SEPARATION OF POWER

- Diksha Sharma
Introduction
• The term “separation of powers” or “trias –
politica “ was initiated by Charles de
Montesquieu.
• In 16th and 17th-century British politician Locke
and Justice Bodin, a French philosopher also
expressed their opinion regarding this doctrine.
• Montesquieu was the first one who articulated
this principle scientifically, accurately and
systemically in his book “ Esprit des Lois” (The
Spirit Of Laws) which was published in the year
1785.
• The meaning of separation of power can be categorized
into three features:
▫ Person forming a part of on organs should not form the part
of other organs.
▫ One organ should not interfere with the functioning of the
other organs.
▫ One organ should not exercise the function belonging to
another organ.
• Thus, these broad spheres are determined, but in a
complex country like India there often arises conflict and
transgression by one branch over the other.
• The separation of power is based on the concept of ‘trias
politica’. This principle visualizes a tripartite system
where the powers are delegated and distributed among
three organs outlining their jurisdiction each.
Three Organs of Government
Significance of Separation of Power
• As it is a very well known fact that whenever a large power is
given in the hand of any administering authority there are higher
chances of maladministration, corruption and misuse of power.
This doctrine helps prevent the abuse of power. This doctrine
protects the individual from the arbitrary rule. The government
is the violator and also protects individual liberty.
• Summarily, the importance can be encapsulated in the following
points:
▫ Ending the autocracy, it protects the liberty of the individual.
▫ It not only safeguards the liberty of the individual but also
maintains the efficiency of the administration.
▫ Focus on the requirement of independence of the judiciary
▫ Prevent the legislature from enacting an arbitrary rule.
• Furthermore, it is impossible for any of the organs to
perform all the functions systematically and
appropriately. So, for the proper functioning of the
powers, the powers are distributed among the
legislature, executive and judiciary. The following are
discussed below:
Legislative
• The main function of the legislature is to enact a law.
Enacting a law expresses the will of the State and it also
acts as a vehicle to the autonomy of the State. It is the
basis for the functioning of executive and judiciary.
• It is spotted as the first place among the three organs
because until and unless the law is framed the
functioning of implementing and applying the law can be
exercised.
• The judiciary act as the advisory body which means that
it can give the suggestions to the legislature about the
framing of new laws and amendment of certain
legislation but cannot function it.
Executive
• It is the organ which is responsible for implementing,
carrying out or enforcing the will of the state as explicit by
the legislature.
• The executive is the administrative head of the government.
• Ministers including the Prime/Chief Ministers and
President/Governors form part of the executive.

Judiciary
• The judiciary is that branch of the government that
interprets the law, settles disputes and administers
justice to all citizens.
• The judiciary is considered the watchdog of democracy,
and also the guardian of the Constitution.
• It comprises of the Supreme Court, the High Courts,
District and other subordinate courts.
Under the Indian Constitution:
• Legislature
 Parliament ( Lok Sabha and Rajya Sabha)
 State legislative bodies (Unicameral and Bicameral State
Legislature)
[Most of the states have Unicameral State Legislature, only
6 states have bicameral state legislature]
• Executive
 At the central level- President;
 At the state level- Governor;
• Judiciary
Supreme Court, High Court and all other subordinate
courts
• In India, a separation of functions rather than of powers is
followed.Hence, the concept of separation of powers is not
adhered to strictly. However, a system of checks and balances
have been put in place in such a manner that the judiciary has
the power to strike down any unconstitutional laws passed by
the legislature.
• Today, most of the constitutional systems do not have a strict
separation of powers between the various organs in the
classical sense because it is impractical.
• The Constitution of India embraces the idea of separation of
powers in an implied manner. Despite there being no express
provision recognizing the doctrine of separation of powers in
its absolute form, the Constitution does make the provisions
for a reasonable separation of functions and powers between
the three organs of Government.
 Conclusion
• Exercising the doctrine of separation power cannot be
applied in the strict sense in any contemporary countries.
But still, this doctrine has relevancy nowadays.
• The logic behind the doctrine is of polarity rather than
strict classification, meaning thereby that the centre of
authority must be dispersed to avoid absolutism.
• It has been well said by Lord Action, "Power corrupts and
absolute power tends to corrupt absolutely" Conferment of
power in a single body leads to absolutism. Thus, though it
is important that power shouldn't get concentrated in one
hand, a system of checks and balances must be maintained
for a smooth functioning.
• For the smooth functioning of any
government, cooperation and coordination among all
three wings of the government are necessary.
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