The Doctrine of Separation of Powers

The postulation of the doctrine of separation of powers which can also be termed as division of competences was introduced in Greece and was widely used by the Roman Republic. The concept separation of powers was initially introduced by Aristotle. He mentioned that doctrine in his book named “Politics”. In this book, he specified the three agencies of the government (i.e.),

  1. The general assembly
  2. The public officials
  3. The judiciary

These concepts were again mentioned in the 16th and the 17th century by the French philosopher John Bodin and British politician Locke. In the book named “Espirit Des Lois” which was written by Montesquieu and published in the year 1748 broached the separation of powers in a systematic and scientific formulation.

From the Vedic period, separation of powers existed. In ancient India the Deewan was the head of the executive wing, Senapati maintained law and order and Kaji was the judicial head. King was considered as supreme over all the agencies of the government as he prepared laws which are compared as a present form of legislature. Hence the separation of powers was very much prevalent from ancient times in India.

Meaning of Separation of Powers

The separation of powers is a conglomerate structure in which responsibilities, authorities, and powers are divided between groups rather than being centrally held. It is most closely associated with political systems, in which the legislative, executive and judicial powers of government are vested in separate bodies[1].

Historical Background

The doctrine of separation of powers is of ancient origin. The concept was introduced by Aristotle, Pablo, and Greek historian Polybius. For the governance of the democratic states, the separation of powers is a replica. The state is divided into departments and has separate and maverick powers and functions to perform and all the branches have an equal amount of work and responsibilities. The state is divided into 3 branches namely,

  1. Executive
  2. Legislative
  3. Judiciary

The theory of division of powers can be classified into two as ancient and modern theories. 

Ancient theory

Separation of power was introduced by Aristotle. This concept was evolved in Greece. Aristotle made a study on 158 constitutions of Greek city-states before formalising his theories of government. Plato’s republic was a treatise on political theory introduced by an original thinker’s imagination. Plato’s concept was criticised by Aristotle as he felt that the system of government was neither democratic nor oligarchic but it was an intermediate form which was called polity and also he stated that the constitution of laws had only democracy and oligarchy but it lacked monarchy.

The separation of powers emerged in England with the appearances of the parliament, the council of kings, and the courts during Edward I reign. Baron Montesquieu who was a French political philosopher lived in England from 1729 to 1731 and promoted Montesquieu’s tripartite system. He ascribed this model to the British constitutional system but this model was held to be misleading as the executive and the legislature had a close relationship with each other.

The ancient version of the modern separation of powers is seen in the ancient mixed constitution which included monarchy, aristocracy, and democracy. The concept was introduced in Uzbekistan by underlying article 11 of the Uzbek constitution.

Modern theory

The modern theory can be traced from the glorious revolutions of 1688 in England and the writings of Montesquieu. According to 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.[2]

Various constitutional makers from different countries were inspired by the concept of separation of powers. In 1789 the constituent assembly of France exclaimed that “no constitution of a country shall neglect the separation of power”.

Practice of Separation of Powers in USA, UK and India:

The USA-

The forefathers of the US constitution considered the separation of powers as the heart of the constitution. The three organs of the US government are:

  1. Congress (article 1)
  2. President (article 2)
  3. Supreme court and other subordinate courts (article 3)

In 1789 the doctrine of separation of powers was adopted when the American constitution was drafted and the concept was followed rigorously. Later due to the growth of the administrative process the doctrine has been relaxed. At present the legislative functions can be performed by the President, the judicial power of impeachment by the Congress, and the executive power by the Senate.  

The UK-

In England, the division of powers was not followed in an austere sense. The theory of integration of powers was endorsed in England. Even though the Cabinet performs the executive function, the chairman of the House of Lords perform the legislative functions and the Lord Chancellor performs the judicial functions there are still certain restrictions imposed on these three organs that are the concept of checks and balances which is enforced to check over the other organs of the government. Thus the king who is the head of the executive has an integral part in the legislature, similarly, the members of the executive are members of one or more houses of the legislature. The judiciary is considered to be independent but the judges can be removed on addressing both the house of the parliament. The UK government has separation of powers in an informal way with significant overlaps.

INDIA-

In India the basic structure of the constitution is considered as the heart and soul of the constitution, likewise, the separation of powers is also considered as the basic structure of the constitution. The executive powers are vested with the President, the legislative powers with the Parliament, and the judiciary power with the Supreme Court, High Courts, and the Subordinate Courts.

In Golak Nath v. State of Punjab, CJ Subba Rao held that “the constitution brings into existence different constitutional entities, namely the union, states, and union territories. It creates major instruments of power namely, the legislature, executive, and judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should, therefore, function within the spheres allotted to them[3]”.

Unlike the above case law, in the constitution itself, there is no provision which talks about the division of powers between these organs. Though articles 53(1) and 154(1) of the constitution states that the executive power vests on the President and Governor respectively but there is no corresponding provision vesting legislative and judicial power in any particular organ. The President can exercise both legislative and judicial functions, the Parliament can exercise both judicial and executive functions and the judiciary can also perform executive and legislative actions. Thus, the doctrine of the division of power is not fully accepted in India.

Conclusion

In modern societies, due to the advanced technologies and increase in the administrative functions of the government, the concept of separation of powers cannot be interpreted rigidly. Instead, each organ can keep a check over the other organ for the efficient functioning of the government.


[1] http://www.investopedia.com.

[2] https://www.shodhganga.inflibnet.ac.in.

[3] Ibid, AIR 1655.

Rebecca Percy from School of Excellence in Law

“I am a law student and my hobbies are writing stories. I am also a district level athlete in 400mts.”

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