Separation of powers

Definition: The term separation of powers originated with the Baron de Montesquieu, a French enlightenment writer. However, the actual separation of powers amongst different branches of government can be traced to ancient Greece. The framers of the Constitutiondecided to base the American governmental system on this idea of three separate branches: executive, judicial, and legislative. The three branches are distinct and havechecks and balances on each other. In this way, no one branch can gain absolute power or abuse the power they are given.In the United States, the executive branch is headed by the President and includes the bureaucracy. The legislative branch includes both houses of Congress: the Senate and the House of Representatives. The judicial branchconsists of the Supreme Court and the lower federal courts

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Separation of Powers: Constitutional Plan and Practiceby SIDDHANTH03 on SEPTEMBER 20, 2010

“The legislative department shall never exercise the executive and judicial powers, or either of

them; the executive shall never exercise the legislative and judicial powers, or either of them; the

judicial shall never exercise the legislative and executive powers, or either of them; to the end

that it may be a government of law and not of men” - The State Constitution of Massachusetts

Introduction

In the modern context, the doctrine of separation of powers is no longer a mere philosopher’s

theoretical conception. It is a practical concept, determining the structure and organization of the

day to day functioning of governments. This paper aims to analyze and discuss the doctrine of

separation of powers, in its plan and practice, as provided for under the Constitutions of various

states. Beginning the analysis from the evolution of the doctrine itself, the rationale behind its

creation, this paper goes on to explain the relevance of the doctrine as recognized in the

constitutional provisions of the United States and England and subsequently compares the

practice of the said two countries with that in India. Relying on certain landmark events, judicial

proclamations and the opinions of eminent jurists, the author then puts forth his own inferences

of the discrepancies that exist between the constitutional plan and the actual usage of the said

doctrine. To conclude, the paper highlights that the doctrine of separation of power, though never

used in its absolute form, is seen applied in various dilatory combinations, as an integral aspect

of the structure and working of most governments.

Background

The separation of powers, in practice if not in form, is considered to be a prerequisite for the

effective functioning of a democracy. It is a concept that, like the ‘rule of law’, has superficial

simplicity as well as a deeper complexity. Broadly speaking, it is based on the idea

that governmental powers are divisible into three categories – executive to promulgate laws,

legislative to make laws and judicial to apply and interpret the laws. This idea of separation of

functions stems from the logical conclusion that if the law-makers should also be the

administrators and dispensers of law and justice, then the people at large will be left without a

remedy in case any injustice is done as there will be no superior authority.

The doctrine of separation of powers was a method formulated by English jurists in the middle of

the 17th century in order to restrain such abuse of governmental power. The theory of separation

of powers was then further developed by John Locke in his Second Treatises and ultimately

granted a more systematic form by the French jurist Montesquieu in his book The Spirit of Laws.

John Adams, in agreement with his predecessors, has also highlighted this doctrine as the means

to protect a nation from the broad spectrum of ills of passionate partiality, absurd judgments and

ambitious, self-serving behavior.

A doctrine of separation of powers can be put into service for different purposes. It may be used

in support of a principle of allocation of functions to the most appropriate body in the State,

whether a tribunal, a court, an elected assembly or a body of elected or appointed officials. On

the other hand, the separation of powers may also be invoked in support of arrangements for

preventing the abuse of power in situations where public powers are distributed amongst

different institutions in such a manner that each has the necessary freedom for its own actions

and simultaneously possess a concurrent capacity to check the actions of other power-holding

bodies in the event of a misuse of their power – a system of checks and balances. The doctrine

enables the creation of a merged and balanced government, with safeguards to check excesses no

matter where they arise. As stated by Vile, this “diffusion of authority among different centers of

decision-making is the antithesis of totalitarianism and absolutism”.

Whether accepted by express provision or necessary implication, the doctrine of separation of

powers, in its essence, has become an integral part of the governmental structures of numerous

states. However, based upon the circumstances and manner in which it has been incorporated,

the doctrine may differ in its practical application in the governance of a particular nation. In

theory, the doctrine of separation of powers has been traditionally supposed to require a threefold

classification of functions and corresponding institutions. But as a result of being placed in the

context of the diverse and complex nature of a modern state, where the process of law making,

administration and adjudication are neither clearly demarcated nor assigned to separate

institutions even the previously existent boundaries of separation are becoming more blurred. As

this is a matter of allocating functions and powers in such a way that they can be operated with

the greatest possible effectiveness, the need for absolute separation has been upstaged by the

need for efficient, regulated and non-arbitrary governmental administration.

As stated by Madison, “The accumulation of all powers, legislative, executive and judicial, in the

same hands whether of one, a few, or many and whether hereditary, self-appointed or elective,

may justly be pronounced the very definition of tyranny”. And it is in the prevention of this

tyranny that the doctrine of separation of power holds its greatest importance.

Montesquieu on the Separation of Powers

Though the history of the doctrine of separation of powers is traceable to the ancient times of

Aristotle, and subsequently 16th and 17th century philosophers such as John Bodin and Locke, it

was the French Jurist, Montesquieu who gave it a systematic and scientific formulation. In his

book ‘Esprit de Lois’ (The spirit of laws), Montesquieu, for the first time, extensively discussed

the doctrine and its form.

According to Montesquieu the doctrine of separation of powers (des pouvoirs) means that no one

person or body should be vested with all three types of powers. There must be a division of

functions on the following basis: the legislature should make laws but not administer or enforce

them, the executive must administer the made laws but neither influence the legislature in the

making of the laws nor stand in judgment of the same and the judiciary must determine rights

and uphold justice without taking over the functions of law-making or administration. He further

said that such separation is necessary in order to ensure that justice does not become arbitrary

and capricious.

The value of this doctrine lies in that it attempts to preserve human liberty by avoiding the

concentration of powers in any one person or body of person. Montesquieu propounded this

theory after careful consideration and study of numerous crucial event and factors. Firstly, he

learnt from the historical trends of the despotic Tudors and the absolutist Stuarts that freedom

could not be secured if the executive and legislative powers were held in the same hands. Having

experienced the tyrannies in monarchical France, he felt that such a combination of powers

would lead to the enacting of oppressive laws which the executive will administer to attain its

own ends. Montesquieu also carefully followed the events unfolding on the other side of the

channel prior to determining what he thought was the best course of action. In England, the

inception of the Magna Carta and the Act of Settlement, drastically curtailed the powers of the

monarch vesting them instead with Parliament and Courts. Though, there was no clear separation

of powers, the positive effect of the reduced prerogative powers of the King cemented

Montesquieu’s belief that the secret to liberty is the separation and functional independence of

the three departments of Government.

“All would be lost”, he wrote, “if the same man or the same ruling body, whether of nobles or

the people, were to exercise these three powers, that of law making, that of executing public

resolutions and that judging crimes and civil causes”

Although Montesquieu separated governmental functions and powers, he did not insist on an

absolute separation. Thus, although the executive is a separate branch, it properly partakes

(through the veto, for example) in a legislative function. This blending or overlapping of

functions is in part necessitated by Montesquieu’s intention that separation checks the excesses

of one or the other branch. Separation of powers here reinforces or even merges into balanced

government regulating excesses from all sides.

Some critics argue that Montesquieu has been misunderstood. According to their alternate view,

his real insight was the general principle that power must be distributed in order to avoid a

monopoly of power being created. They argue that Montesquieu was not advocating a strict

separation of powers, rather he cautiously referred to certain distribution of powers as well as the

balancing, controlling, tempering and combining of powers in a model of liberal political order

where all three are sometimes separated and sometimes combined. This broader view affords a

rationalization for the idea of checks and balances thereby highlighting the necessity for

restraints and safeguards in order to prevent the monopolization of power even within any one

department of the government.

It is also important to note here that the separation proposed by Montesquieu did not apply merely to

the organs and their functions but in regard to their personnel as well. This according to him was for

the reason that, if a person holding office in one wing of the government should wield power in

regard to another wing, it would defeat the purpose of the separation itself.

Montesquieu was convinced that it was only through such a system of separation of powers that a

government could be made free from the dangers of capricious or tyrannical rule. Until today, no

other system of government has been developed to oppose this notion and hence, it must be inferred

that his opinion has proven itself true. Other philosophical contributors left alone, it is the work of

Montesquieu that has ensured the lasting influence of the theory of separation of powers.

Separation of Powers in the United States

It is in the Constitution of the United States of America that Montesquieu’s doctrine of

separation of powers has found its highest recognition. The Constitution accepts the separation in

explicit terms and specifically provides for the division of functions and powers amongst the

three organs of government as a part of its basic structure. Article I of the US Constitution

assigns legislative power to the Congress while Articles II and III vest executive and judicial

powers in the President and the Courts of America respectively. In other words, this implies that

as per the constitutional plan, the constitution of the US is desirous of a system of organization

characterized by the independence of power and action of the Congress, the President and the

Courts respectively. However, the practical implementation of such independent functioning has

proven unsuccessful and the actual position is quite different.

Louis Leventhall Jaffe has aptly summed up the practical interpretation of the doctrine in the US

in the following manner:

“The separation of powers principle is a fundamental and valid dogma of the US constitution, the

primary purpose of which is the preservation of political safeguards against the capricious

exercise of power. The logic behind such division is the logic of polarity and not strict

classification. In many crucial instances where there is pressure for the transfer of old, or for the

creation of new functions the logical implications become conflicting and it should be kept in

mind that the purpose of the said division is not to externally stratify the governmental

arrangements.”

In practice, the system of government provides for checks and balances amongst the three organs

to restrict and regulate the use of their powers. The President of the United States has the power

to veto a legislation passed by Congress, the Congress in turn is the final ratifying authority for

treaties signed by the President, the legislature is vested with the power to impeach judges and

the judiciary has the power of judicial review over legislative and executive action. Further, in

cases expressly provided for or incidental to the powers conferred, one organ may venture into

the territory earmarked for another.

Naturally, since the practice varies from the Constitutional plan of separated functions, this

matter of cross-functioning of the organs has given rise to much debate and speculation. In

Madison, 1787, it was observed, “One of the principal objections inculcated by the more

respectable adversaries to the Constitution is its supposed violation of the political maxim that

the legislative, executive and judiciary ought to be separate and distinct”. In regarding to this

matter, the Court, citing the oracle behind the doctrine itself, held that “Montesquieu did not

mean that these departments ought to have a partial agency in or no control over each other. His

meaning can amount to no more than this, that where the whole power of one department is

exercised by the same hands which possess whole control over another department, the

fundamental principle of a free Constitution is subverted”. On the basis of this interpretation of

Montesquieu’s doctrine, the cross-functioning between the three organs was recognized as being

constitutionally valid.

Despite the pre-determined system of checks and balances, in the day-to-day working there has

remained a continuous battle between the three wings of Government in order to gain greater

might over each other, the most significant attempts of which have been initiated by the

executive. As the Vesting Clause of Article II places entire executive power in the hands of the

President, considerable debate has been raised over the years to the extent of the power granted

by the said clause. The general principle that the President controls the entire Executive branch

was originally innocuous; however depending on the person occupying office it has been

subjected to varied interpretations.

Such instances were visible markeably during the tenure of Presidents Theodore Roosevelt and

Richard Nixon. Former President Roosevelt stretched his executive authority on the claim that a

President was authorized to do whatever was not explicitly prohibited by law – thereby implying

a dominance of executive power over the other branches of government. This interpretation was

directly contradictory to the purpose of the doctrine as enshrined within the Constitution as it

removed the essential ingredient of equality, resulting in a situation similar to that if the doctrine

didn’t exist. Richard Nixon’spolicies on executive power were considerably more bold and

questionable. Nixon sought to achieve executive supremacy on the basis of ‘national security’.

Under the guise of the inherent Presidential duty “to safeguard the security of the nation” he

sought to bypass legislative and judicial control over his actions. Claiming the shield of

protection of “executive privilege” in matters such as the use of federal funds assigned by

Congress and the ordering of wiretaps without previous judicial authorization he appropriated for

himself a seemingly absolute control over national affairs. However, due to the proactive

measures of the Supreme Court, these defenses were deemed unconstitutional and the

accountability between the three organs was re-established. As a result, Presidential claims to

power have been greatly augmented since then.

Similarly, in certain instances, there have been attempts made by the other two organs of

government to usurp the powers of one another or those of the executive. However, due to the

political safeguards established through the system of checks and balances and the inherent

reluctance of any organ to sacrifice its powers, such attempts to increase the extent of authority

of one organ have been rectified and the balance of powers once again restored.

Thus it can be seen that even in the US, where the constitution explicitly recognizes the doctrine

of separation of powers there has remained a considerable ambiguity in regard to the extent of its

application. In letter, the constitutional plan appears to warrant an absolute separation of powers

and functions, however in practice such an ideal situation is not achievable. Through the

interpretations of the court and the legislature, the rigidity of the doctrine has been considerably

relaxed and its applicability widened, thereby enabling its efficient practical implementation.

Separation of Powers and Britain

“In the British Constitution there is no such thing as the absolute separation of legislative,

executive and judicial powers; in practice it is inevitable that they should overlap”

In England, the theory of separation of powers was opposed in the 18th century by the doctrine of

the mixed or balanced constitution in which monarchial, aristocratic and democratic elements

were joined and held in equilibrium rather than strictly separated. Accordingly, the system of

Parliamentary government that evolved in the UK in the 19th century was evidently not based on

the theory of separation of powers. In fact, the modern Constitution of the UK is less

conformable to the theory as traditionally understood. While we may concede that the British

Constitution is not based on separation of powers, however, this does not mean to say that the

separation of powers is of no relevance to the British Constitution.

This model of government is quite different from that seen in the US. The British idea of mixed

government is based on the belief that the degree of connection, rather than separation is what

provides checks and balances in the governmental system. Nevertheless, even this system must

use the language of separation of powers to illuminate some of its crucial features such as the

executive’s dominance over Parliament.

The doctrine was expressly recognized as a part of the British constitutional system in the 1930

report of the Donoughmore Committee. This committee created to inquire into matters of

delegated legislation and administrative adjudication submitted a report the provisions of which

were justified on the basis of the doctrine of separation of powers.

The doctrine has also been expressly recognized by the British Courts in their judicial

pronouncements made from time to time. In cases where controversial political and social issues

were made the subjects of judicial purview, the Courts in order to avoid conflict between the

judicial and political machinery have claimed a lack of jurisdiction on the basis of the doctrine of

separation of powers. Especially in matters of statutory interpretation, they employ the language

of separation of powers to explain and justify their decisions, a case in point being the steel strike

case of 1980.

In the said case, Lord Diplock pointed out that:

“At a time when more and more cases involving the application of legislation which gives effect

to policies that are the subject of bitter public and parliamentary controversy, it cannot be too

strongly emphasised that the British Constitution, though largely unwritten, is firmly based on

the separation of powers: parliament makes the laws, the judiciary interprets them…it is

parliament’s opinion on these matters that is paramount.”

Thus it is seen, that in the British scenario, though the doctrine is not expressly recognized in the

constitutional plan, it does exist, albeit not in its absolute form, in the practice of the organs of

the Government

Separation of Powers: The Indian Plan

The Constitution of India embraces the idea of separation of powers in an implied manner.

Despite there being no express provision recognizing the doctrine of separation of powers in its

absolute form, the Constitution does make the provisions for a reasonable separation of functions

and powers between the three organs of Government. Though the executive power of the Union

and of the States is vested by the Constitution in the President and Governor by Articles

53(1) and 154(1) respectively, there is no corresponding provision vesting legislative and

judiciary provisions in any particular organ. However, the Constitution, being a written one, the

powers and function of each must be found from the Constitution itself. Thus subject to

exceptional provisions like Articles 123, 213 and 357, it is evident that the Constitution intends

that the powers of legislation shall be exercised exclusively by the legislature. Similarly, the

judicial powers can be said to vest with the judiciary.

Applying the doctrines of constitutional limitation and trust within this scenario, a system is

created where none of the organs can usurp the functions or powers which are assigned to

another organ by express or necessary provision, neither can they divest themselves of essential

functions which belong to them as under the Constitution.

There is no absolute separation of functions between the three organs of Government. The

President being the head of the Union exercises his powers constitutionally on the aid and advice

of the Council of Ministers. On the other hand, he is given exclusive legislative powers for the

making and promulgation of ordinances even during the course of recess of Parliament. He is

further empowered to make laws for the State after emergency has been declared under Article

356 of the Constitution and exercises purely legislative functions as provided under Articles 372

and 372-A. The President is also assigned judicial functions to the extent of deciding cases of

disqualification of the House of Parliament as also granting pardon in exceptional circumstances.

Similarly, parliament is also granted judicial functions in that they can consider the questions of

breach of any parliamentary privileges and where the breach is established they have the power

to punish for contempt. Also, in the event of impeachment of the President, one of the Houses

acts as the prosecutor and the other as investigator in order to determine whether the charges are

sustainable or not as under Article 61 of the Constitution. In a further example of the merger of

functions, the High Courts within a certain marginal sphere perform functions that are

administrative in nature. Their power of supervision over subordinate Courts as provided under

Article 227 demonstrates a function that is administrative rather than judicial. They also possess

legislative powers to the extent that they are allowed to frame rules for their efficient

functioning.

Besides the functional overlapping, the Indian system also lacks the separation of personnel

amongst the three departments. An inevitable part of a Parliamentary system of government, this

can be seen under Article 75(5) of the Constitution which states that a person in order to be a

member of the Council of Ministers must necessarily be a member of either House of Parliament.

Further, the Constitution of India expressly provides for a system of checks and balances in order

to prevent the arbitrary or capricious use of power derived from the said supreme document.

Though such a system appears dilatory of the doctrine of separation of powers, it is essential in

order to enable the just and equitable functioning of such a constitutional system. The

constitution within its articles provides for a machinery of legislative impeachment of judges and

executive officers, executive control over the appointment of judges and the power to veto

legislation made by parliament and most importantly, confers the judiciary with the power of

judicial review over legislation and executive action. Through the conferment of the said powers,

a mechanism for the control over the exercise of constitutional powers by the respective organs

is established.

The above mentioned provisions clearly indicate that the Indian Constitution in its plan does not

provide for a strict separation of powers. Instead, it creates a system consisting of the three

organs of Government and confers upon them both exclusive and overlapping powers and

functions.

The Practical Application of the Doctrine in India

The debate about the doctrine of separation of powers, and exactly what it involves in regard to

Indian governance, is as old as the Constitution itself. It was extensively debated in the

Constituent Assembly. It also figured in various judgments handed down by the Supreme Court

after the Constitution was adopted. It is through these judicial pronouncements, passed from time

to time, that the boundaries of applicability of the doctrine have been determined.

In the re Delhi Laws Act case, it was for the first time observed by the Supreme Court that

except where the constitution has vested power in a body, the principle that one organ should not

perform functions which essentially belong to others is followed in India. By a majority of 5:2,

the Court held that the theory of separation of powers though not part and parcel of our

Constitution, in exceptional circumstances is evident in the provisions of the Constitution itself.

As observed by Kania, C.J.:

“Although in the constitution of India there is no express separation of powers, it is clear that a

legislature is created by the constitution and detailed provisions are made for making that

legislature pass laws. Does it not imply that unless it can be gathered from other provisions of the

constitution, other bodies-executive or judicial-are not intended to discharge legislative

functions?”

In essence, this judgment implied that all the three organs of the State, i.e., the Legislature, the

Judiciary, and the Executive are bound by and subject to the provisions of the Constitution,

which demarcates their respective powers, jurisdictions, responsibilities and relationship with

one another. Also, that it can be assumed that none of the organs of the State, including the

judiciary, would exceed its powers as laid down in the Constitution.

While there was a broad agreement on the principles put forth by this judgment, in practice, from

time to time, disputes continued to arise as to whether one organ of the State had exceeded the

boundaries assigned to it under the Constitution. This question of what amounts to an excess,

was the basis for action in the landmark Kesavananda Bharti case of 1973. The question placed

before the Supreme Court in this case was in regard to the extent of the power of the legislature

to amend the Constitution as provided for under the Constitution itself. It was argued that

Parliament was “supreme” and represented the sovereign will of the people. As such, if the

people’s representatives in Parliament decided to change a particular law to curb individual

freedom or limit the scope of judicial scrutiny, the judiciary had no right to question whether it

was constitutional or not. However, the Court did not allow this argument and instead found in

favour of the appellant on the grounds that the doctrine of separation of powers was a part of the

“basic structure” of our Constitution. As per this ruling, there was no longer any need for

ambiguity as the doctrine was expressly recognized as a part of the Indian Constitution,

unalterable even by an Act of Parliament. Thus, the doctrine of separation of powers has been

incorporated, in its essence, into the Indian laws.

The doctrine of separation of powers was further expressly recognized to be a part of the

Constitution in the case of Ram Jawaya Kapur v. State of Punjab, where the Court held that

though the doctrine of separation of powers is not expressly mentioned in the Constitution it

stands to be violated when the functions of one organ of Government are performed by another.

However, it was after the landmark case of Indira Nehru Gandhi v. Raj Narain that the place of

this doctrine in the Indian context was made clearer. In the said case, the election of Mrs. Indira

Gandhi, who was the Prime Minister of India, was challenged in the Allahabad High Court on

the grounds of violation of the election code and misuse of power during her election campaign.

The Allahabad High Court found the claim into alleged violations by the appellant to be valid and

hence cancelled her candidature. Subsequently, a cross-appeal was filed in the Supreme Court of

India. However, before the case could be heard by the apex court, Mrs. Indira Gandhi exerted

influence over the legislature and implemented The Constitution (Thirty-ninth Amendment) Act, 1975,

with the aim of negating the then ongoing judicial process. The amendment contained the following

highly controversial features:

1. First, Article 71 was substituted by a new Article 71 which stated that subject to the provisions of

the Constitution, Parliament may by law regulate any matter relating to or connected with the

election of a President or Vice-President including the grounds on which such election may be

questioned.

2. The second was the insertion of Article 329-A, clause (4) of which directly concerned the appeals

stating that no law made by Parliament before the commencement of the Constitution (Thirty-ninth

Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith,

shall apply or shall be deemed ever to have applied to or in relation to the election the Prime Minister

or the Speaker of the Lok Sabha.

3. The fifth clause of Art. 329-A, provided that any appeal or cross appeal against any such order of

any court as is referred to in Clause (4) pending immediately before the commencement of the

Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court shall be disposed of in

conformity with the provisions of Clause (4).

4. And finally the sixth clause of Art. 329-A which stated that the provisions of the given Art. 329-A

will supersede the effect of any other provision of the Constitution. Implying that this Article was

superior to the entire Constitution itself.

The question of constitutionality of the said constitutional amendments was brought before the

Court, which held them to be violative of the basic structure of the Constitution. Further, on the

matter of the legislatures’ declaration of validity of the election, the Supreme Court that, the

adjudication of a specific dispute is a judicial function which parliament even under its

constitutional amending power, cannot exercise. Therefore, the amendment was held to be ultra-

vires on the basis that when the constituent body declared the validity of the election of P.M., it

discharged a judicial function, which according to the principle of separation, should not have

been done.

The basic structure doctrine as laid down in Kesavananda Bharti was once again called to use in

the more recent case of I.R. Coelho v. State of TamilNadu. The State had passed a law creating

69% of reservations in educational institutions, far exceeding the accepted limit of 50%. In order

to protect the said provision from being struck down on the grounds of being unconstitutional, it

was placed under the Ninth Schedule, which was said to be outside the scope of judicial review.

The matter placed before the Court, was a questioning of the validity of the Ninth Schedule

itself, on the grounds that it was not in consonance with the basic structure of the Constitution.

The Court took cognizance of the said argument and held the Ninth Schedule as being violative

of this doctrine and hence even matters placed under the said Schedule shall henceforth be open

to judicial inquiry. Thereby, this previously protected portion of the Constitution was also

brought under the ambit of the Basic structure theory and the Golden triangle comprising of

Art.14, 19 and 21, making laws placed under it amenable to judicial review.

The Separation of Powers During Periods of Emergency

It is one thing to discuss the usage of the doctrine of separation of powers in normal governance

and entirely another to examine it under the unique circumstances of a national emergency. In

such a period, the likelihood of any organ trying to exceed its power increases greatly as many of

the checks and balances become suspended. However, it is commonly agreed that even during

emergency, the doctrine must continue to be in force.

This scenario was the matter of debate in the case of Rameshwar Prasad v. State of Bihar, where

the Court was required to determine whether the imposition of Art. 356 in the State without

proper consultation with State authorities or considering the Governor’s report, amounts to an

excessive use of legislative power. Finding that the Central Legislature had sought to step into

the shoes of the State Legislature and thereby usurp the power completely to itself, in the given

case, the Court held there to be a clear violation of the doctrine of separation of powers. India’s

Executive had been found to have committed a constitutional misdemeanor, for which it needed

to apologize to the court and the parliament and then ask the latter to renew it confidence. If

confidence was not renewed, the government would fall and a new government would have to be

formed.

Modern Developments

The issue of the relative jurisdictional boundaries of the organs of the State has acquired a new

momentum in the recent period in the context of coalition politics at the center and in states. This

can be seen in the instances such as those that occurred in some states in the State elections of

2005, particularly in Jharkhand, Goa and Bihar, where no party or coalition of parties had a clear

majority. The situation was further complicated by the fact that neither the Governors of these

states (who had the final powers to appoint a government) nor the presiding officers of the

legislatures (who had the powers to conduct the proceedings of the House where the majority

claimed by the new government was to be tested) were considered to be impartial in their

decisions.

In Jharkhand, after the elections in March 2005, the Governor conducted the swearing-in of a

government headed by a member of the Union Cabinet, who however, did not seem to have a

clear majority. He was given a fixed number of days to prove his majority on the floor of the

House. The opposition parties, who claimed to have a majority, were not in favour of such a

grace period being granted and hence filed a writ petition in the Supreme Court challenging the

decision of the Governor. On March 9 2005 the Court passed an order, which inter alia gave

directions to the Speaker to extend the Assembly session by a day and conduct a floor test

between the contending political alliances. In the light of Court’s decision, the earlier

government formed by the Union minister decided to tender its resignation on the advice of the

central government. An alternative government was then formed by a combination of other

parties which was able to prove its majority on the floor of the House.

There has been considerable debate about whether the Court was right in taking cognizance of

such a matter, as it might be considered an intrusion into the duties of the executive. However, in

light of the fact that the executive was functioning in a biased manner, there were no other

avenues available for redress apart from the decree of the Court. Hence, it had to be accepted as a

valid action, in consonance with its constitutional powers.

With the changing political scenario, the effective functioning of the organs has also been

altered. That being said, the effect of the doctrine of separation of powers is in no way diluted or

changed due to these changed systems and remains an integral part of the basic structure of the

system that governs the executive, legislative and judicial practice in the country.

Conclusion

It is crucial to understand that the doctrine of separation of powers has come a long way from its

theoretical inception. Today, the doctrine in its absolute form is only recognized in letter as it is

entirely unfeasible and impractical for usage in the operational practices of a government. With

the passage of time, States have evolved from being minimal and non-interventionist to being

welfare oriented by playing the multifarious roles of protector, arbiter, controller and provider to

the people. In its omnipresent role, the functions of the State have become diverse and its

problems interdependent hence, any serious attempt to define and separate the functions would

only cause inefficiency in the government.

The modern day interpretation of the doctrine does not recognize the division of Government

into three water-tight compartments but instead provides for crossing rights and duties in order to

establish a system of checks and balances. It has been found that the mere separation of powers

between the three organs is not sufficient for the elimination of the dangers of arbitrary and

capricious government.Even after the distinguishing the functions, if an authority wielding

public power, is provided an absolute and sole discretion within the body in the matters

regarding its sphere of influence, there will be a resultant abuse of such power. Therefore, a

system of checks and balances is a practical necessity in order to achieve the desired ends of the

doctrine of separation of powers. Such a system, contrary to popular notion, is not dilatory to the

doctrine but necessary in order to strengthen its actual usage. It is however, essential

to continuously question whether powers have been appropriately allocated and whether the

checking mechanisms set up both between and within different branches of State sufficiently

safeguard against the misuse of the powers so granted.

In conclusion, it is evident that governments in their actual operation do not opt for the strict

separation of powers because it is undesirable and impracticable, however, implications of this

concept can be seen in almost all the countries in its diluted form. The discrepancies between the

plan and practice, if any, are based on these very grounds that the ideal plan is impractical for

everyday use. Otherwise, the doctrine is itself a part of the founding structure of the Constitution of

all democratic nations. India in particular, relies heavily upon the doctrine in order to regulate, check

and control the exercise of power by the three organs of Government. Whether in its theoretical

conception or its practical usage, the Doctrine of Separation of Powers is essential for the effective

functioning of a democracy!

Refer State Constitution of Massachusetts.

Refer Montesqeuiu on separation of powers

Refer Montesquieu’s writings on Constitution -Esprit de Lois

It was pointed out by Aristotle in the 17th century and was recognized by Plato and Montesquieu.

It was given for the first time by Locke

It was discussed after the fall of Louis XII and published in 17th century

He was the second president of USA

Refer to Constitution and Supreme Court by Fred Jackson on UK Constitution.

Refer To Aristotle and his disciples commentary on Separation of Powers

He was a US Jurist

See Fred Jackson on the UK Constitution

Refer to Modern Jurists Commentaries on US Constitution after division of states.

See Marbury Vs. Madisson

Refer to French Revloution and fall of Louis XVI

It came up in 1781.

Refer to Montesquieu Spirit of Laws para 3 and Persian letters.

This was one of the defects in Montesquieu doctrine of separation of powers and was highlighted by

Carney in the 19th century while discussing the amendments to the constitution.

Refer to Carney debates on Constitution.

Critics of Montesquieu Separation of Powers and the system by which the Modern Governments

Work.

These provisions were present from the time of enacting the Constitution.

He was one of the eminent jurists who played an active role in incorporating the doctrine of

separation of powers into the US Constitution.

Refer Articles 3 and 4 of the US Constitution.

Marbury v. Madison

Refer Article 2 of the US Constitution.

He was the 32nd President of USA

He was the Vice-President of USA during the time of F.D. Roosevelt.

Refer to Richard v. Nixon US 1999 SC 120

Read Richard v. Nixon

Referred to in Articles 1-3 of the US Constitution.

See the Donoghmore Committee Report, 1930.

Refer to the Act of Settlement and Magna Carta passed in the later half of 18th century.

Refer to Donoughmore Committee Report, 1930.

Constituted in the year 1927, report submitted in 1930.

See R vs Anderson and P&O Navigation case

Duport Steels v Sirs [ 1980] 1 All ER 529

Refer to Article 50 of the Constitution which talks about separation of judiciary from executive

The vesting of executive powers in the hands of President

Refers to the Executive power exercised by the Governor of a state in the administration of a state

machinery

Indian Constitution was written and ratified in the year 1950.

It is present in Part III of the Constitution refers to the power of President to make laws in times of

Parliamentary recess

It refers to power of Governor to make laws in the course of recess. This article is a replica of Article

123 of the Constitution but Governor does not have the same of amount of powers as the President

has in the Central legislation.

It refers to power of Central Legislature to make laws to the state governments in the period of

Emergency.

Refer to Ram Jawaya Kapur vs State of Punjab [ AIR 1955, SC 120]

Article 51(A) of the Constitution.

Article 123 of the Constitution

Article 72 of the Constitution

Article 105 talks about Parliamentry Priviliges granted to the ministers in the course of their duration

in the house.

It refers about procedure for impeachment of P resident.

Allowances to Ministers in the course of their duration

Refer to Ram Jawaya Kpaur case and Indira Gandhi Vs. RajNarian case

Refer To Constitutional Debates by M.P. Jain and D.D. Basu , Wadhwa Publications 5th Edition

AIR 1952 S.C.C. 1325

He was the First Chief Justice of India

It talks about matters relating to the dispute of President and Vice President

It was inserted by 39th Amendment to the Constitution

Repealed by 44th Amendment to the Constitution in 1978 ( w.e.f., 20-6-1979)

Repealed by 44th Amendment to the Constitution in 1978 ( w.e.f., 20-6-1979)

Refer to Keshavananda Bharathi v State of Kerala

AIR 1973 SCC 1325

AIR 1999 7 SCC 580

It talks about Right to Equality

It talks about Freedom of Speech and Expression

It talks about protection to life and Personal liberty

AIR 2006 SC 980

Rameshwar Prasad V State of Bihar

Division of states of MP, UP and Bihar to carve out Chattisgarh, Uttarkhand and Jharkhand

Refer to Shibu Soren election case

When Digambar Kamat who was the Chief Minister lost his majority in the house for the first time

and was elected in the house but also lost his majority for the second time in the house.

Rameshwar Prasad v State of Bihar

Refer to Shibu Soren case

Goa Election case

Refer to Indira Gandhi vs Raj Narayan case

See Srikumar Vs. Commissioner of Central Excise case

Article 50 of the Constitution

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Separation of Powers

Understanding that a government's role is to protect individual rights, but acknowledging that governments have historically been the major violators of these rights, a number of measures have been derived to reduce this likelihood. The concept of Separation of Powers is one such measure.

The premise behind the Separation of Powers is that when a single person or group has a large amount of power, they can become dangerous to citizens. The Separation of Power is a method of removing the amount of power in any group's hands, making it more difficult to abuse.

The US government has a partial Separation of Powers. It distinguishes between three groups. The Executive, the Legislative, and the Judicial. They are distinguished by the kind of power they wield. The Legislative branch has the ability to enact laws. The Executive branch has the ability to see those laws enforced. The Judicial branch has the ability to decide the guilt of a party, allowing punishment.

If a single group shared all three powers, they would have unlimited power. They could specify any law, arresting the 'criminal', and then decide that they are guilty. Through the Separation of Powers, though, no group can have more than one of these powers. Only through the combined use of all three can the government use force. By requiring the consent of all three branches, it increases the likelihood that the government will not initiate violent force.

There are many different ways to separate the powers of a government. The US, for instance, requires those that declare war to be different from those that execute the war. Only by combining the two can a war be declared. Also, the Legislative branch is further broken into two, each with separate responsibilities and powers. By any number of possible separations, a government can be made safer for its citizens.

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