INTRODUCTION

The accumulation of all powers, legislative, executive and judicia in the same hands,
whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may
justly be pronounced the very definition of tyranny - James Madison.
The doctrine of separation of powers contemplates the idea that the governmental functions must
be based on a tripartite division of legislature, executive and judiciary. The three organs should
be separate, distinct and sovereign in its own sphere so that one does not trespass the territory of
the other. This theory has been given by the famous French philosopher Montesquie which is one
of the fundamental principles of modern constitutionalism and of government by law.
The doctrine of separation of powers envisages a tripartite system. Powers are delegated by the
Constitution

to

the

three

organs,

and

delineating

the

jurisdiction

of

each.

The position in India is that the doctrine of separation of powers has not been accorded a
constitutional status. In the Constituent Assembly there was a proposal to incorporate this
doctrine in the Constitution but it was knowingly not accepted and as such dropped. Apart from
the directive principles laid down in Article 50 which enjoins separation of judiciary from the
executive, the constitutional scheme does not embody any formalistic and dogmatic division of
powers.

MEANING OF SEPERATION OF POWERS

Understanding that a government's role is to protect individual rights, but acknowledging that
governments have historically been the major violators of these rights, a number of measures
have been devised to reduce this likelihood. The concept of Separation of Powers is one such
measure. The premise behind the Separation of Powers is that when a single person or group has
a large amount of power, they can become dangerous to citizens. The Separation of Power is a
method of removing the amount of power in any group's hands, making it more difficult to
abuse. It is generally accepted that there are three main categories of governmental functions
(i) the legislative, (ii) the Executive, and (iii) the Judicial. At the same time, there are three main
organs of the Government in State i.e. legislature, executive and judiciary. According to the
theory of separation of powers, these three powers and functions of the Government must, in a
free democracy, always be kept separate and exercised by separate organs of the Government.
Thus, the legislature cannot exercise executive or judicial power; the executive cannot exercise
legislative or judicial power of the Government.
As the concept of Separation of Powers explained, the theory signifies the following three
different things:1
1

That the same person should not form more than one of the three departments of the
government;

That one department of the government should not interfere with any other department;

That one department of the government should not exercise the functions assigned to any
other department2.

IMPORTANCE OF THE DOCTRINE

The doctrine of separation of power in its true sense is very rigid and it is one of the reasons of
why it is not strictly accepted by a large number of countries in the world. The main object, as
1 Vanderbilt- The doctrine of separation of powers and its present day significance,
page, 38-45.
2 Ibid

per Montesquieu - Doctrine of separation of power is that there should be government of law
rather than having willed and whims of the official. Also another most important feature of this
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.

MONTESQUIEUS THEORY OF SEPARATION OF POWER:

The French philosopher Montesquieu pointed out early in the sixteenth century that placing
power in the hands of only one organ or group in a government entails tyranny. Thus to check
this problem he felt that the solution would be to vest power in three distinct organs of the
government, namely, the legislature, the executive and the judiciary. This would allow each
organ to be independent of the other such that no encroachment or overlapping of powers may
exist and a harmony may be reached which would aid the smooth running of the government.
These words state the Doctrine of Separation of Powers as given by Montesquieu, 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 laws, that of
executing public resolutions, and of trying the causes of individuals.
This doctrine stands testimony to Montesquieus belief that powers of the executive and the
legislature if vested in the same hands would result in a situation of arbitrariness and despotism,
for the executive will be enabled with the power of having any laws it wishes, to be passed,
alternatively if the judiciary and legislature or executive were not separated then the common

man would have no defence against the state. These Montesquieu saw as a serious threat to the
liberty of the people and in order to preserve them extolled the theory of separation of powers.
The American politician. James Madison, who is better known as the Father of the American
Constitution also believed the same and articulated the following, 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.
The paradigm example of Montesquieus doctrine is the United States of America, where the
separation is guaranteed by the Constitution, guarded by the courts. The federal legislative power
is vested in congress, the federal executive power is vested in the President and his cabinet and
the federal judicial power in the Supreme Court and there exists a great deal of inter-relation
between them3.

3 Dias, Jurisprudence, Lexis Nexis,5 th edition