Central University Of South Bihar

SCHOOL OF LAW AND GOVERNANCE

Topic: Doctrine of Separation of Power

Submitted To Course Instructor Submitted By Student

Dr. Pawan Kumar Mishra

Divya Meghna
Associate Professor
BA.LLB.(Hons.)
School of Law & Governance 6th Semester
Subject- Administrative Law Enrollment No CUSB1613125016
 ACKNOWLEDGEMENT

Every project big or small is successful largely due to the effort

of a number of wonderful people who have always given their
valuable advice and lent their helping hands.
My deepest gratitude and thanks to the Dr. Pawan Kumar
Mishra, Central University of South Bihar, gave enough time
and space for free exchange of ideas and, opinions greatly
benefiting me in augmentation and critiquing of many of the
opinions which find their place in this work. However, it would
not have been possible without the kind support and help of
many individuals and organizations. I would also like to extend
my gratitude to my colleague, librarian, and non- teaching staffs
who have willingly helped me out with their abilities. This
research would not have been possible without all mentioned
above .
Last but not the least I place a deep sense of gratitude to my
family members who have been constant source of
inspiration during the preparation of this project.

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 CONTENT

SERIAL NUMBER TOPIC PAGE

NUMBER
1. Abstract 4

2. Introduction 5

3. History 6-8

4. Definition and Concept 8-9

5. Comparative Approach 9-11

6. Separation of power and 11-12

Constitution
7. Separation of Power and 12-14
Judiciary
8. Criticism 14-16

9. Conclusion 17

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 Abstract
The three organs of the government which we know as the executive, the
judiciary and legislature represent the people and their will in our country
and are responsible for the smooth running of a democratic government in
our society. The legislature is the law-making body, the executive is
responsible for the enforcement of all such laws and the judiciary deals
with the cases that arise from a breach of law. Thus they are all interlinked
organs of the government and their roles and functions tend to overlap with
each other, as it isn’t possible to separate the three from each other
completely. This has been the cause for not only serious political debate in
our country but has raised many philosophic and jurisprudential debates
among legal scholars and the law fraternity. Whether there should be a
complete separation of powers or a well co-ordinated system of
distribution of powers thus becomes the focal point of contemplation.
To analyse the separation of powers doctrine, the theory aspect will be
dealt with, and a comprehensive understanding of the doctrine as used in
our country under our parliamentary system of governance will be made.
Landmark cases will also be discussed to understand the progression of
this debate, and the basic structure doctrine will be used to emphasize this
point.

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 Introduction
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.
Indian state represents a contemporary approach in constitutionalising the
doctrine of separation of powers. Essentially, there is no strict separation of
powers under constitution, both in principle and practice.
In India, there are three distinct activities in the Government through which
the will of the people are expressed. The legislative organ of the state
makes laws, the executive forces them and the judiciary applies them to the
specific cases arising out of the breach of law.
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 question which is important here is that what should be the relation
among these three organs of the state, i.e. whether there should be
complete separation of powers or there should be coordination among
them.

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 History
Though the doctrine is traceable to Aristotle1,but the writings of Locke and
Montesquieu2 gave it a base on which modern attempts to distinguish
between legislative,on today and executive and judicial power is grounded.
Locke distinguished between what he called
(I) discontinuous legislative power, (2.) continuous executive power, and
(3) federative power.
He included within “discontinuous legislative power”, the general rule
making power called into action from time to time and not continuously.
“Continuous executive power” included all those powers which we now
call executive and judicial. By “federative power” he meant the power of
conducting foreign affairs. Montesquieu’s division of power included a
general legislative power and two kinds of executive powers: an executive
power in the nature of Locke’s “federative power”, and a “civil law”
executive power including executive and judicial power.
Locke and Montesquieu derived the contents of this doctrine from the
developments in the British constitutional history of the early 18th century.
In England after a long war between Parliament and the King, they saw the
triumph of Parliament in 1688 which gave Parliament legislative
supremacy culminating in the passage of the Bill of Rights. This led
ultimately to a recognition by the King of legislative and tax powers of
Parliament and the judicial powers of the courts. At that time, the King
exercised executive powers, Parliament exercised legislative powers and
the courts exercised judicial powers, though later on England did not stick
to this structural classification of functions and changed to the
parliamentary form of government.3
1 Aristotle, Politics, Vol. IV, 14.
2 L'espirit des lois(1748) Chap. 12.
3 I.P. MASSEY, Administrative Law, Eastern Book Company, 8th edition,2012 at
37.

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Writing in 1748, Montesquieu said:
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 judiciary 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 it joined to the executive power, the judge might
behave with violence and oppression.
There would be an end of everything, were the same man, or the same
body, whether of the nobles or of the people, to exercise those three
powers, that of exacting laws, that of executing the public resolutions, and
of trying the causes of individuals.4
The doctrine of separation of powers is an animation of the rule of law and
its roots also lie in the concept of natural law because both aim at
progressive diminution of the exercise of arbitrary power necessary for
protecting the life, liberty and dignity of the individual. It is an organic
flexible doctrine which can be molded to suit the requirements of
governance, but its inherent fundamentals and rationality must not be
compromised, i.e. “accumulation of power” is a definition of tyranny.
Brandeis] scientifically explained the purpose of this doctrine when he said
that the purpose of the separation of powers doctrine is not to promote
efficiency in the administration but to preclude the exercise of arbitrary
power. He further emphasizes that its purpose is not to avoid friction
amongst various organs of the State by keeping them separate but to
protect people from autocracy by means of inevitable friction due of
distribution of powers. Therefore, the basic purpose of the doctrine of
“separation of power” is to divide governance against itself by creating

4 Nugent (Tr.), The Spirit of the Laws, 151-152 quoted in C.K. Thakker,
Administrative Law(Eastern Bool Company 1992) 31.

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distinct centers of power so that they could prevent each other from
threatening tyranny.5
Definition and concept
According to Jain and Jain6, “If the ‘rule of law’ as enunciated by Dicey
hampered the recognition of Administrative Law in Britain, for a while, the
doctrine of ‘Separation of Powers’ had an intimate impact on the growth of
administrative process and Administrative Law in the United States”.
Davis4o also stated, “Probably, the principal doctrinal barrier to the
development of the administrative process has been the theory of
separation of powers”.7
The practical import is that no significant deprivation of life, liberty and
dignity of any person can take place unless all the organs of the
government combine together. If a person is to be put in jail, then a
legislature has to pass a law making his action illegal, executive has to
execute the law and judiciary must find him guilty. However, if a person is
to be set free then any branch can do it. In Westminster type of democracy
where legislature and executive are not separate, judiciary must be
separated from the rest. Executive always demands power, at times by
threatening insecurity among the people and legislature would always
oblige because it is controlled by the executive. In such situation, judiciary,
if separate, would apply brakes and save people from tyranny. It is for this
that judiciary has now been separated from Parliament in the UK.
The doctrine of separation of powers is based on four different principles
(1) Exclusivity principle which suggests structural division in all the three
organs of State, as it is in the US.
(2) Functional principle which prohibits amalgamation and usurpation but
not interaction of all the organs of State.
(3) Check and balance principle, meaning, thereby, that each organ of State
may check the other to keep it within constitutional bounds.
5 See Supra note 3.
6 Principles of Administrative Law(2013) 22.
7 C.K. Takwani, Lectures on Administrative Law, Easter Book Publisher, 6th
Edition 2017 at 33.

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(4) Mutuality principle which aims at creating concord not discord,
cooperation not confrontation, engagement not estrangement amongst
different organs of State to create a society of constitutional image, which
is a free, equalitatian, inclusive and rule of law society.8
This doctrine can be further used in two senses: I) negative sense, in which
this doctrine puts limits on the exercise of power by each organ of State;
and 2.) positive sense, in which it not only demarcates limits but also
defines the minimum contents of power within those limits which a court
can enforce to achieve constitutional values.9
Interaction of power facilitates liberty and freedom.
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
Parliament.
(2.) One organ of the government should not interfere with any other organ
of the government. (3) One organ of the government should not exercise
the functions assigned to any other organ.
Comparative Approach
It may be pointed out that in none of these senses does a separation of
power exist in England. The King, though an executive head, is also
integrable part of the legislature and all his Ministers are also Members of
one or the other Houses of Parliament. Therefore, in England the concept
of “parliamentary executive” is a clear negation of the first formulation that
the same person should not form part of more than one of the three organs
of the government. As regards the second formulation, it is clear that the
House of Commons ultimately controls the executive. The judiciary is
independent, but the judges of the superior courts can be removed on an
address from both Houses of Parliament. As to the exercise by one organ of
the functions of the other organs, no separation exists in England. Though

8 See Supra Note 3 at 38.

9 State of U.P. v. Jeet S. Bisht, (2007) 6 SCC 586.

9
with the establishment of the UK Supreme Court, judiciary has now been
separated from Parliament, yet legislative and adjudicatory powers are
being increasingly delegated to the executive. This also distracts from any
effective separation of powers.
The doctrine of separation of powers was gospel to the settlers who were
obsessed with the violation of their life, liberty and dignity by the
monarchs tn England, who combined all the powers. Consequently,
drafters of the US Constitution made this doctrine the basic brick of the
Constitution. Madison said, “Accumulation of power, legislative, executive
and judicial, in the same hand, whether one, a few or many, whether
hereditary, self-appointed or elected may be justly pronounced as the
definition of tyranny.” Jefferson also emphasized, “Concentration of
legislative, executive and judicial powers in the same hand is precisely the
definition of despotic government. It would be no alleviation that these
powers will be exercised by plurality of hands and not by a single person.
173 despots would surely be as oppressive as one.”
Thus, this doctrine forms the foundation on which the whole structure of
the US Constitution is based. Article I, Section I vests all legislative
powers in the Congress. Article II, Section I vests all executive powers in
the President of the US. Article III, Section I vests all judicial powers in the
Supreme Court. It is on the basis of this theory of separation of powers that
the US Supreme Court has not been given power to decide political
questions, so that the court may not interfere with the exercise of power of
the executive branch of the government. The US Constitution has also not
given overriding power of judicial review to the US Supreme Court. It is a
queer fact of American constitutional history that the power of judicial
review has been usurped by the court. However, American constitutional
developments have shown that in the face of the complexity of modern
government, strict structural classfication of the powers of the government
is not possible. The President of the US interferes with the exercise of
powers by the Congress through the exercise of his veto power. He also
exercises the law-making power in exercise of his treaty-making power.

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The President also interferes with the functioning of the Supreme Court
through the exercise of his power to appoint judges. In fact, President
Roosevelt did interfere with the functions of the court when he threatened
to pack the court in order to get the court’s support for his New Deal
legislation. In the same manner, Congress interferes with the powers of the
President through vote on budget, approval of appointments by the Senate
and the ratification of treaty. Congress also interferes with the exercise of
powers by the courts by passing procedural laws, creating special courts,
and approving the appointment of judges. In its turn, the judiciary
interferes with the powers of the Congress and the President through the
exercise of its power of judicial review. It is correct to say that the US
Supreme Court has made more amendments to the US Constitution than
the Congress itself. Though no separation of powers in the strict sense of
the term exists in England and the US, yet the curious fact is that this
doctrine has attracted the makers of most modern constitutions, especially
during the 19th century. Thus in France, the doctrine has produced a
situation in which the ordinary courts are precluded from reviewing the
validity not only of legislative enactments but even of the actions of the
administration. The void has been filled by the establishment of special
administrative courts.10
Separation of power and Constitution
The Constitution of India lays down a functional separation of the organs
of the State in the following manner:
• Article 50: State shall take steps to separate the judiciary from the
executive. This is for the purpose of ensuring the independence of
judiciary.
• Article 122 and 212: validity of proceedings in Parliament and the
Legislatures cannot be called into question in any Court. This ensures the
separation and immunity of the legislatures from judicial intervention on
the allegation of procedural irregularity.

10 See Supra note 3 at 39.

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• Judicial conduct of a judge of the Supreme Court and the High Courts’
cannot be discussed in the Parliament and the State Legislature, according
to Article 121 and 211 of the Constitution.
• Articles 53 and 154 respectively, provide that the executive power of the
Union and the State shall be vested with the President and the Governor
and they enjoy immunity from civil and criminal liability.
• Article 361: the President or the Governor shall not be answerable to any
court for the exercise and performance of the powers and duties of his
office.11
Separation of power and Judiciary
In India, the doctrine of separation of powers has not been accorded a
constitutional status. Apart from the directive principle laid down in Article
50 which enjoins separation of judiciary from the executive, the
constitutional scheme does not embody any formalistic and dogmatic
division of powers12. The Supreme Court in Ram Jawaya Kapur v. State of
Punjab13 held:
Indian Constitution has not indeed recognized the doctrine of separation of
powers in its absolute rigidity but the functions of the different parts or
branches of the government have been sufficiently differentiated and
causequently 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.
In Indira Nehru Gandhi v. RajNarayan14 , Ray Cj also observed that in the
Indian Constitution there is separation of powers in a broad sense only. A
rigid separation of powers as under the US Constitution or the Australian
Constitution does not apply to India. However, the court held that though
the constituent power is independent of the doctrine of separation of
powers to implant the theory of basic structure as developed in
11 www.civilsdaily.com/doctrine-of separation of powes in india/amp/, assecced on
16th April'2019.
12 Upendra Baxi, “Developments in Indian Administrative Law” in A.G.
Noorani(Ed.), Public Law in India (1982) 136.
13 AIR1955 SC 549
14 1975 Supp SCC I: AIR 1975 SC 2299

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Kesavananda Bbarati15 on the ordinary legislative powers will be an
encroachment on the theory of separation of powers.” Nevertheless, 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 of the Constitution
cannot be changed even by resorting to Article 368 of the Constitution.48
In India, not only is there a functional overlapping but there is personnel
overlapping also. The Supreme Court has the 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. Even the power to amend the
Constitution by Parliament is subject to the scrutiny of the court. The court
can declare any amendment void if it changes the basic structure of the
Constitution.49 The President of India in Whom the executive authority of
India is vested exercises law-making power in the shape of ordinance-
making power and also the judicial powers under Articles 103(1) and
217( 3), to mention only a few. The Council of Ministers is selected from
the legislature and is responsible to the legislature. The legislature besides
exercising law-making powers exercises judicial powers in cases of breach
of its privilege, impeachment of the President, and removal of the judges.
The executive may further 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.
Apart from the difficulties inherent in the enforcement of any strict
doctrine of separation of powers in the functioning of a modern
government, there is also the inherent difficulty in defining in workable
terms the division of powers into legislative, executive, and judicial. Even
the Supreme Court has often refrained from delving into this quagmire
except that in Indira Nehru Gandhi“, it held that adjudication of a specific
dispute is a judicial function which Parliament, even acting under a
constitutional amending power, cannot exercise.
15 AIR 1973 SCC 1461

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The Constitution has invested the constitutional courts with the power to
invalidate laws made by Parliament and State Legislature transgressing
constitutional limitations. Where an Act made by the legislature is
invalidated by the courts on the ground of legislative incompetence, the
legislature cannot enact a law declaring that the judgment of the court shall
not operate; it cannot overrule or annul the decision of the court. But this
does not mean that the legislature which is competent to enact that law
cannot re-enact that law. Similarly, it is open to a legislature to alter the
basis of the judgment. The new law or the amended law so made can be
challenged on other grounds but not on the ground that it Seeks to
ineffectuate or circumvent the decision of the court. This is what is meant
by “check and balance” inherent in a system of government incorporating
separation of powers.

Criticism

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:

1. 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.” Donoughmore Committee also observed, “In the British
Constitution there is no such thing as the absolute separation of the
legislative, executive and judicial powers.” It is said, Montesquieu looked
across foggy England from his sunny vineyard in Paris and completely
misconstrued what he saw.

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2. This doctrine is based on the assumption that the three functions of the
Government, viz. legislative, executive and judicial are independent of and
distinguishable from one another. But in fact, it is not so. There are no
watertight compartments. It is not easy to draw a demarcating line between
one power and another with mathematical precision.
As Paton16 stated, “it is extraordinarily difficult to define precisely each
particular power.” President Woodrow Wilson rightly said:
The trouble with the theory is that government is not a machine, but a
living thing... .No living thing can have its organs offset against each other
as checks, and live. On the contrary, its life is dependent upon their quick
cooperation, their ready response to the commands of instinct or
intelligence, their amicable community of purpose. Their cooperation is
indispensable, their warfare fatal.17
According to Friedmann and Benjafield: the truth is that each of the three
functions of the government contains elements of the other two and that
any rigid attempt to define and separate those functions must either fail or
cause serious inefficiency in government.
3. It is impossible to take certain actions if this doctrine is accepted in its
entirety. Thus, if the legislature can only legislate, then it can not 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 rules of procedure to be adopted by them for the
disposal of cases Separation of powers, thus, can only be relative and not
absolute. 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. 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.

16 Textbook on jurisprudence (4th ed.) 330.

17 Friedmann, Law in a Changing Society (1996) 382.

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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.
Fundamental object behind Montesquieu’s doctrine was liberty and
freedom of an individual; but that cannot be achieved by mechanical
division 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 the subjects.18

18 See Supra note 7 at 35.

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 Conclusion
Applying the doctrines of constitutional limitation and trust in the Indian
scenario, a system is created where none of the organs can usurp the
functions or powers which are assigned to another organ by express or
necessary provision, neither can they divest themselves of essential
functions which belong to them as under the Constitution.
Further, the Constitution of India expressly provides for a system of checks
and balances in order to prevent the arbitrary or capricious use of power
derived from the said supreme document. Though such a system appears
dilatory of the doctrine of separation of powers, it is essential in order to
enable the just and equitable functioning of such a constitutional system.
By giving such powers, a mechanism for the control over the exercise of
constitutional powers by the respective organs is established. This clearly
indicates that the Indian Constitution in its plan does not provide for a
strict separation of powers.
Instead, it creates a system consisting of the three organs of Government
and confers upon them both exclusive and overlapping powers and
functions. Thus, there is no absolute separation of functions between the
three organs of Government.

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