Introduction
In
1784, the eminent French scholar, Montesquieu published his famous book,
“Spirit Of Laws” in which he explained the principle of separation of powers.[1] The
Separation of powers, refers to the division of responsibilities into distinct
branches to limit any one branch from exercising the core functions of another.
The intent of separation of powers is to prevent the concentration of unrestrained
power and to provide for checks and balances to avoid autocracy or incompetence. Another terms for the Separation of
powers principle is “trias politica”(it is a “tripartite”, “trias
politica”, or “three part system”).[2]
In
the book, The Spirit
of the Laws (1748), Montesquieu
described the numerous forms of distribution of political power among a legislature, an executive, and a judiciary. Montesquieu's
approach was to present and defend a form of government which was not extremely
centralized in all its powers to a single monarch or similar ruler, form of
government known then as "aristocracy". He constructed this model on
the Constitution of the
Roman Republic[3] and the British
constitutional system. Montesquieu took
the view that the Roman Republic had powers separated so that no one could
usurp all-inclusive power. In the British constitutional system, Montesquieu distinguished
a separation of powers among the monarch, Parliament, and the courts of law.[4]
The
theory of Checks and balances is the principle that each of the Branches of the
government has the power to bound or
check the other two and this creates a balance between the three separate
powers of the state, this principle induces that the ambitions of each branches
are to be kept under checks in order to balance each other out. This is based
on the idea that it is not enough to separate the powers and guarantee their
independence but to give the numerous branches the constitutional means to
defend their own legitimate powers from the encroachments of the other branches.[5]
They guarantee that the powers of the state have the same weight or are co-equal
to each other, that is they are to be balanced, so that they can limit each
other, avoiding the misuse of power. James Madison, the founding father who
drafted the Constitution and Bill of Rights, was heavily inspired by
Montesquieu’s Spirit of the Laws in drafting his Virginia Plan.[6]
History
of Checks and Balances
The
origin of this principle goes back to the time of Plato and Aristotle. It was
Aristotle who for the first time classified the functions of the Government
into three categories i.e., deliberative, magisterial and judicial. The
separation of powers is a model for the governance of both democratic and the federative
states. The model was first developed in ancient Greece and came into wide-ranging
use by the Roman Republic as part of the uncodified Constitution of the Roman
Republic. The term "trias
politica" or "separation of powers" was created by Charles-Louis
de Secondat, baron de La Brède et de Montesquieu, an 18th century French social
and political philosopher. His publication, Spirit of the Laws, is considered
one of the most phenomenal 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.[7]
Under his model, the political authority of the state is divided into three
organs - legislative, executive and judicial powers. Montesquieu was of the
view that the Roman Republic had powers separated so that no one could usurp
complete power.[8] Separation of powers, thus,
refers to the division of government responsibilities into distinct branches to
limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of
power and provide for checks and balances.[9]
The
renowned English Jurist Blackstone supported the doctrine of Montesquieu.
According to him, “where ever the right of making and enforcing the Law is
vested in the same man or in the same body of men there can be no liberty.” The
system is based on the idea that it is not enough to separate the powers and
guarantee their independence but to give the various branches the
constitutional means to defend their own legitimate powers from the
encroachments of the other branches.[10] Therefore,
they guarantee that the powers of the state have the same weight or are co-equal,
so that they can limit each other.
The
Three Branches
There
are three branches of the government under this system that comprises the
executive, the legislative, and the judicial branches. Each has its own set of
abilities. For example in India, the three branched of government are; the
legislative branch, the executive branch, and the judicial branch. The
legislative branch is run by the parliament, which includes the House of
Representatives or the lower house which is called Lok Sabha and the upper
house, which is called the Rajya Sabha. The main responsibility of the
legislative branch is to make the laws. The executive branch includes the
president, the vice president, the prime minister and the council of ministers.
The prime minister is the main head of the government while the president is
the nominal head. The Supreme Court heads the judicial branch. The judicial
branch has to analyse the Constitution and reviews the laws made by the
legislature and enforced by the executive.
This
system was selected by the constitution makers of India, so that one of the
branches of government would never have too much power. Each branch of
government checks/limits the power of the other branches to be sure that every
branch has equal power. If all branches
were run by themselves it would not be fair or constitutional.
To
guarantee that no single person or entity had a monopoly on power, the Founding
Fathers of the United States of America designed and instituted a system of
checks and balances. The president's power is checked by the Congress, which
can refuse to sanction his appointees, and has the power to impeach or remove,
a president. Congress may pass laws, but the president has the power to veto
them (Congress, in turn, may overrule a veto). The Supreme Court can rule on
the constitutionality of a law, but Congress, with approval from two-thirds of
the states, may amend the Constitution. Section 1 of Article 1 declares: “All
legislative powers herein granted shall be vested in a Congress of the United
State”.[11] The
Chief Justice Hughes’s remarks are most relevant in this connection, as he
candidly said- “The Constitution is what the judges say it is.”[12]
The
system of checks and balances is a significant part of both the Constitution of
India and USA. With checks and balances, each of the three branches of
government can limit the powers of the other organ. This way, no one branch
becomes too authoritative. Each branch “checks” the power of the other branches
to make sure that the power is balanced between them.
Judicial
Opinion
In
Ram Krishna Dalmia v. Justice Tendolkar,[13]
Hon’ble Chief Justice S.R. Das opined that in the absence of specific provision
for separation of powers in our Constitution, such as there is under the
American Constitution, some such division of powers legislative, executive and
judicial- is nevertheless implicit in our Constitution. Same view was expressed
in Jayanti Lal Amrit Lal v. S.M. Ram.[14] In
Chandra Mohan v. State of U.P.,[15] the
Supreme Court held: “The Indian Constitution, though it does not accept the
strict doctrine of separation of powers, provides for an independent judiciary
in the States.”
In
Kesavananda Bharti v. State of Kerala,[16]
the Hon’ble Chief Justice Sikri observed:
“Separation of powers between the legislature, the executive and the
judiciary is a part of the basic structure of the Constitution; this structure
cannot be destroyed by any form of amendment.”
In
Smt. Indira Nehru Gandhi v. Raj Narain,[17] the
Hon’ble Justice Chandrachud observed: “The American Constitution provides for a
rigid separation of governmental powers into three basic divisions the
executive, legislative and judicial. It is essential principle of that
Constitution that powers entrusted to one department should not be exercised by
any other department. The Australian Constitution follows the same pattern of
distribution of powers. Unlike these Constitutions, the Indian Constitution
does not expressly vest the three kinds of power in three different organs of
the State. But the principle of separation of powers is not a magic formula for
keeping the three organs of the State within the strict confines of their
functions.”
In Asif Hameed v. State of Jammu and
Kashmir,[18] the Supreme Court
observed: “Although the doctrine of separation of powers has not been
recognised under the Constitution in its absolute rigidity but the Constitution
makers have meticulously defined the functions of various organs of the State.
Legislature, executive and judiciary have to function within their own spheres
demarcated under the Constitution. No organ can usurp the functions assigned to
another. The Constitution trusts to the judgment of these organs to function
and exercise their discretion by strictly following the procedure prescribed
therein. The functioning of democracy depends upon the strength and
independence of each of its organs.”
In
Rai Sahib Ram Jawaya v. State of Punjab,[19]
the Hon’ble Chief Justice B.K. Mukherjea observed: “The Indian Constitution has not indeed
recognised the doctrine of separation of powers in the 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 the functions that essentially
belong to another.”
In
Chandra Mohan v. State of U.P.,[20] the
Supreme Court held “The Indian Constitution, though it does not accept the
strict doctrine of separation of powers, provides for an independent judiciary
in the States. But at the time the direct control of the executive. Indeed it
is common knowledge that in pre-independence India there was a strong agitation
that the judiciary should be separated from the executive and that the
agitation that the judiciary should be separated from the executive and that
the agitation was based upon the assumption that unless they were separated,
the independence of the judiciary at the power levels would be a mockery.”
In
Hari Shankar Nagla v. State of M.P.,[21] It
was observed: “The Legislature cannot
delegate its function of laying down legislative policy in respect of a measure
and its formulation as a rule of conduct. The Legislature must declare the
policy of the law and the legal principles which are to control any given cases
and must provide a standard to guide the officials or the body in power to
execute the law. The essential legislature function consists in the
determination of the choice of the legislative policy and of formally enacting
that policy into a binding rule of conduct.”
Conclusion
In
firm sense the principle of separation of powers cannot be applied in any
modern Government either may be U.K., U.S.A., or India. But it does not mean
that the principle has no relevance in today’s world. The system of checks and
balances is still very much an important part of all the major constitutions of
the world. The smooth running of government is possible only by co-operation
and mutual adjustment of all the three organs of the government. Professor Laski
has aptly remarked: “It is necessary to have a separation of functions which
need not imply a separation of personnel.”
[2]
Althusser, Louis,
Politics and History: Montesquieu, Rousseau, Marx (London and New York, NY: New Left Books, 1972).
[3] Price, Sara (22 February 2011), The Roman
Republic in Montesquieu and Rousseau – Abstract, SSRN 1766947
[4] Schindler, Ronald, Montesquieu's Political Writings, archived from the
original on 29th
April, 2020.
[5] "The Avalon Project : Federalist No 48". avalon.law.yale.edu.
[6]
"The Life of James Madison". James Madison's Montpelier.
[7] Paul
A. Rahe, Montesquieu and the Logic of Liberty (2009).
[8] Lloyd,
Marshall Davies (22 September 1998), Polybius and the Founding Fathers: the
separation of powers.
[9]
Id at 1.
[10] "The Avalon Project : Federalist No
48". avalon.law.yale.edu. Retrieved 18th November 2018.
[11] https://www.usa.gov/branches-of-government
Visited 1th May, 2020.
[12]
Hendel, Charles Evants Hughes and the Supreme Court (1951), II quoted by
Bernard Schwartz in American Constitutional Law 1955 page 130.
[13] AIR
1958 S.C. 538.
[14] AIR
1964 SC 649.
[15] AIR
1966 SC 1987.
[16] AIR
1973 SC 1461.
[17] AIR
1975 SC 2299.
[18] AIR
1989 S.C. 1899.
[19] AIR
1955 S.C. 549.
[20] AIR
1966 SC 1987.
[21] AIR
1954 SC 465.
By
Afreen Afshar Alam
IIIrd year, Faculty of Law
Jamia Millia Islamia
