Although, the origin of this doctrine can be traced back originally to the days of Aristotle, but its real discovery insofar as laying down a foundation on which modern attempts to distinguish between legislative, executive and judicial powers in a given political system is attributed to the great French jurist, Montesquieu who expounded this doctrine in clear terms in his famous work-Esprit Des Lois (the spirit of the laws) in the year 1748. Therefore, writing in 1748, Montesquieu thus observed:

“When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should exact tyrannical laws or to execute them in a tyrannical manner. Again there is no liberty if the judicial power be not separated from the legislative and the executive. Because, where it is joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then a legislator. And where it is joined to the executive power, the judge might behave with violence and oppression. He further observed that there would be an end of everything, where the same man or the same body, whether of the nobles or of the people were to exercise those three powers i.e. of making laws, of executing them or of trying the causes of individuals.”

Based on the above observations of Montesquieu, it can thus be concluded that the so called theory of separation of powers, clearly signifies the following three important formulations in so far as the structural classification of government powers is concerned:

First, the same person should not form part of more than one of the three organs of the government say for example; the ministers should not sit in the parliament.

Second, one organ of the government should not interfere with any other organ of the government.

Third, that one organ of the government should not exercise the functions that belong to or assigned to any other organ.

It is significant to note that Montesquieu derived the contents of his doctrine solely from the developments that he observed in the British Constitutional history of the early 18^th century when the king used to exercise all executive powers, the Parliament used to exercise legislative powers and the Courts used to exercise judicial powers although, this structural classification of functions did not last long in England due to its switching over to present days Parliamentary form of government, better referred to as the cabinet form of government.

Therefore, in the present context, it can now be easily pointed out that in none of these senses as what was witnessed by Montesquieu in the 18^th century England, does a separation of powers exist in England today or ever since the parliamentary system has dawned in that country. Thus, the king though is an executive head, but at the same time, is also an integral part of the legislature. Similarly, all his ministers who actually constitute the real executive are also the members of one or the other house of the parliament. Furthermore, the Lord Chancellor is at the same time, a member of the House of Lords, a member of the government and simultaneously, the senior most member of the judiciary.

In this context therefore, it can be said that the concept of “Parliamentary executive” that is prevalent in England today, is a clear-cut negation of the first Montesquieuon proposition as stated above which says that the same person should not form part of more than one of the three organs of the government. So far as the second formulation of Montesquieu’s doctrine of separation is concerned, it is clear that the house of commons ultimately controls the executive. Similarly, with regard to the judiciary, the judges of all superior courts are being removed from their office on an address from both the houses of the parliament.

With regard to the third formulation that one organ of the government should not perform the functions as belong to any other organ and in this regard also, there is no separation of powers that exists in England today. This is clear from the fact that the House of Lords combines both judicial and legislative functions in its hands just because, in the first place, the whole House of Lords as such, constitutes, in theory, the highest court of the country although, in practice by virtue of constitutional conventions, judicial functions are being exercised by some specially appointed Law Lords who are chosen from amongst those lords who have had held some judicial office. Again then in the same context, the legislative and adjudicatory powers are being increasingly delegated to the executive and thus, clearly distracts from the doctrine of separation of powers.

Taking the application of this doctrine to America, prima-facie, it is quite clear that this doctrine essentially forms the foundation on which the whole superstructure of the American Constitutional scheme is based as is evidenced from the following explicit provisions contained in the US constitution:

Article 1 of the US Constitution vests all legislative powers in the hands of the US legislature called as Congress.

Article 2 of the Constitution vests all executive powers in the US president and similarly. Article 3 vests all judicial powers in the Supreme Court or judiciary.

Logically enough, it is on the basis of this separation of powers as followed in USA that the US Supreme court has not been given any power to decide upon any political questions in order to ensure that the judiciary should not interfere with the exercise of the power as it belongs to the executive branch of the government. At the same time, the US Constitution also does not give any overriding power of judicial review to its Supreme Court although, it remains to be a queer fact of the American Constitutional history that the present day’s power of judicial review has but been usurped by the American Supreme Court in very glaring terms.

Now the pertinent question that comes to the fore is that does the American Constitutional scheme really stick to the doctrine of separation of powers in strict terms, even today?

Based on a multitude of constitutional development that have happened in USA over the years in the face of massive proliferation in the functions of the government owing to the development of a modern welfare state that is true to any modern welfare state today, it has been observed and rather has become an inevitable fact that a strict structural classification of government functions and powers into three water tight compartments is an absolute impossibility today as is envisaged by Montesquieu’s doctrine and thus, a functional overlapping is inevitable under any modern government say for example, it is not possible for a legislature anywhere in the world to enact the universal laws that are to be applied universally to all the people irrespective of the regional, locational or situational diversities which necessarily calls for a separate treatment under different circumstances. This necessarily calls for a delegation of legislative power to local authorities including the permanent executive which is understandably much more versed with the local conditions than the supreme legislature do and hence, the advent of so called delegated legislation in almost all democracies of the world.

Noting the similar exigencies, the president of USA today interferes with the powers of the legislature i.e. Congress through the exercise of his veto powers. He also exercises some amount of legislative power through his treaty making power and the president does interfere with the functioning of the Supreme Court by exercising his power of appointing the judges.

In the same manner, the US Congress interferes with the powers of the president through its voting power on the budget including the ratification of his treaties entered into by him. At the same time then, the Congress also interferes with the exercise of the powers by the courts by enacting procedural laws, creating special courts and by approving the appointment of judges etc… On the other hand, the judiciary does interfere with the functioning of the legislature as well as of that of the President through its power of judicial review. There is no denying the fact that the American Supreme Court has made more amendments to its Constitution than the Congress itself.

It is indeed a curious fact to know that although; no strict structural classification is possible in practical terms, in any modern state yet, the doctrine has had a profound influence on the makers of the most of the modern Constitutions in the world including that of India although, the doctrine has not been accorded a Constitutional status by the makers of the Indian Constitution.

Nevertheless, the Constitution makers did provide for an explicit provision under one of the directive principles under Article 50 which clearly enjoins a duty on the part of the state to separate the judiciary from the executive and the state did accomplish that duty by enacting the criminal procedure Act in 1973. Other than the above provision, the Indian Constitutional scheme does not embody any formalistic and dogmatic division of powers most likely on the ground that India has followed the British model of the government. As the Supreme Court observed in this regard in Ram JawayaKapoorVs State of Punjab-1955 in the following words:

“ Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute terms, but then the functions of the different branches or organs of the government have been sufficiently demarcated and differentiated by the Indian Constitution. Consequently, it can very well be said that our Constitution does not contemplate the assumption of the functions that essentially belong to one organ of the government or state by another.”

In the same vein, the S.C observed in Indira Nehru Gandhi Vs Raj Narain-1975 case

“That the separation of powers is a part of the basic structure of the constitution. None of the three separate organs of the republic can take over the functions that are assigned to the other. As such, this implied scheme of the constitution cannot be changed even by resorting to Article 368 of the Constitution.”

The bottom line: Although, it is an admitted fact that the doctrine in its classical sense which is more a structural rather than a functional concept, cannot be literally applied to any modern government just because, neither the powers of the government can be kept in water tight compartments nor can any government be run on strict separation of powers. But this does not mean that this doctrine has no relevance in the world of today as the logic and rationale behind this doctrine is still very much valid today. The sheer logic behind the relevance of this doctrine lies in the fact that the centre of authority in any government must be dispersed rather than concentrated so as to avoid absolutism and this was what Montesquieu had actually contemplated through the formulation of his doctrine as he wanted to raise objection through his doctrine against accumulation and monopoly of power rather than interaction. Moreover, Montesquieu himself had never used the term separation in his doctrine.

In essence therefore, it is not the impassable barriers and unalterable frontiers, but a mutual restraint in the exercise of power by the three organs of the state, is what that constitutes the heart and soul of the doctrine of separation of powers. In this sense therefore, the doctrine can be better appreciated and nomenclatured as a doctrine of “checks and balances”. In this sense therefore, the growth of administrative process in any modern welfare state may not be considered as an antithesis of the doctrine of separation of powers.

Giving more content and meaning in terms of sticking to the right side of the doctrine of separation of powers, the Supreme Court observed in the recent case entitled:

Divisional manager, Aravali Golf club VsChander Hass-2008

In this case, a two judge bench of the S.C while citing Montesquieus stated in explicit terms that Montesquieus theory of separation of powers and the dangers involved in deviating from this doctrine was not a healthy development in any democratic polity so much so that it even went on to issue an apt warning to the judiciary not to deviate but stick to the right side of this doctrine in view of the fact that the judiciary had occasionally been criticized for its judicial overreach by encroaching upon the domain of other two organs of the government…

Dispute redressal mechanisms and Institutions against the growth of administrative process:

As we have already noted that there is hardly any democratic country in the world which strictly subscribes and adheres to the doctrine of separation of powers in the classical sense because, neither the three organs of the government can be kept in three water tight compartments nor it is possible to run the affairs of any modern government by strictly adhering to its traditional powers and functions. This reality can be corroborated further by the fact that every modern state today is a welfare state and the traditional state organs can neither cope up with such a massive burden of enacting legislations or their execution, nor can boast of that expertise and technical acumen that a mass of legislations required in the wake of the evolution of a modern welfare state and thus, the growth of administrative processes becomes an inevitable part of any modern state wherein a variety of administrative agencies have cropped up performing a whole lot of adjudicatory, legislative and executive functions. Even the USA is not an exception to this phenomenon in spite of the fact that its Constitutional scheme is inherently founded on the doctrine of separation of powers. In this context, it may not be correct to say that the growth of administrative process is an antithesis to the doctrine of separation of powers just because, if there are proper checks and balances in place to circumscribe the powers of administrative authorities then it will not only accelerate the concept of a welfare state, but also preserve the Constitutionalism in a country…

One of such institutional mechanisms for the redressal of disputes against the administrative process found almost in every democratic country of the world is the power of judicial review vested in the Courts which deserves a special mention in the Indian context. Its significance may be appreciated from the fact that the Supreme Court in a plethora of cases has declared it as one of the most supreme of all the basic features of the Constitution. Here we go to explain the concept of judicial review and try to appreciate its significance insofar as keeping a check on the unbridled administrative or legislative power in our country is concerned: