doctrine of separation of powers is an essential doctrine of every democratic state

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1.
The doctrine has been adopted in most democratic States as an important device
against autocratic, arbitrary and the over use of government power, be it by the
executive, the legislature or the judiciary. The researcher adopting doctrinal analysis
discovered that a water-tight application of the doctrine is not possible. It is in
recognition of this fact that the founders of the doctrine of separation of powers
developed the principle of checks and balances which empowers each arm of
government to serve as a check on the others to ensure that they do not go out of their
constitutionally assigned roles. Among the numerous political theories operating in a
democracy, none deserves to be more developed than the principle of power division
and separation. In every democratic State, the major institutions of the State are
divided into three- the executive, the legislature and the judiciary. It is however
important that those to be in charge of running these institutions are independent of
the other. The principle is a constitutional control whereby separate branches of
government have limiting powers over each other so that no branch will become
supreme. The concept of the principle of checks and balances arose as an outgrowth
of the classical theory of separation of powers, by which the legislative, executive,
and judicial powers of government were held properly to be vested in three different
units. The purpose of this, and of the later development of checks and balances, was
to ensure that governmental power would not be used in an abusive manner. The
doctrine of separation of powers is based on the acceptance that there is a division of
governmental powers into the three branches of legislative, executive and judicial
powers, each to be exercised by a separate and independent arm of government as a
preventive measure against abuse of power, which will occur if the three powers are
exercised by the same person or group of people. Its justification was based on the
natural law philosophy traceable back to Plato and Aristotle and later articulated by
the 16th and 17th centuries French Philosopher Jean Bodin and British politician John
Locke. However, it is the French Montesquieu who formulated the doctrine
systematically and scientifically in his book. He was not the pioneer of the doctrine as
Aristotle in his Treatise known as Politics had made the same distinctions but
Montesquieu gave it clarity and developed a model which has with variations
influenced the format of modern constitutions. It is indisputable among constitutional
lawyers that the Montesquieu model of separation of powers is theoretically plausible
but difficult to effect in practice without modification or adaptations. The
Montesquieu model is without its defects; it is in addressing the defects that some
constitutional lawyers argue that there are two dimensions of the doctrine- one being
institutional and the other functional. It is in relation to the functional aspect that the
doctrine should be taken to mean checks and balances based on a constitutional
scheme. This is obviously because the concentration of power in one branch can cause
grave hardship on the citizens thereby jeopardizing the idea of democratic value and
constitutionalism. With the changing needs of the society, it is important that
reasonable restrictions be placed upon the executive, legislature and the judiciary in a
compartmentalized form albeit not a water tight one.
2.
The concept of separation of powers refers to a system of government in which the
powers are divided among multiple branches of the government, each branch
controlling different facet of government. In most of the democratic countries, it is
accepted that the three branches are the legislature, the executive and the judiciary.
According to this theory, the powers and the functions of these branches must be
distinct and separated in a free democracy. These organs work and perform their
functions independently without the interference of one into others in order to avoid
any kind of conflict. It means that the legislative and the judicial powers cannot be
exercised by the executive, the executive and judicial powers cannot be exercised by
the legislature and the legislative and executive powers cannot be exercised by the
judiciary. Like the United Kingdom, India also practices the parliamentary form of
government in which executive and legislature are linked to each other. However, the
composition of our constitution creates no doubt that the Indian Constitution is bound
by the separation of powers. There are various provisions under the Constitution of
India which clearly demonstrate the existence of the doctrine of separation of powers.
This principle is followed both at the centre and the state level. The doctrine of
separation of powers must be interpreted in a relative form. In the era of globalization
and liberalization, the separation of power has to be expounded in a wider
perspective. It should not be curb to the principle of restraint or strict classification
only but a group power exercised in the spirit of cooperation, coordination and in the
interest of the welfare of the state. Though this doctrine is unfeasible in its rigid
perception nevertheless its effectiveness lies in the prominence on those checks and
balances which are necessary in order to avert maladroit government and to prevent
abuse of powers by the different organs of the government.
3.
One of the most important elements in constitutional theory is the principle of
separation of powers. We are taught since we the people or in economic analysis
language the principles cannot govern for exercise the entire collective decision
making power that is needed in a society. We got to deposit the governing power in
the hands of representatives namely agents. One of the essential tools designed to
prevent these agents from abusing the power is its division into different functions
that is to be exercised by different branches of government with different
representations structures that can check and balance each other. The perception of
the judiciary as a separate branch of Government and the call for the independence are
an inherent part of the current view of the doctrine of separation of powers, though
they first emerged as a a pragmatic result of the power struggles between king and the
parliament in 17th century England and as a natural process of professional
specialization. Only sub branch of government black stone can be considered the
pioneer and he was followed by the American founding fathers who saw the judiciary
as the the bulwarks of limited constitution against legislative encroachment.
4.
Montesquieu illustrated in his book in 1748 that the doctrine of separation of power in
detail. He also stated that apprehensions may occur when the powers of executive and
legislature are unified. In the same way there is no actual freedom when the judiciary
joins forces with the legislative and executive. The life and freedom of the subject
would be subdued to the control of arbitrariness. The state has an obligation to carry
out the following arms of the state it as legislative, executive and judicial. These are
three arms of state and every one of them has a unique and distinctive function which
separates them. Legislature is that part of state which is empowered to make the law
where as executive in the same way maintains the law and order. The judiciary comes
into the role where it judges the disputes in the state. The theory of separation of
power maintains that the three arms of power of the government should run as a
separate parts of the government in a democratic country. In that way no harm will
and should get into matters of the other. For instance, the executive should not
practice judicial powers. Like the United Kingdom India also practices the
parliamentary form of Government in which executive and legislature are linked to
each other. However the composition of our constitution create no doubt that the
Indian constitution is bound by the separation of powers.
There are various prophecies under constitution of India which clearly demonstrates
the existence of the doctrine of separation of powers. The principle is followed both at
the center and the state level. The legislative organ of the government is also known
as the rule making body. The primary function off the legislature is to make laws for
good governance of the state. It has the authority of amending the existing rules and
regulations as well. Generally the power of making rules and laws are in the hands of
parliament. Meanwhile, the branch of government is responsible for governing the
state is executive. The executive has the power to implement and enforce the law
which are made by the legislature. The president and the bureaucrats form the
executive branch of government. Judiciary place a very crucial role in any state
especially in this division of powers.1 It interprets and applies the law made by the
legislature and safeguards the rights of the individuals. It also resolves the dispute
within the state or internationally. The concept of separation of power was taken from
UK but because the UK has an unwritten constitution it was implemented in rigid
sense. Does we can say that the UK constitution has incorporated the separation of
powers just to keep checks and balances among the three organs of the government
but their exists some kind of interference of one organ in other. And excursion into
the historical significance of this doctrine has shown that the separation of powers is
not a toddler doctrine, It was developed over many centuries. The phrase separation of
powers was coined by Charles baron de montesquieu, the actual practice of doctor and
goes back in history much further. Add a total 1st Vincent the idea of mixed
government or hybrid government in his work politics where he threw upon many of
the constitutional form in the state of ancient Greece. He observed that every
government no matter it's form performed three distinct functions; the deliberative,
the magisterial and the judicative. In modern technology these activities who really
respectively to the legislative executive and judicial functions of government. The
doctor line of power has more important position in the book of montesquieu to
discover the constitutional principles which best promote political liberty. Though the
English constitution classified political power primarily in terms of legislative and
executive functions and further subdivided the latter to take into account between

1
9 Suleiman Hassan, Parliamentary control of administrative agencies, ( being a paper presented at
2003/2004 LLM class at the Faculty of Law Obafemi Awolowo University, Ile-Ife, Nigeria) 2005
executive and federative functions. He decided to call the conduct of foreign affairs as
executive power and the execution of domestic law as judicial power. The essence of
the doctrine of separation of power is to provide a safeguard against the abuse of
authority buy one arm of government which is very definition of tyranny. Under the
constitution, power is distributed into a vertical separation of powers which consists
of the central, state and local governments. By the system each arm of government
through the exercise of its defined Power check the accessories and abuses of the
other. A popular elected legislature make the laws and monitor their faithful execution
by an elected executive. The judiciary applies its power of judicial review to keep the
legislature within the confines of the constitution.
5.
The doctrine of separation of powers has emerged in several forms at different periods.
Its origin is traceable to Plato and Aristotle.
In the 16th and 17th centuries, French philosopher John Bodin and British politician
Locke expressed their views about the theory.
In the 18th century there was complete and full-fledged monarchy in France. Louis XIV
was well known for his absolute and autocratic powers. The king and his administration
were acting arbitrarily. The subject had no right and liberty at all.
On the other hand Montesquieu was very impressed by the liberal thoughts of Locke.It
was Montesquieu who for the first time formulated this doctrine systematically,
scientifically and clearly in his book Esprit des Lois (The Spirit of Laws) published in the
year 1748. Montesquieu, found that concentration of power in one person or a group of
persons results in tyranny. And therefore for decentralization of power to check
arbitrariness, he felt the need for vesting the governmental power in three different
organs, the legislature, the executive, and the judiciary. The principle implies that each
organ should be independent of the other and that no organ should perform functions
that belong to the other.
In India, a separation of functions rather than of powers is followed. Unlike in the US, in
India, 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.
This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he
described the three agencies of the government as General Assembly, Public Officials and
Judiciary. On a casual glance at the provisions of the Constitution of India, one may be
inclined to say that that the doctrine of Separation of Powers is accepted in India. Under
the Indian Constitution, executive powers are with the President, legislative powers with
Parliament and judicial powers with judiciary. The President’s function and powers are
enumerated in the Constitution itself. Parliament is competent to make any law subject to
the provisions of the Constitution and there is no other limitation on it legislative power.
The Judiciary is independent in its field and there can be no interference with its judicial
functions either by the Executive or by the Legislature. The Supreme Court and High
Courts are given the power of judicial review and they can declare any law passed by the
Parliament or the Legislature unconstitutional. Taking into account these factors, some
jurists are of the opinion that the doctrine of Separation of Powers has been accepted in
the Indian Constitution. If we study the constitutional provisions carefully, it is clear that
the doctrine of Separation of Powers has not been accepted in India in its strict sense. In
India, not only there is functional overlapping but there is personnel overlapping also.
The Supreme Court has power to declare void the laws passed by the legislature and the
actions taken by the executive if they violate any provision of the Constitution or the law
passed by the legislature in case of executive actions. The executive can affect the
functioning of the judiciary by making appointments to the office of Chief Justice and
other judges. One can go on listing such examples yet the list would not be exhaustive.
Conclusion
The Indian constitution has not fully employed the doctrine of separation of powers. Its
existence is in very general aspect. Arijit application of the separation of power is in
America and Australian constitution. A fundamental principle of undergirding the design
of modern Government is that of separation of powers. However this research work has
stated that the doctrine of separation of power can only function properly where there is
an interplay of checks and balances. This is a fictional property which so called because of
three arms of government are by the constitutional framework expected to operate an
overlapping system of administration. This practice however is fraught with challenges.
This work has address the challenges as well as formation of different divisions of
government. The doctrine of separation of powers must be interested in a relative form.
In the era of globalisation and liberalisation the separation of power has to be expounded
in a wider perspective. It should not be curb to the principle of restrains and strict
classification only but a group power exercised in the spirit of cooperation coordination
and in the interest of the welfare of the state. Though this doctrine is not feasible in its
rigid perception nevertheless its effectiveness lies in the prominence on those checks and
balances which are necessary in order to avert maladroit government it and to prevent
abuse of powers by the different organs of the government.