[TYPE THE COMPANY NAME]

[Type the document title]

[Type the document subtitle]
ACER
[Pick the date]

[Type the abstract of the document here. The abstract is typically a short summary of the contents of
the document. Type the abstract of the document here. The abstract is typically a short summary of the
contents of the document.]
ACKNOWLEDGEMENT
I take this opportunity to thank my supervisor

Dr.Chandana Suba(Assistant professor, Department of

Law and governance)Central university of South Bihar

for her sheer guidance and constant support throughout

the project. Additionally, this endeavour would not have

been possible without the generous support from my

friends and family, especially my brother who supported

me in every moment and encouraged me for every

decision and corrected for every foreseen mistake.

TABLE OF CONTENTS
SERIAL CONTENT
NO.

1 ACKNOWLEDGEMENT

2 TABLE OF CONTENT

3 INTRODUCTION

4 HISTORY
POWERS
BEHIND SEPARTION OF

SEPARATION OF POWER IN PRACTICE

5 (IN UK,USA,INDIA)

FEATURES OF SEPARATION OF
6 POWERS
 LANDMARK CASES
7
DEFECTS OF SEPARATION OF POWERS
8
CONCLUSION
9
BIBLOGRAPH
10
INTRODUCTION
Democracy is a form of government where the rulers are
elected by the people. It is a form of government for the
people, of the people and by the government. However
democracy is not only about people electing their rulers
but also the rules and regulations these governmental
institutions need to follow. The basic objective of these
institutions is to regulate the working of the government.
And to fulfill this very objective different institutions
(organs) namely Legislature, Executive and Judiciary have
been assigned with their separate jobs and tasks.
The doctrine of SEPARATION of power establishes the
power of government divided between its organs in
accordance of the nature of the power to be exercised. It
was introduced to maintain a balance of powers. Broadly ,
the powers of a government in a state have been classified
as the power to:
i. Enact laws i.e. powers of the Legislature.
ii. Interpret laws i.e. powers of the Judiciary.
iii. Enforce laws i.e. powers of the Executive.
Each organ shall exercise its powers within its own
sphere. This doctrine entails that no organs shall encroach
upon or interferes with the powers and independence of
other organs of government. If any organ encroaches into
the terrain of the other organ, it shall be checked by
another organ of the government.
HISTORY OF SEPARATION OF POWERS

The original concept of the separation of powers can be

seen back in the work done by Aristotle. The time period
of these works was the 4th century BCE. At that period,
Aristotle described the three functioning bodies of the
government as,
• General Assembly
• Public Officials
• Judiciary
This concept was followed by the Ancient Roman Republic
as well.
However, this idea was developed by a French philosopher
named Montesquieu in the 18th century. He came up with
the book De l’esprit des Lois wherein he mentioned the
concept of the doctrine of separation of power as a highly
systematic and scientific one. His understanding was
influenced by the English system, in which he found the
inclination toward a huge difference between the three
organs of government.
SEPARATION OF POWERS IN PRACTICE

The doctrine of SEPARATION of powers is seen in many

forms of government yet the principles of the same
doctrine varies from nation to nation i.e. in same nation the
judiciary may have more powers than that of legislature
and vice versa .

(I) IN UK

• EXECUTIVE: The British queen acts as the nominal

executive head. However the real executive powers
lies with the Prime Minister and his Cabinet.
• LEGISLATIVE : The UK Parliament consist of two
houses – House of commons and House of Lords,
having the same objective of making laws , scrutiny
and debating on current issues.
• JUDICIARY: Until the Constitutional Reform Act, 2005
the Lord Chancellor was the head of the Judiciary in
Britain. He fused the Legislature, Executive and
Judiciary, as he was the ex - officio Speaker of the
House of Lords, a Government Minister who sat in
Cabinet and was head of the Lord Chancellor’s
Department, which administered the courts, the
 justice system and appointed judges . He sat as a
judge on the Judicial Committee of the House of Lords,
the highest domestic court in the entire United
Kingdom, and the Judicial Committee of the Privy
Council, the senior tribunal court for parts of the
Commonwealth.
The Constitutional Reform Act, 2005
Separated the powers; The Lord Chancellor ceased to be
the Speaker of the Lords, and was replaced by the Lord
Speaker. Also, the Lord Chief Justice is now head of the
judiciary, and the Lord Chancellor may no longer sit as a
judge. Therefore, legislative functions are now vested with
an elected Lord Speaker and the judicial functions are
vested with the Lord Chief Justice. The Lord Chancellor’s
Department was replaced with a Ministry of Justice and
the Lord Chancellor currently serves in the position of
Secretary of State for Justice.

(II) IN USA

• EXECUTIVE: The executive powers are vested

in the hands of the President who remains in power
for four years. The President can intervene in the
business of the court only with his power of pardon of
 all offences except treason. The policies made by the
President are subject to the ratification of the Senate.
• LEGISLATIVE: The US Congress is the legislative
organ with two houses – Senate (Upper house) and
House of Representatives (Lower house). The
congress is elected by people for six and four years
respectively. The Congress cannot be dissolved by the
President. Neither the President is responsible to
Congress nor is the Congress responsible to the
President.
• JUDICIARY: The Supreme Court of USA is the apex
court in judiciary. Its judged are nominated by the
President, their appointments need the ratification of
the Senate. It has the power to declare any act and
policy of the legislature and executive void.
(III) IN INDIA
The separation of power is aided by the following articles
of the Indian constitution.
• Article 50: According to Article 50 of the Indian
constitution, the state can take necessary actions to
separate executive power from the judiciary. This
separation is required to ensure that the judiciary works
independently.
• Article 53 and 154: It states that the executive power of
the state shall be vested with the governor. In the case of
the Union, the President shall vest the executive powers.
Both enjoy immunity from criminal and civil liability.
• Articles 122 and 212: As per these articles, the
proceedings of the legislatures and the parliament cannot
be questioned in any court. Also, the parliamentary
statement cannot be used against the legislature in any
case.
• Article 121 and 211: Article 121 and 211 of the Indian
constitution state that the Parliament and Supreme court
is not subjected to the judicial conduct of a high court or
supreme court’s judge.
• Article 361: For performing and exercising the powers
and duties of the office, neither the Governor nor the
President is answerable to any court.
India’s governing system is broadly similar to that of
Britain’s. Both the countries have adopted the
Parliamentary System of Government. Under the
Constitution of India, the three organs of Government are
the legislature, executive and the judiciary. As stated in
Article 79 of the Constitution of India, the Parliament
consists of the President and two Houses known as the
Council of States and the House of the People. The
Constitution of India has not adopted the doctrine of
separation of powers in its strict sense. Nevertheless, the
Constitution of India has sufficiently differentiated the
essential functions of the organs and no organ shall
assume to itself what essentially belongs to the other.
(I)LEGISLATURE: The Prime Minister and his/her Council
are normally Members of Parliament. They play an active
role in proposing a bill and voting a bill in the Parliament.
A bill becomes an Act when President gives his/her assent
to it. The Council of Ministers including the Prime Minister
is collectively responsible to the House of People. Thus,
they remain in office so long as they enjoy the confidence
of the House of People. The President may be impeached
by the Parliament.
The Constitution of India provides for the powers and
functions of the legislature. Article 246 of the Constitution
provides that the Parliament and the Legislatures of the
States have power to make laws. The matters are listed in
Schedule VII of the Constitution under Union List, State List
and the Concurrent List.
(II) EXECUTIVE: The President of India is the nominal
executive head. The real executive is the Prime Minister
and his/her Council of Ministers. The President exercises
his/her powers/functions with the aid and advice of the
Prime Minister and his/her Council of Ministers. Usually
the advice is binding on the President. The President is
elected by the Electoral College consisting of the elected
members of both houses of Parliament and the elected
members of the legislative assemblies of the state. He/she
is appointed for a fixed term of 5 years.
The President has wide legislative powers to issue
ordinances for immediate action during the recess of
legislature. An ordinance issued shall have the force and
effect as that of an Act by Parliament. President has the
power to dissolve House of People. The President has the
power to declare National Emergency, State Emergency
and Financial Emergency. The President is authorized to
exercise legislative powers in case of State Emergency.
(III) JUDICIARY: Judiciary refers to the Supreme Court of
India, High Courts and the subordinate courts. The
Supreme Court of India is the final court of appeal for the
whole of India. Various provisions are incorporated in the
Constitution to establish an independent judiciary.
Article 50 of the Constitution of India provides that the
State shall take steps to separate the judiciary from the
executive in the public services of the state. The object
behind Article 50 is to provide for the independence of
judiciary.
Judges of the Supreme Court and High Courts shall be
appointed by the President after consultation with such
Judges of the Supreme Court and of the High Courts in the
states, as laid down in Article 124 (2) of the Constitution.
A nine-Judge Constitution Bench of the
Supreme Court in Re Presidential Reference1 laid down the
norms and requirements of consultation process to be
observed by the executive on the appointment of judges to
the Supreme Court and High Court and, transfer of the
latter. The privileges and the allowances of a Judge cannot
be varied after his appointment. No discussion shall take
place in Parliament with respect to the conduct of any
Judge of Supreme Court or of High Court, except when a
proceeding of impeachment is initiated against him.
The Judiciary in India interprets the Constitution. The
judiciary is entitled to scrutinize the legislations and
administrative process and assess whether or not they
conform to the Constitution.

1 AIR 1999 SC 1
SIGNIFICANCE OF SEPARATION OF
POWERS

1. Keeps away autocracy

2. Safeguards individual liberty
3. Helps create an efficient administration
4. Judiciary’s independence is maintained
5. Prevents the legislature from enacting arbitrary or
unconstitutional laws
 LANDMARK CASES
Sl. CASE HELD
No.

1 Kesavananda This landmark case is known for

Bharati v. State establishing the “basic structure”
of Kerala2 doctrine, which limits the power of
the Indian Parliament to amend the
Constitution. The Court held that
certain essential features of the
Constitution are beyond the reach of
amendment. The Supreme Court, in a
landmark decision, introduced the
“basic structure” doctrine. The
doctrine holds that while the
Parliament has the power to amend
the Constitution, it cannot alter its
basic structure or essential features
that form the bedrock of the
Constitution.

2 1973
2 S.R. Bommai v. The Court ruled that the power
Union of India3 should be exercised only in
exceptional circumstances,
emphasizing federalism and the
separation of powers between the
center and states. The Bommai case
reaffirmed the federal structure of
India and established judicial review
over the misuse of Article 356. It
curtailed the discretionary power of
the central government to dismiss
state governments at will and
emphasized the importance of
maintaining a balance between the
central and state governments,
promoting cooperative federalism.
3 Indira Nehru In 1977, the Supreme Court delivered
Gandhi v. Raj its judgment in the case, upholding
Narain4 the decision of the Allahabad High
Court. This decision marked a
significant moment in Indian legal
history, emphasizing that no
individual, regardless of their
position, is above the law. The case
highlighted the principle of rule of
law and underscored the importance
3 1994
4 1975
 of fair and transparent elections in a
democratic system. It also
demonstrated the Indian judiciary’s
role as a check on executive power
and its commitment to upholding
constitutional values.
4 L. Chandra The Court held that certain classes of
Kumar v. Union cases, particularly those involving
of India 5 fundamental rights, must be heard by
judicial tribunals rather than
administrative bodies. This case
emphasized the independence of the
judiciary in upholding the
Constitution. The Supreme Court
held that the power of judicial review,
which is a basic feature of the
Constitution and an integral part of
the rule of law, cannot be excluded
from the jurisdiction of the High
Courts and the Supreme Court. While
Parliament can create specialized
tribunals for certain matters, it
cannot bar access to the
constitutional courts for seeking
remedies related to fundamental
rights. This decision reaffirmed the
authority of the judiciary to review
5 1997
 the actions of administrative bodies,
ensuring that the fundamental rights
of citizens are protected.

5 Cooper v. Union This case highlighted the importance

of India6 of an independent judiciary. The
Court ruled that the executive cannot
refuse to comply with a judicial order
on the grounds of financial
constraints. The case dealt with the
issue of executive power and the
scope of the executive’s authority in
relation to judicial orders. The case
arose from a conflict between the
judiciary and the executive branch
over the implementation of a
judgment. The Supreme Court had
issued a judgment directing the
release of detenues who were held in
preventive detention. However, the
state government, which was under
the control of the executive, did not
comply with the court’s order. It
highlighted the importance of
executive accountability and
adherence to the decisions of the
6 1970
courts. The case remains significant
in the context of maintaining the
balance of power between the
executive and the judiciary in India’s
constitutional framework.
DEFECTS OF SEPARATION OF POWERS
• This doctrine is based on the assumption that the
three functions of the Government legislative,
executive and judiciary are independent and
distinguishable from one another. But in fact, it is not
so. There are no watertight compartments. It is not
easy to draw demarcating line between one power and
another with mathematical precision.

• Modern state is a welfare State and it has to solve

complex socio-economic problems. Thus it is not
always possible to stick to this doctrine. Justice
Frankfurter of USA said; “Enforcement of a rigid
conception of separation of powers would make
modern Government impossible.” Strict separation of
powers is a theoretical absurdity and practical
impossibility.
CONCLUSION
Through the doctrine of separation has clearly laid the
functions of the different organs of the government so that
one organ does not get down functions of the other. This
ensures the smooth functioning of the government and
prevents it from facing any sort of instability.
Where on one hand, this doctrine provides checks and
balances between all the organs so that none of the organs
over use their powers , it also gives space to all the organs
to work independently.
However in India this doctrine is not followed in a strict
sense. The Constitution of India has sufficiently
differentiated the essential functions of the organs and no
organ shall assume to itself what essentially belongs to
the other.
REFRENCES
• Legal studies (class XI) Central Board Of Secondary
Education.
• https://legalvidhiya.com/top-10-landmark-
judgments-on-separation-of-power/?amp=1
• https://byjusexamprep.com/liveData/f/2022/11/separa
tion_of_powers_upsc_note_44.pdf
• https://www.drishtiias.com/pdf/1662622315_Polity%20
&%20Governance-II%20(2022).pdf
• Democratic Politics-I (Textbook in political science for
class IX).
• Democratic Politics-II(Textbook in political science for
class X)