Doctrine of Separation of Powers

Introduction
The separation of powers is imitable for the administration of federative and democratic
states. Under this rule the state is divided into three different branches- legislative, executive
and judiciary each having different independent power and responsibility on them so that one
branch may not interfere with the working of the others two branches. Basically, it is the rule
which every state government should follow in order to enact, implement the law, apply to
specific case appropriately. If this principle is not followed then there will be more chances
of misuse of power and corruption If this doctrine is followed then there will be less chance
of enacting a tyrannical law as they will know that it will be checked by another branch. It
aims at the strict demarcation of power and tries to bring the exclusiveness in the functioning
of each organ.

In India, functions are separated from powers rather than the other way around. The idea of the
separation of powers is not properly followed in India, unlike in the US. The court has the
authority to overturn any unlawful legislation that the legislature passes thanks to a system of
checks and balances that has been put in place.

Background
Montesquieu, a French scientist, originally proposed the doctrine of separation of powers in his
book “Espirit des Louis” published in 1747. (The spirit of the laws). Montesquieu discovered that
when power is concentrated in the hands of a single person or a group of people, a despotic
government emerges. To avoid this predicament and to limit the government’s arbitrary nature,
he argued that the three organs of the state, the Executive, Legislative, and Judiciary, should have
a clear distribution of power.
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Meaning
The definition of separation of power is given by different authors. But in general, the meaning
of separation of power can be categorized into three features:

 A person forming a part of one organ should not form part of another organ.

 One organ should not interfere with the functioning of the other organs.

 One organ should not exercise the function belonging to another organ.
The separation of power is based on the concept of triaspolitica. This principle visualizes a
tripartite system where the powers are delegated and distributed among three organs outlining
their jurisdiction each.

Three-tier machinery of state government

It is impossible for any of the organs to perform all the functions systematically and
appropriately. So, for the proper functioning of the powers, the powers are distributed among the
legislature, executive and judiciary.

Legislative
The main function of the legislature is to enact a law. Enacting a law expresses the will of the
State and it also acts as the wain to the autonomy of the State. It is the basis for the functioning of
executive and judiciary. It is spotted as the first place among the three organs because until and
unless the law is framed the functioning of implementing and applying the law can be exercised.
The judiciary act as the advisory body which means that it can give the suggestions to the
legislature about the framing of new laws and amendment of certain legislation but cannot
function it.

About & Functions:

 Parliament is the supreme legislative body of India, as in other parliamentary democracies

the parliament in India has a cardinal function of legislation overseeing administration
passing of the budget ventilation of public Grievances and discussing various subjects
like development plans, national policies and international relations.
 Doctrine of Separation of Powers

 It is a place where the laws are framed, the country's future is debated, and the people's
representatives are held accountable. It is the living epitome of freedom and sovereignty
of the people of India.
 It occupies a pre-eminent and pivotal position in the constitutional structure of the nation.

Power of Removal:

 The Parliament is vested with powers to impeach the President and to remove the judges
of the Supreme Court and the High Courts, the Chief Election Commissioner and the
Comptroller and Auditor General in accordance with the procedure laid down in the
Constitution.

Executive
 It is the organs which are responsible for implementing, carrying out or enforcing the will
of the state as explicit by the constituent assembly and the legislature.
 The executive is the administrative head of the government. It is called as the mainspring
of the government because if the executive crack-up, the government exhaust as it gets
imbalanced.
 In the limited sense, executive includes head of the minister, advisors, departmental head
and his ministers.

Judiciary
About:

 India has a single integrated judicial system. The Judiciary in India has a pyramidal
structure with the Supreme Court (SC) at the top. High Courts (HC) are below the SC,
and below them are the district and subordinate courts.

 The lower courts function under the direct superintendence of the higher courts.

Appointment of Judges:

 Articles 124 (2) and 217 of the constitution deal with the appointment of judges to the SC
and HC.

Functions:

 The principal role of the judiciary is to protect rule of law and ensure the supremacy of
the law. It safeguards the rights of the individual, settles disputes in accordance with the
law, and ensures that democracy does not give way to individual or group dictatorship.

Why Separation of Powers is Important?

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 Power Concentration: Erosion of the doctrine of separation of powers seeks to protect

the centralisation of power in one hand as history has repeatedly demonstrated this can
lead to disastrous outcomes.

 Transparency: The application of this principle makes the government liable,

accountable and answerable to its citizens for its actions thereby aiding in the promotion
and protection of Human Rights.

 Elimination of Other Administrations: Separation of power eliminates one of the most

serious weaknesses of other forms of administration such as monarchy or dictatorship
in which the king is not accountable to his people.

 Natural Justice: The following principle creates a balance of parts inside the government
in which the functions of the government bodies are kept in check by one another while
remaining separate from each other, this assures that the laws are just fair and
adhered to the Natural Justice.

Constitutional status of separation of power in

India
Going through the provisions of Constitution of India one may be ready to say that it has been
accepted in India. Under the Indian Constitution:

Parliament (Lok Sabha and Rajya Sabha)

Legislature
State legislative bodies

At the central level- President

Executive At the state level- Governor

Judiciary Supreme Court, High Court and all other subordinate courts

The Parliament is competent enough to make any law subject to the conditions of Constitution
and there are no restrictions on its law-making powers. The president power and functions are
given in the Constitution itself (Article 62 to Article 72). The judiciary is self –dependent in its
field and there is no obstruction with its judicial functions either by Legislature or the Executive.
The High Court under Article 226 and Article 227 and Supreme Court under Article
32 and Article 136 of Constitution are given the power of judicial review and any law passed by
the legislature can be declared void by the judiciary if it is inconsistent with Fundamental
 Doctrine of Separation of Powers

Rights (Article 13). By going through such provisions many jurists are of opinion that doctrine of
separation of powers is accepted in India.

The meaning of the doctrine of separation of power is in a strict and broad sense.

The doctrine of separation of power in a rigid sense means that when there is a proper distinction
between three organs and their functions and also there should be a system of check and balance.

The doctrine of separation of power in a broad sense means that when there is no proper
distinction between three organs and their functions.

In the case of I.C Golakhnath v. State of Punjab, the Constitution brings in actuality the distinct
constitutional entities i.e. namely, the Union territories, Union and State. It also has three major
instruments namely, judiciary, executive and legislature. It demarcates their jurisdiction minutely
and expects them to exercise their function without interfering with others functions. They should
function within their scope.

If we go through the constitutional provision, we can find that the doctrine of separation of power
has not been accepted in a rigid sense in India. There are personnel overlapping along with the
functional overlapping. The Supreme Court can declare any law framed by the legislature and
executive void if they violate the provisions of the Constitution.

Executive also has an impact on the functioning of the judiciary as they appoint the judges and
Chief justice. The list is so exhaustive.

In the case of Indira Gandhi v. Raj Narain, the court held that in our Constitution the doctrine of
separation of power has been accepted in a broader sense. Just like in American and Australia
Constitution where a rigid sense of separation of power applies is not applicable in India.

Justice Chandrachud also expressed his views by stating:

“The political purpose of the doctrine of separation of power is not widely recognized. No provision can be
properly implemented without a check and balance system. This is the principle of restraining which has in its
precept, innate in the prudence of self- preservation that discretion is better than its valour.”
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In Ram Jawaya vs The State of Punjab, Justice Mukherjee observed:

“In India, this doctrine has been not be accepted in its rigid sense but the functions of all three
organs have been differentiated and it can be said that our constitution has not been a deliberate
assumption that functions of one organ belong to the another. It can be said through this that this
practice is accepted in India but not in a strict sense. There is no provision in Constitution which
talks about the separation of powers except Article 50 which talks about the separation of the
executive from the judiciary but this doctrine is in practice in India. All three organs interfere
with each other functions whenever necessary.”

Although, there is an explicit provision in Constitution just like American Constitution that
executive power is vested in President under Article 53(1) and in Governor under Article
154(1) but there is no provision which talks about the vesting of legislative and judiciary power
in any organ. We can conclude that there is no rigid separation of power.

At the first instance, it appears that our Constitution is based on this doctrine itself as the
judiciary is self-sufficient and there is no interference either by executive or legislature. Court
also prohibits the administration of judiciary is not to be discussed in the parliament. Power of
judicial review and to declare any law as void is given to the Supreme Court. The judges of
Supreme Court are appointed by President in consultation. Chief Minister and judges of the
supreme court. The Supreme court make the rules and regulations for the effective conduct of
business.

However, Article 50 of the Constitution of India talks about the separation of the executive from
the judiciary as being a Directive Principle of State Policy it is not enforceable. Certain
privileges, power, immunities are given to the Member of Parliament under Article 105. This
provision makes the legislature independent. The executive power is conferred on President and
Governor they are being exempted from civil and criminal liabilities.

But if we read carefully, it is clear that doctrine is not accepted in a rigid sense. The executive is a
portion of the legislature and the executive is accountable for its conduct to the legislature and
also it derives its authority from the legislature. Since India has a parliamentary form of
government should a mutual connection and coordination between the legislature and executive.
As executive power is vested in the president but in actuality, the real head is Prime Minister of
India along with Council of Minister and president is only a nominal head. Article 74(1) talks that
executive head has to conduct in conformity with the aid and advice of Cabinet.
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Ordinarily, all the legislative power is vested in the legislature but in certain circumstances, the
president may be empowered to exercise the legislative power. For example, the president can
issue ordinance under Article 123 when the parliament is not in session, making the rules when
there is an emergency. Sometimes the president may also exercise judiciary power. When a
president is being impeached, both houses take active participation and finalize the charges.

Judiciary also performs the administrative actions while formulating the regulations and giving
guidance for the subordinate court as well as perform legislative powers by framing the rules
regulating their own procedure

So, it is presumed from the provisions of the constitution that India being a parliamentary form of
government does not follow the absolute separation there is an amalgamation of the powers
where the connections between the different wings are inevitable and it can be drawn from the
constitution itself. Every organ performs all types of functions in one or other form subject to the
check and balance by other organs. All three organs are interdependent because India has a
Parliamentary democracy. This does not mean that it is not accepted in India it has been accepted
up to a certain extent.

But when it is expressly provided that one organ shall not perform functions of the other, then it
is prohibited. In the Delhi laws case, it was stated that the legislature should exercise all the
powers of legislation only in extraordinary circumstances like when parliament is not in session
or emergency. We can say that the legislature is created by the Constitution to enact the laws.

In India, there is no separation of power but there is a separation of powers. Hence, in India, the
people are not stuck by the principle by its rigidity. For example, the cabinet minister exercises
both the executive and administrative functions. Article 74(1) states that it is mandatory for the
executive head to comply with the advice of the cabinet ministers. In Ram Jawaya vs the State of
Punjab, it was held that the executive is a part of the legislature and is accountable.

If we talk about the amending power of the Parliament under Article 368, it has been subject to
the concept of the basic structure held in case of Kesavananda Bharati vs State of Kerala.

In this case, it was held that the Parliament couldn’t amend the provision in such a way that
violated the basic structure.
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And if it is made in violation of basic structure then such amendment will be declared as
unconstitutional null and void.

Going through this case law regarding the Supreme court judgment it can be observed that the
basic structure cannot be amended and strict applicability of doctrine can be seen.

Although strict separation of power is not followed in India like the American Constitution, the
system of check and balance is followed. However, no organs are to take over the essential
functions of other organs which is the part of the basic structure, not even by amending and if it is
amended, such amendment will be declared as unconstitutional.

Impact of the doctrine of separation of powers on

democracy
The doctrine of separation of powers seeks to protect the centralization of power in one hand; as
history has repeatedly demonstrated, centralisation of power in one or a few hands can lead to
disastrous outcomes. The application of this principle makes the government liable, accountable,
and answerable to its citizens for its actions, thereby aiding in the promotion and protection of
human rights. This eliminates one of the most serious weaknesses of other forms of
administration, such as monarchy or dictatorship, in which the king is not accountable to his
people. When applied, the principle creates a balance of powers inside the government, in which
each of the government’s bodies’ functions are kept in check by the others while remaining
independent of one another. This assures that the laws are just, fair, and adhere to the natural
justice ideal. Furthermore, because it is independent of the other departments, the court can
administer equitable justice. Democracy is flawed without Separation of Power.

Merits of separation of power

The theory of separation of powers in its strictest form is considered undesirable and unworkable.
As a result, it is not entirely acknowledged in any nation on earth. However, its importance
resides in emphasising the checks and balances that are required to avoid abuse of the vast
executive powers.
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Creating a system of checks and balances

One aspect of the theory of separation of powers is checks and balances. According to this
characteristic, each organ has certain checking abilities over the other two organs in addition to
its own power. The inter-organ relationships are governed by a system of checks and balances
during the process.

The separation of powers thesis was good in principle. When it was attempted to be utilised in
actual life circumstances, however, various flaws became apparent in practice.

Protection of liberty and rights

According to the doctrine of the separation of powers, an individual’s freedoms and rights are
protected, and they are shielded from various types of dictatorship and oppression.

Improvement in government efficiency

As authority is divided across government agencies, these agencies learn in-depth information
about the issues they are responsible for and improve their effectiveness. The tasks required in
governance are sometimes too many for one branch of the government to handle. Therefore, the
division of powers aids in lightening the strain on each individual branch of government.

Encourages order in governance

Each of the three branches of the government is given a certain set of responsibilities. Each
person would have to do their part solely if the concept were to be strictly followed. This
guarantees that the state is run in an orderly manner.

Prevents abuse of authority

The separation of powers is an excellent safeguard against the abuse and haughtiness of power.
Because various departments are given varying degrees of authority, the emergence of a
dictatorship is prevented. The idea is sound in that it can restrain tyranny on the part of those in
 Doctrine of Separation of Powers

authority. The idea makes sure that too much authority is not centralised in one branch of the
government. By doing this, the desire to misuse authority is avoided.

Achieves judicial independence

The idea of judicial independence holds that the judiciary ought to be separate from the other
arms of the government. In practically every constitution, the judiciary is granted the authority to
decide all constitutional problems and the authority to deem the actions of the other branches of
government null and invalid. The idea of the separation of powers contributes to bolstering the
judiciary’s independence in carrying out its duties.

Demerits of separation of power

Although most nations have adopted this approach, it has not been without criticism. It has been
decried as undesirable in addition to being impossible. “Montes was guilty of oversimplification.
He united his theory to a hasty and superficial analysis of the constitutional principles of liberty.”
Sabine said. According to Finer, it is useless to rigorously apply the doctrine of the division of
powers to contemporary circumstances. The following arguments have been used to refute the
separation of powers doctrine.

Misreading of the British system

The Cabinet system of government existed at the time Montesquieu formed his thesis on the
division of powers. At the time, Britain lacked a clear division of authorities. Instead, there was a
focus on who was responsible for what. Montesquieu incorrectly assumed that there was a
division of powers in Britain after seeing the British people enjoy their freedom. He had the
politics of Britain wrong.

Unhistorical
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The British Constitution during the first half of the eighteenth century, as he understood it, served
as inspiration for Montesquieu. In actuality, the English Constitution did not have a division of
powers. This theory was never included in the British Constitution.

The idea is predicated on the false premise that the three branches of government—legislative,
judicial, and executive—are distinct from one another. In the current welfare state model, these
three roles overlap. The government could become more effective as a result of this division.

Not in favour of the welfare state idea

The welfare state of today must address several intricate sociopolitical economic issues facing a
nation. It is impossible to follow this concept in the current situation.

Unrealistic in and of itself

It hasn’t been discovered that concentrating one sort of power in one organ alone is conceivable
in practice. In addition to being a body that makes laws, the legislature also has oversight
responsibilities for the executive, which is an administrative entity. The judiciary has some rule-
making authority in addition to performing judicial duties.

Deadlocks and inefficiencies can result from the separation of powers:

The division of powers might result in impasses and ineffective government operations. It could
lead to circumstances where each organ engages in combat and becomes stuck with the other two
organs.

Not completely achievable

This notion is not entirely achievable. The legislature also has some judicial duties, while the
executive plays a little part in rulemaking. The legislature, for instance, carries out judicial
actions like impeachment.

Separation of powers causes administrative challenges, which is number three. Making the
government’s organs cooperate, coordinate, and live in harmony becomes challenging. Modern
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governments must “coordinate” their powers rather than strictly separate them in order to
function effectively.

Could cause confusion and deadlock

The division of powers can occasionally cause rivalry, mistrust, and conflict amongst the several
branches of government. It might cripple the government while causing discord and uncertainty.
As a result, even in times of emergency, the government frequently makes poor judgments. The
principle of the separation of powers, in Finer’s words, “throws governments into alternate
phases of coma and convulsion.” According to a different academic, “division of powers equals
confusion of powers.”

Power inequality
Although this theory is founded on the equality of powers assumption, this premise has flaws.
While the administration is most powerful under a presidential system, the legislature, which
represents the people, is most powerful in a parliamentary one.

Separation of powers is one of the factors that contribute to liberty, but it is not the only one.
Liberty also heavily depends on people’s minds, perspectives, political awareness, customs and
traditions, basic rights, the rule of law, the independence of the judiciary, economic equality, and
other factors.

Could upset the balance of power

As it carries out several crucial tasks, the government has become stronger. It is necessary to
offer welfare to the people in addition to solving problems and managing crises. All of this has
increased the executive’s authority and thrown off the balance between the three branches of
government. Not so much the “division” of authorities as their “fusion” is necessary for planning,
security, and welfare.

As a result, the theory of separation of powers in its strictest definition is seen undesirable and
unworkable. As a result, it is not entirely acknowledged in any nation on earth. However, its
importance resides in emphasising the checks and balances that are required to avoid abuse of the
vast executive powers.
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Functional overlap among organs of the

government
Overlapping powers of Legislature
With the Judiciary

1. Impeachment and dismissal of judges

2. Authority to revalidate legislation that the Court had deemed ultra vires and amend
them.

3. If its privilege is violated, it has the authority to penalise the offending party.

With the Executive

1. Members of the legislature serve as the leaders of each governmental ministry.

2. It can dissolve the government with a vote of no confidence.

3. The ability to evaluate the executive’s job.

4. President’s impeachment.

5. Members of the legislature are chosen to the council of ministers, on whose advice the
President and Governor act.

Overlapping powers of Executive

With the Judiciary

1. Selecting candidates for the Chief Justice and other judicial positions.

2. The authority to commute sentences, reprieves, respites, or pardons for those found
guilty of crimes.

3. The tribunals and other quasi-judicial organisations of the executive carry out judicial
duties as well.
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With the Legislative

1. The authority to enact an ordinance that carries the same weight as a law passed by the
state legislature or the parliament.

2. Subject to the limitations of this Constitution, they have the power to enact rules
governing their particular process and conduct of business.

3. Powers are granted by a delegated law.

Overlapping powers of Judiciary

With the Legislative
1. The Supreme Court serves as an Executive under Article 142 in order to ensure full
justice.

With the Executive

1. Legal review, or the authority to examine executive action to see if the Constitution is
being violated.

2. The basic structure of the Constitution cannot be changed.

Conclusion
“Power corrupts and absolute power tends to corrupt absolutely” – Lord Action.

Exercising the doctrine of separation power cannot be applied in the strict sense in any
contemporary countries like The United States, Nepal, France etc. But still, this doctrine has
relevancy nowadays. Our government is an organized system and it is very difficult to divide into
watertight compartments.

For the smooth functioning of any government, cooperation and coordination among all three
wings of the government are necessary. Professor Garner said that “this doctrine is impracticable
as working principle of Government. It is difficult to divide the functions of each organ on an
accurate basis”.
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Although liberty heavily depends on the balance between the three branches of government,
increased concern for welfare and security has resulted in the transfer of greater authority to the
executive. The liberty of the individual, as well as that person’s wellbeing and the security of the
state, should all be equally important in a perfect society. Without a question, this would
necessitate a strong government, but it would also necessitate a system of checks and balances
and the division of powers.

In my opinion, this doctrine has a great significance as it protects the liberty of the individual
from the arbitrary rule and prevents the organs from usurping the essential functions of other
organs.

It is applicable in almost all countries up to a certain extent.