Introduction

To become truly great, one has to stand with people, not above them.
Charles de Montesquieu
Understanding that a government's role is to protect individual rights, but
acknowledging that governments have historically been the major violators of
these rights, a number of measures have been derived to reduce this likelihood. The
concept of Separation of Powers is one such measure. 1 There are three distinct
activities in every government through which the will of the people are expressed.
These are the legislative, executive and judicial functions of the government.
Corresponding to these three activities are three organs of the government, namely
the legislature, the executive and the judiciary. The legislative organ of the state
makes laws, the executive enforces them and the judiciary applies them to the
specific cases arising out of the breach of law. 2 According to the theory of
separation of powers, these three powers and functions of the Government must, in
a free democracy, always be kept separate and be exercised by three separate
organs of the Government. Thus, legislature cannot exercise legislative or judicial
power; the Executive cannot exercise legislative or judicial and
the Judiciary cannot exercise legislative or executive power of the Government.3
But each organ while performing its activities tends to interfere in the sphere of
working of another functionary because a strict demarcation of functions is not
possible in their dealings with the general public. Thus, even when acting in ambit
of their own power, overlapping functions tend to appear amongst these organs.The
premise behind the Separation of Powers is that when a single person or group has
a large amount of power, they can become dangerous to citizens. The Separation of
Power is a method of removing the amount of power in any hands, making it more
1 http://legalservicesindia.com/article/article/separation-of-power-in-india-usa-483-1.html
2 http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html
3

Basu, D.D., Administrative Law, Kamal Law House, Kolkata, Sixth Edition, 2004

difficult

to

abuse.

Historical Background

The separation of powers is a model for the governance of both democratic

and federative states. The model was first developed in ancient Greece and came
into widespread use by the Roman Republic as part of the un-codified
Constitution of the Roman Republic. The doctrine of separation of powers has
emerged in several forms at different periods. Its origin is traceable to Plato and
Aristotle. In the 16th and 17th centuries, French philosopher John Bodin and
British politician Locke expressed their views about the theory of separation of
powers. But it was Montesquieu who for the first time formulated this doctrine
systematically, scientifically and clearly in his book Esprit des Lois (The Spirit of
the Laws), published in the year 1748.4
Montesquieus Doctrine
Though the doctrine of Separation of Power is traceable to Aristotle but the
writings of Locke and Montesquieu gave it a base on which modern attempts to
distinguish between legislative, executive and judicial power is grounded.
Montesquieu found that if the power is concentrated in a single persons
hand or a group of people then it results in a tyrannical form of government. To
avoid this situation with a view to checking the arbitrariness of the government he
suggested that power of governance there should be clear cut division of power
between the three organs of the state i.e. Executive, Legislative and the Judiciary.
This made Montesquieu propound the above said theory and according to this it
was held that each organ of the state should be confined to its own spheres i.e.
there should not be any overlapping of jurisdictions of the organs of the state.
Montesquieu studied the English constitution for two years and after that he came
to the conclusion that the stability of the English Constitution is because of its
adherence of the separation of power. Montesquieu had clearly misconstrued the
statement pertaining to the British constitution and later on he was criticized and in
a very sarcastic manner its criticism was made.

4 http://legalservicesindia.com/article/article/separation-of-power-in-india-usa-483-1.html
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After the end of the war of independence in America by 1787 the founding fathers
of the American constitution drafted the constitution of America and in that itself
they inserted the Doctrine of separation of power and by this America became the
first nation to implement the Doctrine of separation of power throughout the world.
The constituent Assembly of France in 1789 was of the view that there would be
nothing like a Constitution in the country where the doctrine of separation of
power is not accepted. In France, where the doctrine was preached with great
force by Montesquieu, it was held by the more moderate parties in the French
Revolution.
However the Jacobins, Napoleon I and Napoleon III discarded the above theory for
they believed in the concentration of power. But it again found its place in the
French Constitution of 1871.
Later Rousseau also supported the said theory propounded by Montesquieu.
England follows the parliamentary form of government where the crown is only a
titular head. The mere existence of the cabinet system negates the doctrine of
separation of power in England as the executive represented by the cabinet remains
in power at the sweet will of the parliament. 5

5 http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf
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Separation of Powers under Indian Constitution

On a casual glance at the provisions of the Constitution of India, one may be
inclined to say that that the doctrine of Separation of Powers is accepted in India.
Under the Indian Constitution, executive powers are with the President, legislative
powers with Parliament and judicial powers with Judiciary (Supreme Court, High
Courts and Subordinate Courts).
Functional overlapping: The Presidents function and powers are enumerated in
the Constitution itself. Parliament is competent to make any law subject to the
provisions of the Constitution and there is no other limitation on it legislative
power. The Judiciary is independent in its field and there can be no interference
with its judicial functions either by the Executive or by the Legislature. The
Supreme Court and High Courts are given the power of judicial review and they
can declare any law passed by the Parliament or the Legislature unconstitutional.6
No rigid separation of powers: In Indian constitution, there is express mention that
the executive power of the Union and of a State is vested by the constitution in the
President and the Governor, respectively, by articles 53(1) and 154(1), but there is
no corresponding provision vesting the legislative and judicial powers in any
particular organ. It has accordingly been held that there is no rigid separation of
powers.
Although prima facie it appears that our constitution has based itself upon doctrine
of separation of powers. Judiciary is independent in its field and there can be no
interference with its judicial functions either by the executive or the legislature.
Constitution restricts the discussion of the conduct of any judge in the Parliament.
The High Courts and the Supreme Court has been given the power of judicial
review and they can declare any law passed by parliament as unconstitutional. The
judges of the S.C. are appointed by the President in consultation with the CJI and
judges of the S.C. The S.C. has power to make Rules for efficient conduction of
business.

Massey, I.P., Administrative Law, Eastern book Company, Lucknow, Sixth Edition, 2005

It is noteworthy that Article 50 of the constitution puts an obligation over state to

take steps to separate the judiciary from the executive. But, since it is a Directive
Principle of State Policy, therefore its unenforceable.
In a similar fashion certain constitutional provisions also provide for
Powers, Privileges and Immunities to the MPs, Immunity from judicial scrutiny
into the proceedings of the house , etc. Such provisions are thereby making
legislature independent, in a way. The Constitution provides for conferment of
executive power on the President. His powers and functions are enumerated in the
constitution itself. The President and the Governor enjoy immunity from civil and
criminal liabilities.
But, if studied carefully, it is clear that doctrine of separation of powers has
not been accepted in India in its strict sense. The executive is a part of the
legislature. It is responsible to the legislature for its actions and also it derives its
authority from legislature.
Parliamentary executive: In India, since it is a parliamentary form of
government, therefore it is based upon intimate contact and close co-ordination
among the legislative and executive wings. However, the executive power vests in
the President but, in reality he is only a formal head and that, the Real head is the
Prime minister along with his Council of Ministers. The reading of Article 74(1)
makes it clear that the executive head has to act in accordance with the aid and
advice given by the cabinet.
Generally the legislature is the repository of the legislative power but, under
some specified circumstances President is also empowered to exercise legislative
functions.
Like while issuing an ordinance, framing rules and regulations relating to Public
service matters, formulating law while proclamation of emergency is in force.
These were some instances of the executive head becoming the repository of
legislative functioning. President performs judicial functions also under article 103
(1) and article 217(3).
On the other side, in certain matters Parliament exercises judicial functions too. It
can decide the question of breach of its privilege, and in case of impeaching the
President; both the houses take active participation and decide the charges

Judiciary, in India, too can be seen exercising administrative functions when

it supervises all the subordinate courts below. It has legislative power also which is
reflected in formulation of rules regulating their own procedure for the conduct and
disposal of cases
So, its quite evident from the constitutional provisions themselves that India,
being a parliamentary democracy, does not follow an absolute separation and is,
rather based upon fusion of powers, where a close co-ordination amongst the
principal organs is unavoidable and the constitutional scheme itself mentions it.
The doctrine has, thus, not been awarded a Constitutional status. Thus,
every organ of the government is required to perform all the three types of
functions. Also, each organ is, in some form or the other, dependant on the other
organ which checks and balances it. The reason for the interdependence can be
accorded to the parliamentary form of governance followed in our country. But,
this doesnt mean that this doctrine is not followed in India at all.
Except where the constitution has vested power in a body, the principle that one
organ should not perform functions which essentially belong to others is followed.
This observation was made by the Supreme Court in the re Delhi Laws Act case7,
wherein, it was held by a majority of 5:2, that, the theory of separation of powers is
not part and parcel of our Constitution. But, it was also held that except for
exceptional circumstances like in Article 123 and 357, it is evident that constitution
intends that the powers of legislation shall be exercised exclusively by the
Legislature. As Kania, C.J., observed-Although in the constitution of India there is
no express separation of powers, it is clear that a legislature is created by the
constitution and detailed provisions are made for making that legislature pass laws.
In essence they imported the modern doctrine of separation of powers. 8

7 AIR 1951 SC 332

8 http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html
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Separation of Powers and Judicial Pronouncements in India

As clearly mentioned about the separation of power, there were times where the
judiciary has faced tough challenges in maintaining and preserving the Doctrine of
separation of power and it has in the process of preservation of the above said
Doctrine has delivered landmark judgments which clearly talks about the
independence of judiciary as well as the success of judiciary in India for the last six
decades.
In India, we follow a separation of functions and not of powers. And hence, we
dont abide by the principle in its rigidity. An example of it can be seen in the
exercise of functions by the Cabinet ministers, who exercise both legislative and
executive functions. Article 74(1) wins them an upper hand over the executive by
making their aid and advice mandatory for the formal head. The executive, thus, is
derived from the legislature and is dependent on it, for its legitimacy. This was the
observation made by the Honble S.C. in Ram Jawaya Kapoor v. State of
Punjab9.
Later in I.C.Golak Nath v State of Punjab10 Subha Rao, C.J opined that
The constitution brings into existence different constitutional entitles,
namely the union, the state and the union territories. It creates three major
instruments of power, namely the Legislature, the Executive and the Judiciary. It
demarcates their jurisdiction minutely and expects them to exercise their respective
powers without overstepping there limits. They should function with the spheres
allotted to them
The above opinion of the court clearly states the change in the courts view
pertaining to the opinion in the case of Ram Jawaya v state of Punjab related to the
doctrine of separation of power.

9 AIR 1955 SC 549

10 AIR 1967 SC 1643
8

On the question that where the amending power of the Parliament does lies and
whether Article 368 confers an unlimited amending power on Parliament, the S.C.
in Kesavananda Bharati v State of Kerela11 held that amending power was now
subject to the basic features of the constitution. And hence, any amendment
tampering these essential features will be struck down as unconstitutional. Beg, J.
added that separation of powers is a part of the basic structure of the constitution.
None of the three separate organs of the republic can take over the functions
assigned to the other. This scheme cannot be changed even by resorting to Article
368 of the constitution. There are attempts made to dilute the principle, to the level
of usurpation of judicial power by the legislature.
Then in Indira Gandhi Nehru v. Raj Narain 12, where the dispute regarding
P.M. election was pending before the Supreme Court, opined that adjudication of a
specific dispute is a judicial function which parliament, even under constitutional
amending power, cannot exercise i.e. the parliament does not have the jurisdiction
to perform a function which the other organ is responsible for otherwise there will
be chaos as there will be overlapping of the jurisdictions of the three organs of the
state. So, the main ground on which the amendment was held ultravires was that
when the constituent body declared that the election of P.M. wont be void, it
discharged a judicial function which according to the principle of separation it
shouldnt have done. Chandrachud J. also observed that the political usefulness of
doctrine of Separation of Power is not widely recognized. No constitution can
survive without a conscious adherence to its fine check and balance. The principle
of Separation of Power is a principle of restraint which has in it the precept, innate
in the prudence of self preservation, that discretion is the better part of valor. The
place of this doctrine in Indian context was made a bit clearer after this judgment.
Also in I.R. Coelho vs. State of Tamil Nadu,13 S.C. took the opinion opined
by the Supreme court in Kesavananda Bharati case pertaining to the doctrine of
basic structure and held that the Ninth Schedule is violative of the above said
11 AIR 1973 SC 1461
12 AIR 1975 SC 2299
13 AIR 2007 SC 8617
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doctrine and hence from now on the Ninth Schedule will be amenable to judicial
review which also forms part of the basic structure theory.

Though in India strict separation of powers is not followed but, the principle of
checks and balances, a part of this doctrine is. Therefore, none of the three organs
can usurps the essential functions of the organs, which constitute a part of basic
structure doctrine so much so that, not even by amending the constitution and if
any such amendment is made, the court will strike it down as unconstitutional.

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Importance of the Doctrine

The doctrine of separation of power in its true sense is very rigid and this is one of
the reasons of why it is not accepted by a large number of countries in the world.
The main object as per Montesquieu in the Doctrine of separation of power is that
there should be government of law rather than having willed and whims of the
official
Also another most important feature of the above said doctrine is that there should
be independence of judiciary i.e. it should be free from the other organs of the state
and if it is so then justice would be delivered properly. The judiciary is the scale
through which one can measure the actual development of the state if the judiciary
is not independent then it is the first step towards a tyrannical form of government
i.e. power is concentrated in a single hand and if it is so then there is a cent percent
chance of misuse of power.
Hence the Doctrine of separation of power do plays a vital role in the creation of a
fair government and also fair and proper justice is dispensed by the judiciary as
there is independence of judiciary.
Also the importance of the above said doctrine can be traced back to as early as
1789 where the constituent Assembly of France in 1789 was of the view that there
would be nothing like a Constitution in the country where the doctrine of
separation of power is not accepted. 14

14

http://www.airwebworld.com/articles/index.php?article=1512

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Criticism
The legislature, the Judiciary and the Executive are the three pillars of a stable
government. The aim of the doctrine of the Separation of Powers is to bring
exclusiveness in the functioning of the three organs. In principle each organ should
be able to perform its function independent of the other organs and no organ should
perform functions that belong to the other. Chaos would prevail if the same man or
the same body were to exercise the three powers. The accumulation of all powers,
legislative, executive and judicial in the same hands whether of one, a few, or
many and whether hereditary, self-appointed or elective, may justly be pronounced
the very definition of tyranny.
Adherence to it not possible in welfare state: As we know the legislature can
only legislate and the executive can only punish anyone who commits a breach of
privilege; neither of these two can assume the powers of the other. So this theory
cannot be accepted in its entirety because separation of powers can only be relative
and not absolute. According to Justice Frankfurter Enforcement of a rigid
conception of separation of powers would make modern government impossible.
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Division of function: The assumption behind the doctrine of separation of powers

is that the three functions of the government are divisible from each other. The fact
however is that it is not so in reality. There is overlapping with each other.
Organic separation: The theory is criticized on the ground that the government is
an organic unity and absolute demarcation of powers is impossible. It is neither
practicable nor desirable to divide it into three water-tight compartments. The
distinction must be drawn between essential and incidental powers and that one
organ of government cannot usurp upon the essential functions belonging to
another organ
Practical difficulties in its acceptance: in practice it has not been found possible
to concentrate power of one kind in one organ only. The legislature does not act
merely as law making body, but also act as an overseer of the executive, the

15 http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf
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administrative organ has legislative function. The judiciary has not only judicial
functions but also has some rule making powers.16
Thus separation of powers is not only practically impossible but theoretically
absurd too.
Although Montesquieus doctrine aims to secure the liberty and freedom of the
individual yet it is impossible to achieve the same through the mechanical division
of functions and powers. Rule of Law accompanied by eternal vigilance are the
mainstay of freedom and liberty.
Some have argued that while functions may be demarcated powers should always
remain supreme. But it is impossible to perform functions without the necessary
powers. At one point of time this theory held great value against the despotism of a
king and later of a parliament. Such despotism does not exist today. The modern
day governments require protection against the domination of parliament and of
civil servants. The separation of powers is too mechanical in nature to be of any
avail against these types of domination.

16

Upadhya, JJR, Administrative Law, Central Law Agency, 7th ed, 2006

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What is required is not separation of powers but co-ordination or articulation of

powers. Although this doctrine of separation of powers ensures a certain degree of
efficiency it can even give rise to jealousy, suspicion and internal friction. In the
words of Finer, the theory of separation of powers throws government into
alternative conditions of coma and convulsion.Conclusion
Power corrupts and absolute Power tends to corrupt absolutely
-LordActon
Conferment of power in a single body leads to absolutism. But, even after
distinguishing the functions, when an authority wields public power, then
providing absolute and sole discretion to the body in the matters regarding its
sphere of influence may also cause abuse of such power. Therefore, the doctrine of
separation of powers is a theoretical concept and is impracticable to follow it
absolutely
The doctrine of separation of power in its true sense is very rigid and this is one of
the reasons of why it is not accepted by a large number of countries in the world.
So the framers of the Indian constitution did not incorporate a strict doctrine of
separation of powers but envisaged a system of checks and balances,.

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Bibliography
BOOKS:
Basu, D.D., Administrative Law, Kamal Law House, Kolkata, Sixth Edition,
2004
Massey, I.P., Administrative Law, Eastern book Company, Lucknow, Sixth
Edition, 2005
Upadhya, JJR, Administrative Law, Central Law Agency, 7th ed, 2006
WEBSITES:
http://legalservicesindia.com/article/article/separation-of-power-in-india-usa-4831.html
http://www.airwebworld.com/articles/index.php?article=1512
http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf

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