Acknowledgement.

I have taken efforts in the time-bound and plagiarism-free competition of this project.
However, it would not have been possible without the kind support and help of a number of
individuals that are part of the National Law Institute University, Bhopal.

I am greatly indebted to Sushma Ma’am for her able guidance and constant supervision
towards this project as well as for imparting the knowledge required for the same. I would
also like to express my gratitude towards all staff members of the National Law Institute
University, Bhopal for their kind cooperation and for providing us all with the resources
required to make this project.

My gratitude and appreciation also goes out to my colleagues who helped me in developing
this paper and to people who have willingly helped me out with their abilities. Thank you.
1. Introduction.

Separation of powers is not a novel concept. As is evident from historical sources, the
concept has been around since the ancient Greek civilizations. Today, not all constitutional
systems in the world have opted for a strict separation of powers. This can be attributed to a
strict adherence to the system being undesirable or impracticable. Even though a strict
separation of powers may not b prevalent in certain jurisdictions, a number of jurisdictions
still witness the implications of this system in some diluted form.

In any democracy, accountability stems not just from a singular source of power and
authority but multiple sources of power and authority being balanced against each other. At a
very basic level, this is the principle behind nay system of checks and balances. Today, a
system of separation of powers typically focuses on balancing the powers and functions of
three authorities: the legislature, the executive and the judiciary.

The term “trias politica” which stands for the” separation of powers” was first coined by
Charles-Louis de Secondat, a French philosopher. His publication, Spirit of the Laws, is
considered one of the great works in the history of political theory and jurisprudence, and it
inspired the Declaration of the Rights of Man and the Constitution of the United
States. Under his model, the political authority of the state is divided into legislative,
executive and judicial powers. He asserted that, to most effectively promote liberty, these
three powers must be separate and acting independently.1

1.1. Statement of Problem.

What is the doctrine of separation of powers? What are some significant theories
propounding the same?

1.2. Objectives.

 To gain a thorough understanding of the doctrine of separation of powers.

 To analyze the theories propounding the doctrine.

1
http://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx
  To trace the history of the doctrine.
 To study Montesquieu’s theory of separation of powers.
 To understand the importance and significance of the doctrine.
 To determine the status of the doctrine today, its application and prevalence,
especially in India.

1.3. Hypothesis.

That the doctrine of separation of powers is fundamental to the functioning of authoritative

institutions in any democratic setup, and that a strict separation of powers is important to the
protection of the rights and liberties of citizens. Also that the doctrine of separation of powers
has been followed both under the Constitution of India and its implementation.

1.4. Research Questions.

 What is the doctrine of separation of powers?

 What are some significant theories propounding the doctrine?
 How did the doctrine originate and how has it developed over time?
 What is Montesquieu’s theory of separation of powers?
 Is the doctrine of separation of powers significant to the functioning of institutions in
a democratic setup?
 What is the status of the doctrine today, its application and prevalence, especially in
India?

1.5. Research Methodology.

The mode of writing this research paper is doctrinal in nature. Secondary and electronic
resources have been largely used to gather information and data about the topic. Books and
other reference material have been helpful in giving this paper a firm structure. Websites,
dictionaries, and articles have also been referred. Footnotes have been provided, where
needed, to acknowledge the source.
2. Separation of Powers: Meaning.

“Power corrupts, and absolute power corrupts absolutely.”

The inherent purpose of a government is to protect the rights of the citizens under its
jurisdiction. The irony here is that the government is a major violator of citizens’ rights. To
keep these violations in check, a number of systems have been devised. Separation of power
is one such important system. The basis of the doctrine of separation of powers is that power
should not accumulate with one authority. In addition, any and all power with one authority
should be checked by another authority and every democratic institution should be held
accountable for its acts and omissions.

The separation of powers, a term often used interchangeably with the “trias politica
principle”2, is a model for the governance of a state (or who controls the state).

The three main branches of government under any democratic setup are: the legislature, the
executive, and the judiciary. Corresponding to each branch is an organ of the State.
According to the doctrine of separation of powers, these three organs and branches must be
independent of each other and must exercise different powers and have different functions.
No organ must interfere with the functioning of another organ and no organ must have any
influence over another organ. Thus, the legislature cannot exercise executive or judicial
power; the executive cannot exercise legislative or judicial power of the Government.3

Wade and Philips interpreted the doctrine of separation of powers to mean three different
things:

A. That actors forming part of one organ of the State should not form part of or influence
another organ of the State.

For example, judges cannot be elected as representatives to the legislature.

2
This latter refers specifically to the separation of powers into three branches of government: legislative,
executive and judicial.
3
C.K.Takwani, Lectures on Administrative Law (2008), p.31.
B. That the exercise of its powers by one organ of the State should not be interfered with
or influenced by another organ of the State.

For example, the judiciary may strike down a law, but it cannot interfere with or
influence the power of the legislature to draft laws.

C. That one organ of the State should not perform the functions of or exercise the powers
that lie with another organ.

Case in point, judicial activism.

3. Origin of the Doctrine.

Though most sources credit Montesquieu for having solely developed the doctrine of
separation of powers, but that is a gross oversimplification of the development of this
doctrine over centuries of philosophical and political development. It is Montesquieu’s
understand and conception of separation of powers that we criticize in a study of separation
of powers under administrative law.

The first notions of separation of powers in its nascent forms can be traced back to ancient
Greece, in the times of Plato and Aristotle. Plato wrote Republic, and in that he divided the
state into five types. One among these five was tyranny wherein the power was concentrated
into the hands of the one or the few. The first person to have conceived of an idea of
establishing separate functions was Aristotle, who was influenced by the Platonian principles.
He sowed the seed of separation of powers in the earliest times, and proposed three agencies
of the government: the General Assembly, the Public Officials, and the Judiciary.

Next, authors talked about mixed governments wherein Aristotle’s principles were blurred.
We then move to ancient Rome, wherein there were three centres of power (similar to what
was propounded by Aristotle): the public assemblies, the senate and the public officials.
Europe then moved into a period wherein monarchy was the most prevalent form of
government wherein the head of the state was a hereditary ruler in whose hands the power
was concentrated.

With the birth of the Parliament, the theory of the three branches of government reappeared,
this time in John Locke‘s Two Treatise of Government, where these powers were defined as
‘legislative’, ‘executive’, and ‘federative’. This gained much traction during the period of
Renaissance with support through the works of Lobbes and Rousseau. We predominantly
discuss Montesquieu’s theory of separation of powers. The idea simply was to check the
unlimited use of power.
4. Montesquieu’s Theory of Separation of Powers.

“There would be an end of everything, were the same man or same body, whether of the
nobles or of the people, to exercise those three powers, that of enacting laws, that of
executing the public resolutions, and of trying the causes of individuals.”4

Montesquieu’s ideology of separation of powers finds most prevalence among that of all
other authors who wrote on the subject. In popular discourse, Montesquieu is even credited
with developing the theory of separation of powers, a fact that stands untrue. A study of the
separation of powers under administrative law is incomplete without a critique of
Montesquieu’s understanding of the same.

Montesquieu is credited with the theorization of the concept of separation of powers into a
profoundly systematic and scientific doctrine in his book De L‘ Espirit des Lois (The Spirit of
Laws). He based his theory on his understanding of the English system which since the time
of Locke had generated a more independent judiciary and a tendency towards a greater
distinction amongst the three branches.

He lay emphasis on both the “natural liberty” and “political liberty” of citizens, and it it these
liberties that he sought to protect through a separation of powers. He defined “political
liberty” as “peace of mind that arises from the opinion each person has of his security” and
said that “in order to have such liberty, it is necessary that the government be such that one
citizen need not fear another”.

Montesquieu’s theory of separation of powers was based on the belief that “the concentration
of power in the hands of the one or the few will result in a system of tyranny”. He believed
that powers should vest in different organs of the state in order to check the arbitrariness in
the exercise of power by these different organs.

4
Montesquieu, Spirit of the Laws (Book VI 6th ed Franz Neumann trans. Thomas Nugent 1748).
Montesquieu perceived a separation with an adroit admixture of checks and balances 5.
Through his theory, he tried to explain that the union of the executive and the legislative
power would lead to the despotism of the executive for it could get whatever laws it wanted
to have, whenever it wanted them. Similarly, the union of the legislative power and the
judiciary would provide no defence for the individual against the State.

“When the legislative and executive powers are united in the same person or body, there can
be no liberty, because apprehensions might arise lest the same monarch or senate should
enact tyrannical laws, to execute them in a tyrannical manner. Again there is no liberty, if
the judiciary power be not separated from the legislative and executive. Where it joined with
the legislative, the life and liberty of the subject would be exposed to arbitrary control; for
the judge would then be the legislator. Where it joined with the executive power, the judge
might behave with violence and oppression. There would be an end of everything, where the
same man or the same body, whether of the nobles or the people, to exercise those three
powers, that of enacting the laws, that of executing the public resolutions, and of trying the
cases of individuals.”

4.1. A System of Checks and Balances.

Montesquieu is also credited with devising a system of checks and balances. The system of
checks and balances is the fundamental basis of the theory of separation of powers. With
checks and balances, each of the three branches of government can limit the powers of the
others. This way, no one branch becomes too powerful. Each branch “checks” the power of
the other branches to make sure that the power is balanced between them.

5
Montesquieu, The Spirit of Laws (Nugent) (1748), p. 152.
5. Position in India.

In India, we do not follow strictly a system of separation of powers. Even under the
Constitution, there is no explicit provision which embodies the doctrine of separation of
powers. We do have a system of checks and balances, but it is not a strict separation of
powers between three institutions absolutely independent of one another.

India, in its Constitution and its legislative enactments does follow the doctrine of separation
of powers to a certain degree, one which is practicable. We do have three separate organs of
the government, and power is not concentrated into the hands of any one of the three. But the
three organs do not work independently of one another. While the legislature and the
executive in India are more closely interlinked, the judiciary does enjoy a certain degree of
remoteness.

The Constitution of India followed a more practicable approach when adopting the doctrine
of separation of powers. The powers and functions of the three organs of the State in India are
substantially differentiated; each organ enjoys certain powers to the exclusion of the others.

The legislature or the Parliament is tasked with drafting laws, the executive headed by the
President is tasked with implementing said laws and the judiciary with the Supreme Court of
India at its apex is tasked with interpreting those laws within the limits set by the
Constitution.

The doctrine of separation of powers neither finds mention nor is it embodies under any
specific provision of the Constitution, but it is nevertheless evident that the Constitution was
drafted with due regard to the doctrine of separation of powers and the system of checks and
balances.

In India, the legislative and executive wings are closely connected with each other due to
which the executive is responsible to the legislature for its actions and derives its powers
from the legislature. The head of the executive is the president, but a closer look shows that
he is only a nominal head and the real power rests with the Prime Minister and the Cabinet.
In certain situations, the President has the capacity to exercise judicial and legislative
functions. The judiciary too performs administrative and legislative functions. The parliament
too may perform judicial functions, for example if a president is to be impeached both houses
of Parliament are to take an active participatory role. Thus all three organs act as a check and
balance to each other and work in coordination and cooperation to make our parliamentary
system of governance work. India, being an extremely large and diverse country, needs a
system like this where all organs are responsible to each other as well as coordinated to each
other; otherwise making governance possible becomes a very rigid and difficult task.
6. Criticism of the Doctrine.

Over time, the doctrine of separation of powers has been criticized on numerous grounds. The
most common critique is on the ground that it is impossible and impracticable.

It is also considered to be an artificial distinction and can therefore, not be accepted

completely or be adhered to strictly. This is because a government is a living thing, an
organic unity, and cannot work in isolation and need to work with each other. All three
organs are effectively part of one body, one State. They are interlinked and cannot be
separated completely, something which is also undesirable. For an academic understanding or
as a concept, this is workable, but in practical application, it is neither possible nor desirable.

There are two approached here: the watertight compartment approach and the blended power
approach. While the watertight compartment approach lies on one end of the spectrum and
does not find prevalence, the blended power approach is more realistic.

Montesquieu, who was a firm believer of human liberty, conceived this idea to protect this
liberty. While the goal was noble, the idea needs to be considered in light of its practical
implementation.

While the doctrine of separation of power sin its pure sense finds less relevance and
prevalence, the doctrine has been diluted into a system of checks and balances, which is
fundamental to the existence of any democracy.
7. Conclusion.

My initial hypothesis stands corrected. The doctrine of separation of powers is not

fundamental to the functioning of authoritative institutions in any democratic setup. Further, a
strict separation of powers is not important to the protection of the rights and liberties of
citizens, as was hypothesized. In fact, a strict adherence to the doctrine of separation of
powers is neither practicable nor desirable.

The initial hypothesis that India follows a system of separation of powers also stands
corrected. The system followed in India can be more closely linked to a system of checks and
balances, which, in a way, is a dilution of the system of separation of powers. Under a system
of checks and balances, there do exist a number of organs of the State, but these organs do
not work in isolation and are not independent of each other.

The Constitution of India provides for a mechanism whereby each organ of the government
“checks” the powers of the other organs of the State. For example the judicial review and
activism functions of the judiciary is an important element of our system of justice to keep a
check on the legislature who are the law makers of the land, so that they do not exceed their
powers and work within the allowances that the constitution has made for them. None of the
three powers can usurp the essential functions of each other 6, which constitute a part of the
‘basic structure’ doctrine.

6
Singh Nidhi, Vijay Anurag, Separation of Powers: Constitutional Plan and Practice (International Journal of
Scientific and Research Publications Volume 3 2013).