Meaning: The doctrine of Separation of Powers emphasizes the mutual exclusiveness of the

three organs of government, viz., legislature, executive and judiciary. these three powers and
functions of the Government must, in a free democracy, always be kept separate and exercised
by separate organs of the Government. The purpose underlying separation doctrine is to diffuse
governmental authority so as to prevent absolutism and guard against tyrannical and arbitrary
powers of the state, and to allocate each function to the institution best suited to discharge it.

Origin: There is an old adage containing a lot of truth that “power corrupts and absolute
power corrupts absolutely”. It may not be possible to state precisely the origins of the doctrine of
separation of powers. However, if we look to the writings of the Greek philosopher Aristotle, it
is possible to discern a rudimentary separation of powers doctrine. Aristotle, in his treatise
entitled Politics, described the three agencies of the government viz. the General Assembly, the
Public Officials, and the Judiciary.

In the 16th and the 17th centuries, French Philosopher John Bodin and British politician John
Locke respectively has expounded the doctrine of separation of powers. Writing in the Second
Treatise of Government (1689), Locke, however did not consider the three branches to be co-
equal, and nor considered them as designed to operate independently. He considered the
legislative branch to be supreme, while the executive and federative functions as internal and
external affairs respectively. Throughout the 17th and 18th centuries, English writers endeavored
to expound one theory of separation in the absence of the other. It was not until Baron-de-
Montesquieu that a really influential synthesis appeared.

MONTESQUIEU’S THEORY OF SEPARATION OF POWERS

Baron-de-Montesquieu was a French philosopher who is aptly known, criticisms apart,
for the theorization of the concept of separation of powers into a profoundly systematic and
scientific doctrine in his book De l'Esprit 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 divided the governmental power into legislative, executive and judicial functions. He
apprehended ‘legislative power’ as an activity of informing the people through general rules of
their obligations toward one another and opined that such power should reside in the body of
people. he understood ‘executive power’ as that of executing the public resolutions embodying
the general will of State and ‘judicial power‘ as the power of deciding civil and criminal cases.
Through his doctrine Montesquieu 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.

EFFECTS OF THE THEORY: The doctrine of separation of powers as propounded

by Montesquieu had tremendous impact on the development of administrative law and
functioning of governments. In his book Commentaries on the Laws of England, published in
1765, Blackstone observed that if legislation, executive and judicial functions were given to one
man, there was an end of personal liberty.

The doctrine had influenced the makers of the Constitutions. Thus, the constituent assembly of
France had announced that there would be nothing like a Constitution in the country where the
theory of separation of powers was not accepted. This doctrine in America is the base of the
whole structure of the Constitution.

CRITICISM
In theory the doctrine of separation of powers was very sound. However, in practice many
defects surfaced when it was sought to be applied in real life situations.

Historical Incongruity: His exposition of this theory is based on the British Constitution.In
reality there was no separation of powers under the Constitution of England. In British
Constitution, this doctrine was never adopted.Donoughmore Committee, “In British
Constitution there was no such thing as the absolute separation of the legislative, executive and
judicial powers.”1

Division of Functions: The assumption behind the doctrine is that the three functions of the
government, namely, legislative, judicial and the executive are divisible from each other. The
fact, however is that it is not so in reality. There were no watertight compartments. There is
overlapping with each other.

Practical Difficulties: It is difficult to take certain actions if this doctrine is accepted in its
entirety. The legislature does not act merely as a law making body, but also acts as an overseer of
the executive; the administrative organ has legislative function. The judiciary has not only
judicial functions but also has some rule-making powers.

Adherence to it not possible in welfare state: The modern state is a welfare state and it has
solved many complex socio-political-economic problems of a country. In this state of affairs it is
not possible to stick to this doctrine.

IMPORTANCE
On the whole, the doctrine of separation of powers in the strict sense is undesirable and
impracticable and therefore it is not fully accepted in any country. Nevertheless, its value lies in
the emphasis on those checks and balances which are necessary to prevent an abuse of enormous
powers of the executive. The object of the doctrine is to have “a government of law rather than
of official will or whim.” The most important aspect of the doctrine of separation of powers is

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judicial independence from administrative discretion. “There is no liberty, if the judicial power
be not separated from the legislative and executive.”

United States of America

The doctrine of Separation of Powers forms the foundation on which the whole structure of the
Constitution is based. It has been accepted and strictly adopted in U.S.A. Article I vests all
legislative powers in the Congress. Article II vests all executive powers in the President and
Article III vests all judicial powers in the Supreme Court.

Legislative Power: Congress has the sole power to legislate for the United States. Under the
non-delegation doctrine, Congress may not delegate its lawmaking responsibilities to any other
agency. In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York 2 that
Congress could not delegate its lawmaking responsibilities to any other agency. Congress has the
exclusive power to legislate, to make laws and in addition to the enumerated powers it has all
other powers vested in the government by the Constitution. Congress has the exclusive power to
legislate, to make laws and in addition to the enumerated powers it has all other powers vested in
the government by the Constitution

Executive Power: Executive power is vested, with exceptions and qualifications, in the
president by Article II of the Constitution. By law the president becomes the Commander in
Chief of the Army and Navy, Militia of several states when called into service, has power to
make treaties and appointments to office. The Constitution does not require the president to
personally enforce the law; rather, officers subordinate to the president may perform such duties.
The Constitution empowers the president to ensure the faithful execution of the laws made by
Congress.

Judicial Power: The power to decide cases and controversies is vested in the Supreme Court and
inferior courts established by Congress. The judges must be appointed by the president with the
advice and consent of the Senate, hold office for life and receive compensations that may not be
diminished during their continuance in office. Congress has the exclusive power to legislate, to
make laws and in addition to the enumerated powers it has all other powers vested in the
government by the Constitution

Judicial Power: The power to decide cases and controversies is vested in the Supreme Court and
inferior courts established by Congress. The judges must be appointed by the president with the
advice and consent of the Senate, hold office for life and receive compensations that may not be
diminished during their continuance in office. Marbury v. Madison is a landmark case in
United States law. It formed the basis for the exercise of judicial review in the United States
under Article III of the Constitution.

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Presidential Form of Government: The form of government, characterized as presidential, is
based on the theory of separation between the executive and the legislature. The President is both
the head of the state as well as its chief executive.

Administrative Growth and Separation of Powers: Administrative law and separation

doctrine are somewhat incompatible, for modern administrative process envisages mingling of
various types of functions at the administrative level. Had the doctrine of separation been applied
strictly in the U.S.A., the growth of administrative process would have been extremely difficult
and modern government might have become impossible.

United Kingdom
Although Montesquieu derived the contents of his doctrine of separation of powers from the
British Constitution, as a matter of fact at no point of time this doctrine was accepted in its strict
sense in England. It is true that the three powers are vested in three organs and each has its own
peculiar features, but it cannot be said that there is no sharing out of the powers of the
government.

Lord Chancellor is the head of judiciary, chairman of the House of Lords, a member of the
executive and often a member of the cabinet.

“In the British Constitution there is no such thing as the absolute separation of legislative,
executive and judicial powers. In practice it is inevitable that they overlap. In such Constitutions
as those of France and the United States of America, attempts to keep them rigidly apart have
been made, but have proved unsuccessful. The distinction is nonetheless real and… important.

India
The Constitutional history of India reveals that the framers of the Indian Constitution had no
sympathy with the doctrine. This is evident from its express rejection in spite of attempts being
made. It even sheds no light to the application of the doctrine during the British Regime. The
Constituent Assembly, while in the process of drafting the Constitution, had dwelt at length for
incorporating the doctrine and ultimately rejected the idea in toto.

Indian Constitution does not make any absolute or rigid separation of powers of the three organs

Constitutional Conspectus: The position in India is the doctrine of separation of powers has not
been accorded a Constitutional status. Apart from the directive principles laid down in Article 50
which enjoys separation of judiciary from the executive, the Constitutional scheme does not
embody any formalistic and dogmatic division of powers.3

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Parliamentary executive: Under the Constitution, provision has been made for a council of
ministers with the prime minister as the head to aid and advice the president in the exercise of his
functions. The council of minister including the prime minister are members of the parliament
and collectively responsible to the house of the people.

Functional overlapping: If we study the Constitutional provision carefully, it is clear that the
functions carefully, it is clear that the doctrine of separation of powers has not been accepted in
India in its strict sense and there is functional overlapping. The president of India in whom the
executive authority of India is vested exercises legislative power in the shape of ordinance-
making power and also the judicial powers.The supreme court has the 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

Separation of powers as a basic feature: In Indira Nehru Gandhi v. Raj Narain, Beg J. has
observed that separation of powers is a feature of the basic structure of the Constitution. None of
the three separate organs of the republic can take over functions assigned to the other. This
Constitutional scheme cannot be changed even by resorting to amending the process under
Article 368 of the Constitution.

CONCLUSION: The modern interpretation of the doctrine of separation of powers is a

practical work-a-day principle. The division of Government into three branches does not imply
three water-tight compartments. It is said that the doctrine should be deemed to require a system
of checks and balances among the three departments of the Government while opposing the
concentration of governmental powers in any of the three departments.

The S.C. rulings also justify that the alternative system of checks and balances is the
requirement, not the strict doctrine. Hence, the conclusion drawn out of the study is that there is
no strict separation of powers but the functions of the different branches of the government have
been sufficiently differentiated.4