SEPARATION OF POWERS (UNIT-3)

-Mrs. Gunjan Ahuja

INTRODUCTION:
Power
corrupts
and
absolute
Power
tends
to
corrupt
absolutely.
The separation of powers is based on the principle of trias politica. The Doctrine of Separation
of Power is the forerunner to all the constitutions of the world, which came into existence since
the days of the Magna Carta.
The doctrine of Separation of Powers deals with the mutual relations among the three organs of
the Government namely legislature, executive and judiciary. The origin of this principle goes
back to the period of Plato and Aristotle. It was Aristotle who for the first time classified the
functions of the Government into three categories viz., deliberative, magisterial and judicial
Locks categorized the powers of the Government into three parts namely: continuous executive
power, discontinuous legislative power and federative power. Continuous executive power
implies the executive and the judicial power, discontinuous legislative power implies the rule
making power, federative power signifies the power regulating the foreign affairs. The French
Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) published in 1748, for the first
time enunciated the principle of separation of powers. Thats why he is known as modern
exponent of this theory.
Montesquieu doctrine, in essence, signifies the fact that one person or body of persons should not
exercise all the three powers of the Government viz. legislative, executive and judiciary. In other
words each organ should restrict itself to its own sphere and restrain from transgressing the
province of the other.

Montesquieu Separation took the form, not of impassable barriers and unalterable frontiers, but
of mutual restraints, or of what afterwards came to be known as checks and balances. The
three organs much act in concert, not that their respective functions should not ever touch one
another. If this limitation is respected and preserved, it is impossible for that situation to arise
which Locke and Montesquieu regarded as the eclipse of liberty- the monopoly, or
disproportionate accumulation of power in one sphere. In 1787, the founding fathers of the
United States of America, incorporated this principle into their constitution.
According to Wade and Phillips the doctrine of separation of powers implies: (i) The same
person should not form more than one organ of the Government. (ii) One organ of the
Government should not exercise the function of other organs of the Government. (iii) One organ
of the Government should not encroach with the function of the other two organs of the
Government.
BRIEF HISTORY:
Aristotle first mentioned the idea of a "mixed government" or hybrid government in his
work Politics where he drew upon many of the constitutional forms in the city-states of Ancient
Greece. In the Roman Republic, the Roman Senate, Consuls and the Assemblies showed an
example of a mixed government according to Polybius.
In the sixteenth century, John Calvin favoured a system of government that divided political
power between democracy and aristocracy (mixed government). Calvin appreciated the
advantages of democracy: "It is an invaluable gift if God allows a people to elect its own
government and magistrates.
The doctrine may be traced to ancient and medieval theories of mixed government, which argued
that the processes of government should involve the different elements in society such as
monarchic, aristocratic, and democratic interests. The doctrine of separations of powers may be
traced back to an earlier theory known as the theory of mixed government from which it has
been evolved. That theory is of great antiquity and was adurnbrated in the writings of Polybius, a
great historian who was captured by the Romans in 167 BC and kept in Rome as a Political
hostage
for
17
years
in
his
history
of
Rome.
Polybius explained the reasons for the exceptional stability of Roman Government which
enabled Rome to establish a worldwide empire. He advanced the theory that the powers of Rome
stemmed from her mixed government. Unmixed systems of government that is the three primary
forms of government namely, Monarchy, Aristocracy and Democracy were considered by
Polybius
as
inherently
unstable
and
liable
to
rapid
degeneration.
The Roman constitutions counteracted that instability and tendency to degeneration by a happy
mixture of principles drawn from all the three primary forms of government. The consuls, the
senate and the popular Assemblies exemplified the monarchical, the aristocratic and the
democratic principles respectively.

The powers of Government were distributed between them in such a way that each checked and
was checked by the others so that an equipoise or equilibrium was achieved which imparted a
remarkable stabiliy to the constitutional structure. It is from the wok of Polybius that political
theorist in the 17th Century evolved that theory of separation of powers and the closely related
theory of Checks and Balances.
The first modern formulation of the doctrine was that of the French writer Montesquieu in De
lesprit des lois (1748), although the English philosopher John Locke had earlier argued that
legislative power should be divided between king and Parliament.
MONTESQUIEUSTHEORY

According to his theory, powers are of three kinds: Legislative, executive and judicial and that
each of these powers should be vested in a separate and distinct organ, for if all these powers, or
any two of them, are united in the same organ or individual, there can be no liberty. If, for
instance, legislative and executive powers unite, there is apprehension that the organ concerned
may enact tyrannical laws and execute them in a tyrannical manner. Again, there can be no
liberty if the judicial power be not separated from the legislative and the executive. Where it
joined the legislative, the life and liberty of the subject would be exposed to arbitrary control, for
the judge would then be the legislator. Where it joined with the executive power, the judge might
behave with violence and oppression.
Writing in 1748, Montesquieu said:
When the legislative and the 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 exact 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 the executive.
Where it joined with the legislative, the life and the liberty of the subject would be exposed to
arbitrary control; for the judge would be then a legislator. Where it joined to the executive power,
the judge might behave with violence and oppression.

There would be an end of everything, where the same man or the same body, whether of nobles
or of the people, to exercise those three powers, that of enacting laws, that of executing the
public resolutions and of trying the causes of individuals.
The theory of separation of powers signifies three formulations of structural classification of
governmental powers:
1. 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 the Parliament.
2. 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.

THE DOCTRINE OF CHECKS AND BALANCE

To prevent one branch from becoming supreme, protect the "opulent minority" from the majority,
and to induce the branches to cooperate, government systems that employ a separation of powers
need a way to balance each of the branches. Typically this was accomplished through a system of
"checks and balances", the origin of which, like separation of powers itself, is specifically
credited to Montesquieu. Checks and balances allow for a system-based regulation that allows
one branch to limit another, such as the power of the United States Congress to alter the
composition and jurisdiction of the federal courts. Both bipartite and tripartite governmental
systems apply the principles of the separation of powers to allow for the branches represented by
the separate powers to hold each other reciprocally responsible to the assertion of powers as
apportioned by law.
Typical branches

executive

legislative

judicial

auditory

electoral in which election commissions, tribunals or courts are maintained separately

from other branches

prosecutory

SEPARATION OF POWERS UNDER DIFFERENT COUNTRIES

France
According to the Constitution of the Fifth Republic, the government of France is divided up into
three branches:

Executive. This includes the popularly elected president as well as the prime minister and
cabinet. The French Prime minister is nominated by the president, but the government is
responsible to the lower house of the legislature, the National Assembly.

Legislature. A bicameral legislature that includes the Senate (upper house) and
the National Assembly (lower house). The relationship between the two houses is
asymmetric, meaning that in case of dispute, the National Assembly has the final word
according to Article 45 of the Constitution.

Judiciary. This includes the judicial and administrative orders. It also includes
a constitutional court.

Malaysia
Parliament legislature

Prime Minister, Cabinet, Government Departments and Civil Service executive

Federal Courts and lower courts judiciary

Pakistan

Parliament Legislative

Prime Minister and his Cabinet Executive

Supreme Court and lower courts Judicial

United Kingdom
Parliament legislature

Prime Minister, Cabinet, Government Departments & Civil Service executive

Courts judiciary

SEPARATION OF POWERS IN INDIA

It is often understood that in our country the debate about the separation of powers dates as long
back as the Constitution itself. It was extensively debated in the Constituent Assembly. It was not
given constitutional status in our Constitution finally but it does clearly seem that the constitution
of India has been made keeping the separation of powers doctrine in mind, but nowhere is this
explicitly stated or embraced by the constitution itself. Since ours is a parliamentary system of
governance, though an effort has been made by the framers of the constitution to keep the organs
of the government separated from each other, but a lot of overlapping and combination of powers
has been given to each organ.
The Indian Constitution has indeed not recognized the doctrine of separation of powers in its
absolute rigidity, but the functions of 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.
The legislative and executive wings are closely connected with each other due to this; the
executive is responsible to the legislature for its actions and derives its powers from the
legislature. The head of the executive is the president, but a closer look shows that he is only a
nominal head and the real power rests with the Prime Minister and his Cabinet of ministers as in
Article 74(1). In certain situations the President has the capacity to exercise judicial and
legislative functions. For example, while issuing ordinances. The judiciary too performs
administrative and legislative functions. The parliament too may perform judicial functions, for
example if a president is to be impeached both houses of Parliament are to take an active
participatory role. Thus all three organs act as a check and balance to each other and work in
coordination and cooperation to make our parliamentary system of governance work. India being
an extremely large and diverse country needs a system like this where all organs are responsible
to each other as well as coordinated to each other; otherwise making governance possible
becomes a very rigid and difficult task.
In Indian Constitution there is express provision that Executive power of the Union shall be
vested in the President and the executive power of the State shall be vested in Governor...
(Article 154(1) of Indian Constitution).But there is no express provision that legislative and
judicial powers shall be vested in any person or organ.
Though, just like American constitution, in Indian constitution also, 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.
It is noteworthy that A. 50 of the constitution puts an obligation over state to take steps to
separate the judiciary from the executive. But, since it is a DPSP, 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. India, since it is a
parliamentary form of government, therefore it is based upon intimate contact and close coordination 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 Art. 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.
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 case, 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 A. 123, A. 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. Does it not imply that unless it can be gathered from other provisions of the
constitution, other bodies-executive or judicial-are not intended to discharge legislative
functions?
In essence they imported the modern doctrine of separation of powers. While dealing with the
application of this doctrine, it is quintessential to mention the relevant cases which clarify the
situation further.
CASE LAWS IN INDIA
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. A. 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 dependant on it, for its legitimacy. This
was the observation made by the Honble S.C. in Ram Jawaya v. Punjab.
On the question that where the amending power of the Parliament does lies and whether A. 368
confers an unlimited amending power on Parliament, the S.C. in Kesavananda Bharati 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 A. 368 of the constitution. There are attempts
made to dilute the principle, to the level of usurpation of judicial power by the legislature.
In a subsequent case law, S.C. had occasion to apply the Kesavananda ruling regarding the nonamend ability of the basic features of the constitution and a strict adherence to doctrine of
separation of powers can be seen. In Indira Gandhi Nehru v. Raj Narain, where the dispute
regarding P.M. 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 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. The place
of this doctrine in Indian context was made a bit clearer after this judgment.
Though in India strict separation of powers like in American sense 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.
In Asif Hameed v. State of J & K, it has been held that Although the doctrine of separation of
powers has not been recognized under the constitution in its absolute rigidity but the constitution
makers have meticulously defined the functions of various organs of the state. Legislative,
Executive and Judiciary have to function within their respective spheres demarcated under the
constitution. No organ can usurp the functions assigned to another. Legislative and executive
organs, the two facets of the peoples will, have all the powers including that of finance.
Judiciary has no power over sword or the purse. Nonetheless it has power to ensure that the
aforesaid two main organs of the state function within the constitutional limits. It is the sentinel
of democracy.
EFFECTS
The doctrine of separation of powers as propounded by Montesquieu had tremendous impact on
the development of administrative law and functioning of Governments. It was appreciated by
English and American jurists and accepted by politicians. In his book Commentaries on the
Laws of England, published in 1765, Blackstone observed that if legislative, executive and
judicial functions were given to one man, there was an end of personal liberty. Madison also
proclaimed: The accumulation of all powers, legislative and 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. The Constituent Assembly of France

declared in 1789 that there would be nothing like a Constitution in the country where the
doctrine of separation of powers was not accepted.
IMPORTANCE
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 that having will 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. Also in
1787 the American constitution inserted the provision pertaining to the Doctrine of separation of
power at the time of drafting of the constitution in 1787.
DEFECTS
Though, theoretically, the doctrine of separation of powers was very sound, many defects
surfaced when it was sought to be applied in real life situations. Mainly, the following defects
were found in this doctrine:
a) Historically speaking, the theory was incorrect. There was no separation of powers under the
British Constitution. At no point of time, this doctrine was adopted in England.
As Prof. Ullman says: England was not the classic home of separation of powers. It is said:
Montesquieu looked across foggy England from his sunny vineyard in Paris and completely
misconstrued what he saw.
b) This doctrine is based on the assumption that the three functions of the Government viz
legislative, executive and judicial are independent of distinguishable from one another. But in
fact, it is not so. There are no watertight compartments. It is not easy to draw demarcating line
between one power and another with mathematical precision.
1. c) It is impossible to take certain actions if this doctrine is accepted in this entirety. Thus,
if the legislature can only legislate, then it cannot punish anyone, committing a breach of

its privilege; nor can it delegate any legislative function even though it does not know the
details of the subject-matter of the legislation and the executive authority has expertise
over it; nor could the courts frame frame rules of procedure to be adopted by them for the
disposal of cases. Separation of Powers, thus can only be relative and not absolute.d)
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. Jusice Frankfurter
said; Enforcement of a rigid conception of separation of powers would make modern
Government impossible. Strict separation of powers is a theoretical absurdity and
practical impossibility.
e) The modern interpretation of the doctrine of Separation of Powers mans 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.
f) Fundamental object behind Montesquieus doctrine was liberty and freedom of an individual;
but that cannot be achieved by mechanical divison of functions and powers. In England, theory
of Separation of Powers is not accepted and yet it is known for the protection of individual
liberty. For freedom and liberty, it is necessary that there should be Rule of Law and impartial
and independent judiciary and eternal vigilance on the part of subjects.
EVALUATION OF THE DOCTRINE-CONCLUSION
In strict sense the principle of separation of powers cannot be applied in any modern
Government either may be U.K., U.S.A., France, India or Australia. But it does not mean that the
principle has no relevance now a days. Government is an organic unity. It cannot be divided into
water tight compartments.
History proves this fact. If there is a complete separation of powers the government cannot run
smoothly and effectively. Smooth running of government is possible only by co-operation and
mutual adjustment of all the three organs of the government. Prof. Garner has rightly said, the
doctrine is impracticable as a working principle of Government. It is not possible to categorize
the functions of all three branches of Government on mathematical basis. The observation of
Frankfurter is notable in this connection. According to him Enforcement of a rigid conception
of separation of powers would make Government impossible