The separation of powers is a very important principle of Constitutional Law functioning

worldwide. In different countries and political systems the separation of powers is done in
different ways and different structures.

Concentrating too much power in the hands of a person further more when it can be abused by
people and are not the ones with whom power should be concentrated to.

 Separation of powers means the division of government functions into three independent
branches.

 It stands for an act of vesting the legislative, executive, and judicial powers of
government in separate manner.

 The doctrine of the separation of powers distinct the state in three main columns, the
legislative which prepares and approves the laws and regulations, the executive which
applies the law, and the judiciary which oversees the application and the applicability of a
certain law.

THE DOCTRINE BY MONTESQUIEU

The theory of Doctrine of Separation of Power was first propounded by Montesquieu, a French
scholar in 1748 and published in his book ‘Espirit des Louis’ (The Spirit of the Laws).
Montesquieu found that if the power is concentrated in a single person’s hand or a group of
people then it results in a tyrannical form of government. To avoid this situation with a view to
checking the arbitrariness of the government he suggested that there should be clear-cut division
of power between the three organs of the state i.e. Executive, Legislative and the Judiciary.

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.

THE SEPARATION OF POWER IN US

The United States of America according to the Constitution is a country with a pure presidential
system where the president is elected by the people themselves. The power in the United States
is separated in three main branches, the executive, the legislative and the judicial. In order to
prevent the abuse of power this branches are kept distinct between each other. The separation of
powers in United States is associated with a system of checks and powers.

THE SEPARATION OF POWER IN UK

England follows a parliamentary form of government where the Crown is the nominal head and
CoM with PM at its head is real head.

The 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. 

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.

SEPRATION OF POWER IN INDIA

 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.

CASES:

 Ram Jawaya v state of Punjab(AIR 1955 SC 549)

Court held in this case that the doctrine of separation of power was not fully accepted in India.
Mukherjea J. stated “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”.

 Indira Nehru Gandhi v. Raj Narain(1975 Supp SCC )

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 and held it as ultra vires. Place of this doctrine in
Indian context was made a bit clearer after this judgment.

Keshvananda Bharti v Union of India(1973 ) 4 SCC 255

 Court held 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.