Montesquieu power not established has no constitution.[2] From this

Montesquieu in his work the spirit of laws provides a bleak picture of human nature wherein he observes that human beings have an inclination to do evil and according to him his involvement with them have taught him that a man invested with power is sure to abuse it and his endeavors will mostly be to carry out that power to the maximum extend.1

Even in the French declaration of the rights of man the article 16 states that a society where rights are not secured or separation of power not established has no constitution.2

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From this statement it is quite evident that separation of power becomes fundamental to the structure of a constitution and the effective functioning of a law and order in any nation.

 

 Separation of power could mean one of the following:-3

1. The difference in the function among the three branches

2. The difference in the personnel among the three branches

3. Ensuring the checks and balances among the three branches 

 

In the United States, the doctrine is followed in the rigid sense while it is not so in the UK or in India. The most focused upon aspect in the Indian Constitution is the step of ensuring checks and balances , each one has its own powers but with limitations which can be checked by the others to eliminate abuse of power.

 

In India there are instances where such functions overlap like in the case of maintaining law and order where section 144 is enforced, it is mostly done by the executive magistrate who is usually a member of the executive i.e. a collector who is allowed to also carry out the role of the magistrate in a limited sense. There are also instances where the legislature delegates the powers to the members of the executive for better efficiency. 

1.     History

 

Aristotle was the first one to suggest such a separation. In his book ‘The Politics’ he suggested three elements that needs to be arranged in order to have a well-organized constitution and he also mentioned that the contrasts in the various constitutions across the world would be a result of the contrasts in the functioning of the three elements. The three elements as per Aristotle were – first the deliberative which is responsible for discussions of common importance, second the official who has the obligation to implement the methodologies adopted in the discussions made by the deliberative and third the judicial element where the actions of all the people in the deliberative or officials can undergo scrutiny in case of breach of law. 4

The more famous adaptation of the version was that of Montesquieu who divided the government into three branches – legislature, executive and judiciary where each of them are in charge of the formation , implementation and dispute resolution aspects of  law.

Montesquieu believed in the philosophy of limited power through dissonant harmony. He believed that it was healthy to have differences amongst the various branches in a way that each had its own powers as well as limitations avoiding situations of excessive power at the hand of a single individual.5

     I.          The Three Branches6

 

1.     The Legislature

In India the legislature has two bodies Lok Sabha and Rajya Sabha. It is responsible for enacting laws, impose taxes, dealing with matters related to war, set a budget and allocate it etc. It is also responsible for checking the actions of the executive and thereby satisfying the system of checks and balances.

 

2.     The Executive

The Executive has its own set of powers invested upon it like commanding the military, the president can grant pardon to convicted criminals. It has the right to veto laws. The executive is under a constant check by both the judiciary and the legislature which limits its powers. The President, Ministers of the cabinet headed by the Prime Minister, the Governor, and Members of the police force are all members of the Executive in India.

 

3.     The Judiciary

The Judiciary is considered to be the guardians or custodians of the rights of the people given under the constitution. While the laws are made by the legislature and implemented by the Executive it is the duty of the judiciary to interpret the laws by the legislature and check the validity of the actions of the executive. Judiciary in India consists of all the lower level Courts, district courts, High courts and the Supreme Court of India.

 

  II.          Case laws

 

1.     Foreign Cases

 

a)     Nolan LJ in his judgment of M v Home secretary very clearly describes the situation of the separation. He says that the relationship between the executive and the judiciary as per the constitution is that while the latter will respect all the acts of the executive within its power as per law the former needs to respect all the decisions of the judiciary as to what it’s lawful powers can entail.7

 

b)     In the landmark judgment of Entick v Carrington the Secretary of State had issued a warrant to enter the property of Entick and seize goods .This was done because of the political pressure Entick could pose on the government through print media. Entick filed a case of trespass against the Secretary of State. The defense then taken was that it was a state necessity and done because such actions by the state were never questioned before. The ruling of Justice Camden in this case is what establishes the relevance of rule of law and the importance of the doctrine of separation of powers. He ruled that by the law of the land any invasion on private property was trespass and in order to justify such actions there should be some statutory power. The existence of such power should be available in the texts of law if not then it is clearly not a law.8

 

2.     Indian Cases

 

a)     In the case of the Kesavananda Bharti v State of Kerala it was ruled that the basic structure of the constitution must not be violated even within the amending powers that have been granted to the parliament through Article 368.9

b)     The above judgment was further re-enforced in the case of Indira Gandhi V Raj Narain where the prime minister had amended the constitution to include absolute power to the legislature for matters concerning elections. The Supreme Court struck down the amendment as unconstitutional.

 

The above two cases clearly showcase the way separation of powers works in India. Though not specifically mentioned in the constitution it forms the basis for the functioning for our democracy. It works to establish prevention of absolute power into the hands of one of the branches of the government.10

 

Also, the recent decision of the triple talaq case is a good example of separation of power. While the Supreme Court ruled the practice as arbitrary and unconstitutional the matter is now with the legislature who is responsible for making new laws governing the practice. The role of the legislature is to make laws while role of the judiciary is to understand if the current practice is against the law.

 

IV.          Conclusion

 

The functioning of any democracy is only possible with an efficient distribution of powers. Unlike countries that follow monarchy where absolute power is invested upon the King, democratic governments seek to enforce the rights of the citizens.

 

For such a government to function properly it is essential that each of them have demarcated powers. The Supreme Court has ruled that the Doctrine of Separation of power is a basis for the constitution though not explicitly stated in it. Without the application of the doctrine, India would have lost its status of being a democracy or welfare state years ago.