1st Internal Assignment
Administrative Law

The Doctrine of Separation of Power

Clive D’souza
13010124119
Division B
III Year
Introduction:
The Government of any country will be the agency or machinery through which the will of the people is realised, expressed and formulated. But for the will of the people to be so expressed, realised and formulated, there needs to be a well organized system which works together, jointly as well as separately for ultimate achievement of the goal, which in a democracy would be to help people realise their will, express that will and help the people to formulate the ideas as to what is right for society and be part of what would then become ideally, a true and well functioning democracy.
The concept as stated above can be compared with the functioning of any team, be it a multi-national corporation or of a football team, where the former needs people to work on ideas for new products, need an accounts department to check on the cash flows and revenues, a marketing team to market the product well enough to the people through advertisements or for the latter where the defenders ensure that goals do not go in against their team, the midfield ensures possession of the ball and creativity to pass the ball to the strikers of the team and the strikers of the team ensure that the passes delivered to them is by the midfield, to score the ultimate goal that the team seeks. What we see through this example is that, all of the functions, although different in character, all of the different functions are performed co-operatively for the achievement of one and the same goal.
Democracy is not at all different to the above stated examples, for it too, functions on the same ideology, of having three separate organs, which have three separate functions that should ideally work co-operatively for the functioning of a democracy.
These three organs of the government in the case of India and other similar democratic nations are, The Legislative Authority that make laws, which in the case of India, would be the Parliament and State Legislatures, The Executive Authority that enforces the laws such as The President, The Vice President, The Prime Minister, Cabinet Ministers, Executive Departments and Agencies. And the third organ would be the Judiciary, whose functions are to apply such laws on every case that there would be a breach of such law that is made by the other two organs.
In this report, I will be seeking to include the various philosophical theories formulated towards the idea of this doctrine, the different applications of this doctrine in India and in other countries, the importance of this doctrine, the various criticisms of this doctrine and will conclude it thereafter.
The Initial Philosophical Theories On The Doctrine Of Separation Of Powers
Aristotle
The history of the doctrine of separation of powers can be traced back to the ancient times of around 350 BC - 340 BC, when it can be seen that Aristotle tried to propose a theory similar to what could be construed as a theory of separation of powers when he first mentioned the idea of a mixed or a hybrid style of division of government which worked according to a fixed set of rules like a fixed constitution.
John Bodin
Another philosopher who wasn’t exactly a proponent to the idea of separation of powers was a man named John Bodin who wrote political theory in early 16th century France. John Bodin mostly believed that the best functional form of a government structure would be that of a democracy, he wasn’t anti-democracy altogether, but he simply believed that it wouldn’t be the best form of governance, but even though he held such beliefs, he believed that the government should be divided into separate forms that function together in harmony. He was one of the first philosophers to understand that there should be an understanding as to how there should be a separation of constitutional laws, that provided form, which differentiate from administrative laws that provide rules as to functioning of the society.
John Locke
John Locke was a British philosopher who was an exponent of many theories regarding governmental function on society and laws. He was an ardent believer in the theory of natural law which is a philosophy of law that is determined by nature and so would be universal. Natural law refers to the use of reason to analyze human nature, both socially as well as personally and to deduce binding rules out of morality and moral behaviour out of them.
Locke believed that there should be a separation of powers whereby there would a legislative body which has the ultimate power of making laws, he believed that the legislative authority should be given such power, because the members of such legislative authority are elected by the people who will be the guardian of the natural laws that he holds dear and as his first and foremost priority.
John Locke believed that there should be a separation of powers, but rather than the tri-partite system as we know today, he believed in a bi-partite system of governance that included just the executive and the legislature, the legislature being in this case the law making body, whereas the executive would be the king on the monarchy who could exercise judicial powers.
John Locke was questioned by certain other philosophers of government policy on how there could be an executive who is a monarch who has an absolute power alongside a democratic legislature which makes their own laws which are the representative of the will of the society in general, people argued that there would be a conflict.
John Locke’s simple answer to this was that the laws made by the legislature will be superior and will not be able to be violated or infringed upon easily by the monarch except in cases for which the monarch thinks will be of public good to the people.
This theory of separation of powers was thus not seen as a viable option of governance as Locke could not define specifically or could not give power to the legislature to deem as to what actions could be construed as for the public good and what will not be construed as for the public good.
The best example as to what negative implications could occur when only the monarchical executive and not the elected representatives decide as to what the public good is and public good isn’t can be seen in how Adolf Hitler used his powers to try to commit genocide on anyone who believed in Judaism which he believed was for the public good of the society that he held power on that simply could not question his powers.
Baron De Montesquieu’s Theory
Each of the theories that we have come across so far, do seem to have some unanswered questions, or a loophole that could have devastating consequences to an attempt at having a truly well functioning system of governance. Mainly, the issues that arise out of every previously seen issue seems to ask the question of whether one organ has too much power over the other? All of the previous theories seem to not address the issue of having a political scenario where the human want of power and greed and a consequence where such innate power and greed in the human being coupled with stubbornness towards having an open mind towards the various issues faced by a society are not understood by any given organ of the government that has too much power vested in them.
In 1748, a French political philosopher had exactly these issues in mind with his knowledge of the previously propounded theories by other philosophers on what would be a fair and balanced system of governance for people to have their will and ambitions heard in a system that works for them.
Montesquieu thus found the solution to this theory by propagating a theory of having a tri-partite system of governance, a theory that had its everlasting effects that can now be seen in the best functioning democracies in place in the modern era.
Montesquieu held that there needs to be a system whereby there are three separate organs of the executive, legislature and judiciary whereby there would be system where each of the organs function separately but also jointly where by each can put a check on each other’s power thereby balancing it equally where one organ will not overpower the other. He realised that without having these checks and balances put in place, there will always be one power that will seek to impose its power centrally which would thus put in jeopardy every fundamental and basic right of the individual of a state.
For example, he believed that one person cannot be vested in the powers of two organs combined, but rather, have the power to exercise the function of one and have another power to exercise control to question the exercise of the powers of another i.e if the executive makes a law, it should also have a certain majority of the members of the representatives of the people in the parliament agree to it in order to pass it and make a law, and the courts or the judiciary shall have the power to question such law passed by the executive authority, if it so violates any of the laws that are already put in place.
Montesquieu was one of the staunch early believers that a law being arbitrary, and left to the interpretation of the words stated by different people is an injustice to the very notion of democracy that have people wanting to live under an equal and fair system of governance. Montesquieu believed that such checks and balances will be the only way to have a society that have their frustrations heard, thereby being a solution for a situation of tyranny.
Criticisms
It’s undesirable in a way that the systematic machinery of the government under the tri-partite system may come to a logjam where one organ in the process keeps questioning the functions of another without keeping in mind the actual issues of the people that need instant attention.
Even though this theory calls for the equality of the powers and functions between all the three organs of the government it is seen that the legislative still exercises the supreme control as it is only with the assent of the parliament that bills would then have to get passed.
Montesquieu insisted that there be a strict separation of power between the organs of the government but this in reality would be extremely impractible as one needs to exercise control over the other as stated in the previous examples.
The theory of separation of powers may not guarantee that the individual liberties of all the sections are taken care of, as the majority party in the legislature will thus only propagate and work for the views that it stands for, and since they are a majority in the house will have their agendas passed rather than trying to achieve a solution that would then work to seek a compromise between the ideas and wants of all the sections of the society. If a constitutional right is violated by any of the legislations passed by the legislature, the judicial review will take a while until it is successfully challenged, thereby causing unnecessary delays. The opposition party in the legislature in the legislature may also cause unnecessary delay and a logjam in parliament to purposely delay legislations being passed for the will of the people, in order to send across an image at the end of the term to the voters that the party in power has been apathetic and ineffective in trying to bring the change that the people require.

Comparison of the application of the doctrine in different countries :
USA
President
The executive head of the country, he possesses the power to vote bills passed by the legislature called the ‘congress’, after the executive gives such assent, the bill would then have to gain a 2/3rd majority of members of the congress coming to a consensus to pass the bill.
The president of the US possesses some legislative power that is exclusive and establishes a kind of supremacy over the parliament on some matters, such as the ability to veto legislations and making treaties with other countries.
The president has the power to make decision on where the budget should be allocated, the congress exercises a power over this by exercising a power to allocate budget for the executive, the president has to deliver a state of the union address to the legislature to compel and convince the elected representatives as to where the money should be going.
Congress exercises control over the judiciary where the congress would be able to institute impeachment proceedings against judges for violation of code of conduct, the judiciary exercises control over the both the legislature as well as the president by the power of judicial review, where none of the three organs will be able to go against the rights and liberties granted to the individual in the constitution or any other law in force.
UK
It is a system whereby the parliament called the House of Commons is responsible for the making of the laws, the executive is the monarch who does not hold absolute power that executes such laws and the courts ensure implementation independently.
The executive who is the monarch appoints ministers of the houses of parliament, this goes against Montesquieu’s theory whereby one person should not exercise powers of two organs of the government simultaneously. Such cases where power of two organs being exercised simultaneously, also holds true for the judiciary where the law ministers are appointed to The House of Lords by the legislative authority.
Therefore, we can conclude that the British system of separation of powers has a high degree of interference on each other’s functions to a point where one can clearly state that it does not exercise Montesquieu’s theory of absolute separation of powers even though it was highly acclaimed in England. But then Montesquieu’s theory of separation was actually a misunderstanding of the British system of separation of powers, so the British did not feel the need to change an already working system for their nation.
India
During the days in which our constitution was being drafted by the constituent assembly, the decision on how the powers must be separated was one of great debate, as to how exactly we should go about having a system of governance that would apply fairly in the context of our nation.
Few contended that we should have a system that functions completely distinct from each other whereas the other’s that include the like of Dr. B.R Ambedkar contended that the system in place in the U.S where the executive and the legislature function exclusively of each other is one where conflicts could arise, conflicts that would not be in the best interest of the society that the three organs are meant to serve.
He contended that the job of the members of parliament is one that is very difficult and there is a need to put in a place a system whereby the parliament can function on the guidance of the executive that would include The President, Vice-President, The Prime Minister and his Cabinet Ministers and Governor’s of State that overlook the functions of several branches of the society. These several branches can understand the various issues that the country is facing and advice the legislature accordingly.
Our constitution provides several exceptions where the president can take immediate legislative action when the both the houses of parliament are not in session if he thinks that it is necessary gives power to the president to make laws which he feels would be necessary for the given circumstances in the situation of a declaration of emergency. The decision of the President shall be final in matters of deciding the expulsion of a member of parliament. The President can grant pardon, respite, reprieve, suspend or remit the sentence or punishment given by the courts.
According to our constitution the judiciary and the executive are separate, but it is contradicted in the very same constitution where the executive exercises the powers of appointment of the Judges.
The High Courts and The Supreme can formulate and give their input on legislations that are being passed by the legislatures.
So here we can also see that in India, the idealist principle promulgated by Montesquieu regarding the absolute separation of power is not occurring in our country as well.
Conclusion
In the world that we live in today, it is an extremely difficult to have an absolute separation of powers with checks and balances as Montesquieu described it to be in his book ‘L’Esprit des Lois’ which is the benchmark that countries have tried to follow in terms of trying to have a perfect system that does not conflict each other and work in synchronised tandem to achieve a consensus that serve the people.
But the problem with this system is that it is idealistic and very difficult to implement in a society that is filled with all kinds of personalities. Many a time people who are elected in power forget why they are elected to such a power, many a time they forget that they are in power to serve the people who elected for them, or to give justice to the people who have suffered from grave injustices, taking all of these into consideration there can only be systems put in place which have to work in co-operation with each other, in the example that I have given in my introduction a football team cannot function to the best possible ability if players within a team cannot pass the ball to each other due to personal issues, for then the team will not be able to defeat the opposition team.
In case of a government, the opposing team would be the troubles faced by the people in a society and hindrances of people in order to achieve that will, Therefore it is necessary that like the defenders, midfielders and strikers in football, the legislature, executive and judiciary need to tackle issues that face the society in absolute harmony.
The separation of powers is a beautiful theory, a beautiful doctrine put in place by different philosophers over centuries and it is the reason that we today, get to live in peace and harmony and have functioning democracies that care about the rights of its individuals, without having this, we would have had one organ with excessive powers with no right to either life or personal liberty being granted to us. If it isn’t for this tri-partite system, power would corrupt and we could possibly put a check on it, but power vesting only in one organ, would mean excessive power, which in the famous of words of Lord Acton would mean a situation where ‘Absolute power corrupts absolutely’. -------------------------------------------------x----------------------------------------------