The Doctrine of Separation of Powers: Challenges in Modern Democracy
Author- Arsha Rana, B.A.LLB(Hons), Faculty of Law, Jamia Millia Islamia University New Delhi
Abstract:-
The
doctrine of separation of powers, a cornerstone of democratic governance, aims
to prevent the concentration of authority by dividing governmental functions
among the legislature, executive, and judiciary. This principle was designed to
ensure accountability and checks and balances. This paper explores various
systems across the world democracies.
This paper also explores the evolution of this principle in ancient as well
as modern system. This paper explores the growing complexities and challenges
faced in maintaining a clear separation of powers in today’s political
landscape. Factors such as executive dominance, judicial overreach,
politicization of institutions, and the expanding role of bureaucracy have
contributed to a gradual erosion of boundaries between branches. Ultimately, it
emphasizes the significance of democratic norms and safeguards to ensure the
decentralization of powers.
Keywords: Separation of powers,
centralization, judicial activism,
judicial overreach, executive gridlock etc.
Introduction:-
Basically, governmental
powersare divided among the various organs of government along with the
functions of the government. The idea of ‘separation of power’ was proposed
by ‘Montesquieu’ and signifies that the government should have three
organs of the government such as executive, legislature and judiciary and the
powers rather than functions of government, should be separated from each other. Basically, this doctrine rejects
the ‘duality theory’ where government has two organs such as executive and
legislature and doesn’t include judiciary as main organ rather consider it as a
sub-organ of executive organ of government. Instead, this doctrine sticks the
‘trinity theory’ of government whereby government has three independent organs
and function of each organ should be separated from other organs so as to ensure
that the liberty of individual is to be
saved from crushing of the authority of
the state. Doctrine of separation of power along with checks and balances
ensures the effective administration and governance in country. Interlink-age
of three organs of government in a way that one acts as a check on the other
two organs of government which results as the condition of balance of power in
government.[1]
Historical Background
and Theoretical Foundations:-
Doctrine of separation
of power proposes that there should be three organs of government and should be
kept apart with their separate acts and functions. Powers and functions of government should be
exercised in a way that each department be limited to its respective sphere of
activity and may not encroach upon the independence and jurisdiction of other
organs. The whole idea is based on the maxim that power should be a check to
power. The idea of separation of power is not new to the contemporary world and
has been proposed by various eminent ancient scholars such as Montesquieu,
Locke and Aristotle and others such as Harrington and Bodin etc. Aristotle
classified the mechanism of government into three departments such as
deliberative, executive and judicial. Even the writings of Roman Republic,
Polybius and Cicero have affirmed its excellence and effectiveness because of
the presence of checks and balance in its organisation. Although Bodin pointed
out that this system is very much prone to the danger of monarch administering
justice, so there is a need of judicial magistrates entrusted with the judicial
function. But, all such expressions were vaguer. A better expositions was laid
down by eminent scholar John Locke who said that it “May be too great a temptation to human frailty, apt to grasp a power
for the same person who have the power of making laws to have also in their
hands the power execute them, whereby they may exempt themselves from obedience
to the laws theymake.”[2]
However, the bestexposition
of this doctrine is contained in De
l’Esprit des Lois work of Montesquieuwho
isworthydiscipleof Lockeas well as
father of this doctrine. His work was influenced by Westminster model of
government. [3]
Doctrine
in Practice: Comparative Overview of application in different Democracies
Doctrine
of separation of powers is premised on the concept of concentration of powers[4] in one
government institution or person results in arbitrary governance.Legislative
function is essentially prospective, prescriptive and general. It determines
the behaviour of persons at relevant circumstances from a certain point of time
in the way legislation stipulates. While the judicial function is
retrospective, determinative and specific because judicial pronouncement and
adjudication is done to correct or to deter the behaviour of a person committed
in past. But the function of executive does not fit into third symmetrical
position. Two conventions govern the day to day relationship between the
legislature, executive and judiciary in a Westminster or British model of
government. Those are Parliamentary sovereignty and independence of the courts.
The rationale for parliamentary sovereignty is in fact the democratic principle
itself. The legislature is that body which is directly chosen by the people and
it has to be constitutionally supreme. Meanwhile, second convention, the
independence of judiciary is essentially prerequisite for fair trials but
Courts don’t have political interference
during proceedings. On the other hand,
separation of powers is a corner stone of USA Constitution, it also have three
organs i.e. legislature, executive and judiciary which are kept separate from each other as to
prevent concentration as well as abuse
of power. American constitution doesn’t explicitly
mention about it. However, James Madison
wrote in his work “Federalist 51” about
granting each department the power of self-defence from the actions of others.
Each branch possess different powers and unique responsibilities and designed
to operate independently while maintaining checks and balances with the others.
Supreme Court of America has no power to decide any political question and
can’t interfere with the executive branch of government. Also, American Supreme Court is not vested
with the power of judicial review. While,India has separation of powers along
with checks and balances which maintains the accountability and prevention of
abuse of power. Executive comes from the spectrum of legislature which is
chosen by public itself.
Constitutional provisions
regarding the separation of powers in India:-
Although,
Indian constitution doesn’t explicitly mention about separation of power but
there are many provisions regarding it which impliedly talks about it. There
are following articles :-
Article
50:- This article is a part of Directive Principle of
State Policy (DPSP) which separates judiciary from executive.
Article 121 and 211:-These
articlesrestrict the discussions in Parliament and legislature
about the conduct of Supreme Court and High Court judges.
Article 123:- this article grants the President the power to promulgate
ordinances when the Parliament is not in session.
Article 361:- This article grants the immunity to the President and
Governors for acts done in their official capacity during their term.
Challenges
in Modern Indian Democracy:
1.
Political Polarization
Sometimes, separation of powers may influence the
condition legislative gridlock where there are many chances of judicial
overreach such as when executive orders are used by president without any
approval of legislature, effectively bypassing the legislative process and
excess use of this process sometimes known as Executive overreach which
empowers the president to influence policy without checks and balances. It
leads to the decision of president unchecked through legislative body.
Although, orders of president can prove effective in
policy making but it can impact the balance of power existing between
legislature and executive organs of government.
2.
Judicial Activism vs. Judicial
Overreach
Whenever
legislature and executive fails to perform its primary functions, judges play
an active role in interpreting and shaping law rather than merely applying as
it’s in written form whereas judicial overreach refers to the situation when
courts exceed their legal and prescribed authority granted by Constitution of
India. It can disrupt the balance of power by undermining principle of
separation of power which is cornerstone of a democratic system.
3. Expansion
of Executive Power
Sometimes,
it may lead to the more tilt of powers towards executive and may also misused
by executive. There may have been many instances of such situations such as Emergency in India (1975-77) & national
security concerns.
4. Influence
on media and technology
Media which is also known as ‘fourth pillar of democracy’ is also getting affected by the flaws of separation of power in democratic government. Nowadays, media is also manipulated by party in governments which prevents them from performing their true function instead journalists are using media as a source if serving their self-interest.
Relevance
and Need for Reform:
It is
need of the hour that reforms are must in the principle of separation of power
otherwise can be misused. There is need of updating constitutional
interpretations. There should be institutional transparency and accountability
in this whole system as well as emphasize over inter-branch dialogue in rigid
separation of powers.
Conclusion:-
Basically,
this doctrine emphasize upon separation of functions and powers among various
organs of government which ensures the accountability as well as prevention of
abuse of power in systematic governance. We have explored the evolution of this
doctrine through various perspectives of eminent scholars such as Aristotle,
John Locke and Montesquieu etc. Although this system proved effective but have
many challenges in modern Indian democracy such judicial overreach and
executive deadlock etc. The
principle of separation of powers must evolve to remain effective in the face
of modern complexities without undermining democratic integrity.
References / Bibliography
1. https://www.livelaw.in/judicial-activism-should-not-lead-to-the-dilution-of-separation-of-powers-president (Last
visited at 4 June, 2025)
2.
https://lr.law.qut.edu.au/article/download/195/189/195-1-380-1-10-20120622.pdf
4. https://www.drishtijudiciary.com/blog/judicial-activism-vs-judicial-overreach-a-constitutional-perspective ( Last
visited at 2 June, 2025)
[2] Locke: Second Treatise of Civil Government, Ch. XII, Para 143.
[3]https://lawbhoomi.com/separation-of-powers-in-india/ ( last visited at 3 June, 2025)
[4] The Spirit of Nations (1748)
- doctrine of separation of powers
- separation of powers in modern democracy
- challenges to separation of powers
- separation of powers in India
- Montesquieu theory of separation
- separation of powers constitutional law
- judiciary legislature executive powers
- separation of powers vs checks and balances
- relevance of separation of powers today
- modern challenges to constitutional governance
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