It is established in documents that dogma of separation of powers considers the idea that the governmental functions must be based on a tripartite division of legislature, executive and judiciary.
The three organs should be separate, distinct and independent in its own sphere so that one does not intrude the territory of the other.
Previous literature denoted that Aristotle who first perceived and saw that there is a specialization of function in each Constitution developed this doctrine. Later many theorists such as Montesquieu, John Locke and James Harrington described these functions as legislative, executive and judicial.
The model was first developed in ancient Greece.
Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches.
The typical division of branches is into a legislature, an executive, and a judiciary. It can be differentiated with the merging of powers in a parliamentary system where the executive and legislature are unified.
Theory of Separation of Powers
Theory of Separation of Powers is based on the concept and based on the idea of individual freedom. Cooley emphasizes the prominence of the doctrine of separation of powers as:
This arrangement gives each department a certain independence, which operates as a restraint upon such action of others as might encroach on the rights and liberties of the people, and makes it possible to establish and enforce guarantees against attempts at tyranny.
The modern design of the principle of separation of powers was elaborated in constitutional theory of John Locke (1632-1704), in his second treaties of Civil Government.
Major objectives of the doctrine of separation of powers
The main objective of the doctrine is to prevent the abuse of power within different spheres of government. In our constitutional democracy, public power is subject to constitutional control. Different spheres of government should act within their boundaries. The courts are the ultimate guardian of our constitution, they are duty bound to protect it whenever it is violated. Within the context of the doctrine of separation of powers the courts are duty bound to ensure that the exercise of power by other branches of government occurs within the constitutional context. The courts must also observe the limit of their own power.
Different researchers also rebound their views on the purpose of the doctrine. Montesquieu stated that
When the legislative and executive 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 a tyrannical manner.
Again, there is no liberty if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were joined to the executive power, the judge might behave with violence and oppression.
The phrase ‘separation of powers’ is ‘one of the most confusing in the vocabulary of political and constitutional thought’. According to Geoffrey Marshall, the phrase has been used ‘with varying implication’ by historians and political scientists, this is because the concept manifests itself in so many ways. In understanding the concept of ‘separation of powers’ one has to take on board the three approaches i.e. Traditional (classical), Modern (contemporary) and Marxist-Leninist approaches.
Traditional (classical) approach
The traditional views are presented by Montesquieu who vigorously advocated for a “strict or pure or total or complete or absolute” separation of powers and personnel between three organs of the state i.e.; the Executive, Legislature and Judiciary. Power being diffused between three separate bodies exercising separate functions with no overlaps in function or personnel.
Montesquieu’s strict doctrine (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.
- State officials should not form part of or belong to two or more organs.
- 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.
- To him, the state will perish when the legislature power become more corrupted than the executive.
- 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.
Summary of doctrine
The Doctrine of Separation of powers includes the following distinct but overlapping aspects:
Modern (contemporary) approach
The doctrine of separation of powers has become an integral part of the governmental structure. But, the practical application of the doctrine differs to a great extent. In theory, the doctrine of separation of powers is supposed to have a threefold classification of functions and corresponding organs.
But because of the diverse and complex nature of a modern state, where the process of law making, administration and adjudication cannot be clearly demarcated or assigned to separate institutions, the application of this doctrine in strict sense is very difficult. This approach somehow departs or otherwise tries to refine Montesquieu’s strict doctrine of separation of powers.
Essentially, this approach point out practical difficulties in the application of Montesquieu’s strict doctrine and thus advocates for a ‘mixed government’ or ‘weak separation of powers’ with ‘checks and balances’ to prevent abuses.
Therefore, this concept insists that the primary functions of the state should be allocated clearly and that there should be checks to ensure that no institution encroaches significantly upon the function of the other.
To them, Montesquieu’s strict doctrine presents the following problems:-
- A complete separation of the three organs may lead to constitutional deadlock (disunity of powers). Thus, a complete separation of powers is neither possible nor desirable.
- Partial separation of powers is required to achieve a mixed and balanced constitutional structure.
- It would be impractical to expect each branch of government to raise its own finances.
- The theory is based on the assumption that all the three organs of the government are equality important, but in reality it is not so. In most cases, the executive is more powerful of the three branches of government.
Unlike the other two approaches, the Marxist-Leninist approach refutes the application of the doctrine by arguing that the theory of the separation of powers is “nothing but the profane industrial division of labour applied for purposes of simplification and control to the mechanism of the state”.
In essence, Marxist-Leninist theory rejects the theory of the separation of powers because it ignores the class nature of society. The existence in a socialist state of state bodies with different jurisdiction means that a certain division of functions in exercising state power is essential while maintaining the unity of state power.
Why is the doctrine not appreciated?
The doctrine of separation of power in its true sense is very rigid and this is one of the reasons of why it is not accepted by a large number of countries in the world.
The main object as per Montesquieu in the Doctrine of Separation of Power is that there should be a government of law rather than having whims of the official. Also, another most important feature of the said doctrine is that there should be the independence of judiciary i.e. it should be free from the other organs of the State and if it is so then justice would be delivered properly.
The judiciary is the scale through which one can measure the actual development of the State. If the judiciary is not independent, then it is the first step towards a tyrannical form of government i.e. power is concentrated in a single hand and if it is so then there is a very high chance of misuse of power.
Hence the Doctrine of Separation of Power does play a vital role in the creation of a fair government and also fair and proper justice is dispensed by the judiciary as there is independence of judiciary.
The doctrine of separation of powers has come a long way from its theoretical inception. Today, the doctrine in its absolute form is only recognized in letter as it is entirely unfeasible and impractical for usage in the operational practices of a government. With the passage of time, States have evolved from being minimal and non-interventionist to being welfare oriented by playing the multifarious roles of protector, arbiter, controller and provider to the people.
In its omnipresent role, the functions of the State have become diverse and its problems interdependent hence, any serious attempt to define and separate the functions would only cause inefficiency in the government.
The modern day interpretation of the doctrine does not recognize the division of Government into three water-tight compartments but instead provides for crossing rights and duties in order to establish a system of checks and balances. The mere separation of powers between the three organs is not sufficient for the elimination of the dangers of arbitrary and capricious government.
Even after the distinguishing the functions, if an authority wielding public power, is provided an absolute and sole discretion within the body in the matters regarding its sphere of influence, there will be a resultant abuse of such power.
Therefore, a system of checks and balances is a practical necessity in order to achieve the desired ends of the doctrine of separation of powers. Such a system is not dilatory to the doctrine but necessary in order to strengthen its actual usage.
In conclusion, it is evident that governments in their actual operation do not opt for the strict separation of powers because it is undesirable and impracticable, however, implications of this concept can be seen in almost all the countries in its diluted form. The discrepancies between the plan and practice, if any, are based on these very grounds that the ideal plan is impractical for everyday use.
India relies heavily upon the doctrine in order to regulate, check and control the exercise of power by the three organs of Government. Whether it is in theory or in practical usage, the Doctrine of Separation of Powers is essential for the effective functioning of a democracy.