Meaning of separation of power

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 derived 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-a)
legislative b) executive, and c) judicial. Likewise, there are three main organs of the Government
in a State-a) Legislature, b) Executive and c) 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 be exercised by three separate organs of the Government. Thus, legislature
cannot exercise legislative or judicial power; the Executive cannot exercise legislative or judicial
and the Judiciary cannot exercise legislative or executive power of the Government.
Montesquieus Doctrine
Though the doctrine of Seperation of Power is traceable to Aristotle but the writings of Locke
and Montesquieu gave it a base on which modern attempts to distinguish between legislative,
executive and judicial power is grounded. Locke distinguished between what he called:

i) Discontinuous legislative power;

ii) Continuous executive power;

iii) Federative power.

He included within discontinuous legislative power the general rule making power called into
action from time to time and not continuously. Continuous executive power included all those
powers which we now call executive and judicial. By federative power he meant the power of
conducting foreign affairs.
Montesquieu, a French scholar, found that concentration of power in one person or a group of
persons results in tyranny. And therefore for decentralization of power to check arbitrariness, he
felt the need for vesting the governmental power in three different organs, the legislature, the
executive, and the judiciary. The principle implies that each organ should be independent of the
other and that no organ should perform functions that belong to the other.

Montesquieu in the following words stated the Doctrine of Separation of Powers 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.

This theory has had different application in France, U.S.A., England and India. In France, it
resulted in the rejection of the power of courts to review the acts of the legislature or the
executive. The doctrine was never accepted in its strict sense in England. About U.S.A and India
it will be further dealt in brief.

Constitutional Status of Separation of Power in USA

Doctrine in USA
The doctrine of Separation of Powers forms the foundation on which the whole structure of the
Constitution is based. It has been accepted and strictly adopted in U.S.A. Article I; Section 1
vests all legislative powers in the Congress. Article II; Section 1 vest all executive powers in the
President and Article III; Section 1 vests all judicial powers in the Supreme Court.

Jefferson quoted, The concentration of legislative, executive and judicial powers in the same
hands in precisely the definition of despotic Government.

On the basis of this theory, the Supreme Courts was not given power to decide political questions
so that there was not interference in the exercise of power of the executive branch of
government. Also overriding power of judicial review is not given to the Supreme Court. The
President interferes with the exercise of powers by the Congress through his veto power. He also
exercises the law-making power in exercise of his treaty-making power. He also interferes in the
functioning of the Supreme Court by appointing judges.

The judiciary interferes with the powers of the Congress and the President through the exercise
of its power of judicial review. It can be said that the Supreme Court has made more amendments
to the American Constitution than the Congress. To prevent one branch from becoming supreme,
protect the "opulent minority" from the majority, and to induce the branches to cooperate,
governance systems that employ a separation of powers need a way to balance each of the
branches. Typically this was accomplished through a system of "checks and balances", the origin
of which, like separation of powers itself, is specifically credited to Montesquieu. Checks and
balances allow for a system based regulation that allows one branch to limit another, such as the
power of Congress to alter the composition and jurisdiction of the federal courts.

Legislative power
Congress has the sole power to legislate for the United States. Under the non-delegation doctrine,
Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the
Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not
delegate a "line-item veto" to the President, by which he was empowered to selectively nullify
certain provisions of a bill before signing it. The Constitution Article I, Section 8; says to give all
the power to Congress. Congress has the exclusive power to legislate, to make laws and in
addition to the enumerated powers it has all other powers vested in the government by the
Constitution. Where Congress does not make great and sweeping delegations of its authority, the
Supreme Court has been less stringent. One of the earliest cases involving the exact limits of
non-delegation was Wayman v. Southard (1825). Congress had delegated to the courts the power
to prescribe judicial procedure; it was contended that Congress had thereby unconstitutionally
clothed the judiciary with legislative powers.
Executive Power
Executive power is vested, with exceptions and qualifications, in the president by Article II,
Section 1, of the Constitution. By law the president becomes the Commander in Chief of the
Army and Navy, Militia of several states when called into service, has power to make treaties
and appointments to office -- "...with the Advice and Consent of the Senate"-- receive
Ambassadors and Public Ministers, and "...take care that the laws be faithfully executed"
(Section 3.) By using these words, the Constitution does not require the president to personally
enforce the law; rather, officers subordinate to the president may perform such duties. The
Constitution empowers the president to ensure the faithful execution of the laws made by
Congress. Congress may itself terminate such appointments, by impeachment, and restrict the
president. The president's responsibility is to execute whatever instructions he is given by the
Congress.
Congress often writes legislation to restrain executive officials to the performance of their duties,
as authorized by the laws Congress passes. In INS v. Chadha (1983), the Supreme Court decided
(a) The prescription for legislative action in Article I, Section 1requiring all legislative powers
to be vested in a Congress consisting of a Senate and a House of Representativesand Section 7
requiring every bill passed by the House and Senate, before becoming law, to be presented to
the president, and, if he disapproves, to be repassed by two-thirds of the Senate and House
represents the Framers' decision that the legislative power of the Federal Government be
exercised in accord with a single, finely wrought and exhaustively considered procedure. This
procedure is an integral part of the constitutional design for the separation of powers. Further
rulings clarified the case; even both Houses acting together cannot override Executive vetos
without a 2/3 majority. Legislation may always prescribe regulations governing executive
officers.

Judicial power
Judicial power the power to decide cases and controversies is vested in the Supreme Court
and inferior courts established by Congress. The judges must be appointed by the president with
the advice and consent of the Senate, hold office for life and receive compensations that may not
be diminished during their continuance in office. If a court's judges do not have such attributes,
the court may not exercise the judicial power of the United States. Courts exercising the judicial
power are called "constitutional courts." Congress may establish "legislative courts," which do
not take the form of judicial agencies or commissions, whose members do not have the same
security of tenure or compensation as the constitutional court judges. Legislative courts may not
exercise the judicial power of the United States. In Murray's Lessee v. Hoboken Land &
Improvement Co.(1856), the Supreme Court held that a legislative court may not decide "a suit at
the common law, or in equity, or admiralty," as such a suit is inherently judicial. Legislative
courts may only adjudicate "public rights.

Even though of above all, Separation of Powers is not accepted in America in its strict sense,
only it has attracted the makers of most modern Constitution, specially during 19th Century.

In a leading case: Marbury v. Madison,

Marbury v. Madison is a landmark case in United States law. It formed the basis for the exercise
of judicial review in the United States under Article III of the Constitution.

This case resulted from a petition to the Supreme Court by William Marbury, who had been
appointed by President John Adams as Justice of the Peace in the District of Columbia but whose
commission was not subsequently delivered. Marbury petitioned the Supreme Court to force
Secretary of State James Madison to deliver the documents, but the court, with John Marshall as
Chief Justice, denied Marbury's petition, holding that the part of the statute upon which he based
his claim, the Judiciary Act of 1789, was unconstitutional.

Marbury v. Madison was the first time the Supreme Court declared something "unconstitutional",
and established the concept of judicial review in the U.S. (the idea that courts may oversee and
nullify the actions of another branch of government). The landmark decision helped define the
"checks and balances" of the American form of government.

Separation of powers has again become a current issue of some controversy concerning debates
about judicial independence and political efforts to increase the accountability of judges for the
quality of their work, avoiding conflicts of interest, and charges that some judges allegedly
disregard procedural rules, statutes, and higher court precedents.

It is said on one side of this debate that separation of powers means that powers are shared
among different branches; no one branch may act unilaterally on issues, but must obtain some
form of agreement across branches. That is, it is argued that "checks and balances" apply to the
Judicial branch as well as to the other branches.
It is said on the other side of this debate that separation of powers means that the Judiciary is
independent and untouchable within the Judiciaries' sphere. In this view, separation of powers
means that the Judiciary alone holds all powers relative to the Judicial function, and that the
Legislative and Executive branches may not interfere in any aspect of the judicial branch.

The framers of the Constitution feared too much centralized power, adopting the philosophy of
divide and conquer. At the national level, they created three different branches of government to
administer three different types of power. The legislative branch made the laws through a
Congress of two houses, the Senate and the House of Representatives. The executive branch
enforced the laws through a president, vice president, and numerous executive departments such
as Treasury and State. And the judicial branch interpreted the laws through a Supreme Court and
other lower courts. In the words of James Madison: The accumulation of all powers, legislative,
executive, and judiciary, 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.
Within the separation of powers, each of the three branches of government has checks and
balances over the other two. For instance, Congress makes the laws, but the President can veto
them and the Supreme Court can declare them unconstitutional. The President enforces the law,
but Congress must approve executive appointments and the Supreme Court rules whether
executive action is constitu-tional. The Supreme Court can strike down actions by both the
legislative and executive branches, but the President nominates Supreme Court justices and the
Senate confirms or denies their nominations. Ambition must be made to counteract ambition,
wrote James Madison in Federalist 51, so that each branch will seek to limit the power of the
other two branches to protect its own power. Such a system makes concerted action more
difficult, but it also makes tyranny less likely.

Separation of Powers with Checks and Balances

The accumulation of all powers, legislative, executive and judicia[l] 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, Federalist No. 51, 1788).

James Madison theorized that as it is the Constitution that grants each branch its power,
honorable ambition that ultimately serves the highest interests of the people could work to
maintain the separation.
The Founding Fathers were well-acquainted with a long-held tenet of government: the
accumulation of power by a single person or body of government is the greatest threat to liberty.
In fact, a celebrated feature of the Constitution, the separation of powers doctrine, developed
over the course of many centuries.
As early as 350 B.C., Greek philosopher Aristotle observed in the Politics that every government,
no matter its form, performed three distinct functions: the deliberative, the magisterial, and the
judicative. In modern terminology these activities correlate, respectively, to the legislative (law-
making), executive (law-enforcing) and judicial (law interpretation) functions of government.
While Aristotle identified these basic powers common to all governments, he did not necessarily
suggest that they should be exercised by entirely different branches.
The principle that major governmental functions should be divided into different branches would
be advanced centuries later. The French philosopher Baron de Montesquieu, [t]he oraclethe
celebrated Montesquieu, as James Madison referred to him, advocated three distinct and
separate branches in which the general powers of government should be lodged. While John
Locke made the case for separating the legislative and executive powers, Montesquieu provided
the Founders with a convincing defense for an independent judiciary:
When the legislative and executive powers are united in the same person, or in the same body of
magistrates, there can be no liberty Again, there is no liberty, if the judiciary power be not
separated from the legislative and executive. Were 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. Were it joined to the executive power, the judge might behave with violence and
oppression. There would be an end to everything, were the same man, or the 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 (Baron de Montesquieu,
Spirit of Laws, 1748).
It was Montesquieus vision of a truly separated, tripartite system that the Founding Fathers
would come to adopt at the Constitutional Convention. Article I, Section 1 of the U.S.
Constitution vests legislative powers in a Congress of the United States, itself separated into a
House of Representatives and a Senate. Article II, Section 1 vests executive authority in a
President of the United States. Article III, Section 1 vests judicial authority in a single Supreme
Court of the United States and in such inferior Courts as the Congress may from time to time
ordain and establish.
During the ratification debates from 1787 to 1788, some critics charged that upon close
inspection the separation of powers in Articles I-III of the Constitution were not as complete as
Montesquieu appeared to advocate and would tend toward an accumulation of power in one
branch or another over time. The president, for example, has the power to accept or reject a bill
duly passed by Congress, a seemingly legislative power. For its part, the Senate may approve or
reject a presidential appointment to his own branch, a seemingly executive power.
The Constitutions critics were right; the Framers did not propose a pure separation of powers.
Madison retorted that a pure separation of powers was neither what Montesquieu intended nor
practical:
[Montesquieu] did not mean that these [branches] ought to have no partial agency in, or no
control over, the acts of each other. His meaningcan amount to no more than this, that where
the whole power of one [branch] is exercised by the hands that hold the whole power of another,
the fundamental principles of a free constitution are subverted. [T]here is not a single instance in
which the several [branches] of power have been kept absolutely separate and distinct (James
Madison, Federalist No. 47, 1788).

The French philosopher Baron de Montesquieu advocated three distinct and separate branches in
which the general powers of government should be lodged.
Implicit in Madisons argument was an interesting challenge to the very doctrine of separation of
powers: what will prevent the accumulation of power in the absence of pure separation? The
answer was to be found in a unique feature of the Constitution: the pairing of separated powers
with an intricate system of checks and balances designed to give each branch fortifications
against encroachments by the others. The Madisonian Model, as it is now generally called,
gave genuine and practical life to both the observation of Aristotle and the vision of
Montesquieu.
At the heart of the Madisonian Model is ambition. A desire for power, influence, and authority is
embedded deeply in human nature. For many people, the very word ambition smacks of greed,
corruption, or a win-at-all-cost mentality.
Madison saw it differently. Ambition, if properly harnessed by good judgment and rooted in an
appreciation for the benefits of constitutional republicanism, could work to advance the public
good. It could be beneficial not only to the effective separation of powers but to limited
government and liberty itself. In Federalist No. 51, James Madison stated:
The great security against a gradual concentration of the several powers in the same [branch],
consists in giving to those who administer each [branch], the necessary constitutional means, and
personal motives, to resist encroachments of the othersAmbition must be made to counteract
ambition. The interest of the man must be connected with the constitutional rights of the place
(James Madison, Federalist No. 51, 1788).
In our system of separated powers, each branch of government is not only given a finite amount
of power and authority but arrives at it through entirely different modes of election. Madison
theorized that as it is the Constitution that grants each branch its power, honorable ambition that
ultimately serves the highest interests of the people could work to maintain the separation. In
other words, since Congress is not dependent on the presidency or the courts for either its
authority or its election to office, members will jealously guard its power from encroachments by
the other two branches and vice versa. For Madison, this organization of powers answered the
great challenge of framing a limited government of separated powers: first enabl[ing] the
government to control the governedand in the next place, obling[ing] it to control itself
(James Madison, Federalist No. 51, 1788).
What does Madisons theory look like in practice? While it is the legislative branch that makes
law, the president may check Congress by vetoing bills Congress has passed, preventing them
from being enacted. In turn, Congress may enact a law over the presidents objection by
overriding his veto with a vote of two-thirds of both the House and Senate. The Supreme Court
can then check both branches by declaring a law unconstitutional (known as judicial review), but
the Supreme Court itself is checked by virtue of the fact the president and Senate appoint and
approve, respectively, members of the Court. Furthermore, both the president and federal judges
are subject to impeachment by Congress for treason, bribery, or other high crimes and
misdemeanors (United States Constitution: Article II, Section 4).

The President may check Congress by vetoing bills Congress has passed. Congress may override
the president's veto with a vote of two-thirds of both Houses. The Supreme Court can then check
both branches by declaring a law unconstitutional.
By and large, Madisons model remains constitutionally intact, but many people wonder if our
system still balances power, in reality and in practice, to the extent that he envisioned. Our
checks and balances system reflects an understanding about republican government, held by
many Founders, that the legislative branch should be the superior branch and, therefore, most in
need of restraint. They reasoned that this is the case because We the People govern ourselves
through the laws we give ourselves through our elected representatives in the legislative branch.
The legislative [branch] derives superiority [i]ts constitutional powers [are] more extensive,
and less susceptible to precise limits [it] is not possible to give each [branch] an equal [number
of checks on the other branches] (James Madison, Federalist No. 48, 1788).
Some observers maintain that this conception of the legislative as the predominant branch is
obsolete in modern times. The executive and judicial branches have expanded their powers
beyond the Founders expectations over time (i.e. executive orders, the role of the Supreme Court
as the arbiter of laws at every level, not just the federal level.) Is Madisons assumption of
legislative superiority true today? If you were asked to pick a branch to describe as most
powerful would your answer mirror Madisons?
Despite disagreement as to how well it has worked, one characteristic of the checks and balances
system cannot be denied: it encourages constant tension and conflict between the branches. That
conflict, however, is frequently beneficial, and our Constitution smiles upon it.