Separation of Powers

Introduction

 The concept of separation of powers refers to a system of government in which the

powers are divided among multiple branches of the government, each branch
controlling different facet of government.
 In most of democratic countries, it is accepted that the three branches are the
legislature, the executive and the judiciary.
 According to this theory, the powers and the functions of these branches must be
distinct and separated in a free democracy.
 These organs work and perform their functions independently without the interference
of one into other in order to avoid any kind of conflict.
 It means that the executive cannot exercise legislative and judicial powers, the
legislature cannot exercise executive and judicial powers and the judiciary cannot
exercise legislative and executive powers.
The Historical Evolution

 Aristotle, in his book ‘Politics’, discussed the concept of separation of powers stating that every
constitution should have a heterogeneous form of government consisting of mainly three
branches: the deliberative, public officials and the judiciary.
 In the 17th century during the arrival of Parliament in England, this theory of three branches of
government was reiterated by John Locke, a British Politician in his book ‘Two Treatises of
Government’ but with a different view. According to him, the three branches neither should have
equal powers nor work independently. In his opinion, the legislative branch must be supreme out
of all the three and other branches should be controlled by the monarch. His theory was based on
the system of government which was prevailing in England at that time i. e. coexistence of both a
democratic as well as an autocratic form of government.
 According to Wade and Phillips, the principle of separation of powers meant three things:
1. One person should not be made part of more than one branch of the government.
2. There should not be any interference and control of any organ of the government by the other.
3. No organ of the government should exercise the functions and powers of the other organ.
Baron de Montesquieu

 However, in the 18th century, the term ‘trias politica’ or the doctrine of separation of
powers was theorized meticulously by a French jurist, Baron de Montesquieu. He put
more emphasis on the independence of the judicial branch. He described that rather
being ostensible, the judiciary must be authentic in nature. In his viewpoint, one organ
or one person should not discharge the functions of all the other organ and the reason
was to safeguard and protect the freedom of the individuals and avoidance of tyrannical
rule. In his book De L’Esprit des Lois (The Spirit of Laws, 1748), he propounded that:-

 The Executive should not exercise the legislative or judicial powers because this may
threaten the freedom and liberty of individuals.
 The Legislative should never exercise the executive or judicial powers as this may lead
to arbitrariness and hence, end the liberty.
 The Judiciary should not exercise the executive or legislative powers because then a
judge would behave like a dictator.
Elements of Separation of Powers

Legislative
 The legislative organ of the government is also known as the rule-making body. The primary
function of the legislature is to make laws for good governance of a state. It has the authority
of amending the existing rules and regulations as well. Generally, the parliament holds the
power of making rules and laws.
Executive
 This branch of government is responsible for governing the state. The executives mainly
implement and enforce the laws made by the legislature. The President and the Bureaucrats
form the Executive branch of government.
Judiciary
 Judiciary plays a very crucial role in any state. It interprets and applies the laws made by the
legislature and safeguards the rights of the individuals. It also resolves the disputes within the
state or internationally.
Objectives of Separation of Powers

 Firstly, it aims to eliminate arbitrariness, totalitarianism and tyranny and promote an

accountable and democratic form of government.
 Secondly, it prevents the misuse of powers within the different organs of the government.
The Indian Constitution provides certain limits and boundaries for each domain of the
government and they are supposed to perform their function within such limits. In India,
the Constitution is the ultimate sovereign and if anything goes beyond the provisions of the
constitution, it will automatically be considered as null, void and unconstitutional.
 Thirdly, it keeps a check on all the branches of the government by making them
accountable for themselves.
 Fourthly, separation of powers maintains a balance among the three organs of
government by dividing the powers among them so that powers do not concentrate on any
one branch leading to arbitrariness.
 Fifthly, this principle allows all the branches to specialize themselves in their respective
field with an intention to enhance and improve the efficiency of the government.
Other countries
 The United Kingdom practices the unitary parliamentary constitutional monarchy. The concept of separation of
powers is applied in the UK but not in its rigid sense because the UK has an unwritten constitution. The Crown
is the head of the state whereas the Prime Minister is recognised as the head of the government. The executive
and the legislature are somehow interconnected to one another.
 The US has a written constitution and governed by the Presidential form of government. The cornerstone of the
Constitution of the United States is the doctrine of separation of powers. This concept is well-defined and clear
under the American Constitution.
Article I – Section 1 of the American Constitution states that –
 “ All the legislative powers are vested in Congress.”

Article II – Section 1 of the American Constitution states that –

 “ All the executive powers are vested in the President.”

Article III – Section 1 of the American Constitution states that –

 “ All the judicial powers are vested in the federal courts and the Supreme Court.”
Indian Constitution and Separation of Power

 Like the United Kingdom, India also practices the parliamentary form of
government in which executive and legislature are linked to each other. So,
the doctrine of separation of powers is not implemented in its strict sense.
However, the composition of our constitution creates no doubt that the Indian
Constitution is bound by the separation of powers. There are various
provisions under the Indian Constitution that clearly demonstrate the
existence of the doctrine of separation of powers. This principle is followed
both at the centre and the state level.
Provisions that Substantiate Separation
of Power
 Article 53(1) and Article 154 of the Indian Constitution clearly say that the Executive powers of the
Union and the States are vest in the President and Governor respectively and shall only be exercised
directly by him or through his subordinate officers.
 Article 122 and Article 212 of the Indian Constitution state that the courts cannot inquire in the
proceedings of Parliament and the State Legislature. This ensures that there will be no interference of
the judiciary in the legislature.
 Article 105 and Article 194 of the Indian Constitution specify that the MPs and MLAs cannot be called by
the court for whatever they speak in the session.
 Article 50 of the Indian Constitution encourages the separation of judiciary from the executive in the
states.
 Article 245 of the Indian Constitution gives authority to Parliament and State Legislature for making laws
for the whole country and the states respectively.
 Article 121 and Article 211 of the Indian Constitution state that the judicial conduct of any judge of the
Supreme Court or High Court shall not be discussed in Parliament or State Legislature.
 Article 361 of the Indian Constitution specifies that the President and the Governor are not accountable
to any court for exercising their powers and performance of duties in his office.
Overlapping Provisions

 Article 123 of the Indian Constitution allows the President to issue ordinance when both the houses are not in
session.
 Article 213 of the Indian Constitution gives power to the Governor to issue ordinance when state legislative
assembly is not in session.
 Article 356 of the Indian Constitution lays the provision of Presidential Rule in case of state emergency.
 Article 73 of the Indian Constitution specifies that the powers of the executive shall be co-extensive with that of the
legislature.
 Article 74 of the Indian Constitution states that the council of ministers shall aid the President in the exercise of his
executive functions.
 Article 75(3) of the Indian Constitution makes the Council of Ministers collectively responsible to the House of the
People.
 Article 61 of the Indian Constitution lays the provision of Impeachment of the President by passing a resolution from
both the houses in order to remove the President.
 Article 66 of the Indian Constitution states that the election of Vice-President is done by the electoral members of
both the houses.
 Article 145 of the Indian Constitution allows the Supreme Court to make laws with approval of the President for the
court proceedings and the practices.
Overlapping provisions

 Article 146 of the Indian Constitution lays the provisions for the appointment of the
servants and officers of the Supreme Court by the Chief Justice of India with
consultation from President and the Union Public Service Commission.
 Article 229 of the Indian Constitution lays the provision for the appointment of the
servants and officers of the High Courts with the consultation of the Governor and
the State Public Service Commission.
 Article 124 of the Indian Constitution gives the President the power to appoint the
judges of the Supreme Court.
 Article 72 of the Indian Constitution empowers President to grant a pardon or
suspend the sentence of any person who is convicted by the Supreme Court of India.
 Article 32, Article 226 and Article 136 of the Indian Constitution provide the power
of judicial review to the Supreme Court to strike down any law made by the
Parliament or any administrative action which is found to be unconstitutional.
Judicial Approach towards Separation of
Power in India
 The very first judgment with relation to the separation of powers was given by Mukherjee J. in
the case of Ram Jawaya Kapur v. State of Punjab. He concluded that-
“ The Constitution of India has not acknowledged the doctrine of separation of power
emphatically but the functions and powers of all the organs have been adequately distinguished.
Thus it would not be wrong to say that Indian constitution does not behold assumptions rather it
works in a flexible manner considering the needs of the country. So, the executive can exercise
the law-making power only when delegated by the legislature and it is also empowered to
exercise judicial powers within the limits. But on an all, no organ should exercise its power
beyond the provision of the constitution.”
 In the case of Indira Nehru Gandhi v. Raj Narain, Ray C. J. said:-
“ A rigid sense of separation of powers which has been given under the American and Australian
constitution does not apply to India.”
Beg J. further added that:-
“ The separation of power is a part of the basic structure of the constitution. So, the schemes of
the constitution cannot be changed even after restoring Article 368 of the Indian Constitution.”
Judicial Approach towards Separation of
Power in India
 In Golak Nath v. State of Punjab, it was observed by Subba Rao C.J. that:-
 “ The three organs of the government have to exercise their functions keeping in mind
certain encroachments assigned by the constitution. The constitution demarcates the
jurisdiction of the three organs minutely and expects them to be exercised within their
respective powers without overstepping their limits. All the organs must function within the
spheres allotted to them by the constitution. No authority which is created by the
constitution is supreme. The constitution of India is sovereign and all the authorities must
function under the supreme law of the land i.e. the Constitution.”
 Das J. talked about the separation of powers in the case of A. K. Gopalan v. State of
Madras:-
“ Although the constitution has imposed some limitations on the three organs of the government,
it has left our parliament and state legislature supreme in their respective fields. In the main,
subject to the limitations, our constitution has preferred the supremacy of legislature to that of
the judiciary and the court has no authority to question the wisdom or policy of the law duly
made by the appropriate legislature and this is the basic fact which the court must not outlook.”
Criticisms

 Complete separation is not possible: The government is one entity. Its three organs
can never be separated altogether. Legislative, executive, and judicial powers are all
interdependent and interrelated, and so cannot be separated completely.
 Complete separation is not desirable: Separation of the three government entities is
not possible nor desired. The three organs' requirement for unity and cooperation may
be severely hampered by the complete separation of powers.
 Impracticable in itself: We are unable to properly utilize the division of powers.
Legislative power cannot be vested only in the legislature. The needs of our day have
made it necessary to establish a system of delegated legislation that allows the
executive to make laws. No one can or should prevent judges from developing laws in
the form of case law.
 Separation of powers can lead to deadlocks and inefficiency: Separation of powers can
result in gridlock and inefficiency in government operations. It can lead to a situation
in which each organ is in conflict with the other two organs, resulting in a standstill.