The Doctrine of Separation of power was originated by Montesquieu he intended
through this theory that power should be separated into the three branches of
government for smooth functioning and one branch does not interfere in the
other's working. The concept of Check and Balance should be their branches could
not be separated from each other because they are dependent.
Power in one hand
may misuse the power, power should not be left unchecked, if the law makers keep
the supreme institution unchecked, then naturally it will become autocratic. Montesquieu's piece of work was very important which precluded that there should
not be any sort of concentration of power within the constitutional structure.
The U.S.A, U.K, and INDIA has the different concept of Separation of power.
American jurisdiction is Presidential form of government. In United Kingdom it
is the combination of Monarchy and constitutional and in India Parliamentary
"If the legislative and executive authorities are one institution, there will be
no freedom. There won't be any freedom anyway if the judiciary body is separated
from the legislature and executive"- Charles de Montesquieu.
The term "Separation of Powers" or "trias politica"
was initiated by Charles de
Montesquieu. For the very first time, it was accepted by Greece and then it was
widespread use by the Roman Republic as the Constitution of the Roman Republic.
Its root is traceable in Aristotle and Plato when this doctrine became the
segment of their marvels.
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 separation of power is based on the concept of "trias politica". This
principle refers to a system where the powers are delegated and distributed
among three organs outlining their jurisdiction each.
It is known that if a large number of powers is vested in the hands of one
administrating authority there are high chances of misusing the power,
corruption, impartial administration. The doctrine of separation of power
prevents the abuse of power. It is a protection from arbitrary rule, ending
autocracy and, protect the liberty of the individual and maintaining the
efficiency of the administration.
The Main Function Of Separation Of Power Is:
- A person forming a part of one organ should not be the part of other
- One organ should not interfere with the functioning of the other organs.
- One organ should not exercise the function belonging to other organs.
The Doctrine Separation of Power is inseparable from democracy. Separation of
power is such a measure that divides the power among the three main organs of
governmental function that is the legislative, executive, and judiciary. If
power lies in the hand of a single person or a group it will be dangerous and
misused. So, decentralization of power is important.
To ensure the working of them systematically there should be check and balance.
The three main organs of the government and separation of power must be free in
democracy to exercise his power, the three organs should not interfere in each
other's working so, they must be kept separated for exercising their power. But
the three organs cannot be segregated from each other because they are
interdependent, they have different roles and power to exercise and to ensure
The doctrine of separation of power is rigid this is one of the reasons that it
is not accepted by many countries in the world.
Separation of power in the U.S.A.
The doctrine of Separation of Power is the foundation of the constitution in
which the whole structure is based. It has been accepted in the U.S.A in a
All the legislative powers vested in a congress.
The executive power shall be vested in a President.
All the Judicial Power shall be vested in one Supreme Court.
Bases on this doctrine, The Supreme Court was not given the power to decide a
political questions or to interfere in the exercise of the power of the
executive. Also, the overriding power of judicial review was not given to the
Supreme Court. The President uses Veto power to interfere with the exercise of
power by congress. He interferes with the functioning of the Supreme Court for
the appointment of judges and exercises law-making power in the exercise of his
The Supreme Court has made more amendments in the American constitution than
congress. Judiciary interferes with the power of congress and the president
through its power of Judicial Review.
In the US the executive is not directly accountable to the legislature, but the
legislature has control over the executive. The congress can put indirect
pressure over the Executive through its power- to levy taxes, legislature,
investigate the Executive work and policies by its committees and the senate's
power to confirm treaties and appointment.
This could be accomplished through a system of check and balance; this allows
government organs to limit their power and others.
Makes laws (Congress, comprised of the House of Representatives
Carries out laws (president, vice president, Cabinet, most federal
Evaluates laws (Supreme Court and other courts)
Congress as the sole power of legislature, does not delegate its law-making
responsibility to any other agency through non-delegation doctrine.
In the case of Clinton v. City of New York, 1998 Supreme Court held
that congress could not delegate a line-item vote to the president, by which he
was empowered to selectively nullify certain provisions of a bill before signing
it. The Constitution Article I, Section 8; says to give all the power to
Congress has the exclusive power to legislate, to makes law and in
addition to the enumerated powers, it has all other powers vested in the
government by the Constitution. One of the earliest cases involving the exact
limits of non "delegation was Wayman v. Southard (1825). Congress had delegated
to the courts the power to prescribe judicial procedure; it was contended that
Congress had thereby unconstitutionally clothed the judiciary with legislative
By Article II, the Executive is vested with the power, exceptions, and
qualification, in the president. By law the president becomes the commander in
chief of the Army and Navy, Militia of several other state when called into
service. President has the power to make an appointment to his office with the
advice and consent of the Senate, make treaties. Can take Ambassadors and Public
Ministers, and take care of the laws and faithfully execute them as made by
Congress (Section 3).
Congress can terminate the appointment made by the
president, by impeachment, and restrict the president. The presidents have to
perform the responsibility and follow the instructions given by the congress.
Congress often passes laws that restrain executive officials to perform their
In INS v. Chadha
, the Supreme Court decided The prescription for
legislative action in Article I, Section 1 requiring all legislative powers to
be vested in a Congress consisting of a Senate and a House of Representatives
and Section 7 requiring every bill passed by the House and Senate, before
becoming law, to be presented to the president.
And, if he disapproves, to be repassed by two " thirds of the Senate and House represents the Framers decision
that the legislative power of the Federal Government is exercised in accord with
a single, finely wrought and exhaustively considered procedure.
is an integral part of the constitutional design for the separation of powers.
Even both Houses acting together cannot override Executive veto without a 2/3
majority. Legislation may always prescribe regulations governing executive
The judges are appointed by the President with the advice and consent of the
senate. A court exercising the judicial power are called Constitutional Court.
Congress may establish Legislative Court but do not form the Judicial agencies
or Commissions, member of those courts does not have the same security of tenure
as the Constitutional Court Judges. Legislative courts do not exercise Judicial
Function. Supreme Court decide the cases and the Controversies vested to them
and Inferior Courts established by congress.
In Murrays Lessee v. Hoboken Land & Improvement Co
., the Supreme Court held
that a legislative court may not decide sea suit at the common law, or in
equity, or admiralty, as such a suit is inherently judicial. Legislative courts
may only adjudicate republic rights. During the19th century Doctrine of
Separation of Powers has attracted lawmakers but is not accepted in American
Constitution in its strict sense.
In a leading case: Marbury v. Madison
, is a landmark case in United States
law. It is formed the basis for the exercise of judicial review in the United
States under Article III of the Constitution. This case resulted from a petition
to the Supreme Court by William Marbury, who had been appointed by President
John Adams as justice of the peace in the District of Columbia but whose
commission was not subsequently delivered.
Marbury petitioned the Supreme Court
to force Secretary of State James Madison to deliver the document, but the
court, with John Marshall as Chief Justice, denied Marbury's petition, holding
that the part of the statute upon which he based his claim, the judiciary Act of
1789, was unconstitutional.
Framers of the American Constitution believed that the Doctrine of Separation of
Power would help to prevent tyrannical form of government by making it
impossible for a single group to exercise too much power. Balance of power could
only be attained by the check and balance between the separate organs of
government. Separation of power prevents any organ to become supreme in power.
Separation of power in the U.K
The constitution of the UK is uncodified and no specific rule or document that
specifies the legality of the Separation of power. However, in various forms, it
does exist. The theory of Separation of Power was never applied in the strict
sense. In the UK there is democratic a structure as well as Monarchy is the
Head of Democracy. The crown who is head of the executive is also an integral
part of the legislature.
PM has to report to the crown as the Crown is the official head of the State. In
a democratic structure, they also have a Joint Session, the Joint Session in
British Parliament is addressed by the Queen of England. In Parliamentary
Democracy it is to ensure that leaders get elected and represents the will of
the people/citizens at the parliament. The term of office of the Prime Minister
is 5 years.
The UK does not have a separate branch for legislative, executive, judiciary
they overlap each other as ministers. Including the PM of executive can sit in
legislature to make laws but the theory states that one man should not be
present in more than one branch of governance.
Parliament is the legislative branch, so the executive is merged with the
Legislative with Judicial:
Parliament is responsible for its
regulations; judiciary does not have power over the parliament as much as power
parliament have it for itself so there is overlap between them. House of common
controls legislative, the judiciary is independent, but the judges can be
removed on an address from both the house of parliament.
House of Common and The House of Lords.
The Prime Minister.
The Supreme Court.
Lord chancellor has the power in all three branches he is Head of the judiciary,
Chairman of the House of Common(legislature), a member of executive even a
member of the cabinet. There is a fusion of power rather than separation.
Since 2003, there has been an effort to reform to abolish the office of Lord
Chancellor. However, it had a bit of backlash from public opposition, so the
office never came to ban it.
Constitutional Reform Act ,2005
The act of the UK Parliament consists of several policies and reforms.
is divided into three parts:
- Reformed the office of Lord Chancellor,
- Created and set the framework for a UK Supreme Court,
- Regulate the appointment of judges.
Section 2 of the act states that the PM was able to appoint the Lord Chancellor
and also took away his judicial power. Important for Separation of power.
Before the act, the highest court inland had been the Appellate Committee of
House of Lords. Lord Chancellor, a Minister was also the head of Judiciary. The
highest court of the judiciary was within the House of Lords, so there was total
overlapping of branches and fusion of power which created political influence at
the time of appeal. Earlier the Queen with the advice of the Lord Chancellor
appointed the judges which were subject to political influence.
The Constitutional Reform Act, 2005, established the Judicial Appointment
Commission. The independent commission proposes a candidate, and the Secretary
of State for Justice can only say Yes or No. To show and increase the feeling
that judicial appointment is based-on merit rather than Political Influence.
Under the Act, the Secretary of State for Justice also holds the office of Lord
Chancellor, although with the greatly reduced role. The Lord Chancellor also
used to be Speaker of the House of Lords, but this is not anymore.
The Supreme court was established with the aim to achieve a clear Separation of
Power between the legislature and the Judiciary. According to the European
Convention of Human Rights, A judicial officer having legislative, executive
power is likely not to be considered sufficiently impartial to provide a fair
Law passed in 2005 and placed in 2009.
Separation of Power in India
There is a federal system of Government in India. The Doctrine of Separation of
Power is not defined in the constitution. The concept of this Doctrine is to
divide the power among the three organs of the government.
Parliament (Lok Sabha and Rajya Sabha) State Legislative Bodies.
At the central level- President, at the State level- Governor.
Supreme Court, High Court, and all other Subordinate courts.
The Indian constitution recognizes the Doctrine of Separation of power in the
strict sense. Article 50 enjoys the Separation of power of the judiciary from
the executive. The Executive Power of the union and state is vested in the
constitution of the President and governor under Article- 53(1) and 154(1).
President exercises its power as per the constitution on aid and advice of the
Council of Ministers. President is empowered to promulgate the ordinance during
the time of emergency or when both the houses are not in session.
Enacts the law with the will of the state, it is spotted in the
first place among the three organs because, until the law is framed the
functioning of implementation and applying the law cannot be exercised.
Judiciary act as the advisory body to the legislature about amending the
existing legislation or suggestions about framing the new laws.
This organ is responsible for implementing or enforcing the will of
the state as explicit by the constituent assembly and the legislature. The
Executive is the administrative head of the government. Executive includes a
head of the minister, advisors, departmental head and his ministers. It is
called the mainspring of the government because if the executive crack-up, the
government exhaust as it gets imbalanced.
Refers to the body of those officers whose responsibility is to apply
the law framed by the legislature to individual cases by taking into
consideration of the principle of natural justice, fairness. Judiciary is the
watchdog of the democracy and the Guardian of the Indian Constitution.
Some of the Articles of the constitution:
Kesavananda Bharati v State of Kerala
- Article 50: This article puts an obligation over the State to separate the
judiciary from the executive. But, since this falls under the Directive
Principles of State Policy, it is not enforceable.
- Articles 53 and 154: It provides that the executive power of the Union and the
State shall be vested with the President and the Governor, and they enjoy
immunity from civil and criminal liability.
- Articles 121 and 211: These provide that the legislatures cannot discuss the
conduct of a judge of the Supreme Court or High Court. They can do so only in
case of impeachment.
- Article 123: The President, being the executive head of the country, is
empowered to exercise legislative powers (Promulgate ordinances) in certain
- Article 361: The President and Governors enjoy immunity from court proceedings.,
they shall not be answerable to any court for the exercise and performance of
the powers and duties of his office.
: In this case, the SC held that the
amending power of the Parliament is subject to the basic features of the
Constitution. So, any amendment violating the basic features will be declared
Ram Jawaya Kapoor V State of Punjab
: In this case, it was held that the
Indian Constitution has not indeed recognized the doctrine of separation of
powers in its absolute rigidity but the functions of the different parts or
branches of the government have been sufficiently differentiated and
consequently it can be very well said that our Constitution does not contemplate
assumption by one organ or part of the state of functions that essentially
belong to another.
Indira Nehru Gandhi v. Raj Narain
: The dispute regarding the Prime
Minister's election was pending before the Supreme Court, it was held that
adjudication of a specific dispute is a judicial function which parliament, even
under constitutional amending power, cannot exercise.
So, the main ground on which the amendment was held ultra vires was that when
the constituent body declared that the election of Prime Minister is not void,
it discharged a judicial function that according to the principle of separation
it shouldn't have done. The place of this doctrine in the Indian context was
made a bit clearer after this judgment.
Role of government is to protect the individual rights and for the smooth
functioning of any government there must be free democracy. The Separation of
power is the concept where cooperation, and coordination among all three wings
of the government are necessary. Professor Garner said that "this doctrine is
impracticable as working principle of Government. It is difficult to divide the
functions of each organ on an accurate basis".
In my opinion, this doctrine has great significance as it protects the liberty
of the individual from arbitrary rule and prevents the organs from seizing the
essential functions of other organs.
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