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Separation of Power

The doctrine of Separation of Powers was originally started in the writings of Montesquieu in the
spirit of the Laws where Montesquieu refers to the division of govt. responsibilities into three
separate branches of government to make sure that none of the branch intrudes into the domain
of another. The doctrine of Separation of Powers is of ancient origin, its history is traceable to
Aristotle in his book “Politics” that mentioned the three branches of the government, the
deliberative, the ministerial, and the judicial. True objective of introducing there principles were
to prevent the concentration of power and provide for check and balances. American
Constitution, Australian constitution is very rigid as compared to Indian constitution and it does
not apply to India or even England. Separation of Powers is practiced in India but not that
rigidly. The three main areas of government in some or the other way perform the task of other.
The concept of Separation of Powers is a measure to protect individual’s rights, acknowledging
the fact that governments have historically been the major violators of such rights. The
hypothesis behind the Separation of Powers is that when a single person or group has a large
amount of power, they can become treacherous to citizens. The Separation of Power is a method
of removing the abuse of power.

Doctrine of Separation of Power

The modern doctrine of separation of powers was a leading tenant in the political philosophy of
the 18th century. it was Montesquieu French jurist who for the first time gave separation of
powers a systematic and scientific formulation in his book the spirit of the loss where he
visualise three structural classification of powers into legislative executive and judicial and
emphasized that none of the three organs of the state legislature executive and Judiciary should
interfere with the exercise of the functions of the Other organ.

Concept Separation of power in Ancient India:

The Separation of power is known as it has been found by the Montesquieu and Locke but the
roots are found in the Vedas. If we study the Smritis which are ancient source of law i.e.
Dharma, we find such type of separation. In Narad Smriti we trace the very principle of
separation of power. At that time Deewan was head of the Executive wing of any legacy,
Senapati did a job to maintain law and order and Kaji was the judicial head. At the same time we

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have to bear in mind that they all are subordinate to the King and King was the supreme
authority who makes the law and therefore he was similar to present form of legislature. In short,
what comes out is that in ancient time also there was a separation of power in one province or
legacy. After all, King is known as the supreme authority of all but the functions and powers has
been separated.

The Doctrine of separation of power Meaning by Montesquieu –

a. A body or any person should not exercise all the three kinds of power.

b. The same person should not form part of more than one of the three organs of government.

c. One organ of the government should not interfere with any other organ of the government.

d. One organ of the government should not exercise the functions assign to any other organ.

e. The legislature shall never exercise the judicial or the executive powers while the executive
shall never exercise the legislative or the judicial power and the judicial branch shall never
exercise the executive and the legislative.

The Doctrine of separation of power Meaning by Wade and Philips The doctrine of separation of
power as one the same person should not compose more than one branch of the three branches,
one branch should not control and interfere with the act of the other two branches and see one
should not discharge the function of the other two branches. The concept of Separation of
Powers is a measure to protect individual’s rights, acknowledging the fact that governments have
historically been the major violators of such rights. The hypothesis behind the Separation of
Powers is that when a single person or group has a large amount of power, they can become
treacherous to citizens. The Separation of Power is a method of removing the abuse of power.

The significance of this doctrine can be summed in the following points: Ending the despotism, it
safeguards individual liberty. Article 50 of the constitution describes the separation of the
executive from the judiciary and this is the only article which talks about the separation between
two organs. It means that there should be judiciary service without any executive control. It
emphasizes on the necessity of independence of judiciary. It not only maintains the efficiency in
administration but also protects the people from the arbitrary rule of the executive. This theory

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admonishes the executive and the administrative wings of the government not to interfere with
the process of law and justice, so as to ensure the liberty of the individuals in the society.
Separation of powers means distribution of powers for specified functions of the government. All
the powers of the government have been conceived as falling within one or another of three great
classes, as – (1) the enactment of making laws, (2) the interpretation of that laws and (3) their
enforcement; namely- legislative, judicial and executive. Government has been deemed to be
made up of three branches having for their functions and such classification is recognized as
classical division. The framers of the Indian Constitution did not perceive in an inflexible way
the assumption of the division of forces. However, many conflicts that arise from the government
process are dealt with by the administrative tribunals rather than by the ordinary courts.
Nevertheless, the tribunals’ impartiality is maintained by preserving essential features of ‘fair
judicial procedure’. It is found, on analysis, that under the various provisions of the Constitution,
such as Article 53(1) and 154(1), the executive powers of the union and the states are vested
respectively in the president and the governors. According to this scheme, the president is the
chief executive of the Indian union who exercises his powers constitutionally in accordance with
Article 74(1) on the assistance and advice of the Ministerial Council. The threefold division of
powers is partially recognized and the parliament and the state legislatures and judicial powers in
the Supreme Court and other courts have been given no unbridled “legislative powers. India’s
constitution has taken a midway route on this issue Article 50 of the Constitution provides that
the state shall take measures to separate the judiciary from the executive within the State’s public
services. The constitution also empowers the President to issue ordinances in the exercise of his
legislative powers which extend to all matters falling within Parliament’s legislative competence.
Under Article 123, the President shall have the power to promulgate an ordinance when it
deemed necessary during the recess of both houses of Parliament. In Minerva Mills’s case, the
Supreme Court by striking down sections 4 and 5 of the 42nd Amendment Act to be ultra vires
maintained its supremacy and its role as the watchdog of the Constitution. About Sections 4 of
the said amendment, which sought to oust the jurisdiction of the Court, Mr. N.A. Palikhivala 21
has observed that provision was clearly ultra vires the amending power of the Parliament. That
destroyed the balance of power between the legislatures and sought to deprive the citizens of the
modes of redress which are guaranteed by Article 32.

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Theory of Check and Balances

The doctrine of separation of powers is a part of the basic structure of the Indian Constitution
even though it is not specifically mentioned in it. Hence, no law and amendment can be passed
violating it. The system of checks and balances is essential for the proper functioning of three
organs of the government. Different organs of the state impose checks and balances on the other.
Article 50 of the constitution describes the separation of the executive from the judiciary and this
is the only article which talks about the separation between two organs. Checks and balances acts
in such a way that no organ of the state becomes too powerful. The constitution of India makes
sure that the discretionary power bestowed upon any organ of the state does not breach the
principles of democracy. For instance, the legislature can impeach judges but as per the condition
i.e. two third majority. The system of checks and balances is a part of proper functioning of three
branches of government. It guarantees that no part of the government becomes too powerful. For
example, the legislative branch makes law, the executive branch passes the valid law and the
judicial branch may also say that the law is unconstitutional and thus make sure it is not a law.
The legislative branch can also remove judge that is not doing his/her job properly. The
executive branch appoints judges and the legislative branch approves the choice of the executive
branch. Again, the branches check and balance each other so that no one branch has too much
power. This is what describes the theory of checks and balance.

The current practices of the Doctrine of separation of power in India

The Indian Constitution does not define the separation of power. It does not state anywhere
clearly of the distinction of powers but it implies. Even though there are no clear provisions
stating the distinction between the three organs, there are many provisions under the Indian
Constitution that states the reasonable separation of powers. Article 50: State shall take steps to
separate the judiciary from the executive. This is for the purpose of ensuring the independence of
judiciary, Article 122 and 212: validity of proceedings in Parliament and the Legislatures cannot
be called into question in any Court. This ensures the separation and immunity of the legislatures
from judicial intervention on the allegation of procedural irregularity, Articles 53 and 154
respectively, provide that the executive power of the Union and the State shall be vested with the
President and the Governor and they enjoy immunity from civil and criminal liability. Article

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361 the President or the Governor shall not be answerable to any court for the exercise and
performance of the powers and duties of his office.

Legislature: Responsible for making laws and amendment in the made laws The Council of
Ministers shall be chosen from among the members of the Legislature and this Council shall be
responsible for the Legislative Council. Article 61: Impeaching the president and removal of
judges.

Executive: The Indian President, the top executive authority of the state is the authority who
gives clearance when making any law. He can reject if he finds any law not just, and refuse to
sign it. Also “Article-123, also the Judicial powers under Article-103(1) and Article-217(3), he
has the consulting power to the SC of India under Article-143 and also the pardoning power in
Article-72 of the Constitution. The executive also affecting functioning of the judiciary by
making appointments to the office of Chief Justice of India and other judges.” It should also be
noted that the executive appoints the Chief Justice of India, affecting the Judiciary.

Judiciary: Article 142 and Article 145 of the Indian Constitution states or talks about the power
vested in the Judiciary that makes it an independent body. The Supreme Court has the power to
declare the laws enacted by the legislature void if it harms the Indian Constitution as well as take
appropriate actions against the executive. The amendment of the laws is also subject to the
scrutiny of the Court. As seen in Kesawananda Bharati v. State of Kerela it was held that the
Parliament couldn’t amend the provision in such a way that violates the basic structure.

Advantages of Separation of Power

Since the functions are divided, the work is hence divided to the three groups. This increases the
efficiency with the work, when every group is working on different aspects simultaneously,
hence increases the amount of work done in less time. It is necessary for the smooth running of
the state. The three organs appoint the experts of the field. The experts work under their
respective organs and are capable in handling the work assigned under different organs hence;
with efficiency it ensures the work done to be correct and accurate. Since the functions and the
work is divided, it clears and creates the distinction of skills and labour required. Since there is a
clear distinction and a system of check and balance, there is no arbitrary ruling and no autonomy.
The division creates as systematic procedure to run the country. The clear distinction helps

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eradicating the overlapping of work, and hence there is no interference with others work, and
since the overlapping is removed with the organs having its individual work, it helps in removing
competition. The separation of power is essential because it provides an indispensable system of
checks and balances, which prevents the concentration of power. It promotes an accountable and
Democratic form of government and helps in eliminating arbitrariness, tyranny, and
totalitarianism. It enhances the accountability and control of different branches over each other,
i.e., "the checks." It divides the power between the various components of government so that the
administration is not concentrated in one hand and is referred to as "balances." It prevents the
abuse of power and safeguards the freedom of everyone as unlimited power in the hands of one
person or group may lead to the suppression of others, and their rights and powers may be
curtailed. It prohibits the misuse of powers within the different organs by demarcating certain
limits and boundaries for each branch of the government. It also allows all three branches to
specialize in their respective fields to improve and enhance the efficiency of the government.
This doctrine seizes the powers of one component of the government to exercise the power of
another. Therefore, the principle of separation of powers is considered an essential pillar of
Democracy that prevents malfeasance of power and promotes liberty and equality.

Disadvantages of Separation of Power

The theory behind doctrine of the separation of power states that the functions between the
legislature, the executive and the judiciary are separate which cannot be seen in reality. The three
functions do overlap each other as the system of check and balance. But this provision may result
in the efficiency and increase in competition. The separation may lead to deadlocks and may get
engaged in some conflict between two organs. As well as in practice it is not possible to dedicate
one kind of power under one body. And hence, the doctrine is impractical in its absolute sense as
well as not favourable.

Judicial Approach towards the Doctrine of Separation of Power In Ram Jawaya v. Punjab
(1955) case, the Supreme Court held that the executive is derived from the legislature and is
dependent on it for its legitimacy. Cabinet ministers in India both executive and legislative
functions. Art. 74(1) gives the upper hand to the cabinet ministers over the executive by making
their aid and advice mandatory for the President, who is the formal head of the State.

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In Re Delhi Laws Act A 7 judged bench of the Supreme Court relied on the principle that one
body should not perform the functions which essentially belong to the other. The court held that
though the doctrine of separation of power is not expressly mentioned in our Constitution, but is
evident in some exceptional circumstances. A clear demarcation was also made between the
different powers, responsibilities, and jurisdictions of the three separate organs of the State,
namely, the Legislature, the executive, and the Judiciary.

In Ram Krishna Dalmia v Justice Tendolkar the honorable Chief Justice SR Das opined that
even if there is an absence of specific provisions for the separation of power in our Constitution,
there is under the American Constitution. However, some such division of powers among the
legislative, executive, and Judiciary is implicit in our Constitution.

In Keshav Singh v Speaker, Legislative Assembly 5The Supreme Court relied on the doctrine
of separation of power and pointed that Article-211 debars the state legislature from discussing
the conduct of a High Court judge. The existence of a fearless and independent judiciary is the
basic foundation of the Constitutional structure in India does not provide any power to
Legislature to take action under Article-194(3) or Article 105(3) against a judge for its contempt
alleged to have been committed by the judge in the discharge of his duties.

In IC Golakhnath v State of Punjab The Supreme Court emphasized the doctrine of separation
of power. The then C.J. Subha Rao opined that: "The Constitution brings into existence different
constitutional entitles, namely the Union, the State, and the Union Territories. It creates the three
powerful instruments of power, namely the Legislature, the executive, and the Judiciary. It
demarcates their jurisdictions minutely and expects them to exercise their respective powers
without overstepping their limits. They should function within the spheres allotted to them.

In Indira Nehru Gandhi v Raj Narain The respondent challenged the constitutional validity of
Article-329A, which was added by the 39th Constitutional (Amendment) Act,1975, and argued
that it is violating the primary feature of the Constitution.

The court applied The landmark decision of Kesavananda Bharati and thus declared the
impugned clause-4 of Article-329A to be unconstitutional. Justice Chandrachud said that as the
pure judicial function is being transferred into the Legislature's hands, it, therefore, amounts to
the violation of the principle of separation of power.

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Interdependence of three powers

1. Executive over Legislative- Under Article-123, the President has the power to
promulgate ordinance (which has the same force as the one made by the Parliament or by
the state legislature) when Parliament is not in session and when the situation arises
which immediate action is required. The Executive exercises its powers under delegated
legislation. Under articles 118 and 208, both the Houses of Parliament have the authority
to make rules for regulating their respective procedure and conduct of business subject to
the provision of the Constitution. 2.
2. Judiciary over Legislative- Article-13 talks about the Judicial review under which the
Legislature makes the law, and this process is known as judicial. It refers to the
Judiciary's power to interpret the Constitution and declare any such law and order of the
Legislative and Executive to be void if found unconstitutional. Article 145 and 225
provides Legislative Powers to the High Court and the Supreme Court by which they can
formulate rules to regulate their procedure. There have been many instances where the
emergence of laws and policies can be seen in their judgments. For example, the
Vishakha guidelines were the supreme court a mod guidelines on sexual harassment.
3. Executive over Judiciary- The executive made for effect the functioning of the Judiciary
by making appointments to the office of the chief justice and other judges. Under Article-
71, the President performs judicial functions while granting pardons, reprise, respites, or
remission of punishment, remit or commute the sentence of any person convicted of any
offense (must be judicial). Under Article-124 (2A) and 217(3), the President discharges
his judicial functions in resolving disputes related to the age of the Judges of the
Constitutional Courts for retirement from their judicial office. The Tribunal and other
Quasi-judicial bodies also perform the judicial functions, which are a part of the
executive. In Administrative adjudication, the Executive agencies have the power to hear
and decide cases involving a particular future of any administrative activity.

Conclusion

The doctrine of separation of powers in India is not strictly adhered to. Instead, it is interpreted
and used as the Doctrinal Division of Functions, which means that although theoretically and
strictly the executive must only implement or execute laws, the Legislature should only make

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laws, and the Judiciary should only interpret the laws. Constitution is the terrestrial supreme law.
No organ should go beyond the role which the constitution assigns to it. It is the duty of the
judiciary, executive and legislature to adhere strictly to one of the most fundamental features of
the Separation of Powers’ Constitution. In a democratic country like India goals are enshrined in
the constitution and the state machinery is then setup accordingly. And here it can be seen that
constitutional provisions are made as such to support a parliamentary form of government where
the principle can’t be followed rigidly Today, the doctrine in its absolute form is only recognized
in letter as it is entirely unfeasible and impractical for usage in the operational practices of a
government. With the passage of time, States have evolved from being minimal and non-
interventionist to being welfare oriented by playing the multifarious roles of protector, arbiter,
controller and provider to the people.

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