CRITICAL ANALYSIS OF THE DOCTRINE OF SEPERATION OF POWER1

Introduction Power corrupts and absolute Power tends to corrupt absolutely.

The separation of powers, also known as trias 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. Though Montesquieu was under the erroneous impression that the foundations of the British constitution lay in the principle of Separation of Power, it found its genesis in the American Constitution. Montesquieu had a feeling that it would be a panacea to good governance but it had its own drawbacks. A complete Separation of power without adequate checks and balances would have nullified any constitution. It was only with this in mind the founding fathers of various constitutions have accepted this theory with modifications to make it relevant to the changing times.

Historical Background

The theory of Doctrine of Separation of Power was first propounded by Montesquieu in as early as in 1747 published in his book namely Espirit des Louis (The spirit of the laws). Montesquieu found that if the power is concentrated in a single persons hand or a group of people then it results in a tyrannical form of government. To avoid this situation with a view to checking the arbitrariness of the government he suggested that power of governance there should be clear cut division of power between the three organs of the state i.e. Executive, Legislative and the Judiciary.. This made Montesquieu propound the above said theory and according to this it was held that each organ of the state should be

Siddharth Sinha & Yash Kothari, Students, V Semester, Institute of Law, Nirma University

confined to its own spheres i.e. there should not be any overlapping of jurisdictions of the organs of the state. Montesquieu studied the English constitution for two years and after that he came to the conclusion that the stability of the English Constitution is because of its adherence of the separation of power. Montesquieu had clearly misconstrued the statement pertaining to the British constitution and later on he was criticized and in a very sarcastic manner its criticism was made and it was stated that; Montesquieu saw the foggy England sitting in the sunny wine yard of Paris and he completely misconstrued the statement. Further Montesquieu explained the doctrine in its own word they are; When the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not separates from the legislative and executive powers. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control; for the Judge would then be the legislator. Where it joined with the executive power, the Judge might behave with violence and oppression. There would be an end of everything were the same man or the same body to exercise these three powers2

After the end of the war of independence in America by 1787 the founding fathers of the American constitution drafted the constitution of America and in that itself they inserted the Doctrine of separation of power and by this America became the first nation to implement the Doctrine of separation of power throughout the world. The constituent Assembly Of France in 1789 was of the view that there would be nothing like a Constitution in the country where the doctrine of separation of power is not accepted. In France, where the doctrine was preached with great force by Montesquieu, it was held by the more moderate parties in the French Revolution3. However the Jacobins, Napoleon I and Napoleon III discarded the above theory for they

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C.K.Thakwani, Lectures on Administrative Law,4th edn,Eastern Book Company,2007 Bertrand Russell, A History Of Western Philosophy,

believed in the concentration of power. But it again found its place in the French Constitution of 1871. Later Rousseau also supported the said theory propounded by Montesquieu. England follows the parliamentary form of government where the crown is only a titular head. The mere existence of the cabinet system negates the doctrine of separation of power in England as the executive represented by the cabinet remains in power at the sweet will of the parliament. In India under the Indian constitution there is an express provision under article 50 of the constitution which clearly states that the state should take necessary steps to separate judiciary from the executive i.e. independence of judiciary should be maintained.

Importance of The Doctrine Of Separation Of Power

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 government of law rather that having will and whims of the official. Also another most important feature of the above said doctrine is that there should be 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 cent percent chance of misuse of power. Hence the Doctrine of separation of power do plays 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. Also the importance of the above said doctrine can be traced back to as early as 1789 where The constituent Assembly Of France in 1789 was of the view that there would be nothing like a Constitution in the country where the doctrine of separation of power is

not accepted. Also in 1787 the American constitution inserted the provision pertaining to the Doctrine of separation of power at the time of drafting of the constitution in 1787. Further in the Indian constitution also there provisions pertaining to the doctrine of separation of power.

Judicial view on the doctrine of Separation of Power

As clearly mentioned about the separation of power there were times where the judiciary has faced tough challenges in maintaining and preserving the Doctrine of separation of power and it has in the process of preservation of the above said Doctrine has delivered landmark judgments which clearly talks about the independence of judiciary as well as the success of judiciary in India for the last six decades.

The first major judgment by the judiciary in relation to Doctrine of separation of power was in Ram Jawaya v state of Punjab4. The court in the above case was of the opinion that the Doctrine of separation of power was not fully accepted in India. Further the view of Mukherjea J adds weight to the argument that the above said doctrine is not fully accepted in India. He states that:

The Indian constitution has not indeed recognize the doctrine of separation of powering its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another. Later in I.C.Golak Nath v State of Punjab5, Subha Rao, C.J opined that The constitution brings into existence different constitutional entitles, namely the union, the state and the union territories. It creates three major instruments of power,

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AIR 1955 SC 549 AIR 1967 SC 1643

namely the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping there limits. They should function with the spheres allotted to them

The above opinion of the court clearly states the change in the courts view pertaining to the opinion in the case of Ram Jawaya v state of Punjab related to the doctrine of separation of power. The came one of the most land mark judgments delivered by the Supreme Court in Keshvananda Bharti v Union of India6 the court was of the view that amending power was now subject to the basic features of the constitution. And hence, any amendment tampering these essential features will be struck down as unconstitutional. Beg, J. added that separation of powers is a part of the basic structure of the constitution. None of the three separate organs of the republic can take over the functions assigned to the other7. Hence this further confirmed the opinion of the court in relation to the doctrine of separation of power. Then in Indira Gandhi Nehru v. Raj Narain8, where the dispute regarding P.M. election was pending before the Supreme Court, opined that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise i.e. the parliament does not have the jurisdiction to perform a function which the other organ is responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions of the three organs of the state. Also the constituent Assembly Of France in 1789 was of the view that there would be nothing like a Constitution in the country where the doctrine of separation of power is not accepted. So if there is a provision then there should be proper implementation and this judgment emphasis on that point only. Also in I.R. Coelho vs. State of Tamil Nadu9, S.C. took the opinion opined by the supreme court in Kesavananda Bharati case pertaining to the doctrine of basic structure
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(1973 ) 4 SCC 255 http:/www.legalserviceindia.com 8 1975 supp SCC 1 9 AIR 2007 SC 8617

and held that the Ninth Schedule is violative of the above said doctrine and hence from now on the Ninth Schedule will be amenable to judicial review which also forms part of the basic structure theory..

From the above few case laws right from Ram Jawaya v state of Punjab in 1955 to I.R. Coelho vs. State of Tamil Nadu in there has been a wide change of opinion as in the

beginning the court was of the opinion that as such there is no Doctrine of Seperation of Power in the constitution of India but then as the passage of time the opinion of the Supreme Court has also changed and now it do includes the above said Doctrine as the basic feature of the constitution.

Criticism

The legislature, the Judiciary and the Executive are the three pillars of a stable government. The aim of the doctrine of the Separation of Powers is to bring exclusiveness in the functioning of the three organs. In principle each organ should be able to perform its function independent of the other organs and no organ should perform functions that belong to the other. Chaos would prevail if the same man or the same body were to exercise the three powers. The accumulation of all powers, legislative, executive and judicial in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.

While the Principle of the Separation of Power is generally admitted as valid, embodying as it does the scientific principle of differentiation, the practical difficulties experienced in working it make it of little value to us today. This doctrine of separation of powers had some inherent defects when applied in real life situations. Thus the American Constitution upholds the theory of separation of powers but the essential principle of the British Constitution is Concentration of Responsibility.

Although this theory advocates the independent role of the three organs of the government yet as Paton stated, It is extraordinary difficult to define precisely each particular power. Any attempt to demarcate the functions of the three organs could cause serious inefficiency in government. As we know the legislature can only legislate and the executive can only punish anyone who commits a breach of privilege; neither of these two can assume the powers of the other. So this theory cannot be accepted in its entirety because separation of powers can only be relative and not absolute. According to Justice Frankfurter Enforcement of a rigid conception of separation of powers would make modern government impossible. Thus separation of powers is not only practically impossible but theoretically absurd too.

Although Montesquieus doctrine aims to secure the liberty and freedom of the individual yet it is impossible to achieve the same through the mechanical division of functions and powers. Rule of Law accompanied by eternal vigilance are the mainstay of freedom and liberty. Some have argued that while functions may be demarcated powers should always remain supreme. But it is impossible to perform functions without the necessary powers. At one point of time this theory held great value against the despotism of a king and later of a parliament. Such despotism does not exist today. The modern day governments require protection against the domination of parliament and of civil servants. The separation of powers is too mechanical in nature to be of any avail against these types of domination. What is required is not separation of powers but co-ordination or articulation of powers. Although this doctrine of separation of powers ensures a certain degree of efficiency it can even give rise to jealousy, suspicion and internal friction. In the words of Finer, the theory of separation of powers throws government into alternative conditions of coma and convulsion.

Conclusion

Broadly speaking the doctrine of the separation of powers is a valuable doctrine. In the American constitution there is a system of checks and balances and the power vested in one organ cannot be exercised or encroached upon by the other. At no point of time was the doctrine accepted in its strict sense in England. In the British ministry there exists a union of persons but separation of organs. Thus we find several branches of government headed by the same persons. The doctrine of separation of powers is not accepted fully in the constitution of India and one may agree with the observation of Mukherjee,J. in Ram Jawaya v state of Punjab The Indian constitution has not indeed recognize the doctrine of separation of powering its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another.