SEPARATION OF

POWERS
LEGAL METHODS (JURISPRUDENCE)
MANISHA BAND
 “Power corrupts and absolute Power tends to corrupt absolutely.”

■ Origin and evolution

■ Need of the doctrine
■ Montesquieu’s Theory
■ Separation of powers in various jurisdictions – US, UK and India
■ Impact of departure form separation of powers
■ Defects of the doctrine
■ Origin and Evolution

■ Simple meaning that same person should not form part of more than one of the three organs of
the government.

■ Envisages a tripartite system – the Constitution divides the powers and delineates the jurisdiction
of each - Another term for the Separation of powers principle is “trias politica” meaning tripartite.

■ 3 wings/ organs: Legislature, executive, judiciary

■ developed in ancient Greece and came into widespread use by the Roman Republic as part of the
uncodified Constitution of the Roman Republic

■ Theory of Separation of powers synonymous with Fresh philosopher Montesquieu. However,

origins much before that – 1st published in The Spirit of the Laws in 1748
■  Montesquieu derived the contents of this doctrine from the developments in the British
constitutional history of the 18th Century - In England after a long war between the Parliament
and the King, they saw the triumph of Parliament in 1688, which gave Parliament legislative
supremacy.

■ That prevailed for some item before the British system did away with Separation of powers in
its pure form.

■ It was the US Constitution that first implemented the Doctrine in its text in 1787.

■ Later, the French Constitution included in 1789 also included the doctrine – however. It did not
last long. When Napoleon came to power, the doctrine was compromised completely. Now
inculcated again.
■ What is the need of the Doctrine?

■ Govt’s role has been traditionally to protect individual rights. At the same time, history is replete with
examples where govt has become the biggest violators of individual rights.

■ A number of measures have been derived to reduce this likelihood – rule of law, separation of powers,
public interest litigation are few examples.

■ When a single person or group has a large amount of power, can become dangerous to citizens. The
doctrine is a method of removing the amount of power in any group's hands, making it more difficult to
abuse.

■ Basic aim it to try to avoid despotism and tyranny by decentralizing power - specific ways in which the
branches are subdivided and the exact ways in which they check and balance each other differ from one
jurisdiction to another.

■ 2 main objectives – rule of law and independence of judiciary

Montesquieu’s Theory
■ 3 kinds of powers in 3 different bodies.

■ If one person exercises more than one power, individual liberty ought to be compromised

■ Montesquieu in the following words stated the Doctrine of Separation of Powers “There would be an end of
everything, were the same man or same body, whether of the nobles or of the people, to exercise those three
powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”

■ The theory of separation of powers signifies three formulations of structural classification of governmental
powers:

– The same person should not form part of more than one of the three organs of the government. For
example, ministers should not sit in Parliament.

– One organ of the government should not interfere with any other organ of the government.

– One organ of the government should not exercise the functions assigned to any other organ
■ Separation of powers in various jurisdictions

■ USA

■ Strictly adopted in US – Article 1(1) vests all legislative powers in the Congress. Article 2(1) vest all
executive powers in the President and Article 3(1) vests all judicial powers in the Supreme Court.

■ Presidential form of govt based on theory of separation of powers – complete separation between
legislature and executive –

– He appoints and dismisses other executive officers and thus controls the policies and actions of
government departments

– Neither the President nor any member of the executive is a member of the Congress and a
separation is maintained between the legislative and executive organs.

■ Checks and balances is an essential feature

■ UK
■ Never been followed strictly
■ 3 organs but inter connected – King head of Executive but part of legislature also; exective comes from the
legislature. Adopted “theory of integration”
■ Earlier, even Judiciary was not completely independent –
– The Lord Chancellor was head of judiciary, Chairman of the House of Commons (Legislature), a
member of the executive and often a member of the cabinet
– The Constitutional Reforms Act, 2005 reformed the office of Lord Chancellor and the Law Lords will
now stop being in the legislature.
– The Act provides for establishment of Supreme Court of United Kingdom. The Supreme Court whose
powers have been separated from the powers of Parliament has become functional since October,
2009.
– The Act provides for Constitution of Judicial Appointments Commission, for appointments of Judges in
the Supreme Court as well as the court of appeal.
– Thus by and large independence of Judiciary has been ensured by the Constitutional Reforms Act,
2005
■ India
■ Started with integration of powers - Warren Hastings created the post of District collector – which was union of district
magistrate and judicial magistrate – no separation of powers – later, district judge exercises judicial powers and the
Collector remains the Executive magistrate.
■ Limited acceptance in Article 50 of COI

■ Constituent Assembly had discussions on inclusion of the doctrine in the COI but was ultimately rejected on the belief
that non-responsible executive is not suitable for a nascent democracy like India
■ Thus, a lot of departures
– Executive is a subset of the Legislature
– Delegated legislation
– President head of executive as well as part of Parliament
– President also has judicial powers

■ Justice Beg in Keshavanand judgement declared that Separation of powers is part of the basic structure.

■ Even though there are overlaps, functions essentials to that organ cant be exercised by other organs.

■ Concept of Checks and balances ensures that power of own domain is also not abused.
■ Doctrine owes its roots to
an ancient concept of
checks and balances where
each branch keeps a check
on other branches of the
State and ensure a balance
of power.
■ Maintenance of separation of powers and the checks and balances that accompany it is
not a self-executing scheme - requires constant interplay between the branches, with
the Supreme Court acting as the ultimate arbiter of power’s boundaries.

■ Separation of Powers and Checks and Balances: Crash Course Government and Politics
#3 https://www.youtube.com/watch?v=0bf3CwYCxXw

■ Checks and balances in India

■ Indian Constitution for Dummies - Separation of Powers -

https://www.youtube.com/watch?v=i0HtDbA5bmU
■ Failure of separation of powers happens in 3 ways:

– One branch claiming powers that were clearly assigned to another – passing Aadhar bill
as Money bill; or judicial overreach

– one or both branches simply fail to use their authority to check the others when called
for – Parliament failed to check the executive when emergency was declared

– Politicization of Courts – in expectation of post retirement jobs, ADM Jabalpur case

■ Failure to stick to the basic doctrine causes abuse of power and tyranny.
CRITICISM
■ If there is complete separation of powers , the different organs of the government will not be able to
work in co-operation and harmony. As a result, there would be frequent deadlocks which may bring the
governmental machinery to a standstill (Eg – when the US Congress has to extend the credit limit of the
US govt)

■ Administrative efficiency will be compromised - If all branches are made separate and independent of
each others, each branch will try to safeguard its powers and will not protect the powers of other
branches.

■ Montesquieu’s claim that England was the inspiration for his theory when the Parliament was given
legislative powers away from the King. Historically speaking, the theory was incorrect. There was no
separation of powers under the British Constitution. At no point in time, this doctrine was adopted in
England.
■ This doctrine is based on the assumption that the three functions of the Government viz legislative,
executive and judicial are independent of distinguishable from one another. But in fact, it is not so.
There are no watertight compartments. It is not easy to draw a demarcating line between one
power and another with mathematical precision.

■ It is impossible to take certain actions if this doctrine is accepted in entirety.

– If the legislature can only legislate, then it cannot punish anyone, committing a breach of its
privilege; nor can it delegate any legislative function even though it does not know the details
of the subject-matter of the legislation

– The courts wont frame rules of procedure to be adopted by them for the disposal of cases.

– Separation of Powers thus can only be relative and not absolute

■ Conclusion
■ Modern State is a welfare State and it has to solve complex socio-economic problems and in this state of
affairs also, it is not possible to stick to this doctrine.

■ The modern interpretation of the doctrine of Separation of Powers means that discretion must be drawn
between ‘essential’ and ‘incidental’ powers and one organ of the Government cannot usurp or encroach
upon the essential functions belonging to another organ but may exercise some incidental functions thereof.

■ Liberty and individual freedom cannot be achieved by mechanical division of functions and powers. England
is an example where Separation of Powers is not accepted and yet it is known for the protection of individual
liberty.

■ For freedom and liberty, it is necessary that there should be Rule of Law and impartial and independent
judiciary and eternal vigilance on the part of subjects.