There are three distinct activities in every government through which the will of the people are

expressed. These are legislative, executive and judicial functions of the government.
Corresponding to these three activities there are three organs of the government, namely the
legislature, executive and judiciary.

The legislative organ of the government makes laws, the executive enforces them and the
judiciary applies them to specific cases arising out of the breach of law.

Now the question comes what should be the relation among these three departments of the
government. In other words, whether there should be complete separation of powers or there
should be co-ordination among them. St. Thomas Aquinas, who belonged to the medieval
period, was a campaigner against the theory of separation of powers.

He said:
“The greater the unity within the government itself, the greater the likelihood of achieving
unity among the people.”

In the ancient period, there was nothing like separation of powers and the King would himself
make law, execute it and act as the judge. But modern governments believe in the separation
of power based on the doctrine of division of labour to ensure uprightness and efficiency in the
discharge of such powers.

Then comes the other question- what is meant by the doctrine of separation of powers? We
have just noticed the different functions of the government, which are three in number, namely
the legislative, executive and judicial. Corresponding to these three kinds of functions there are
three departments, namely the legislature, the executive and the judiciary.

The legislature makes amends and repeals the laws. The function of the executive is to enforce
these laws. The judiciary is entrusted with the tasks of interpreting and applying them to
specific cases arising out of breach of laws.

These three types of functions or organs may be kept in the hands of one person or a body of
persons. This will be a case of absence of separation of powers. It is more common in practice
today to assign these three organs to three distinct bodies.
In the latter case there will be the presence of separation of powers. In the second type of
division of powers the legislature will only legislate and will refrain from executing the law or
interpreting it.

Similarly, the executive will only execute the law and refrain from making law or interpreting it.
Likewise, the judiciary’s exclusive function will be to adjudicate and not to make or enforce law.
The theory of separation of powers believes that combination of these two or three powers in
one person or one set of persons will result in tyranny, as it happened in medieval Europe.

Origin and Development of the Theory of Separation of Powers:

It is not possible to say precisely since when the theory of separation of powers was first
propagated or experimented. The earliest known date is that of Aristotle (4th century B.C.) and
Cicero (106 – 43 B.C.). In Aristotle’s view the state will have before it three functions, namely
deliberative, magisterial and judicial.

A French philosopher, Jean Bodin, made a fresh emphasis on the need of separation of these
three powers. He specially hammered on keeping the judiciary outside the purview of the other
two organs. According to Bodin, the judiciary has a special case of remaining separate and
independent of others.

The above is a hazy account of the origin and development of the doctrine of separation of
powers. It was the celebrated French philosopher Charles-Louis Montesquieu (1689-1755) who
was the first to scientifically study this theory so much so that this theory is associated with his
name. He held out this theory in his book The Spirit of Laws published in 1748.

The reason for Montesquieu’s holding a brief for separation of power was his experience of the
tyrannical regime of Louis XIV who had all-pervading powers in France.

He would identify himself with the state and would take pride in saying:
“I am the state.”

He arrogated to himself all the legislative, executive and judicial powers of France.

For Montesquieu, the doctrine of separation of power involving mutual exclusiveness of the
organs of the government consists of three elements.
First, there are three organs of the government, namely legislature, executive and judiciary;
second, each of these organs must work strictly within its own sphere and there ought not to
be any encroachment of anyone on the other; third, if there is encroachment, it is bound to
cause tyranny.

The three organs are three water-tight compartments and the functions of one cannot at all be
exercised by the other. When the three organs of the state overstep the mutual exclusiveness
in their functioning and seem to encroach upon each other, the question arises who is superior
over whom in terms of jurisdiction and power.

According to Montesquieu, there was no civil liberty in France because of the combination of all
powers in the hands of a single person.

So he emphatically observed:
“There would be an end of everything, were the same man, or the same body whether of the
nobles or the people, exercise these three powers.”

His visit to England in 1730 made him see the excellent liberties enjoyed by the people of
England and he construed this to the separation of powers in England. Here Montesquieu fell
into error, because there was no separation of powers in England. So he erroneously concluded
that civil liberty in England was safe, because the English constitution was based on the
principle of separation of powers.

But the French philosopher was perfectly correct to observe:

“When the legislative and the executive powers are united in the same person or in the same
body of persons, there can be no liberty, because they make tyrannical laws and execute them
in a tyrannical manner. Again, if judicial authority is combined with legislative, the life and
liberty of the subjects would be subjected to arbitrary control. If judiciary is joined with
executive, the judge might behave with violence and oppression.”

Thus the crux of the need for a separation of powers is couched in the above observation of
Montesquieu. After Montesquieu the important constitutional figures to give credence to the
doctrine are Sir William Blackstone and James Madison. Both are at one with Montesquieu that
only answer to the abuse of powers is the separation of powers.
Blackstone hammered home:
“Whenever the right of making and enforcing the law is vested in the same man or one and the
same body of men, there can be no public liberty.”

According to Madison:
“The accumulation of all powers, legislative, executive and judicial in the same hands may justly
be pronounced the very definition of tyranny.”

Separation of Powers in England:

In England, with the immense increase in legislative business, the vast rule-making powers
which the government acquires under every new law and the free use of the party whip to keep
the majority in line, it is indeed the executive which exercises increasing control over the
legislature.

England must have executive, legislative and judicial branches, but what is significant is that the
government in England is not established according to the principle of separation of powers,
since there the legislative chooses the executive, which depends upon the legislative both for
power and holding of office.

So there is no separation of power in England. Yet, England has the best type of civil liberty
protected and the English judges are never influenced by the executive. It shows the maturity
of public opinion holding the balance even in the absence of separation of powers.

Separation of Powers in the USA:

One of the basic features of the constitution of the USA is the distribution of national powers
among three departments whose political and constitutional independence are guaranteed.

Thus the power of the President, for example, comes not from the congress but from the
constitution. What is most important is that the personnel of each of the three branches are
chosen by different procedures and hold office independently of the other branches. It is this
independence of the three branches, not just the distribution of functions, which is the central
feature of the American system of separation of powers.
The framers of the American constitution feared concentration of powers in a single branch. To
them, separation of powers and checks and balances were desirable to prevent official tyranny
and even more importantly to prevent single segment of the population – majority or minority
– from gaining complete control of the government.

It was hoped that by making each branch accountable to different groups a variety of interests
would be reflected. For that reason, compromises and balancing of interests became inevitable.

The doctrine of separation of powers is also described as a “sharing of powers by separate

institution.” Thus each department is given a voice in the business of the other. And each is, at
the same time, made dependent upon the cooperation of the others in order to accomplish its
own business.
It is through this blending of powers by politically dependent branches that the doctrine of
checks and balances is made effective.

The makers of the constitution of the USA accepted as an unchallengeable maxim that the only
way to avoid governmental tyranny is to put the legislative, executive and judicial powers in
separate departments. This separation of power is not only a political theory about the proper
organisation of the government but also a doctrine of constitutional law involving the Supreme
Court of the country.

It is in accordance with this principle that the federal courts decline to perform non-judicial
functions. It is on this ground too that the exercise of non-legislative functions by the Congress
in connection with legislative investigations are judicially ensured in the USA.

Separation of Powers in India:

Justice K. Subba Rao, former Chief Justice of India, observed in the famous Golaknath case:
“The constitution of India has created three 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 function
within the sphere allotted to them.”

Mrs. Indira Gandhi laid more emphasis on it:

“Democracy could not survive unless the three organs of the government – judiciary, legislature
and executive confine their functions to their respective fields. Although unlike the American
constitution, the Indian constitution does not recognise any rigid separation of powers, the
political usefulness of the doctrine of separation of powers is now widely recognised.”

The constitution of India divides the three categories of executive, legislative and judicial
functions. Though this division of functions is not based on the doctrine of separation of powers
as in the USA, yet there is broad division of functions between the appropriate theories so that,
for example, the legislature will not be entitled to arrogate to itself the judicial function.

In this connection the Supreme Court of India observed:

” The Indian constitution has not indeed recognised the doctrine of separation of powers in 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.

Value of the Theory of Separation of Powers:

The theory of separation of powers exercised significant influence in the eighteenth century
Europe. The most monumental constitutional document that came in the fashion of the
separation of powers is the federal constitution of the USA of 1789. As a corollary to it was
modelled some of the constitutions of the provinces of the USA.

So it is said that the practicability of the separation theory was first tried in the USA.

Herman Finer was, therefore, correct when he observed:

“The United States constitution is an essay in the separation of powers and is the most
important polity in the world that operates on that principle.” In the USA the President is given
exclusively the executive authority, the Congress the legislative and the Supreme Court the
judicial.

So if one is to know the practical implementation of the separation of powers, for him the best
model is the constitution of the USA. When monarchy was overthrown in France and a republic
was established there instead, the framework of the First Republic of France was in line with
the separation of powers.
The rumble of the separation of powers was heard like a thunder in the French Constituent
Assembly of 1789, which declared:
“Every society in which the separation of powers is not determined has no constitution.”

Criticism of the Theory of Separation of Powers:

The eighteenth century was the palmy days for the theory of separation of powers. But it faced
attacks in the nineteenth century.

The following are some of the scathing criticisms of the theory:

1. The Theory of Separation of Powers Violates the Organic Unity of the Government:
The major attack on this theory of separation of power is that it attacks on the organic unity of
the functions of the government and injects a kind of dissension in the governmental functions
by emphasising on the demarcation of governmental powers. According to John Stuart Mill,
absolute separation and independence of the governmental powers would result in frequent
deadlocks and general inefficiency.

Harold J. Laski believed that separation of powers would result in confusion of powers. Herman
Finer’s view is that complete separation of powers would degenerate lack of unity, harmony
and efficiency.

For R. M. MacIver:
“The line between legislative enactment and executive or judicial decision is never hard and
fast.”

He pointed out that in a modern state the legislature performs some executive and judicial
functions. Similarly, the executive is also endowed with some legislative and judicial, functions.

2. The Theory of Separation of Powers is Impracticable:

The constitution of the USA is the finest example of the separation of powers. There the
legislative powers are exclusively given to the Congress, the executive power is the sole concern
of the President and the judicial business is carried out by the Supreme Court. But in the USA
also there is no water-tight separation of powers. There the President is not only the chief
executive but the chief legislator also.

The senate of the USA, which is the upper house, shares with the President in some of his
executive functions like making appointments and treaties. We may, therefore, accept the view
of R. M. MacIver that “the absolute separation of powers prescribed by Montesquieu is
obviously impossible.”

According to Montesquieu’s famous political theory, a democratic state must necessarily keep
separate the three great organs of government, namely, the executive, the legislature and the
judiciary. In practice, such a separation is never fully achieved and overlapping of the three
functions cannot be avoided. The threads of the three powers always become intertwined to a
greater or lesser extent.

The degree of separation is usually determined by the political climate of a state. Perhaps the
USA comes closer to the ideal of complete separation, where it is almost nil with the totalitarian
countries.

In this context De Tocqueville rightly said that the more pronounced the separation –
particularly where constitutional checks and balances control the working of all three powers –
the more remote is the danger of dictatorship. England is a country where the separation of
power does not exist. Yet the judges of England enjoy wide independence.

3. The Theory is Unworkable in a Parliamentary System of Government:

In a parliamentary system of government the executive is responsible to the legislature as it is

in England and India. So Montesquieu’s formula of keeping the legislature away from meddling
in the executive is ineffective in a parliamentary government.

In England and India there is a good deal of intimacy between the executive and the legislature
so much so that the executive survives on the blood donated by the legislature.

The legislature makes the executive and can unmake it also. In England the House of Lords,
which is the upper house of the parliament is the highest court of law. Even the executive in
England and India has a big hand in the making of laws of the land. So Montesquieu has no
place in a parliamentary form of government.

4. The Theory Wrongly Suggests that all the Organs are Equal in Strength:
Montesquieu would have us believe that all the three organs of the government are equal in
power. This is not correct. As a matter of fact, in all democratic countries the most powerful
organ is the legislature, because it makes and unmakes the laws which are the veins of every
nation. It is the legislature which acts as the springboard and dominates over other
departments. It is the legislature which acts as the mouthpiece of the people, because it is
directly elected by the people.

So R. M. MacIver rightly said:

“This objection is an essential condition of all responsible governments, without which
democracy cannot exist.”

Its primacy over other organs is also discernible in the fact that it controls the purse of the
nation. All money bills are to be passed by the legislature and this power of the legislature is a
big noose that it can tighten around the neck of other organs.

5. The Theory does not ensure Individual Liberty:

The very charm or attraction of the theory of separation of powers as propounded by
Montesquieu was that it guarantees individual liberty by eliminating the abuse of powers. This
is not correct. England which has no separation of powers, enjoys the fruits of democracy and
civil liberty more and better than any other country of the world.

This is so because the character of the English race is one of conscience and vigilance to
safeguard their own liberty. So John Stuart Mill rightly said that eternal vigilance is the price of
liberty. Mill did not believe in the theory of Montesquieu that separation of power is a sure
elixir to invigorate civil liberty.

Conclusion:
Complete separation of powers is neither desirable nor practicable. For the purpose of
obtaining efficiency there may be specialisation of functions and to that extent there may be
some kind of separation of functions. So Montesquieu should have used “separation of
functions” instead of “separation of powers.”

In this context Harold J. Laski wrote:

“It is necessary to have a separation of functions which need not imply separation of
personnel.” So we may go through with the suggestion that the strict separation of powers is
not only impracticable as a working principle of government but it is not to be desired in
practice.

So we may conclude with the words of R. M. MacIver:

“The absolute separation of powers prescribed by Montesquieu is obviously impossible.”