An Analysis of the Limitations of the Doctrine of Separation of Powers: Re-Visiting the Judgment Delivered in Ram Jawaya Kapur v. State of Punjab (AIR 1955 SC 549)

Abstract

The earliest reference made to the concept of the Doctrine of Separation of Powers was in the 16th & 17th centuries by Aristotle & Plato. In the 16th & 17th centuries French philosopher John Bodin and British politician Locke expressed their views regarding the doctrine.

But it was Montesquieu, the French jurist, who conceived this principle through his book, “Espirit des Lois” – Sprit of Law that was published in 1748.

He found that concentration of powers in one person or group of persons resulted in tyranny. To avoid this situation and with a view to checking the arbitrariness of the government he suggested that power of governance should be clearly divided between the three organs of the state i.e. Executive, Legislative and the Judiciary.

The principle can be stated as follows: 1. Each organ should e independent of the other. 2. No one organ should perform functions that belong to the other.

According to Montesquieu: “Miserable indeed would be the case, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting powers, that of executing the public resolutions and that of judging the crimes or differences of individuals.”

Though, this theory was appreciated by English and American jurists alike and was for the first time codified in the American Constitution, yet it suffered from many flaws which has made its strict & absolute application absolutely, a myth.

This paper attempts to first look into the limitations that this doctrine undergoes and then discuss the same through a series of case laws, with special emphasis on Ram Jawaya Kapur v. State of Punjab.

Keywords: Montesquieu, Ram Jawaya Kapur v. State of Punjab, Separation of Powers