THE THEORY OF SEPARATION OF POWERS
Submitted by: Shristi Talukdar (SF0115050) (SF0115050)
Faculty in charge: Dr. Mayengbam Nandakishwor Singh
NATIONAL LAW UNIVERSITY, ASSAM OCTOBER 27, 2015
TABLE OF CONTENTS
1. Introduction 1.1 Literature Review 1.2 Scope and Objectives 1.3 Research Questions 1.4 Methodology 2. Theory of Separation of Powers 2.1 History 2.2 Importance 3. Montesquieu Theory 4. Theory of Separation of Powers in India 5. Criticism 6. Conclusion 7. Bibliography
CHAPTER-1 INTRODUCTION
The term "trias politica" or "separation of powers" was coined by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an 18 th century French social and political philosopher. His publication, Spirit of the Laws, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United States. Under his model, the political authority of the state is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently. 1 Separation of Powers is developed and perceived by many philosophies as per their own apprehensions and understanding. Aristotle who first perceived and saw that there is a specialization of function in each in each Constitution developed this Doctrine. Later Montesquieu, John Locke and John Harrington described it as Legislature, Executive, and Judiciary.
Montesquieu writes-“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 separated from the legislative and executive powers. Where it is joined by 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.” 2
According to the theory of separation of powers, the powers of the government should not be concentrated in the hands of only one organ only. It should be divided into and separated into different organs, i.e. the Legislature, the Executive and the Judiciary. The Legislature should only make laws, the Executive should implement and run the administration with the laws and the Judiciary should decide disputes according to the law. The organs should be separate and should not interfere in the sphere of the other. This should be done to maintain peace and decorum. If there is only one organ that has all the powers then there will be a lot of chaos and confusion in the country.
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http://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx Montesquieu, “Spirit of the Laws” (Book VI 6 th ed Franz Neumann trans. Thomas Nugent 1748) pg 151-52
1.1 Literature Review
Bakshi PM, Comparative Law: Separation of powers in India (American Bar Association Journal Vol42 1956) Bakshi in his journal says that the first thing that strikes any person who begins a study of Indian Constitution from the point of view is that there is no express declaration of the doctrine of separation of power in Indian Constitution. He says that no words have been used solemnly affirming or formulating the doctrine in any particular article. The articles that relate to legislative power, for example, do not say that the legislative power shall be vested in or shall exclusively reside in the Parliament.
Vile M.J.C., Constitutionalism and the Separation of Powers (2nd edition Oxford University Press 1967) Vile in his book ‘Constitutionalism and the Separation of Powers’ says that by no stretch of imagination is the doctrine a simple and an immediately recognizable, unambiguous set of concept. It rather represents an area of political thought where there has been an extraordinary confusion in defining and the use of its attributes. Interestingly, standing alone as a theory of government, the doctrine has uniformly failed to prove an adequate basis for an adequate basis for an effective and a stable political system.
1.2 Scope and Objectives.
Objective:
To study Montesquieu’s theory of separation of power. To understand the history of origin of the theory of separation of powers. To study the importance and significance of separation of powers
Scope:
The scope of this project is limited to the study of separation of powers and Montesquieu’s theory of separation of powers. It focuses on the Separation of powers in India and the different criticisms of the theory.
1.3 Research Questions.
What is Separation of Powers? How does Separation of Power function in India? What are the criticisms in the theory of Separation of Powers? What is the Montesquieu’s theory of separation of powers?
1.4 Methodology
For the purpose of analyzing the subject, the current study is focused on – critical analyze and interpretation of the data collected from various sources. In this project doctrinal research was involved and secondary sources was used i.e. journals, books, articles which has been written and produced by eminent academicians. Explanatory type of research was used in this project, because the project topic was not relatively new and unheard of. The paper will study the theory of separation of powers and bring out its criticisms. (A uniform method of citation has been followed throughout the project – OSCOLA Method of citation).
CHAPTER-2 THEORY OF SEPARATION OF POWER
In a layman’s language theory of separation of power is that when a single person or a group of people have a large amount of power, they can become dangerous to the citizens and therefore the theory of separation of power is removing the amount of power from that single person or from those group of people and separating these powers to different organs.
2.1 History
The first person to have perceived and to have seen that there is a specialization of function in each constitution developed this doctrine was Aristotle. He first mentioned “mixed government” or hybrid government. 3 He described the three organs of the government but did not explain their mutual relations in detail. Then in around 16th century, John Calvin came in the limelight. Calvin favoured a system of government that divided political power between democracy and aristocracy. John Locke was another philosopher who divided the political powers into Legislature, Executive and Judiciary along with John Harrington and Montesquieu. Montesquieu’s approach was to present and defend a form of government which was not excessively entrained in all its power to a similar or single rule. The long history of the doctrine of separation of power reflects the developing aspirations of men over the centuries for a system of government in which the exercise of government power is subject to control. It illustrates how this basic aspiration towards limited government has had to be modified and adapted to changing circumstances and needs. It offers a rich mass of material of human thought and experience, on a subject which remains today a vital importance. Following the course of its history should be of interest in itself, but it also is an essential step towards understanding of ideas of the past which have helped to shape our own, and towards the reformation of these ideas into a more coherent theoretical approach to the nature of modern constitution government. 4 2.2 Importance
The importance of separation of power is that there is independence of the different organs judiciary, executive and legislature. As there is a separate judiciary, justice is delivered properly. If there would be no separation of power then would be only one power which would lead to misuse of power. Therefore, the theory of separation of power helps in creation
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Aristotle, Politics (book IV Chapter XIV) Vile M.J.C., Constitutionalism and Separation of Power ( 2nd edition Oxford University Press 1967) pg-21,22.
of a fair and just government. It makes the functioning of the government more easy and keeps a balance in the system.
CHAPTER-3 MONTESQUIEU’S THEOR Y
“There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals .”5 Montesquieu was a French philosopher who is known to have evolved the concept of separation of power in his book De L’ Espirit des Lois(The Spirit of Laws) published in 1748. He was inspired by John Locke and supported Locke’s theory. According to him- any person entrusted with any of the powers — Legislative, Executive, Judiciary shall not be able to encroach upon the powers confided to others. The three powers should be separated and independent of each other. Through his theory he 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. Similarly the union of the legislative power and the judiciary would provide no defence for the individual against the state. The importance of the doctrine lies in the fact that it seeks to preserve the human liberty by avoiding concentration of powers in one person or body of persons. He then went on to further observe that liberty is constantly endangered by the tendency of men to abuse governmental power and that, to prevent such abuse it is necessary to construct a government where power would check power. 6 This suggests that Montesquieu perceived a separation with an adroit admixture of checks and balances. In discussing the importance of delineations of power among the three branches, he wrote: “When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehensions might 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 judiciary power be not separated from the legislative and executive. Where it joined with the legislative, 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, where the same man or the same body, whether of the nobles or the people, to exercise those three powers, that of enacting the laws, that of executing the public resolutions, and of trying the cases o f individuals.”7 Montesquieu’s theory has received mixed reviews; it has got some criticisms too. As Professor Ullman says “he looked across the foggy England from his sunny vineyard in Paris and completely misconstrued what he saw”.8This is evident from the fact that in U.K., the Montesquieu, “Spirit of the Laws” (Book VI 6 th ed Franz Neumann trans. Thomas Nugent 1748) 6 http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/9/10_chapter%204.pdf 7 Ibid. 8 Quoted in C.K.Takwani, Lectures on Administrative Law 31 (2008) 5
principle of separation of powers has neither been accorded a constitutional status, nor even has it been theoretically enshrined.
CHAPTER-4 THEORY SEPARATION OF POWER IN 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.9 The Indian Constitution has not seen the separation of powers is its absolute rigidity, but the functions of different branches of the government have been sufficiently differentiated and it can be said that the Indian Constitution did not contemplate on assumptions. The powers have been separated by the Indian Constitution between the Legislature to make the law, the Executive to implement them and judiciary to interpret the law with the limits set by the Constitution. The theory of separation of powers was not given constitutional status in our Constitution, but the Constitution has been made keeping the separation of powers doctrine in mind, but nowhere is this mentioned separately. India has a parliamentary system of governance. Though an effort has been made by the framers of the constitution to keep the organs of the government separated from each other, but a lot of overlapping and combination of powers has been given to each organ. In India our legislative and executive wings are closely connected with each other due to which the executive is responsible to the legislature for its actions and derives its powers from the legislature. The head of the executive is the president, but a closer look shows that he is only a nominal head and the real power rests with the Prime Minister and the Cabinet. In certain situations the President has the capacity to exercise judicial and legislative functions. The judiciary too performs administrative and legislative functions. The parliament too may perform judicial functions, for example if a president is to be impeached both houses of Parliament are to take an active participatory role. Thus all three organs act as a check and balance to each other and work in coordination and cooperation to make our parliamentary system of governance work. India being an extremely large and diverse country needs a system like this where all organs are responsible to each other as well as coordinated to each other; otherwise making governance possible becomes a very rigid and difficult task. 10
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Professor K.T.Shah wanted to move an amendment that suggested the insertion of a new Article in the Constitutional to effect the incorporation of the doctrine. This new article, that is, Art.40 (A) provided that ―There shall be a complete separation of p owers as between the principal organs of the State viz. the legislature, the executive and the judiciary.‖ CAD vol.7 at 958 cited in C.H.Alexandrowics, Constitutional Developments in India 109 (1957). 10 http://www.lawteacher.net/free-law-essays/constitutional-law/indian-constitution-and-separation-of-powersconstitutional-law-essay.php#ixzz3ocGSY8ev
CHAPTER-5 CRITICISM
The theory of separation of powers is criticised by many due to various reasons. The first reason is that absolute separation of powers is not possible. Critics say that like in the human body all the organs have unity likewise there is unity in the organs of the government. If one organ of the body is separated from the others there will be misbalance likewise in the government there will be deadlock and making it difficult to run the government. The second reason the theory has been criticised is because of its impracticability because of which even in U.S.A it has been modified by a system of checks and balances. Another reason is that the basis of the theory is confusing. The organs of the government are all mutually dependent on each other hence; separation of the organs becomes difficult. The organs are not even equal. In separation of powers all the organs need to be equal, but actually they are unequal, as the importance of Legislature has increased due to democracy. According to Dr. Finer the theory makes the administration inactive and autocratic.11 The leaders of dictatorial regimes oppose the theory because the theory does not help in the concentration of powers in one hand. AS the theory of separation of powers imposes a limitation on the powers of the executive therefore, there is a democratic objection to the doctrine. Montesquieu was of the view that without the separation of powers, individual freedom was not possible, but individual liberty is possible even without the separation of power. The theory results in jealousy, internal frictions and suspicion. In India we do not have separation of powers because we have a parliamentary form of government.
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Finer Dr., Theory and Practice of Modern government pg 29
CHAPTER-6 CONCLUSION
At the end of the paper we can conclude that complete separation of powers is neither possible nor practicable nor is justified. If there was complete separation of powers, there would be deadlock in the government and functioning would be impossible. However, in spite of the mutual relations among different organs their functions should be separate or else the administration will vanish.
There is a major gap between the Separation of powers, which can only be bridged when the three powers i.e. Legislature, Executive and the Judiciary move towards harmony. The aim of the three powers is to protect the rights of the people. The three powers have to be at peace for our prosperity. Though in India strict separation of powers like in American sense is not followed but, the principle of ‘checks and balances’, exists as a part of this theory. For example the judicial review and activism functions of the judiciary is an important element of our system of justice to keep a check on the legislature who are the law makers of the land, so that they do not exceed their powers and work within the allowances that the constitution has made for them. The separation of the judiciary from the other organs though is taken very seriously so that the common man’s liberty can in no circumstances be compromised and a fair remedy be available to any individual citizen of the state. None of the three powers can usurp the essential functions of each other 12, which constitute a part of the ‘basic structure’ doctrine so much so that, not even by amending the Constitution and if any such amendment is made, the court will strike it down as unconstitutional.
The theory of separation of powers holds a position of utmost importance, and has been modified to suit the needs of a modern all pervasive state.
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Singh Nidhi, Vijay Anurag, Separation of Powers: Constitutional Plan and Practice (International Journal of Scientific and Research Publications Volume 3 2013)
CHAPTER-7 BIBLIOGRAPHY
Secondary Sources Books
Aristotle, Politics (book IV ) Bhatia Sukhchran Kaur, Jurisprudence of Amending Process Under Indian Constitution (Deep & Deep Publications 1989) Brij Kishore Sharma, Introduction to the Constitution of india (7 th edition Ashoke K. Ghosh 2015) Finer Dr., Theory and Practice of Modern government Montesquieu, “Spirit of the Laws” (Book VI 6 th ed Franz Neumann trans. Thomas Nugent 1748) Vile M.J.C., Constitutionalism and the Separation of Powers (2nd edition Oxford University Press 1967 Journals Bakshi PM, Comparative Law: Separation of powers in India (American Bar Association Journal Vol42 1956) Barkow Rachel E., Separation of Power and Criminal Law (Article Stanford Law Review Vol58 No4 2006) Singh Nidhi, Vijay Anurag, Separation of Powers: Constitutional Plan and Practice (International Journal of Scientific and Research Publicati ons Volume 3 2013) Singh Tej Bahadur, Principal of Separation of Powers and Concentration of Authority (J.T.R.I. JOURNAL – 2nd Year, Issue – 4 & 5, 1996) Internet Sources http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/9/10_chapter%204.pdf http://www.lawteacher.net/free-law-essays/constitutional-law/indian-constitution-andseparation-of-powers-constitutional-law-essay.php#ixzz3ocGSY8ev http://www.ncsl.org/research/about-state-legislatures/separation-of-powers-anoverview.aspx http://www.britannica.com/topic/separation-of-powers. http://www.ncsl.org/research/about-state-legislatures/separation-of-powers-anoverview.aspx
