.
43
Kesavananda Bharati v. State of Kerala, (1974) 1 SCC (Jour) 3.
44
Id.

6
 the Judiciary completely independent.45 By this judgement the court gave an indication
that in India the separation of power doctrine is not followed rigidly.
5. Indira Gandhi Nehru v Raj Narain46 - This case was about Election Disputes involving
the Prime Minister and the purpose of passing the 39th Amendment of the Constitution.47
The dispute in the case was also about the prime minister election which were declared
void by the constituent assembly, thus acting in judicial capacity.48 The court stated that
the parliament cannot under any constitutional amending power take on the role of the
judiciary thereby asserting the position of separation of power.49
6. Rai Sahib Ram Jawaya Kapur and Ors v The State of Punjab50- The case of Ram Jawaya
was an important judgement for the purpose of this article as it clarifies the Indian
judiciary stand on the concept of separation of power. It stated that in India we follow a
separation of functions and not of power thereby not abiding by the principle rigidly.51
The question in this case was regarding the exercise of functions by the cabinet ministers
who exercise both legislative and executive function under the garb of Article 74(1)
making their aid and advice mandatory for the formal head.52 Therefore concluding that
the executive is derived from the legislature and is dependent on it for its legitimacy.53
The case clarified the Indian position on the doctrine by clarifying the way it’s
implemented in the Indian context.
7. Delhi Development Authority And Ors. v Uee Electrical Engg. Ltd54 - The case dealt with
the goal to clarify the meaning and objective of judicial review as a protection and not an
instrument for undue interference in the executive functions.55 The court in the case
stated, “One can conveniently classify under three heads the grounds on which
administrative action is subject to control judicial review. The first ground is ‘illegality’,

45
Indian Constitution And Separation Of Powers, supra note 33.
46
Indira Gandhi Nehru v. Raj Narain, AIR 1975 SC 2299.
47
Pooja Meena, Indira Gandhi Nehru v. Raj Narain: Case Analysis, LEX QUEST (Mar. 3, 2017),
http://lexquest.in/indira-nehru-gandhi-v-raj-narain-case-analysis/.
48
Indian Constitution And Separation Of Powers, supra note 33.
49
Id.
50
Rai Sahib Ram Jawaya Kapur and Ors v The State of Punjab, AIR 1955 SC 549.
51
Aman, supra note 37.
52
Id.
53
Id.
54
Delhi Development Authority v. Uee Electrical Engg. Ltd., 2004(3) SCR 286.
55
Indian Constitution And Separation Of Powers, supra note 33.

7
 the second ‘irrationality’, and the third ‘procedural impropriety’.”56 Therefore we can
observe from the following that the court emphasized on the organs of the state to remain
separated and this position of the doctrine has been upheld.

THE NEW SEPARATION OF POWERS

“For a disciple so firmly grounded in the everyday conduct of human affairs, the law is
surprisingly susceptible to the beguiling mythologization of traditional orthodoxies.”57 A
professional attachment to precedent ensures that theories are received and applied with such
frequency that they ultimately acquire totemic status as ideological pillars of the established
order.58 So it has been with the separation of power. Lord Action rightly said that power corrupts
and absolute power tends to corrupt absolutely, confining power in a single body leads to
absolutism which might also cause abuse of power. Therefore it’s the doctrine of separation of
power is a theoretical concept and is impractical to follow absolutely.

Maclver critiqued the theory of separation of power and reiterated that it leads to isolation and
disharmony.59 He further stated that various branches of the government tend to exhibit a sense
of understanding and cooperation to achieve its end when they work together60. The theory
separates these branches and risks the chance of them becoming arrogant and refusing to work
with other branches which might give rise to administrative complications61. The other aspect
which is pivotal in decrypting the doctrines existence is the change in the function and nature of
the state. The status of a modern state is a lot more different from what it used to be. It evolved
from a minimal, non-interventionist state to a welfare state wherein it has multifarious roles to
play like controller, provider etc.62. Furthermore, the omnipresence of the state has rendered its
functions becoming diverse and problems interdependent.63 If an attempt is made to demarcate

56
Delhi Development Authority, supra note 54.
57
CAROLAN, E.C, THE NEW SEPARATION OF POWERS 253 (Oxford University Press 2009).
58
Id.
59
Dasgupta, R.D, Notes on the Montesquieu Theory of separation of powers, PRESERVE ARTICLES (Mar. 2, 2017),
http://www.preservearticles.com/201104235909/notes-on-the-montesquieu-theory-of-separation-of-powers.html
60
Id.
61
Id.
62
Separation of Powers and the Indian Constitution, SHODHGANAGA (Mar. 1, 2017),
http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/9/10_chapter%204.pdf.
63
Id.

8
functions based on the rationale which the theory of separation of power proposes, those
functions would cause inefficiency in government.64

There are several other issues which resonate from the practical implementation of the doctrine
which are as follows:-
a) Complete separation not desirable.
b) Impractical – Overlap necessary for effective functioning of the government.
c) Three organs are not equal – The theory wrongly assumes the equality of all three organs
of the government.
d) Leads to deadlocks and inefficiency – It creates a situation in which all the three organs
can get engaged in conflict and deadlocks with the other organs.
e) Liberty does not depend on the doctrine
f) Separation of Functions and not of powers – Some theorist stated that the doctrine
revolved around the separation of functions and do not advocate separation of powers.65

The functions of a modern state are omnipotent in nature therefore the question we need to ask is
where is the line drawn? A distinction is made between the ‘essential’ and ‘incidental’ powers of
an organ and to this differentiation one organ can’t claim the powers essentially belonging to
other organ because that would be a violation of the principle in its entirety. Therefore, this
distinction exemplifies the position and the stand, of the new principal of separation of power
where the intermingling of the organs acts as checks and balances and initiates the effective
functioning of the society.66

CONCLUSION

Is the doctrine both practically and normatively coherent if it is to operate? The aforementioned
analysis shows that the doctrine has not been followed rigidly i.e. in its absolute sense nowhere
in the world. As per our observations, in a democratic country, goals are enshrined in the

64
Id.
65
K.K. Ghai, Separation of Powers: What is the theory of separation of powers?, YOUR ARTICLE LIBRARY (Mar. 6,
2017), http://www.yourarticlelibrary.com/constitution/separation-of-powers-what-is-the-theory-of-separation-of-
powers/40336/.
66
Id.

9
Constitution and the state machinery, it can be seen that the constitutional provisions are made in
a manner which supports a parliamentary form of government where the principle cannot be
followed rigidly. The principle reiterates a hypothetical idea whose practical implementation in
its entirety can be detrimental to the prosperous functioning of the society. Having said that, it’s
evident that the principle does hold a strong footing in the Indian and American Constitutions
respectively. The coherence of these principles with the need of the society is a fallacy.
However, parts of the principles are necessary to keep up order. Lastly, yes the principle of
separation of power exists like peace exists in the world, in parts and parcel and at the
convenience of human beings.

10