Montesquieu Separation Of Powers
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
- James Madison
INTRODUCTION: HISTORY AND BACKGROUND
The origin of the doctrine of Separation of Powers can be traced back to the Age of Enlightenment in France (1620s-1780s). It was first articulated by Charles-Louis de Secondat, Baron de La Brède et de Montesquieu (popularly known as Montesquieu) in his book De l 'Esprit des Lois (The Spirit of Laws).
In ‘The Spirit of Laws’, Montesquieu argued that
“when the legislative and executive powers are united in the same person, or in the same body of magistrates,
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The doctrine of Separation of Powers in India is as old as the Constitution itself, and was extensively, though, perhaps not exhaustively, discussed in the Constituent Assembly Debates. Emphasis was laid on giving Constitutional Recognition to Separation of Powers by Prof. K.T. Shah, a member of Constituent Assembly. It was to be culled out by Art. 40-A as under:
“There shall be complete separation of powers as between the principal organs of the State, viz; the legislative, the executive, and the judicial.”
However, this idea was opposed by Shri Hanumathaiyah, who envisioned a functional, harmonious government, instead of complete separation of powers. This would result in a ‘conflicting trinity’, in his
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53(1) of the Constitution. All the Executive actions of the Union are undertaken in the President’s name. This is in pari materia with the power of the State’s executive vested on the Governor u/Art. 154(1). However, certain legislative functions are also vested on the President and the Governor. The President has the power to summon a joint sitting of both the Houses of the Parliament u/Art. 108. The President also has the power to summon each House, prorogue the Lok Sabha/Rajya Sabha, or dissolve the Lok Sabha u/Art. 85 (The Governor may do the same u/Art. 74). The President can make regulations to administer Union Territories u/Art.
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