Separation of Power Relevance

Introduction
The concept of separation of powers is the rudimentary element for the governance of a democratic country.
This principle corroborates fairness, impartiality and uprightness in the workings of a government. Although
it is not followed in its strict sense yet, most of the democratic countries have adopted its diluted version
under their respective constitutions.

Meaning
The concept of separation of powers refers to a system of government in which the powers are divided
among multiple branches of the government, each branch controlling different facet of government. In most
of the democratic countries, it is accepted that the three branches are the legislature, the executive and the
judiciary. According to this theory, the powers and the functions of these branches must be distinct and
separated in a free democracy. These organs work and perform their functions independently without the
interference of one into others in order to avoid any kind of conflict. It means that the executive cannot
exercise legislative and judicial powers, the legislature cannot exercise executive and judicial powers and
the judiciary cannot exercise legislative and executive powers.

Background
The term “separation of powers” or “trias–politica “ was initiated by Charles de Montesquieu. For the first
time, it was accepted by Greece and then it was widely used by the Roman Republic as the Constitution of
the Roman Republic. Its root is traceable in Aristotle and Plato when this doctrine became a segment of
their marvels. In 16th and 17th-century British politicians 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 n his book “ Esprit des Lois” (The Spirit Of Laws) which
was published in the year 1785.

Montesquieu, a French scientist, originally proposed the doctrine of separation of powers in his book
“Espirit des Louis” published in 1747. (The spirit of the laws). Montesquieu discovered that when power is
concentrated in the hands of a single person or a group of people, a despotic government emerges. To
avoid this predicament and to limit the government’s arbitrary nature, he argued that the three organs of
the state, the Executive, Legislative, and Judiciary, should have a clear distribution of power.

Montesquieu went on to clarify the idea in his own words:

“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 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 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.”
Meaning
The definition of separation of power is given by different authors. But in general, the meaning of separation
of power can be categorized into three features:

 A person forming a part of one organ should not form part of another organ.
 One organ should not interfere with the functioning of the other organs.
 One organ should not exercise the function belonging to another organ.
The separation of power is based on the concept of triaspolitica. This principle visualizes a tripartite system
where the powers are delegated and distributed among three organs outlining their jurisdiction each.

To know more about the separation of powers and its relevance in brief, please refer to the video below:

Three-tier machinery of state government

It is impossible for any of the organs to perform all the functions systematically and appropriately. So for
the proper functioning of the powers, the powers are distributed among the legislature, executive and
judiciary. Now let’s go into the further details of the functioning of each organ.

Legislative
The main function of the legislature is to enact a law. Enacting a law expresses the will of the State and it
also acts as the wain to the autonomy of the State. It is the basis for the functioning of executive and
judiciary. It is spotted as the first place among the three organs because until and unless the law is framed
the functioning of implementing and applying the law can be exercised. The judiciary act as the advisory
body which means that it can give the suggestions to the legislature about the framing of new laws and
amendment of certain legislation but cannot function it.

Executive
It is the organs which are responsible for implementing, carrying out 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. It is called as the mainspring of the government because if the executive crack-up, the
government exhaust as it gets imbalanced. In the limited sense, executive includes head of the minister,
advisors, departmental head and his ministers.

Judiciary
It refers to those public officers whose responsibility is to apply the law framed by the legislature to individual
cases by taking into consideration the principle of natural justice, fairness.
Significance
As it is a very well known fact that whenever a large power is given in the hand of any administering
authority there are higher chances of maladministration, corruption and misuse of power. This doctrine helps
prevent the abuse of power. This doctrine protects the individual from the arbitrary rule. The government
is the violator and also protects individual liberty.

Summarily, the importance can be encapsulated in the following points:

 Ending the autocracy, it protects the liberty of the individual.

 It not only safeguards the liberty of the individual but also maintains the efficiency of the
administration.
 Focus on the requirement of independence of the judiciary
 Prevent the legislature from enacting an arbitrary rule.

 United States
 The concept of separation of powers is quite specifically stated in the US Constitution. It gives
Congress, which consists of the Senate and the House of Representatives, legislative authority. The
President has executive authority, and the Supreme Court and any further Federal Courts that
Congress may establish have judicial authority. The Constitution specifically outlines the President’s
powers, and he is elected in a separate election for a fixed term of four years. He is tasked by the
Constitution with ensuring that the country’s laws are faithfully carried out. The President has the
authority to nominate and dismiss the executive officers known as the Cabinet, who are in charge
of the major state departments. This is done to maintain the separation between the executive and
legislative branches of government. Neither the President nor any of his secretaries may be
members of the Congress, and any member of the Congress may join the government only after
resigning from his membership. The President is normally irremovable from office, but the Senate
has the power to remove him through the process of impeachment if he commits high crimes and
misdemeanours such as bribery or treason. The after-effects of the Watergate scandal of 1972 on
the President act as a prominent illustration of this. Once nominated, the Supreme Court’s judges
are not subject to the authority of either Congress or the President. But they too could be
impeached and forced out of their positions.

 The Supreme Court’s authority was created in Marbury v. Madison in 1803 when it ruled that the
President’s acts and the Acts of the legislature were both in violation of the Constitution. The
Supreme Court also found that any significant delegation of legislative authority by Congress to
executive agencies was in violation of the Constitution’s tenet of the separation of powers.

 United Kingdom
 Unlike the United States, the United Kingdom does have a separation of powers concept and it
exists in the country more on an informal note. The United Kingdom benefits more from Black
Stone’s “mixed government” with checks and balances doctrine. The U.K. Constitution does not
have separation of powers as an essential or defining principle. Because there is no formal division
of powers in the United Kingdom due to the lack of a written constitution, any Act of Parliament
that grants any power in violation of the concept may be deemed unconstitutional. The Parliament
continues to have undisputed authority, and as a result, the Crown rules through ministers who are
elected by and answerable to the Parliament. The Act of Settlement, 1700, effectively cemented
 the judiciary’s independence. The Supreme Court operates with its powers separated from those of
Parliament. The Constitutional Reforms Act of 2005‘s Section 61 outlines the structure for judicial
appointments. Commission responsible for choosing judges for the Supreme Court and the court of
appeals. Thus, the Constitutional Reforms Act of 2005 has generally ensured the independence of
the court.

 The three branches continue to significantly overlap and are not properly divided. Administrative
tribunals rather than regular courts handle many issues that emerge during the course of
government. However, by preserving key components of “fair judicial procedure“, the impartiality
of the tribunals is kept intact. Senior justices have frequently stated that a division of powers is the
foundation of the British Constitution. It cannot be emphasised enough how deeply rooted in the
separation of powers the British Constitution is while being mostly unwritten. Parliament makes the
laws, and the judiciary interprets them.

Separation of powers in India

The Parliament has the authority to pass whatever law it sees fit, according to the provisions of the
Constitution, and there are no constraints on its ability to pass legislation. The Constitution explicitly specifies
the powers and responsibilities of the president (Article 62 to Article 72). According to its field of expertise, the
Judiciary is self-sufficient, and neither the Legislature nor the executive is interfering with its judicial tasks or
powers. Under Article 226 and 227 of the Constitution, as well as under Article 32 and Article 136 of the
Constitution, the High Court and Supreme Court are each granted the power of judicial review, and any law
enacted by the parliament can be considered invalid by the judiciary if it is found to be in violation of
Fundamental Rights (Article 13). Following the reading of such laws, many jurists are of the opinion that the
theory of separation of powers is recognised in India.

Conclusion
The doctrine of separation of powers must be interpreted in a relative form. In the era of
liberalisation, privatisation and globalisation, separation of power has to be expounded in
a wider perspective. It should not be curb to the principle of restraint or strict classification
only but a group power exercised in the spirit of cooperation, coordination and in the
interest of the welfare of the state. Though this doctrine is unfeasible in its rigid perception
nevertheless its effectiveness lies in the prominence on those checks and balances which
are necessary in order to avert maladroit government and to prevent abuse of powers by
the different organs of the government.
Separation of Power Relevance
Introduction
The concept of separation of powers is the rudimentary element for the governance of a democratic country.
This principle corroborates fairness, impartiality and uprightness in the workings of a government. Although
it is not followed in its strict sense yet, most of the democratic countries have adopted its diluted version
under their respective constitutions.

Meaning
The concept of separation of powers refers to a system of government in which the powers are divided
among multiple branches of the government, each branch controlling different facet of government. In most
of the democratic countries, it is accepted that the three branches are the legislature, the executive and the
judiciary. According to this theory, the powers and the functions of these branches must be distinct and
separated in a free democracy. These organs work and perform their functions independently without the
interference of one into others in order to avoid any kind of conflict. It means that the executive cannot
exercise legislative and judicial powers, the legislature cannot exercise executive and judicial powers and
the judiciary cannot exercise legislative and executive powers.

Background
The term “separation of powers” or “trias–politica “ was initiated by Charles de Montesquieu. For the first
time, it was accepted by Greece and then it was widely used by the Roman Republic as the Constitution of
the Roman Republic. Its root is traceable in Aristotle and Plato when this doctrine became a segment of
their marvels. In 16th and 17th-century British politicians 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 n his book “ Esprit des Lois” (The Spirit Of Laws) which
was published in the year 1785.

Montesquieu, a French scientist, originally proposed the doctrine of separation of powers in his book
“Espirit des Louis” published in 1747. (The spirit of the laws). Montesquieu discovered that when power is
concentrated in the hands of a single person or a group of people, a despotic government emerges. To
avoid this predicament and to limit the government’s arbitrary nature, he argued that the three organs of
the state, the Executive, Legislative, and Judiciary, should have a clear distribution of power.

Montesquieu went on to clarify the idea in his own words:

“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 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 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.”
Meaning
The definition of separation of power is given by different authors. But in general, the meaning of separation
of power can be categorized into three features:

 A person forming a part of one organ should not form part of another organ.
 One organ should not interfere with the functioning of the other organs.
 One organ should not exercise the function belonging to another organ.
The separation of power is based on the concept of triaspolitica. This principle visualizes a tripartite system
where the powers are delegated and distributed among three organs outlining their jurisdiction each.

To know more about the separation of powers and its relevance in brief, please refer to the video below:

Three-tier machinery of state government

It is impossible for any of the organs to perform all the functions systematically and appropriately. So for
the proper functioning of the powers, the powers are distributed among the legislature, executive and
judiciary. Now let’s go into the further details of the functioning of each organ.

Legislative
The main function of the legislature is to enact a law. Enacting a law expresses the will of the State and it
also acts as the wain to the autonomy of the State. It is the basis for the functioning of executive and
judiciary. It is spotted as the first place among the three organs because until and unless the law is framed
the functioning of implementing and applying the law can be exercised. The judiciary act as the advisory
body which means that it can give the suggestions to the legislature about the framing of new laws and
amendment of certain legislation but cannot function it.

Executive
It is the organs which are responsible for implementing, carrying out 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. It is called as the mainspring of the government because if the executive crack-up, the
government exhaust as it gets imbalanced. In the limited sense, executive includes head of the minister,
advisors, departmental head and his ministers.

Judiciary
It refers to those public officers whose responsibility is to apply the law framed by the legislature to individual
cases by taking into consideration the principle of natural justice, fairness.
Significance
As it is a very well known fact that whenever a large power is given in the hand of any administering
authority there are higher chances of maladministration, corruption and misuse of power. This doctrine helps
prevent the abuse of power. This doctrine protects the individual from the arbitrary rule. The government
is the violator and also protects individual liberty.

Summarily, the importance can be encapsulated in the following points:

 Ending the autocracy, it protects the liberty of the individual.

 It not only safeguards the liberty of the individual but also maintains the efficiency of the
administration.
 Focus on the requirement of independence of the judiciary
 Prevent the legislature from enacting an arbitrary rule.

 United States
 The concept of separation of powers is quite specifically stated in the US Constitution. It gives
Congress, which consists of the Senate and the House of Representatives, legislative authority. The
President has executive authority, and the Supreme Court and any further Federal Courts that
Congress may establish have judicial authority. The Constitution specifically outlines the President’s
powers, and he is elected in a separate election for a fixed term of four years. He is tasked by the
Constitution with ensuring that the country’s laws are faithfully carried out. The President has the
authority to nominate and dismiss the executive officers known as the Cabinet, who are in charge
of the major state departments. This is done to maintain the separation between the executive and
legislative branches of government. Neither the President nor any of his secretaries may be
members of the Congress, and any member of the Congress may join the government only after
resigning from his membership. The President is normally irremovable from office, but the Senate
has the power to remove him through the process of impeachment if he commits high crimes and
misdemeanours such as bribery or treason. The after-effects of the Watergate scandal of 1972 on
the President act as a prominent illustration of this. Once nominated, the Supreme Court’s judges
are not subject to the authority of either Congress or the President. But they too could be
impeached and forced out of their positions.

 The Supreme Court’s authority was created in Marbury v. Madison in 1803 when it ruled that the
President’s acts and the Acts of the legislature were both in violation of the Constitution. The
Supreme Court also found that any significant delegation of legislative authority by Congress to
executive agencies was in violation of the Constitution’s tenet of the separation of powers.

 United Kingdom
 Unlike the United States, the United Kingdom does have a separation of powers concept and it
exists in the country more on an informal note. The United Kingdom benefits more from Black
Stone’s “mixed government” with checks and balances doctrine. The U.K. Constitution does not
have separation of powers as an essential or defining principle. Because there is no formal division
of powers in the United Kingdom due to the lack of a written constitution, any Act of Parliament
that grants any power in violation of the concept may be deemed unconstitutional. The Parliament
continues to have undisputed authority, and as a result, the Crown rules through ministers who are
elected by and answerable to the Parliament. The Act of Settlement, 1700, effectively cemented
 the judiciary’s independence. The Supreme Court operates with its powers separated from those of
Parliament. The Constitutional Reforms Act of 2005‘s Section 61 outlines the structure for judicial
appointments. Commission responsible for choosing judges for the Supreme Court and the court of
appeals. Thus, the Constitutional Reforms Act of 2005 has generally ensured the independence of
the court.

 The three branches continue to significantly overlap and are not properly divided. Administrative
tribunals rather than regular courts handle many issues that emerge during the course of
government. However, by preserving key components of “fair judicial procedure“, the impartiality
of the tribunals is kept intact. Senior justices have frequently stated that a division of powers is the
foundation of the British Constitution. It cannot be emphasised enough how deeply rooted in the
separation of powers the British Constitution is while being mostly unwritten. Parliament makes the
laws, and the judiciary interprets them.

Separation of powers in India

The Parliament has the authority to pass whatever law it sees fit, according to the provisions of the
Constitution, and there are no constraints on its ability to pass legislation. The Constitution explicitly specifies
the powers and responsibilities of the president (Article 62 to Article 72). According to its field of expertise, the
Judiciary is self-sufficient, and neither the Legislature nor the executive is interfering with its judicial tasks or
powers. Under Article 226 and 227 of the Constitution, as well as under Article 32 and Article 136 of the
Constitution, the High Court and Supreme Court are each granted the power of judicial review, and any law
enacted by the parliament can be considered invalid by the judiciary if it is found to be in violation of
Fundamental Rights (Article 13). Following the reading of such laws, many jurists are of the opinion that the
theory of separation of powers is recognised in India.

Conclusion
The doctrine of separation of powers must be interpreted in a relative form. In the era of
liberalisation, privatisation and globalisation, separation of power has to be expounded in
a wider perspective. It should not be curb to the principle of restraint or strict classification
only but a group power exercised in the spirit of cooperation, coordination and in the
interest of the welfare of the state. Though this doctrine is unfeasible in its rigid perception
nevertheless its effectiveness lies in the prominence on those checks and balances which
are necessary in order to avert maladroit government and to prevent abuse of powers by
the different organs of the government.