Separation of powers was once thought to be the only sensible rule of constitutional behaviour. Fundamental differences between the three branches of government—the legislature, the executive and the judiciary—prompted the conclusion that they should be separate and distinct. But this does not reflect how democratic governments around the world actually work.
In 1920, British historian Albert Pollard wrote in his book, The Evolution of Parliament, that the doctrine of separation of powers in politics “was an ingenious attempt to reduce the infinite complexity of government to the subtle simplicity of a constitutional Rule of Three”.
In the first half of the 20th century, academics—who were generally hostile to the traditional tripartite theory of separation of powers—argued for a system of government based on only two functions: policy and administration. This is because the problem at the centre of constitutional government today is how to achieve a balance between the different branches—a balance that will safeguard the freedom of the individual and at the same time ensure that governments provide their citizens with essential services, without which modern-day society cannot survive.
The initial doctrine of separation of powers had its roots in antiquity. Greek philosopher and polymath Aristotle (384-322 BCE) first mentioned the idea of “a mixed government” in his treatise Politics. Greek historian Polybius (200-118 BCE) later explained in some detail the system of checks and balances, crediting Spartan king Lycurgus with having established the first government of this kind.
In more recent times, scholars, governments and constitutions have approached the subject in different ways, adding layers of understanding to it.
One of the earliest and clearest statements of the separation of powers was propounded by French philosopher and judge Montesquieu (1689-1755) in his famous book, The Spirit of the Laws (1748). He noted: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty... there is no liberty if the power of judging is not separated from the legislative and executive... There would be an end to everything, if the same man or the same body... were to exercise those three powers”
By way of illustration, he added, “Among the Turks, where the three powers are united in the person of the sultan, an atrocious despotism reigns.”
Since the British constitutional system functioned quite smoothly between the king, parliament and the courts, Montesquieu boldly asserted that separation of powers was a necessary, if not sufficient, condition for liberty “since its absence promotes tyranny”.
English philosopher John Locke (1632-1704) reasoned about the need for separation of powers within a monarchial state: “It may be too great a temptation to human frailty for the same persons who have the power of making laws to also have in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law both in its making and execution to their own private advantage.”
As to why the doctrine of separation of powers—more accurately, of shared powers—was important, and was considered worth fighting for, was also emphasised by the author of one of the Federalist Papers, which were a precursor to the adoption of the Constitution of the United States of America in 1789—the modern world’s shortest written constitution, of less than 8,000 words. In Federalist Paper No 51, James Madison wrote: “In framing a government which is to be administered by men over men, the great difficulty lies in this—you must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of taking auxiliary precautions.”
In the Constitution of India, believed to be the world’s longest document of governance after the Constitution of the state of Alabama in the US, the doctrine of separation of powers is indeed recognised, “but not in its absolute rigidity”, observed a Constitution bench of India’s Supreme Court way back in 1955.
The court added: “But the functions of the different parts or branches of government are sufficiently differentiated, and consequently, it could be confidently said that our Constitution does not contemplate assumption by one organ, or part of the State, of functions that essentially belong to another.”
Separation of powers alone does not operate as a canonical principle of constitutionalism. In an article published in the Boston College Law Review in March 2013, law professor Jeremy Waldron proposed a close-knit set of five principles that are designed to work both separately and together. The principle of the separation of the functions of government from one another (the separation of powers principle); the principle that warns against the concentration of too much political power in the hands of any one person, group or agency (the division of power principle); the principle that requires the ordinary concurrence of one governmental entity in the actions of another, and thus permits one entity to check or veto the actions of another (the checks and balances principle); the principle that requires laws to be enacted by votes in two coordinate legislative assemblies (the bicameralism principle); and the principle that distinguishes between powers assigned to the federal government and powers reserved for states (the federalism principle).
None of these ‘principles’, of course, are made enforceable in written constitutions, because every written constitution divides power in its own particular way.
The principle of separation of powers continues to survive in 2023-24, but under its more appropriate umbrella term—the division of powers.
Fali S Nariman, Constitutional jurist and
senior advocate to the Supreme Court
( falinariman@gmail.com)