1. Separation of Power
Montesquieu's Doctrine and its Analysis
The main theme of Montesquieu doctrine is that each and every organ of the state will
exercise of its own power and function, and no one organ will interfere into the functions of
another organ. He is the proponent of this theory.
According to Montesquieu’s theory, it means that no one person or body should be vested
with all 3 (three) types of powers. In every state, there are 3 (three) organs of the
Government, which are- (i) Legislature, (ii) Executive; and (iii) Judiciary.
So, there must be a division of functions on the following basis:
 the Legislature should make laws, but not administer or enforce them;
 the Executive must administer the made laws, but neither influence the legislature in
the making of the laws nor stand in judgment of the same; and
 the Judiciary must determine rights and uphold justice without taking over the
functions of law-making or administration.
He further said that such separation is necessary in order to ensure that the justice does not
become arbitrary and capricious.
Montesquieu states that “when the legislature and executive powers are united in the same
persons or in the same body of magistrates there can be no liberty, because apprehensions
may arise, lest the same monarch or separate should enact tyrannical laws”.
Criticism/Defects of Montesquieu's Doctrine/Theory
Although Montesquieu is the proponent of the concept and doctrine of Separation of Power,
but there are some criticism under his theory, which are as follows:
1. Model of the Montesquieu was in correct, but the view of Montesquieu was wrong.
Montesquieu’s model originated from England. But that time there was no separation
of power in England. Lord Chancellor was the head of the judiciary, Chairman of the
House of Lords (Legislature), a member of the Executive and often a member of the
Cabinet.
2. The doctrine is based on the assumption that the 3 (three) functions of the
Government are dividable from one another. But in fact it is not so. It is not easy to
draw a silver line between one power and another mathematical power, because
currently each of the 3 (three) organs of the Government are functioning of one
another organ.
In example, today the Executive exercise various types of functions, viz. to investigate, to
prosecute. to prepare and adopt scheme, to issue and cancel license, to make rules,
regulations and bye laws, etc.
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3. It has no strictly enforcement in the context of executive actions.
But strictly, it is impossible to implement. Though, in 1776 when the American Constitution
was drafted, the doctrine of Separation of Powers was adopted with the growth of
Administrative process the doctrine have been relaxed.
There are the following principles of check and balance:
(i) The President now exercises Legislative functions by sending message to the
Congress;
(ii) By the Pocket Veto, President also exercises Legislative functions;
(iii) Senate exercises Executive powers by the ratification of Treaties;
(iv) Senate exercises Executive powers in the making of certain appointment.
In Marbary vs. Madison case, the Supreme Court can justify the order of the President or
law passed by the Congress.
Effects/Consequnces of Separation of Power
 Executive is exercising their power and functions smoothly without interfere of other
body;
 Legislative is exercising their power and functions smoothly;
 Judiciary is exercising their power and functions smoothly without interfere of other
body. But in practical sense, in some cases, Judiciary system are impacted by the
executive body;
 The Rule of Law has been ensured by the Court of Law. But in practical sense, in
some cases, Rule of Law in not implicated;
 Constitutional and fundamental rights of citizens are enforced;
 Pressure upon the three organs has been reduced;
 Government interference upon any body/organ has been deducted.
But if we have followed the observation of the Supreme Court of India, it couldn’t be
assumed that the following concepts:
(i) the legislative functions are exclusively performed by the legislative;
(ii) the executive functions are exclusively performed by the executive; and
(iii) the judiciary functions are exclusively performed by the judiciary.
Currently each of the 3 (three) organs of the Government are functioning of one another
organ. Otherwise today the Executive exercise various types of functions, viz. (i) to
investigate, (ii) to prosecute, (iii) to prepare and adopt scheme, (iv) to issue and cancel
license, (v) to make rules, regulations and bye laws, etc.
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