to corrupt, and absolute power corrupts
– John Acton
THE DOCTRINE OF
SEPARATION OF POWERS
The separation of
powers, also known as trias politica, was coined by Charles-Louis de Secondat.
The Doctrine of Separation of Power is the indication to all the constitutions
of the world which came into existence since the days of the “Magna Carta”.
To analyze the
separation of powers doctrine, the theory aspect will be managed, and a far
reaching comprehension of the teaching as utilized as a part of our nation
under our parliamentary arrangement of administration will be made.
There should not
concentration of powers in the hands of any particular institution or agency of
The Legislature should
be concerned with the making law but not in its implementation / administering
The Administration (Executive) should
not control the legislature nor should it over take the justice system because
doing so it might lead to arbitrary and capricious justice.
The Judiciary should be independent of
Executive and Legislation.
The Doctrine says that, in a free
democracy, these three functions are separated and exercised by three separate
organs of the Government.
Each organ while carrying
out its activities tends to interfere in the range of working of another
functionary because a strict differentiation of functions is not possible in
their relations with the general public.
Thus, even when acting in range of their own power, overlapping functions tend
to appear amongst these organs.
That is why today all the systems might not be opting for the strict separation
of powers because that is undesirable and unrealistic but consequences of this
concept can be seen in almost all the countries in its diluted.
In theory separation of
powers doctrine, aims at separating power and distributing it such that oppression
by the government may be prevented altogether as equivalent power which acts in
three separate organs which act as a check and balance for each other. Thus handing
over a different function to each organ and creating selective functions for
them, helps grouping of powers and makes this doctrine a success. In fact this
doctrine has been adopted around the world in many constitutions and in our
degree to an extent as well. It is an exceptional way of protecting human
liberty, freedom and creating a system of procedure of governance which is
responsible, reasonable and dependable.
The doctrine of
separation of powers has become an integral part of the governmental structure.
But, the practical application of the doctrine differs to a great extent. In
theory, the doctrine of separation of powers is supposed to have a threefold
classification of functions and parallel organs. But because of the diverse and
complex nature of a modern state, where the process of law making,
administration and settlement cannot be clearly defined to separate
institutions, the application of this doctrine in strict sense is very
It the government’s
role to protect individual rights, but governments have generally been the real
violators of these rights. Thus, various measures have been determined to
lessen this probability. The concept of Separation of Powers is one such
concept. The basic assumption behind this 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 way of removing the amount of power in any group’s
hands, making it more difficult to abuse.
Being variable in
nature, the doctrine, can be understood as being clearly committed to the achievement
of political freedom or liberty, an essential part of which is the restriction on
governmental power, and that this can best be achieved by setting up divisions
within the government to prevent the centralization of such power in the hands
of a single body of men. Characteristically, the doctrine is normative in
nature prescribing certain governmental arrangements which should be created or
in order to achieve certain desirable ends. A major problem in an approach to
the literature on the doctrine of the separation of powers is that a few
writers define exactly what they mean by it, what its essential views are, and
how it relates to the other ideas. For this reason generally, one can find much
confusion and chaos in discussions relating to its origin as the exact nature
of the claims being made for one thinker or the other are not measured against
any clear definition. It is essential for the establishment and maintenance of
political liberty that the government be divided into three branches or
departments, the legislature, the executive, and the judiciary. To each of
these branches there is a corresponding identifiable function of government,
legislative, executive or judicial. Each branch of the government must be
confined to the exercise of its own function and not allowed to infringe upon
the functions of the other branches. Moreover, the people who make these three
agencies of government, must be kept separate and distinct where no individual
should be allowed to be at the same time a member of more than one branch. In
this way each of the branches will be a check to the others and no single group
of people will be able to control the mechanism of the State.
The doctrine of
separation of power in its true sense is very inflexible and this is one of the
reasons of why it is not accepted by a large number of countries in the world.
The main object as per Montesquieu in the Doctrine of separation of power is
that there should be government of law rather than having will and notions of
the official. Similarly another most important characteristic of the above stated
doctrine is that there should be self-rule of judiciary that is it should be
free from the other organs of the state and if it is so then justice would be
Hence, the Doctrine of
the separation plays an essential role in the making of a impartial government
and proper justice is distributed as there is independence of judiciary. Also
the importance of the above said doctrine can be traced back to as early as
1789 where the Constituent Assembly of France in 1789 was of the view that
“there would be nothing like a Constitution in the country where the doctrine
of separation of power is not accepted”.
The idea of separation
of powers developed during the period known as the European Enlightenment. The
Enlightenment began in the seventeenth century and lasted until shortly before
the beginning of the American Revolution.
The three structures of
the government which we know as the executive, the judiciary and legislature
represent the people which are in charge of the smooth running of a law based
government in our society. The legislature is the law- making body, the
executive is in charge of the implementation of every single such law and the
judiciary manages the cases that emerge from a breach of law. In this way they
are altogether interlinked organs of the government and their functions and guidelines
tend to overlap with each other, as it isn’t likely to isolate the three from
each other completely. This has been the cause for not only serious political
debate in our country but has raised many ethical and jurisprudential debates
among legal scholars and the law society.
We know that the government
is form for the protection of our rights, but governments have historically
been the major violators of these rights. The basic concept behind this is that
when a single person or group has a large amount of power, they can become hazardous
to society and citizens. The Separation of power is a way of removing the
amount of power in any group’s hands, making it more difficult to use.
JUDICIAL VIEW ON THE DOCTRINE OF SEPARATION OF POWER
As stated about the
separation of power there were times where the judiciary faced tough challenges
in maintaining and preserving the Doctrine of separation of power and it has in
the process of preservation of the above said Doctrine has delivered landmark
judgments which clearly talks about the independence of judiciary as well as
the success of judiciary in India for the last six decades.
The first major judgment
by the judiciary in relation to Doctrine of separation of power was in Ram
Jawaya v state of Punjab AIR 1955 SC 549. The court in the above case
was of the view that the Doctrine of separation of power was not entirely
accepted in India. Moreover, the view of Mukherjea J adds weight to the
argument that the above said doctrine is not fully accepted in India. He states
Indian constitution has not indeed recognize the doctrine of separation of
powering its absolute rigidity but the functions of the different parts or
branches of the government have been sufficiently distinguished and subsequently
it can very well be said that our constitution does not contemplate assumption,
by one organ or part of the state, of functions that essentially belong to
Later in I.C.Golak
Nath v State of Punjab, Subha Rao AIR 1967 SC 1643,
C.J opined that:
constitution brings into existence different constitutional entitles, namely
the union, the state and the union territories. It forms three major
instruments of power, namely the Legislature, the Executive and the Judiciary.
It defines their jurisdiction thoroughly and expects them to exercise their
respective powers without violating there limits. They should function with the
areas allotted to them”
The above opinion of the
court clearly states the change in the courts view pertaining to the opinion in
the case of Ram Jawaya v state of Punjab related to the doctrine of separation
Broadly speaking the
doctrine of the separation of powers is a valuable doctrine. In the American
constitution there is a system of checks and balances and the power vested in
one organ cannot be exercised or encroached upon by the other. At no point of
time was the doctrine accepted in its strict sense in England. In the British
ministry there exists a union of persons but separation of organs. Thus we find
several branches of government headed by the same persons. The doctrine of
separation of powers is not accepted fully in the constitution of India and one
may agree with the observation of Mukherjee,J. in Ram Jawaya v state of Punjab
“The Indian constitution has not indeed recognize the doctrine of separation of
powering its absolute rigidity but the functions of the different parts or branches
of the government have been sufficiently differentiated and consequently it can
very well be said that our constitution does not contemplate assumption, by one
organ or part of the state, of functions that essentially belong to another”.