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Separation of Powers

Notes

Separation of powers is a principle of government that divides the functions of the state into
separate branches (Legislature, Executive and Judiciary) with distinct powers and
responsibilities, in order to prevent any one branch from becoming too powerful or abusive.

The separation of powers is often seen as a key feature of democratic societies because it helps to
ensure that power is distributed among different groups and individuals, and that no single group
or individual has too much control over the government. This can help to protect individual
rights and prevent abuses of power, and is an important check on the authority of any
government.

Origin of the concept of Separation of Powers

This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he
described the three agencies of the government as The deliberative, The Magisterial and The
Judicial. Even John Locke in his "Two Treatises on Civil Government" categorized the powers
of the Government into three parts namely: executive, legislative and federative.

However, it was 18th-century French philosopher Baron Montesquieu who made the doctrine a
highly systematic and scientific one, in his book De l'esprit des lois (The Spirit of Laws).

Montesquieu’s doctrine of Separation of Power

Focal point of his doctrine was protection of persons’ liberty which would be endangered if
legislative, executive and judicial functions were given to the same body. Montesquieu observed:
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“When the legislative and executive powers are united in the same person, there can be no
liberty, because apprehensions may arise, the same monarch or senate will enact tyrannical
laws, to execute them in a tyrannical manner. Again, there is no liberty if the judicial power is
not separated from the legislative and the executive powers. If it joined with the legislative, the
life and liberty of the subject would be exposed to arbitrary control, for the judge would then be
the legislator. If it joined with the executive power, the judge might behave with violence and
oppression.”

The doctrine of separation of power is strictly followed under the US Constitution. However,
owing to certain inherent defects in the doctrine itself, many countries do not follow it strictly.
The Indian Constitution has adopted limited separation of powers.

Defects in strict Enforceability of Doctrine of Separation of Power

1. It is not easy to draw a demarcating line between one power and another with
mathematical precision.
2. If this doctrine is strictly followed, certain actions would become impossible. For
instance, if the legislature is limited to only making laws, it would have no power to
punish individuals who violate its privileges. Additionally, it would be unable to delegate
legislative functions, even when it lacks expertise on specific subjects and the executive
branch is better equipped to handle them. Similarly, courts would not be able to establish
procedural rules for handling cases, as that would involve a form of rule-making beyond
their judicial role.
3. The modern State is a welfare State and it has to solve complex socio-economic problems
and in this state of affairs also, it is not possible to stick to this doctrine. Strict separation
of powers is a theoretical absurdity and practical impossibility.
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Modern interpretation of the doctrine of separation of powers

The modern interpretation of the doctrine of separation of powers means that discretion must be
drawn between "essential" and "incidental" powers and one organ of the government cannot
usurp or encroach upon the essential functions belonging to another organ, but may exercise
some incidental functions thereof.

Separation of Powers in India

Unlike in the US, in India, the concept of separation of powers is not adhered to strictly. The
Indian Constitution adopts a functional separation rather than a rigid one.

Under the Indian Constitution, executive powers are with the President, legislative powers with
Parliament, and judicial powers with Judiciary.

Taking into account these factors, some jurists are of the opinion that the doctrine of separation
of powers has been accepted in the Indian Constitution and is a part of the basic structure of the
Constitution. But if we study the constitutional provisions carefully, we would see that the
doctrine of separation of powers has not been accepted in India in its strict sense.

Constitutional Provisions Related to Separation of Powers

1. Article 50 - Directs the state to separate the judiciary from the executive in public
services.
2. Article 53 & Article 154 - Vests the executive power of the Union and the States in the
President and Governor, respectively.
3. Article 121 & Article 211 - Prohibits courts from questioning the validity of legislative
proceedings.
4. Article 122 & Article 212 - Prohibits courts from questioning the validity of legislative
proceedings.
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Exceptions to Separation of Powers in India

1. Legislature's role in executive functions: The Prime Minister and Council of Ministers
are part of both the legislature and the executive.
2. Executive's legislative functions: The President and Governors under Article 123 and
213 respectively have ordinance-making powers.
3. Executive's Judicial Function - The President and Governor under Article 72 and 161
respectively have been conferred with pardoning powers. Furthermore, under Article 103
President decides disputes regarding disqualification of members of any House of
Parliament.
4. Judiciary’s legislative role: Courts frame their own procedural rules and engage in
judicial law-making through precedents.
5. Judicial function exercised by Parliament - Parliament can decide the question of
breach of its privilege and, if proved, can punish the person concerned under Article 105.
6. Executive or Administrative functions of Judiciary - The High Court has supervisory
powers over all subordinate courts and tribunals and also the power to transfer cases.

Checks and Balances

Although there is no strict separation of powers, the Indian Constitution provides a system of
checks and balances:

A. Judicial Review: The judiciary can strike down unconstitutional laws and executive
actions.
B. Legislative Oversight: The legislature exercises control over the executive through
parliamentary procedures such as question hours, debates, and committees.
C. Executive responsible to Legislature - Council of Minister is accountable to Lok Sabha
for its acts.
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D. Legislature can remove the President, Judges, and certain officials through Impeachment.

In Ram Jawaya Kapoor v State of Punjab (1955), Justice Mukherjee observed that:

“The Indian Constitution has not indeed recognised the doctrine of separation ofpowers in its
absolute rigidity but the functions of the different parts or branches of the government have
beensufficiently differentiated and consequently it can be very well said that our Constitution
does not contemplateassumption by one organ or part of the state of functions that essentially
belong to another.”

In Indira Nehru Gandhi v Raj Narain (1975), Hon'ble Justice Chandrachud observed: "The
American Constitution provides for a rigid separation of governmental powers into three basic
divisions the executive, legislative and judicial. It is essential principle of that Constitution that
powers entrusted to one department should not be exercised by any other department. But the
principle of separation of powers is not a magic formula for keeping the three organs of the State
within the strict confines of their functions."

In this case, Justice Ray held that under our Constitution separation of power is adopted only in
broad sense.

In SC Advocate on Record Association v UOI (2016), 99th Constitutional amendment which

introduced NJAC (National Judicial Appointment Committee) by replacing collegium system for
appointment of Judges of Supreme Court was challenged.

The Supreme Court held that:

➔ separation of powers is an essential feature and is a part of basic structure of the

Constitution,
➔ separation of powers in our Constitution, however, is not as rigid as in the US,
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➔ there is no violation of separation of powers as soon as there is an overlap of the function

of one branch of government with another branch of government. But if one branch takes
over an essential function of another branch, there is violation of the doctrine of
separation of powers.
➔ appointment of judges is a core function or power vested in the judiciary and cannot be
impinged upon either by the executive or by the legislature.

To conclude, we can say, while India does not follow a strict separation of powers, the
Constitution ensures a functional division with checks and balances to maintain accountability
and prevent abuse of power. This flexible approach allows for coordination and efficiency in
governance while safeguarding democracy and fundamental rights.