1.

) Origin of Separation of Power

 The separation of power is also known as Trans Politica.

 The doctrine of separation of power is the forerunner to all the constitutions of the world
which came into existence since the days of the Magna Carta.
 The doctrine of Separation of Powers deals with the mutual relations among the three
organs of the Government namely legislature, executive and judiciary.
 The origin of this principle goes back to the period of Plato and Aristotle.

2.) Conceptualisation by Theorist

a.) Aristotle

 It was Aristotle who for the first time classified the functions of the Government into three
categories:
i) Deliberative
ii) Magisterial
iii) Judicial

b.) John Locke

 Locke categorized the powers of the Government into three parts namely:
i) “Continuous executive power” implies the executive and the judicial power,
ii) “Discontinuous legislative power‟ implies the rule making power,
iii) “Federative power‟ signifies the power regulating the foreign affairs.

c.) Montesquieu

 The French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) published in
1748, for the first time enunciated the principle of separation of powers.
 Montesquieu’s doctrine, in essence, signifies the fact that one person or body of persons
should not exercise all the three powers of the Government
i) Legislative
ii) Executive
iii) Judiciary.

d.) Wade and Philips

 According to Wade and Phillips the doctrine of separation of powers implies:

(i) The same person should not form more than one organ of the Government.
(ii) One organ of the Government should not exercise the function of other organs of the
Government.
(iii) One organ of the Government should not encroach with the function of the other two
organs of the Government.

3.) Montesquieu’s Tripartite System

 In every government there are three sorts of power i.e. legislature, executive and judiciary.
 The executive, makes peace or war, send or receives embassies, establishes the public
security and provides against invasions.
 The legislature, prince and magistrate enact temporary or perpetual laws and amend or
abrogate those that have been already enacted.
 The judiciary, punishes criminals, or determines the disputes that arise between individuals.
  Montesquieu warned his countrymen about the danger of vesting all state powers in one
person or body of people. That concentrated power is dangerous and leads to despotism of
government (tyranny).
 Legislature should not appoint members of the Executive [i.e. Parliament should not elect
the President or the Prime Minister]; and for the same reason the Executive should not have
a role in electing members of the Legislature. Neither the Executive nor the Legislature
should appoint members of the Judiciary, for if they do the Judiciary will lose its
independence. Again, judges should not appoint members of the Executive. That it is the
people who should elect members of executive, legislature and judicial officers.
 He argued, if separate powers of government are placed in different hands, no individual or
group of people can monopolize political powers (i.e. differentiation of functions). Thus, he
was against absolute power residing in one person or body exercising executive, legislative
and judicial powers
 He based this model on the Constitution of the Roman Republic and the British
constitutional system.
 Montesquieu took the view that the Roman Republic had powers separated so that no one
could usurp complete power. He (mistakenly) believed that the English constitution
establishes functional separation between the legislature, executive and judicial powers. In
England, the monarch exercises executive powers, legislative power are shared by
hereditary nobility and the peoples’ elected representatives, judging powers vested in
persons drawn from the body of the people.

Features:

 Division of powers: The concept of separation of power advocated by Montesquieu lays

down following reasons for division of power between the three organs of the Government.
i.) The Executive should not exercise the legislative or judicial powers because this may
threaten the freedom and liberty of individuals.
ii.) The Legislative should never exercise the executive or judicial powers as this may lead to
arbitrariness and hence, end the liberty.
iii.) The Judiciary should not exercise the executive or legislative powers because then a
judge would behave like a dictator.
 Effective Governance: If all powers are vested in one organ or exercised without separation,
such governance would be ineffective. Therefore, in the interest of welfare of people for an
effective governance the power should be divided among the organs of the government.
 Limitation of Power: The Power vested in one authority will be abused if limitations are not
imposed on its exercise.
 Checks and balance of power: In order to safeguard the liberty of people, each organ of the
government shall have obligation to act within its own limit. If any authority acts beyond the
permitted limits, it would be checked by the other organs. The executive organ shall exercise
some control over the legislative and judiciary, the legislative organ over judiciary and
executive, the judiciary shall have some control over the legislative and executive.
 Power halts Power: By separating the functions of executive, judiciary and legislative the
power of each organ is balanced against the other. Therefore in this way, each organ
exercises a check on the other organ and the power of one organ is halted by the power of
another organ.
4.) United States

The theory of separation of powers finds its best expression in the United States of America. The
doctrine of separation of powers forms the foundation and basic structure of US Constitution.
Montesquieu is regarded as the intellectual father of the American Constitution. In order to avoid
the concentration of power, the US constitution distributes the between Executive, legislative and
executive. The three organs of Government of USA and its division of powers are as follows

Executive The President appoints the members of the cabinet with the approval of congress as
executive heads of the Departments. The president and his secretaries are not the members of the
congress. President has his powers to recommend measures, to summon Congress in special session
and to veto bills passed by congress (except money bills). The president could intervene in the
business of the court through his power of Pardon for all offenses except treason. The US congress
delegates law making powers to the executive after laying down the legislative policy and principle.

Legislative the law-making power is vested in congress. The congress acts in a judicial capacity in
cases of impeachment of the president and Supreme Court Judges. The Senate shares powers with
president to make appointments, declare war and ratify treaties.

Judiciary The Supreme Court has the power of judicial review. The court has the powers to examine
the laws passed by the congress and executive orders declared by the president and declare null and
void if it contravenes the provisions of US constitution.

5.) India

 Under Indian Constitution:

Legislative powers- parliament
Executive powers- President
Judicial powers- Supreme Court, high courts and subordinate courts
 The concept of powers can be seen in following Articles:
Article 50- separation of judiciary from executive.
Article 122- courts not to inquire into proceedings of parliament.
Article 121- no discussion shall take place in Parliament of conduct of the judges of SC or HC
in the discharge of his duties except for the procedure of impeachment.
Article 361- president or governor shall not be answerable to any courts for the exercise and
performance of powers or duties of his office.
 The constitutional provisions clearly shows that the doctrine has not been accepted in India
in its strict sense or rigid sense.
 President exercising legislative and judicial powers,
Article 123- issue ordinances
Article 357- president can exercise legislative function during the proclamation of state
emergency.
Article 103- questions as to disqualification of members.
Article 217(3) - if any question arises as to the age of a judge of a high court, the question
shall be decided by the president.
 Judiciary exercises executive and legislature powers,
Article 227- the HC has supervisory powers over all subordinate courts and tribunals.
Article 145 and 225- SC and HC can make rules for regulating the practice and procedure of
the court.
 Legislature exercising judicial and executive functions,
 Article 61- procedure for impeachment of the president.
Article 54 and 55- election of president by forming and electoral college.

6.) Evaluation

 Friedmann argues that any rigid attempt to define and separate the fucntions of the
government must either fail or cause serious ineffencieny of the government.
 If all the branches are made separate and independent of each other, each branch will
endeavor to safeguard its interests and possibly may jeopardize other’s interest.
 Perfect separate power in the functions of the government is impossible.
 Mill was of the view “the separation of powers will result in a clash between the three
different organs of the government because each one will take interest only in its own
powers.”
 A smooth and stable government can exist only if there is cooperation among the three
organs. Any attempt made to separate these organs into watertight compartments may lead
to failure and inefficiency in the government.
 It is my opinion that the doctrine of Montesquieu is not merely a „myth‟ it also carries a
truth, but in the sense that each organ of the Government should exercise its power on the
principle of „Checks and Balances” signifying the fact that none of the organs of Government
should usurp the essential functions of the other organs. Professor Laski has aptly remarked:
“It is necessary to have a separation of functions which need not imply a separation of
personnel.”