SEPARATION OF POWERS

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The separation of powers is imitable for the administration of federative and democratic
states. Under this rule the state is divided into three different branches- legislative,
executive and judiciary each having different independent power and responsibility on
them so that one branch may not interfere with the working of the others two branches.
Basically, it is the rule which every state government should follow in order to enact,
implement the law, apply to specific case appropriately.  If this principle is not followed
then there will be more chances of misuse of power and corruption If this doctrine is
followed then there will be less chance of enacting a tyrannical law as they will know
that it will be checked by another branch. It aims at the strict demarcation of power and
tries to bring the exclusiveness in the functioning of each organ.

Background

The term “separation of powers” or “trias –politica “was initiated by Charles de

Montesquieu. For the very first time, it was accepted by Greece and then it was
widespread use by the Roman Republic as the Constitution of the Roman Republic. Its
root is traceable in Aristotle and Plato when this doctrine became the segment of their
marvels. In 16th and 17th-century British politician Locke and Justice Bodin, a French
philosopher also expressed their opinion regarding this doctrine. Montesquieu was the
first one who articulated this principle scientifically, accurately and systemically n his
book “Esprit des Lois” (The Spirit of Laws) which was published in the year 1748.

Meaning

The definition of separation of power is given by different authors.  But in general, the
meaning of separation of power can be categorized into three features:
  Person forming a part of on organs should not form the part of other organs.
 One organ should not interfere with the functioning of the other organs.
 One organ should not exercise the function belonging to another organ.

The separation of power is based on the concept of trias politica. This principle
visualizes a tripartite system where the powers are delegated and distributed among
three organs outlining their jurisdiction each.

“The Separation of Powers” is a doctrine that has exercised the minds of many peoples.
Ancient philosophers, political theories and political scientists, framers of constitutions,
judges and academic writers have all had cause to consider the doctrine through the
centuries.

This mainly signifies the division of different powers in between various organs of the
state; executive, legislature and judiciary.

Advantages:
There are various advantages with the acceptance of this doctrine in the system;
1. The efficiency of the organs of state increased due to separation of works hence time
consumption decreases.
2. Since the experts will handle the matters of their parts so the degree of purity and
correctness increases.
3. There is the division of work and hence division of skill and labour occurs.
4. Due to division of work there is no overlapping remains in the system and hence
nobody interferes with others working area.
5. Since the overlapping removed then there is no possibility of the competition in
between different organs.

Disadvantages:
As there are advantages attached to this doctrine, there are some disadvantages can also
occur due to this doctrine;
1. As I have said there will be increased efficiency but reverse effect can also be seen
because of the overlapping between rights of the organs if we are not following the
doctrine in its strict sense because organs may fight for the supremacy over each other.
2. There is also a possibility of competition between organs again for proving ones
supremacy over the other organ.
3. There is also possibility of delay of process because there will not be any supervisor
over other hence the actions of the organs can become arbitrary.

Three Tier Machinery of State Government

It is impossible for any of the organs to perform all the functions systematically and
appropriately. So, for the proper functioning of the powers, the powers are distributed
among the legislature, executive and judiciary. Now let’s go into the further details of
the functioning of each organ.

 Legislative

The main function of the legislature is to enact a law. Enacting a law expresses the will
of the State and it also acts as the wain to the autonomy of the State. It is the basis for
the functioning of executive and judiciary. It is spotted as the first place among the
three organs because until and unless the law is framed the functioning of implementing
and applying the law cannot be exercised. The judiciary act as the advisory body which
means that it can give the suggestions to the legislature about the framing of new laws
and amendment of certain legislation but cannot function it.

 Executive

It is the organs which are responsible for implementing, carrying out or enforcing the
will of the state as explicit by the constituent assembly and the legislature. The
executive is the administrative head of the government. It is called as the mainspring of
the government because if the executive crack-up, the government exhaust as it gets
imbalanced. In the limited sense, executive includes head of the minister, advisors,
departmental head and his ministers.

 Judiciary

It refers to those public officers whose responsibility is to apply the law framed by the
legislature to individual cases by taking into consideration the principle of natural
justice, fairness.

Significance

As it is a very well-known fact that whenever a large power is given in the hand of any
administering authority there are higher chances of maladministration, corruption and
misuse of power. This doctrine helps prevent the abuse of power.  This doctrine
protects the individual from the arbitrary rule. The government is the violator and also
protects individual liberty.

Summarily, the importance can be encapsulated in the following points:

 Ending the autocracy, it protects the liberty of the individual.

 It not only safeguards the liberty of the individual but also maintains the
efficiency of the administration.
 Focus on the requirement of independence of the judiciary
 Prevent the legislature from enacting an arbitrary rule.

Constitutional Status of Separation of power in India

The Parliament is competent enough to make any law subject to the conditions of
Constitution and there are no restrictions on its law-making powers. The president
power and functions are given in the Constitution itself (Article 62 to Article 72).  The
judiciary is self –dependent in its field and there is no obstruction with its judicial
functions either by Legislature or the Executive. The High Court under Article 226 and
Article 227 and Supreme Court under Article 32 and Article 136 of Constitution are
given the power of judicial review and any law passed by the legislature can be
declared void by the judiciary if it is inconsistent with Fundamental Rights (Article 13).
By going through such provisions many jurists are of opinion that doctrine of separation
of powers is accepted in India.

Before looking into the case laws, let us understand what the meaning of the doctrine of
separation of power is in a strict and broad sense.

The doctrine of separation of power in a rigid sense means that when there is a proper
distinction between three organs and their functions and also there should be a system
of check and balance.

The doctrine of separation of power in a broad sense means that when there is no
proper distinction between three organs and their functions.

In the case of  I.C   Golakhnath vs   State of Punjab,1   the Constitution brings in

actuality the distinct constitutional entities i.e namely, the Union territories, Union and
State. It also has three major instruments namely, judiciary, executive and legislature. It
demarcates their jurisdiction minutely and expects them to exercise their function
without interfering with others functions. They should function within their scope.

If we go through the constitutional provision, we can find that the doctrine of separation
of power has not been accepted in a rigid sense in India. There is personnel overlapping
along with the functional overlapping. The Supreme Court can declare any law framed
by the legislature and executive void if they violate the provisions of the Constitution.

Executive also has an impact on the functioning of the judiciary as they appoint the
judges and Chief justice. The list is so exhaustive.

1
(1967 AIR 1643, 1967 SCR (2) 762),
In the case of  Indira Gandhi vs Raj Narain,2 the court held that  In our Constitution
the doctrine of separation of power has been accepted in a broader sense. Just like in
American and Australia Constitution where a rigid sense of separation of power applies
is not applicable in India.

Justice Chandrachud also expressed his views by stating:

“The political purpose of the doctrine of separation of power is not widely recognized.
No provision can be properly implemented without a check and balance system. This is
the principle of restraining which has in its precept, innate in the prudence of self-
preservation that discretion is better than its valor.”

In Ram Jawaya vs The   State of Punjab,3 Justice Mukherjee observed:

“In India, this doctrine has been not be accepted in its rigid sense but the functions of
all three organs have been differentiated and it can be said that our constitution has
not been a deliberate assumption that functions of one organ belong to the another. It
can be said through this that this practice is accepted in India but not in a strict sense.
There is no provision in Constitution which talks about the separation of powers except
Article 50 which talks about the separation of the executive from the judiciary but this
doctrine is in practice in India. All three organs interfere with each other functions
whenever necessary.”

Although, there is an explicit provision in Constitution just like American Constitution

that executive power is vested in President under Article 53(1) and in Governor under
Article 154(1) but there is no provision which talks about the vesting of legislative and
judiciary power in any organ.  We can conclude that there is no rigid separation of
power.

2
1975 Supp SCC1, AIR 1975 SC 2299.

3
AIR 1955 SC 549.
At the first instance, it appears that our Constitution is based on this doctrine itself as
the judiciary is self-sufficient and there is no interference either by executive or
legislature. Court also prohibits the administration of judiciary is not to be discussed in
the parliament. Power of judicial review and to declare any law as void is given to the
Supreme Court. The judges of Supreme Court is appointed by President in consultation.
Chief Minister and judges of the supreme court. The Supreme court make the rules and
regulations for the effective conduct of business.

However, Article 50 of the Constitution of India talks about the separation of the
executive from the judiciary as being a Directive Principle of State Policy it is not
enforceable. Certain privileges, power, immunities are given to the Member of
Parliament under Article 105. this provision makes the legislature independent. The
executive power is conferred on President and Governor they are being exempted from
civil and criminal liabilities.

But, if we read carefully it is clear that doctrine is not accepted in a rigid sense. The
executive is a portion of the legislature and the executive is accountable for its conduct
to the legislature and also its derive its authority from the legislature. Since India has a
parliamentary form of government should a mutual connection and coordination
between the legislature and executive. As executive power is vested in the president but
in actuality, the real head is Prime Minister of India along with Council of Minister and
president is only a nominal head. Article 74(1) talks that executive head has to conduct
in conformity with the aid and advice of Cabinet.

Ordinarily, all the legislative power is vested in the legislature but in certain
circumstances, the president may be empowered to exercise the legislative power. For
example, the president can issue ordinance under Article 123 when the parliament is not
in session, making the rules when there is an emergency. Sometimes the president may
also exercise judiciary power. When a president is being impeached, both houses take
active participation and finalize the charges.
Judiciary also performs the administrative actions while formulating the regulations and
giving guidance for the subordinate court as well as perform legislative powers by
framing the rules regulating their own procedure

So it is presumed from the provisions of the constitution that India being a

parliamentary form of government does not follow the absolute separation there is an
amalgamation of the powers where the connections between the different wings are
inevitable and it can be drawn from the constitution itself. Every organ performs all
types of functions in one or other form subject to the check and balance by other
organs. All three organs are interdependent because India has a Parliamentary
democracy. This does not mean that it is not accepted in India it has been accepted up
to a certain extent.

But when it is expressly provided that one organ shall not perform functions of the
other, then it is prohibited. In the Delhi laws case, it was stated that the legislature
should exercise all the powers of legislation only in extraordinary circumstances like
when parliament is not in session or emergency. We can say that the legislature is
created by the Constitution to enact the laws.

In India, there is no separation of power but there is a separation of powers. Hence, in

India, the people are not stuck by the principle by its rigidity. For example, the cabinet
minister exercises both the executive and administrative functions. Article 74(1) states
that it is mandatory for the executive head to comply with the advice of the cabinet
ministers. In Ram Jawaya vs the State of Punjab, it was held that the executive is a
part of the legislature and is accountable.

Although strict separation of power is not followed in India like the American
Constitution, the system of check and balance is followed. However, no organs are to
take over the essential functions of other organs which is the part of the basic structure,
not even by amending and if it is amended, such amendment will be declared as
unconstitutional.