INTRODUCTION

“Any system of government which tends to become passive and static is bad. The parliamentary system
of government, with all its failings, has the virtue that it can fit in with the changing pattern of life.”

Jawaharlal Nehru

India has adopted a parliamentary system of government. The founding fathers of our Constitution
bestowed upon us a true and real democracy by way of a representative form of government where the
will of the people is paramount. Our system is akin to the Westminster Model of Great Britain, with
several significant differences. India has a written Constitution, with the undercurrent of all our ancient
thought and philosophy right from the Vedic era running through it. On the other hand, Great Britain
has an unwritten Constitution and their Courts rely upon conventions and precedent to interpret and
enforce it. The crown is considered the head of state in the United Kingdom, and the King or Queen
ascends the throne through hereditary succession. In India, on the other hand, the President has been
designated the head of state, and is elected to office by the elected representatives of the people. The
Indian Constitution and form of government may be said to be different to those of Great Britain in
these respects.

The separation of powers, sometimes vaguely used interchangeably with the ‘Trias politica’ principle is a
model for the governance of a state. It is established in documents that dogma of separation of powers
considers the idea that the governmental functions must be based on a tripartite division of legislature,
executive and judiciary. The three organs should be separate, distinct and independent in its own sphere
so that one does not intrude the territory of the other. Previous literature denoted that Aristotle who
first perceived and saw that there is a specialization of function in each Constitution developed this
doctrine. Later many theorists such as Montesquieu, John Locke and James Harrington described these
functions as legislative, executive and judicial. All the theories originated by these political thinkers in
relation to the principle of separation of powers were on a basic presumption that the liberties of the
people should be protected from the tyrannical and despotic rulers when all the powers are vested and
exercised by the very same persons (Vishnoo Bhagwan, 2010).
 SEPARATION OF POWERS BETWEEN VARIOUS ORGANS
Our Constitutional system is basically federal, but has certain striking unitary features. It is therefore
often described as ‘Quasi-federal’. India has a dual system of government – the Union government at
the centre, and the State governments in the various states. To ensure the smooth running of this dual
machinery, the Constitution has adopted the policy of separation of powers, wherein the subjects on
which the Union and State legislatures can make laws have been enumerated in three ‘Lists’ in the
Seventh Schedule of the Constitution. These are: The List I or the Union list, which contains subjects in
the exclusive legislative jurisdiction of the Union; List II or the State List, which contains subjects in the
exclusive domain of the States; and List III – the Concurrent List, the contents of which are concurrent to
the domains of the Union and State legislatures. The other prominent federal characteristics of our
political system are that we have a written Constitution, which is considered supreme; and the
institution of the Supreme Court, which is the sole interpreter of the provisions of the Constitution. The
Supreme Court can step in to remedy the situations wherein either the Union or State governments
have overstepped their Constitutional limitations.

The model was first developed in ancient Greece. Under this model, the state is divided into branches,
each with separate and independent powers and areas of responsibility so that the powers of one
branch are not in conflict with the powers associated with the other branches. The typical division of
branches is into a legislature, an executive, and a judiciary. It can be differentiated with the merging of
powers in a parliamentary system where the executive and legislature are unified. Theory of Separation
of Powers is based on the concept and based on the the idea that for the sake of individual freedom.
Cooley emphasizes the prominence of the doctrine of separation of powers as “This arrangement gives
each department a certain independence, which operates as a restraint upon such action of others as
might encroach on the rights and liberties of the people, and makes it possible to establish and enforce
guarantees against attempts at tyranny.

The modern design of the principle of separation of powers was elaborated in constitutional theory of
John Locke (1632-1704). He wrote in his second treaties of Civil Government as follows: ‘It may be too
great a temptation for the humane frailty, apt to grasp at powers, for the same persons who have power
of making laws, to have also in their hands the power to execute them, whereby they may exempt
themselves from the law, both in its making and execution to their own private advantage'.
 MAJOR OBJECTIVES OF THE DOCTRINE OF SEPARATION OF POWERS:
The main objective of the doctrine is to prevent the abuse of power within different spheres of
government. In our constitutional democracy public power is subject to constitutional control. Different
spheres of government should act within their boundaries. The courts are the ultimate guardian of our
constitution, they are duty bound to protect it whenever it is violated. Moseneke CJ also stated that the
courts are more likely to confront the question of whether to venture into the domain of other branches
of government while performing their functions as entrusted by the constitution. Within the context of
the doctrine of separation of powers the courts are duty bound to ensure that the exercise of power by
other branches of government occurs within the constitutional context. The courts must also observe
the limit of their own power.

Different researchers also rebounded their views on the purpose of the doctrine. Montesquieu stated
that ‘When the legislative and executive powers are united in the same person, or in the same body of
magistrates there can be no liberty; because apprehensions may arise, lest the same monarch or senate
should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the
judicial power be not separated from the legislative and executive. Were it joined with the legislative,
the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the
legislator. Were joined to the executive power, the judge might behave with violence and oppression'.

According to Dicey, the doctrine rests on ‘the necessity of preventing the government, the legislature
and the courts from encroaching upon one another’s province’. Only few countries are attempting to
implement the doctrine of separation of powers.
 ELEMENTS OF SEPARATION OF POWERS
There are three main organs of the Government in a State-
Legislature

Executive

Judiciary.

The theory of Separation of Powers confers all the three organs of the government should be separated
from each other. Each department should be assigned to a different set of persons limited to its own
sphere of activities having independent jurisdictions from, the other. No organ of the government
should release any functions which it is not obliged to do. The theory signified that, each branch of the
Government must be confined to the exercise of its own function and not allowed to interrupt upon the
functions of other branches. In this way each branch will be a check to others and so single group of
people will be able to control the machinery of the state.

The theory of separation of the powers signifies the following three different things:
That the same person should not form part of more than one of the three organs of the government.

It is widely accepted that for a political system to be stable, the holders of power need to be balanced
off against each other. The principle of separation of powers deals with the mutual relations among the
three organs of the government, namely legislature, executive and judiciary. This doctrine tries to bring
exclusiveness in the functioning of the three organs and hence a strict demarcation of power is the aim
sought to be achieved by this principle. This doctrine signifies the fact that one person or body of
persons should not exercise all the three powers of the government.

The theory of separation of powers signifies three formulations of structural classification of

governmental powers:

 The same person should not form part of more than one of the three organs of the government.
For example, ministers should not sit in Parliament.
 One organ of the government should not interfere with any other organ of the government.
 One organ of the government should not exercise the functions assigned to any other organ.
 SEPARATION OF POWERS UNDER DIFFERENT CONSTITUTIONS
Despite the safeguards it gives against tyranny, the modern day societies find it very difficult to apply it
rigidly. In principle they go for separation of powers and dilution of powers simultaneously.

U.S.A.

The doctrine of separation finds its home in U.S. It forms the basis of the American constitutional
structure.

Article I, section 1 vests all legislative power in the Congress,

Article II, Section 1 vests all executive power in the President of the United States, and

Article III, Section 1 vests all judicial power in the Supreme Court.

The framers of the American Constitution believed that the principle of separation of powers would help
to prevent the rise of tyrannical government by making it impossible for a single group of persons to
exercise too much power. Accordingly, they intended that the balance of power should be attained by
checks and balances between separate organs of the government. This alternative system existing with
the separation doctrine prevents any organ to become supreme.

Despite of the express mention of this doctrine in the Constitution, the U.S. incorporates certain
exceptions to the principle of separation with a view to introduce a system of checks and balances. For
example, a bill passed by the Congress may be vetoed by the President in the exercise of his legislative
power. Also treaty-making power is with the President but it is not effective till approved by the Senate.
It was the exercise of executive power of the senate due to which U.S. couldn’t become a member to
League of Nations. The Supreme Court has the power to declare the acts passed by Congress as
unconstitutional.

England

England follows a parliamentary form of government where the Crown is the nominal head and the real
legislative functions are performed by the Parliament. The King though an executive head, is also an
integral part of the legislature and all his ministers are also members of one or other of the Houses of
the Parliament. Furthermore, the Lord Chancellor is at the same time a member of the House of Lords, a
member of the government, and the senior most member of the judiciary.

The judiciary is independent but judges of the superior courts can be removed on an address from both
house of Parliament. The House of Lords combines judicial and legislative functions. Legislative and
adjudicatory powers are being increasingly delegated to the executive. The resting of two powers in a
single body, therefore denies the fact that there is any kind of separation of powers in England.
India

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.

The President’s 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. 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.

If we study the constitutional provisions carefully, it is clear that the doctrine of Separation of Powers
has not been accepted in India in its strict sense. In India, not only there is functional overlapping but
there is personnel overlapping also.

The Supreme Court has power to declare void the laws passed by the legislature and the actions taken
by the executive if they violate any provision of the Constitution or the law passed by the legislature in
case of executive actions. The executive can affect the functioning of the judiciary by making
appointments to the office of Chief Justice and other judges. One can go on listing such examples yet the
list would not be exhaustive.

Separation of Powers and Judicial Pronouncements in India

The first major judgment by the judiciary in relation to Doctrine of separation of power was in Ram
Jawaya v state of Punjab. The court in the above case was of the opinion that the doctrine of separation
of power was not fully accepted in India. Further, the view of Mukherjea J. adds weight to the argument
that the above-said doctrine is not fully accepted in India. He states that:

“The Indian Constitution has not indeed recognized the doctrine of separation of powering its absolute
rigidity but the functions of the different parts or branches of the government have been sufficiently
differentiated and consequently it can very well be said that our constitution does not contemplate
assumption, by one organ or part of the state, of functions that essentially belong to another”.

Then in Indira Nehru Gandhi v. Raj Narain, where the dispute regarding Prime Minister’s election was
pending before the Supreme Court, it was held that adjudication of a specific dispute is a judicial
function which parliament, even under constitutional amending power, cannot exercise. So, the main
ground on which the amendment was held ultra vires was that when the constituent body declared that
the election of Prime Minister wouldn’t be void, it discharged a judicial function that according to the
principle of separation it shouldn’t have done. The place of this doctrine in the Indian context was made
a bit clearer after this judgment.
The Supreme Court in Keshvananda Bharti v Union of India was of the view that amending power was
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. Hence this further confirmed the opinion of the court in relation to the
doctrine of separation of power.

Our Constitution, in addition, also contains some significant provisions which are characteristic of a
unitary form of government. In spite of the distribution of powers between the Union and the States,
there is a strong bias in favour of the Union, and the authority of the States is hemmed in by various
limitations. The Union government has been given the power to issue directions to the State
governments in order to ensure compliance with the legislative and administrative action of the Union.
In addition, the Union may impose its own rule in a State which refuses to comply with such directions,
or where in its opinion, the Constitutional machinery has broken down There are a few other provisions
as well which impart a unitary hue to an otherwise federal model of government.

Our Constitution provides for three principal organs of the State, at both the levels of government: The
Legislature, The Executive and The Judiciary.

THE LEGISLATURE

The Union Legislature consists of a Parliament for the Union, which comprises
the Rashtrapati (President), the Lok Sabha (the House of the People) and the Rajya Sabha (the Council of
States). House of Lords.

The President

The President of India is elected indirectly by an electoral college consisting of the elected members of
both houses of Parliament and of the Union Territories of Delhi and Pondicherry; and the elected
members of the Legislative Assemblies of the States. The system of election of the President as
envisaged by the Constitution, is one of proportional representation by means of the single transferable
vote.

The President holds office for a term of five years from the date on which he enters office. The
qualifications of a candidate for election to this highest Constitutional office are Constitutionally
prescribed, as is the procedure for his removal by Parliament, by impeachment. Any bill passed by either
house of Parliament becomes a law only after the President grants his assent to it. In case of money
bills, the President is bound to give his assent. The President may return an ordinary bill to Parliament
for reconsideration, with a message to both houses, and is bound to give his assent to a bill so
reconsidered.

The Houses of Parliament – Lok Sabha and Rajya Sabha

The Lok Sabha or the House of the People consists of a maximum of 550 members chosen by direct
election from the territorial constituencies in the States and Union Territories, and not more than 2
members to be nominated by the President from the Anglo-Indian Community. The Lok Sabha is
presided over by the Speaker, who is elected by a simple majority by the house by the members present
therein.

The Rajya Sabha, on the other hand consists of not more than 250 members, of which 238 are
representatives of the States and Union Territories elected indirectly, and 12 are nominated by the
President from among those who have special knowledge or experience in the fields of literature,
science, arts or social service. The Vice President of India, who, like the President, is elected by an
electoral college, is the ex-officio chairman of the Rajya Sabha.

The State Legislatures – Vidhan Sabha and Vidhan Parishad

Each State Legislature consists of the Governor and the Vidhan Sabha (Legislative Assembly). In addition,
some states like Bihar, Maharashtra, Karnataka and Uttar Pradesh have a bicameral legislative system,
with an additional second house called the Vidhan Parishad (Legislative Council).

The Vidhan Sabha of every state may consist of between 60 and 500 members. The members of the
Vidhan Sabha are elected directly by the people from territorial constituencies within the state, while
the members of the Vidhan Parishad are elected indirectly by the members of local authorities,
graduates, teachers and the members of the Legislative Assemblies, and a few members are nominated
by the Governor.

The Governor

The Governor is appointed by the President of India, and holds office during the pleasure of the
President. The Constitution prescribes the qualifications for election of a person as Governor, and also
his functions and duties. The Governor is bound by duty to summon the Vidhan Sabha (and wherever
applicable, the Vidhan Parishad) to meet, and not more than six months may elapse between two
consecutive sessions of the house. He may also address each house either individually, or in a joint
session, and may send messages to the houses regarding bills pending in the house, or any other matter,
which the houses are required to consider with ‘all convenient dispatch’. The Governor’s assent is
required before any bill passed by the State Legislature becomes a law, and, he may either grant or
withhold his assent, or return the bill to the house for reconsideration. The Governor may also reserve a
bill for the consideration of the President, in which case, the final decision regarding it rests with the
President. These powers of the Governor are in sharp contrast with those of the President, who has
restricted powers regarding bills passed by Parliament.

THE EXECUTIVE

In the Westminster model of government, the executive consists of the Head of State and the Cabinet or
Council of Ministers. In India, the executive in the Union consists of the President and the Council of
ministers, and in the states, of the Governor and the council of ministers. Art. 74 states that the council
of ministers headed by the Prime Minister shall aid and advise the President, and the President is bound
to act on such aid and advice. The executive power of the Union is vested in the President is exercised
by him either directly or through officers subordinate to him, in accordance with the Constitution. The
Privy Council in Emperor v. Sibnath Bannerjee has clarified that “Ministers are officers subordinate to the
President…”. All executive functions of the Union are carried out in the name of the President. The
President is also the supreme commander of the defence forces. The President is the titular head of
state, and in most situations, has to act on the aid and advice of the Prime Minister and the Council of
Ministers. This ‘aid and advice’ is confidential and is not subject to the scrutiny of the courts. The
President has been given the powers to pardon or reprieve convicts.

The Prime Minister is the link between the President and the Council of Ministers. He is expected to
meet the President at regular intervals to inform him on the affairs of State.

The executive, meaning the cabinet, is in fact a sub-committee of parliament and the executive is
accountable to parliament as per the provisions of our Constitution. The survival of the council of
ministers depends upon whether the Lok Sabha has confidence in it. There are many procedures like no-
confidence motion etc. to oust the government in accordance with the wishes and desires or according
to the benefit of the public at large.

The executive in the States follows a similar pattern with the Governor instead of the President at the
head, and the Chief Minister, instead of the Prime Minister, heading the Council of Ministers of the
State.

THE JUDICIARY

Under the Constitution, a single and integrated judicial system for the entire country has been provided
with the Supreme Court at the apex, the High Courts in every state, and the lower courts situated below
the High Courts in the hierarchy. The High Courts as well as the Supreme Courts are competent to
interpret and enforce all laws passed within the country, whether by Parliament or the State
Legislatures.

The Supreme Court alone has been given the power to interpret the provisions of the Constitution of
India. Its decisions are binding on all the courts below it.

It is evident that though our Constitution does not adopt the doctrine of separation of powers, no organ
of the State can either trespass the domain of another organ, and nor can it delegate its essential
functions to any other organ of the State. Dr. Durgadas Basu, quoting judicial authorities says, “A written
Constitution by its very nature, involves a distribution of powers, though the legislative and executive
powers are not vested by the Constitution in the legislature and judiciary expressly, it is clear from the
different provisions of the Constitution that, barring specified exceptions, the power of making laws
shall be exercised by Parliament and the legislatures of states, and power of adjudication and
interpretation of the Constitution shall be exercised by the Courts. This is a Constitutional trust imposed
by the Constitution upon the legislature and the courts which they cannot themselves delegate to
others.”
 CONCLUSION
In conclusion, it can be broadly and safely said that the Parliament is to legislate, the Executive is to
administer and implement the law so made, with exception of powers to frame rules therein and for
administrative purposes and legislate – ordinances in emergencies, and the Supreme Court has the
power of interpretation of the Constitution and the laws framed thereunder, and its application lies with
High Courts / Supreme Court. Therefore the Parliament is supreme in its own sphere, and the executive
and Supreme Court (judiciary), in their own respective spheres. The Supreme Court, in various decisions,
has construed and interpreted the letter and intent of the Constitution and has laid down that the basic
structure of the Constitution cannot be altered, thereby implying that ultimately, it is the Constitution
which is supreme.

The doctrine of separation of powers in the strict sense is undesirable and unpractical and therefore till
now it has not been fully accepted in any of the country, but this does not mean that the doctrine has no
relevance in the world of today. The logic behind this doctrine is still valid. The logic behind the doctrine
is of polarity rather than strict classification, meaning thereby that the centre of authority must be
dispersed to avoid absolutism. Hence the doctrine can be better appreciated as a doctrine of ‘check and
balance’.