SEPARATION OF POWERS

LEGAL METHOD: UNIT 3

Kanchan Lavania, ASSISTANT PROFESSOR, VSLLS, VIPS, DELHI
Origin
◦ ORIGIN OF THE CONCEPT IS TRACEABLE TO PLATO AND ARISTOTLE.
◦ IN 16TH AND 17TH-CENTURY BRITISH POLITICIAN LOCKE AND JUSTICE BODIN,
A FRENCH PHILOSOPHER ALSO EXPRESSED THEIR OPINION REGARDING THIS
DOCTRINE.
◦ BUT THE TERM “SEPARATION OF POWERS” OR “TRIAS –POLITICA “ WAS
INITIATED BY CHARLES DE MONTESQUIEU.
◦ MONTESQUIEU WAS THE FIRST ONE WHO ARTICULATED THIS PRINCIPLE
SCIENTIFICALLY, ACCURATELY AND SYSTEMICALLY N HIS BOOK “ ESPRIT DES
LOIS” (THE SPIRIT OF LAWS) WHICH WAS PUBLISHED IN THE YEAR 1785.
Montesquieu in the Spirit of Laws, 1748
◦ “WHEN THE EXECUTIVE AND LEGISLATIVE POWERS ARE UNITED IN THE SAME PERSON, OR IN THE SAME
BODY OF MAGISTRATES, THERE CAN BE NO LIBERTY, BECAUSE APPREHENSIONS MAY ARISE, LEST THE SAME
MONARCH OR SENATE SHOULD ENACT TYRANNICAL LAWS, TO EXECUTE THEM IN TYRANNICAL MANNER.

◦ AGAIN THERE IS NO LIBERTY IF THE JUDICIAL POWER BE NOT SEPARATED FROM THE LEGISLATIVE AND
EXECUTIVE POWERS. WERE IT JOINED WITH LEGISLATIVE THE LIFE AND LIBERTY OF THE SUBJECT WOULD BE
EXPOSED TO ARBITRARY CONTROL, FOR THE JUDGE WOULD THEN BE A LEGISLATOR. WERE IT JOINED WITH
THE EXECUTIVE POWER, THE JUDGE MIGHT BEHAVE WITH VIOLENCE AND OPPRESSION.

◦ MISERABLE INDEED WOULD BE THE CASE, WERE THE SAME MAN OR THE SAME BODY, WHETHER OF NOBLES
OR PEOPLE, TO EXERCISE THOSE THREE POWERS, THAT OF ENACTING LAWS, THAT OF EXECUTING THE
PUBLIC RESOLUTIONS AND THAT OF JUDGING THE CRIMES OR DIFFERENCES OF INDIVIDUALS.”
Meaning
◦ THE DEFINITION OF SEPARATION OF POWER IS GIVEN BY DIFFERENT AUTHORS. BUT IN
GENERAL, THE MEANING OF SEPARATION OF POWER CAN BE CATEGORIZED INTO THREE
FEATURES:
◦ PERSON FORMING A PART OF AN ORGANS SHOULD NOT FORM THE PART OF OTHER
ORGANS. EG. MINISTERS SHOULD NOT SIT IN THE PARLIAMENT
◦ ONE ORGAN SHOULD NOT INTERFERE WITH THE FUNCTIONING OF THE OTHER ORGANS.
EG. JUDICIARY MUST BE INDEPENDENT OF THE EXECUTIVE AND
◦ ONE ORGAN SHOULD NOT EXERCISE THE FUNCTION BELONGING TO ANOTHER ORGAN.
EG. MINISTERS SHOULD NOT HAVE LEGISLATIVE POWERS.
defects
◦ IT IS NOT EASY TO DEMARCATE A LINE BETWEEN ONE POWER AND THE OTHER WITH
MATHEMATICAL PRECISION, THERE ARE NO WATERTIGHT COMPARTMENTS.
◦ IT IS IMPOSSIBLE TO TAKE CERTAIN ACTIONS IF THIS DOCTRINE IS ACCEPTED IN
ITS ENTIRETY. THUS, IF LEGISLATURE CAN ONLY LEGISLATE, THEN IT CANNOT PUNISH
ANYONE FOR BREACH OF ITS PRIVILEGE; NOR CAN IT DELEGATE ANY LEGISLATIVE
FUNCTIONS EVEN THOUGH IT DOES NOT KNOW THE DETAILS OF THE SUBJECT MATTER
AND EXECUTIVE HAS EXPERTISE OVER IT; NOR COULD THE COURTS FRAME RULES OF
PROCEDURE TO BE ADOPTED BY THEM FOR DISPOSAL OF CASES!
◦ MODERN STATE IS A WELFARE STATE, IT HAS TO SOLVE COMPLEX MECHANICAL
PROBLEMS.
Importance
◦ ENDING THE AUTOCRACY, IT PROTECTS THE LIBERTY OF THE INDIVIDUAL AND ALSO
MAINTAINS THE EFFICIENCY OF THE ADMINISTRATION.
◦ EMPHASIS ON CHECKS AND BALANCES WHICH ARE NECESSARY TO PREVENT ABUSE
OF ENORMOUS POWERS
◦ FOCUS ON THE REQUIREMENT OF INDEPENDENCE OF THE JUDICIARY
Position in India
◦ Doctrine of separation of powers has not been accepted in India in stricto sensu term. There is no
provision in the Constitution itself regarding division of functions of the government and exercise
thereof.
◦ Though, under article 53(1) and art 154(1), the executive power of union and the state is vested in the
President and the Governor respectively, there is no corresponding provision vesting legislative and
judicial powers in any particular organ.
◦ The President has wide legislative powers, eg. he can issue ordinances. He also exercises judicial
functions, decides disputes regarding the age of the judges of a High Court or Supreme Court for the
purpose of retiring him and cases of disqualification along with the members of the Parliament.
◦ Likewise Parliament exercises legislative functions but many legislative functions are also delegated to
the executive, it sometimes performs judicial functions in punishing for its violation of parliamentary
privileges.
◦ Similarly, judiciary also exercises some executive and administrative powers like the HC have
supervisory powers over all subordinate courts and tribunals and also power to transfer cases.
◦ HC and SC have legislative powers as well and they frame rules regulating their own procedure.
◦ In SC Advocates on Record v. UOI (2016) 5 SCC 1, it was held that SOP is an essential feature and is
a part of basic structure of the Constitution but SOP however is not rigid as in the USA. One of the
element of SOP is system of “checks and balances”. There is no violation of SOP as soon as there is
overlap of functions of one branch of gov with another branch but when one branch takes an essential
function of another, there is violation of SOP.