SEPARATION

OF POWERS

Contents

Concept
Historical background
Lockes doctrine
Montesquieus doctrine
Operation of the doctrine in India
Critical evaluation of the doctrine

Concept
Dividing different powers among three
branches of government
Prevents one branch from gaining too
much power
Legislative, Judicial, and Executive
branches have their own unique powers

Historical background
Origin of the doctrine traceable to PLATO and ARISTOTLE.
16th and 17th century French philosopher JOHN BODIN and
British politician LOCKE further developed it.
However MONTESQUIEU for the firth time gave its
systematic and scientific exposition in 1748 in his book
ESPRIT DES LOIS( Spirit of Laws).

LOCKE
Locke distinguished between what he called:1. Discontinuous legislative power
2. Continuous Executive Power
3. Federal Power

He included within discontinuous legislative power the

general rule making power.

 Continuous executive power included all those powers

which we now call executive and judicial.
By federal power he meant the power of conducting
foreign affairs.

Montesquieus division of power included a

general legislative power and two executive
powers;
an executive power in the nature of Lockes federal power
and
a civil law executive power including executive and judicial
power.

Motesquieus doctrine
It is most important to create separate branches of
government with equal but different powers. That way,
the government would avoid placing too much power
with one individual or group of individuals.

He stated that -When the [law making] and [law

enforcement] powers are united in the same person...
there can be no liberty.

According to him, each branch of government could limit

the power of the other two branches. Therefore, no
branch of the government could threaten the freedom of
the people.

Defects
Absolute separation of powers not
possible
Practical difficulties
Adherence to this doctrine not
possible in a welfare state.

ENGLAND
The King though an executive head, is
also an integral part of the legislature and
all his ministers are also members of one
or the other of the houses of the
Parliament.

AMERICA
The doctrine of SOP forms the foundation
on which the whole structure of the
constitution is based.
Though no SOPs in the strictest sense of
the term exists in England and America,
yet the curious fact is that this doctrine has
attracted the makers of the most modern
Constitutions.

Operation of the doctrine in

India
Cursory glance at the Constitution may lead to the inference that
doctrine of SOP has been incorporated in the constitution
because:
Legislative powers Legislature.
Executive powers President.
Judicial powers-SC/HC/Other
Court.
However closer look at the constitution would reveal a contrary
position.

 There is only a single Article in Indian

Constitution that expressly mentions
about separation of powers. The
Directive Principles of State Policy
(Part IV) lays down in Article 50 that
three shall be separation of the
Judiciary from the Executive.

Exceptions to the doctrine in

India
(a) The SC has the power to declare void the laws passed by the
parliament and the actions taken by executive if they violate the
provisions of the constitution.
(b) Judicial legislation or law making by the judges is another
example of judiciary encroaching upon the sphere of legislature.
1. Judiciary(a) SC has power of rule making.
(b) HC the power of administrative control over subordinate courts.

Exceptions to the doctrine (contd.)

in India
2.Executivea) President/Governor exercises law-making power in the
form of ordinances.
b) President/Governors assent is required for all
legislations.
c) President/Governor also have judicial powers in the form
of granting pardon etc.
d) Power of adjudication has been conferred on the
executive in the form of administrative tribunals.

Exceptions to the doctrine (contd.)

in India
(3)

Legislature(a)Council of ministers (executive) is selected from

the legislature and is responsible to legislature.
(b)Legislature exercises judicial powers in case of
breach of its privilege, impeachment of
President, the removal of Judges.

Judicial precedents.
Golaknath v. State of Punjab-The
Constitution demarcates jurisdiction of
three organs of government minutely and
expects them to executive their respective
powers without overstepping their limits.
They should functions within the spheres
allotted to them.

Judicial precedents.
Keshavananda Bharti v. State of Kerela
It
was held that separation of power is spoken as a
structural basis of the constitutional framework.
Indira Nehru Gandhi v. Raj Narain
It was
ruled that our Constitution recognizes division
between three main powers of the government.
It was further held that it is feature of the basis
structure of the Constitution.

Judicial precedents.
Bandhua Mukti Morcha v. Union of India
The Constitution of India envisages a board division of
the power of State between the Legislature, the
Executive and the Judiciary. Although the division is not
precisely demarcated, there is general acknowledgment
of its limits.

Judicial precedents.
Asif Hamid v. State of Jammu & Kashmir
A new interpretation was given to the concept of
separation of powers while maintaining the
balance of power and having a check on other
organs of government. It was held that judicial
review is a powerful weapon to restrain
unconstitutional exercises of power by the
Legislature and Executive.