SEPARATION OF POWER

Subject: Administrative Law

SUBMITTED BY SUBMITTED TO
Prakash Singh Mr. Umesh Chand Dwivedi

B.B.A.LL.B. Assistant professor

Roll. No. 13 Narayan school of law
7th SEM GNSU, Jamuhar
Narayan school of law

1
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Mr. Umesh Chand
Dwivedi, who gave the golden opportunity to do this wonderful assignment on the topic of
“SEPARATION OF POWER” Which also helps me to know about so many new things.

I‟d also like to express my gratitude to my friends for their recommendations and input
throughout the course of the project.

I will never forget their encouragement, and I hope that I will be shown the same kindness and
direction in my future endeavours.

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 TABLE OF CONTENT

 Introduction…………………………………………………………………………..……5
 History……………………………………………………………………………………..6
 Montesquieu on separation of power…………………………………………….………..7
 Meaning of “separation of powers”………………………………………………...……..8
 Separation of power in Ancient India……………………………………………………..9
 Indian Perspective on Separation of power………………………………………...……..9
 Check and Balance in Separation of power………………………………………..…….11
 What is the Legislature?………………………………………………...………..11
 What is the Executive?………………………………………………………..….11
 What is the Judiciary?……………………………………………...…………….12
 Purpose of Separation…………………………………………………………..………..12
 Significance…………………………………………………………………………..…..12
 Constitutional Status of Separation of Power in India……………………………….…..13
 Judicial Pronouncements Upholding Separation of Powers Doctrine……….…………..14
 Relationship between Legislature and Judiciary…………………………………………15
 Judicial Supremacy and Parliamentary Sovereignty…………………………….….……16
 Relationship between Legislature and Executive……………………………..…………16
 Relationship between Executive and Judiciary…………………………………………..17
 Check and Balance …………………………………………………………………..…..18
 Conclusion…………………………………………………………………….…………18

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 CASE REFFERED

 Ram Jawaya v. Condition of Punjab AIR1955SC549………………………...………5, 14

 Minerva Mills Ltd. & Ors vs Union Of India & Ors 1980 AIR 1789…………………...10
 Kesavananda Bharati Sripadagalvaru ... vs State Of Kerala And AIR 1973 SUPREME
COURT 1461…………………………………………………………………………….14
 National Insurance Co. Ltd vs Swaran Singh & Ors AIR 2004 SUPREME COURT
1531………………………………………………………………………………………14
 Indira Nehru Gandhi V Raj Narain, Ray Appeal (civil) 887 of
1975………………………………………………………………………...…………14,18
 P Kannadasan V State of Tamil Nadu AIR 1996 SUPREME COURT
2560……………………………………………………………………………..………..15

BOOK REFERED

 Massey, I.P. „Administrative Law‟, Eastern book Company Lucknow Sixth Edition
(2005)
 Basu, D.D.„Administrative Law‟, Kamal Law House, Kolkata, Sixth Edition, 2004
 Separation of Powers: Constitutional Plan and Practice by Nidhi Singh& Anurag Vijay
 Prof. M. P. Jain- 5th Edition-Reprint 2008- Wadhawa Publication, Nagpur
 P.M. Bakshi- 8th Edition 2007- Universal Publication
 Jain, M.P. „Indian Constitutional Law‟, Wadhwa and company, Nagpur, Fifth Edition,
2005
 C.H. Alexandrowics „Constitutional Developments in India‟ (1957) Bradley A W and
Ewing K D Constitutional and Administrative Law, 13th Edition
 The Constitution of India- Volume I Prof. S. R. Bhansali- edition 2007- India Publishing
House

4
 INTRODUCTION

In the contemporary world constitutional systems all over world might not follow a strict
separation of powers because that is undesirable and at times impracticable, however, the diluted
form of this concept can been seen implemented in almost all the countries. It is widely accepted
fact that for the political system to be stable, the holder of the power need to be balanced off
against each other. The principle of separation of powers deals with the interrelation between the
three major organ 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 powers is the aim sought to be achieved by this principle. The basic aim of this principle
signifies the fact that one person or body of persons should not exercise all the three powers of
the government. Montesquieu, a French scholar, found that concentration of power in person or a
group of persons results in tyranny. And therefore for decentralization of power in three different
organs, the legislature, the executives, and the judiciary1.

The principle implies that each organ should be independent of the other and that no organ
should perform functions that belong to each other. Separation of powers means distribution of
powers for specified functions of the government2. All the powers of the government have been
conceived as falling within one or another of three great classes, as – (1) the enactment of
making laws, (2) the interpretation of that laws and (3) their enforcement; namely- legislative,
judicial and executive. Government has been deemed to be made up of three branches having for
their functions and such classification is recognized as classical division. The framers of the
Indian Constitution did not perceive in an inflexible way the assumption of the division of forces.
Nevertheless, it cannot be seen clearly through the distinction rendered in the constitution by the
various branches of the legislature in the release of capacities. This congress is not an exception
to constitution itself. As it is reviewed, important ideal law like Ram Jawaya v. Condition of
Punjab3 plainly illustrates this rule. Justice Mukherjea in the moment case said: “It can in all
likelihood be said that Constitution does not consider supposition, by one organ or a piece of the

1
Separation of Powers," Britannica, https://www.britannica.com/topic/separation-of-powers last visited 10 January,
2024
2
Akhtar Majeed, “Separation of Powers Vs Judicial Activism: Crisis of Governance”, Indian Journal of Federal
Studies, 2008
3
Ram Jawaya v. Condition of Punjab AIR1955SC549

5
State, of capacities that basically fit in with another. The official for sure can practice the forces
of departmental or subordinate enactment when such powers are designated to t by the governing
body. It can likewise, when so enabled, exercise legal capacities in a restricted manner4”.

HISTORY

The doctrine of separation of power is known to us by Montesquieu as he gave an absolute status

and difference between the functions and powers of- the executive, the legislature and the
judiciary. But Aristotle was the first one who wrote about it, but not in obvious manner. In his
book, analysis has been found of three parts or we can say branchesthe deliberative, executive
and judicial and has explained it as “All constitutions have three elements, concerning which the
good lawgiver has to regard what is expedient for each constitution. When they are well-ordered,
the constitution is well-ordered, and as they differ from one another, constitutions differ. There is
one element which deliberates about public affairs; secondly that concerned with the magistrates-
the question being, what they should be, over what they should exercise authority, and what
should be the mode of electing to them; and thirdly that which has judicial power.1 ” But
Aristotle has not much stress on it in specify. English theorist, John Locke, in his book “Second
Treatise of Civil Government” has include three powers explicitly- (1) discontinuous legislative
power, (2) continuous legislative power and (3) federative power. According to him,
discontinuous legislative power means the general-rule making power; continuous executive
power includes which we call executive and judicial and federative power means the power of
conducting foreign affairs5.

In early 18th century, the developments in the British Constitutional History, led the Locke and
Montesquieu to gather the contents of the doctrine of separation of powers. In England, there
was a long war between the King and the Parliament which gave Parliament legislative
supremacy culminating in the passage of the bill of rights6. This led ultimately to recognition by
the King of legislative and tax payers of parliament and judicial powers to the court. At that time,

4
Somnath Chatterjee, “Separation of Powers and Judicial Activism in India”, Indian Advocate, vol. 34-35, 2006-
2007
5
Justice J.N. Bhatt, “Separation of Powers: The Role of Judicial Review Juristic or Forensic? Evolving or Elusive?”
vol. 86, A.I.R. 1999
6
"Separation of Powers," IPLeaders Blog, https://blog.ipleaders.in/separation-of-powers/ last visited 12 January,
2024

6
the King exercised executive powers; Parliament exercised legislative and courts the judicial
powers. But at present, England is following parliamentary form of government and is not
following this type of separation. The separation of powers, also known as trias politica, is a
model for the governance of democratic states. The model was first developed in ancient Greece
and came into widespread use by the Roman Republic as part of the uncodified Constitution of
the Roman Republic. Under this model, the state is divided into branches or estates, each with
separate and independent powers and areas of responsibility. The normal division of estates is
into an executive, a legislature, and a judiciary7.

The opposite of separation of powers is the fusion of powers, often a feature of parliamentary
democracies. In this form, the executive, which often consists of a prime minister and cabinet
("government"), is drawn from the legislature (parliament). This is the principle of responsible
government. Although the legislative and executive branches are connected in parliamentary
systems, there is often an independent judiciary. Also, the government's role in the parliament
does not give them unlimited legislative influence8.

MONTESQUIEU ON SEPARATION OF POWER

According to Montesquieu, by separating the functions of the executive, legislative and judicial
departments of government, one may operate as a balance against another and, thus, power
should be a check on power. Le pouvouir arête le pouvoir- power halts power. According to his
views “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 exact tyrannical laws, to execute them in 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 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 same body, whether of the Nobles or of the people, to

7
Massey, I.P. „Administrative Law‟, Eastern book Company Lucknow Sixth Edition (2005)
8
"Separation of Powers: Definition, Examples & Quiz," Study.com, https://study.com/academy/lesson/separation-
of-powers-definition-examples-quiz.html (last visited Access 20, January 2024

7
exercise those three powers, that of exacting laws, that of executing the public resolutions and of
the causes of individuals9”

In short, Montesquieu submission is the division of powers by function and the theory of came
out from it is known as separation of powers. The modern doctrine of separation of powers was a
leading tenant in the political philosophy of the 18th century.

MEANING OF “SEPARATION OF POWERS”

The separation of powers is based on the principle of triaspolitica. This Doctrine related to
power, that owes its inception to the era of the „Magna Carta’, is the forerunner to all the
constitutions of the world. Montesquieu‟s belief of the formation of this theory as per the British
constitution was negated when he learned about the fact that it was first introduced in America.

The concept of Separation of Powers is a measure to protect individual‟s rights, acknowledging

the fact that governments have historically been the major violators of such rights. The
hypothesis behind the Separation of Powers is that when a single person or group has a large
amount of power, they can become treacherous to citizens. The Separation of Power is a method
of removing the abuse of power.10

Separation of powers divides the mechanism of governance into three branches i.e. Legislature,
Executive and the Judiciary. Although different authors give different definitions, in general, we
can frame three features of this doctrine.

1. Each organ should have different persons in capacity, i.e., a person with a function in one
organ should not be a part of another organ.

2. One organ should not interfere in the functioning of the other organs.

3. One organ should not exercise a function of another organ (they should stick to their
mandate only).

9
Basu, D.D.„Administrative Law‟, Kamal Law House, Kolkata, Sixth Edition, 2004
10
https://www.lawctopus.com/academike/separation-of-powers-a-comparative-analysis-of-the-doctrine-india-united-
states-of-america-and-england/ by Dristhi.

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Thus, these broad spheres are determined, but in a complex country like India there often arises
conflict and transgression by one branch over the other11.

SEPARATION OF POWER IN ANCIENT INDIA

Separation of power is known as it has been found by the Montesquieu and Locke but the roots
are found in the Vedas. If we study the Smritis which are ancient source of law i.e. Dharma, we
find such type of separation. In Narad Smriti we trace the very principle of separation of power.
At that time Deewan was head of the Executive wing of any legacy, Senapati did a job to
maintain law and order and Kaji was the judicial head. At the same time we have to bear in mind
that they all are subordinate to the King and King was the supreme authority who makes the law
and therefore he was similar to present form of legislature.

In short, what comes out is that in ancient time also there was a separation of power in one
province or legacy. After all, King is known as the supreme authority of all but the functions and
powers has been separated12.

INDIAN PERSPECTIVE ON SEPARATION OF POWER

Our constitution was adopted on 26th November, 1949 and came into force on 26th January,
1950. Our constitution is a written constitution and is the longest constitution of the world.
Indian constitution discusses the federal system of the government at length along with relations
between the government and people; political, social and economic issues; and relation between
the executive, the legislature and the judiciary. India has a Parliamentary form of government- a
system in which a clear division is made between the head of the state and a head of the
government i.e. executive- a president of India is the head of state and the government of which
prime minister is the head of government. In India, the executive is the President, the legislature
includes Parliament- both the houses- Loksabha and Rajyasabaha and the judiciary contains
Supreme Court of India and High courts of states and other subordinate courts. As India is a
federal state- functions divided in centre & state- at centre level. The President is Executive and

11
Separation of Powers: Constitutional Plan and Practice by Nidhi Singh& Anurag Vijay
12
Prof. M. P. Jain- 5th Edition-Reprint 2008- Wadhawa Publication, Nagpur

9
at state level The Governor is executive. Similarly, every state has its state legislative body and
at centre levels a Parliament13.

Many conflicts that arise from the government process are dealt with by the administrative
tribunals rather than by the ordinary courts. Nevertheless, the tribunals‟ impartiality is
maintained by preserving essential features of „fair judicial procedure‟. It is found, on analysis,
that under the various provisions of the Constitution, such as Article 53(1) and 154(1), the
executive powers of the union and the states are vested respectively in the president and the
governors. According to this scheme, the president is the chief executive of the Indian union who
exercises his powers constitutionally in accordance with Article 74(1) on the assistance and
advice of the Ministerial Council. The threefold division of powers is partially recognized and
the parliament and the state legislatures and judicial powers in the Supreme Court and other
courts have been given no unbridled “legislative powers. India‟s constitution has taken a midway
route on this issue Article 50 of the Constitution provides that the state shall take measures to
separate the judiciary from the executive within the State‟s public services. The constitution also
empowers the President to issue ordinances in the exercise of his legislative powers which
extend to all matters falling within Parliament‟s legislative competence. Under Article 123, the
President shall have the power to promulgate an ordinance when it deemed necessary during the
recess of both houses of Parliament14. The President also performs the judicial duties, and in this
manner he is empowered to determine a contested question concerning the age of the High Court
and judges of the Supreme Court for the purpose of removal from the judiciary. In this respect,
as the Supreme Court has held, the President will consult only the Chief Justice. In the event of
the President‟s impeachment, one of the houses acts as the prosecutor, and the other Houses
investigates the charges and declares whether or not such charges have been upheld. With regard
to the Council of Ministers, Article 75(5) provides that no person may be a member of the
Council of Ministers for more than six months unless he is a member of either House of
Parliament. In the case of Minerva Mill‟s case15, the Apex Court by deleting section 4 and 5 of
the 42nd Amendment Act to be ultra virus maintained its supremacy and its role as the watchdog
of the Constitution. About Section 4 of the said amendment, which sought to oust the jurisdiction

13
P.M. Bakshi- 8th Edition 2007- Universal Publication
14
. PJAEE, 17 (6) (2020) 5371
15
Minerva Mills Ltd. & Ors vs Union Of India & Ors 1980 AIR 1789

10
of the Court observed that provision was clearly ultra virus the amending power of the
parliament. That destroyed the balance of power between the legislatures and sought to deprive
the citizens of the modes of redress which are guaranteed by Article 3216.

CHECKS AND BALANCES IN SEPARATION OF POWERS

In India, a separation of functions rather than of powers is followed. Unlike in the US, in India,
the concept of separation of powers is not adhered to strictly. However, a system of checks and
balances has been put in place in such a manner that the judiciary has the power to strike down
any unconstitutional laws passed by the legislature. Today, most constitutional systems do not
have a strict separation of powers between the various organs in the classical sense because it is
impractical. In the following sections, we will see the prevailing system in India, what the
relationship between each organ is, and the constitutional provisions thereof17.

What is the Legislature?

The chief function of the legislature is to enact laws.

 It is the basis for the functioning of the other two organs, the executive and the judiciary.

 It is also sometimes accorded the first place among the three organs because until and
unless laws are enacted, there can be no implementation and application of laws.

What is the Executive?

The executive is the organ that implements the laws enacted by the legislature and enforces the
will of the state.

 It is the administrative head of the government.

 Ministers including the Prime/Chief Ministers and President/Governors form part of the
executive.

16
Jain, M.P. „Indian Constitutional Law‟, Wadhwa and company, Nagpur, Fifth Edition, 2005
17
“ Instruments of Checks & Balances," DrishtiIAS, https://www.drishtiias.com/daily-news-editorials/checks-
balances
1#:~:text=Instruments%20of%20Checks%20%26%20Balances&text=On%20Judiciary%3A%20Impeachment%20a
nd%20the,question%20hour%20and%20zero%20hour last visited 20 January,2024

11
What is the Judiciary?

The judiciary is that branch of the government that interprets the law, settles disputes and
administers justice to all citizens.

 The judiciary is considered the watchdog of democracy, and also the guardian of the
Constitution.

 It comprises of the Supreme Court, the High Courts, District and other subordinate
courts.

PURPOSE OF THE SEPARATION

The purpose of separation of powers is to prevent abuse of power by a single person or a group
of individuals. It will guard the society against the arbitrary, irrational and tyrannical powers of
the state, safeguard freedom for all and allocate each function to the suitable organs of the state
for effective discharge of their respective duties18.

SIGNIFICANCE

Why do we need a separation of powers between the various organs of the State? Whenever
there is a concentration of power in one centre/authority, there is bound to be greater chances of
maladministration, corruption, nepotism and abuse of power. This principle ensures that
autocracy does not creep into a democratic system. It protects citizens from arbitrary rule. Hence,
the importance of the Separation of Powers doctrine can be summed up as follows:

1. Keeps away autocracy

2. Safeguards individual liberty

3. Helps create an efficient administration

4. Judiciary‟s independence is maintained

18
https://byjus.com/free-ias-prep/separation-power-indian-
constitution/#:~:text=In%20Indira%20Nehru%20Gandhi%20V,does%20not%20apply%20to%20India Last Visited
15 January, 2024

12
 5. Prevents the legislature from enacting arbitrary or unconstitutional laws

CONSTITUTIONAL STATUS OF SEPARATION OF POWER IN

INDIA

The doctrine of separation of powers is a part of the basic structure of the Constitution, although
not specifically mentioned. The legislature cannot pass a law violating this principle. The
functions of the three organs are specifically mentioned in the Constitution.

Article 50: - This article puts an obligation over the State to separate the judiciary from the
executive. But, since this falls under the Directive Principles of State Policy, it is not
enforceable.

Article 123: -The President, being the executive head of the country, is empowered to exercise
legislative powers (Promulgate ordinances) in certain conditions.

Articles 121 and 211:- These provide that the legislatures cannot discuss the conduct of a judge
of the Supreme Court or High Court. They can do so only in case of impeachment.

Article 361: - The President and Governors enjoy immunity from court proceedings19.

There is a system of checks and balances wherein the various organs impose checks on one
another by certain provisions.

 The judiciary has the power of judicial review over the actions of the executive and the
legislature.

 The judiciary has the power to strike down any law passed by the legislature if it is
unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).

 It can also declare unconstitutional executive actions as void.

 The legislature also reviews the functioning of the executive.

 Although the judiciary is independent, the judges are appointed by the executive.

19
C.H. Alexandrowics „Constitutional Developments in India‟ (1957) Bradley A W and Ewing K D Constitutional
and Administrative Law, 13th Edition

13
  The legislature can also alter the basis of the judgment while adhering to the
constitutional limitation.

Checks and balances ensure that no one organ becomes all-too powerful. The Constitution
guarantees that the discretionary power bestowed on any one organ is within the democratic
principle20.

JUDICIAL PRONOUNCEMENTS UPHOLDING SEPARATION OF

POWERS DOCTRINE

Kesavananda Bharati Case21: - In this case, the SC held that the amending power of the
Parliament is subject to the basic features of the Constitution. So, any amendment violating the
basic features will be declared unconstitutional.

Swaran Singh Case22: - In this case, the SC held the UP Governor‟s pardon of a convict
unconstitutional.

Other SC Judgements

 The Honourable Supreme Court in Ram Jawaya Kapoor V State of Punjab23 held that
the Indian Constitution has not indeed recognised 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 consequently it can be very well 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 Raj Narain, Ray24, CJ observed that in the Indian
Constitution there is a separation of powers in a broad sense only. A rigid separation of
powers as under the American Constitution or under the Australian Constitution does not
apply to India. The Court further held that adjudication of a specific dispute is a judicial
function that Parliament even acting under a constitutional amending power cannot

20
The Constitution of India- Volume I Prof. S. R. Bhansali- edition 2007- India Publishing House
21
Kesavananda Bharati Sripadagalvaru ... vs State Of Kerala And AIR 1973 SUPREME COURT 1461
22
National Insurance Co. Ltd vs Swaran Singh & Ors AIR 2004 SUPREME COURT 1531
23
Ram Jawaya Kapoor V State of Punjab AIR1955SC549
24
Indira Nehru Gandhi V Raj Narain, Ray Appeal (civil) 887 of 1975

14
 exercise. Apart from difficulties inherent in the enforcement of the strict doctrine of
separation of powers in the functioning of the modern government, there is also an
inherent difficulty in defining, in workable terms, the division of powers into executive,
legislative and judicial.

 In P Kannadasan V State of Tamil Nadu25, it was held, “the Constitution has invested
the Constitutional Courts with the power to invalidate laws made by Parliament and the
state legislatures transgressing Constitutional limitations. Where an Act made by the
legislature is invalidated by the Courts on the basis of legislative incompetence, the
legislature cannot enact a law declaring that the judgement 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 the law cannot re-enact the law. Similarly, it is
open to the legislature to alter the basis of the judgement. The new law or the amended
law 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 “checks and balances”
inherent in a system of government incorporating separation of powers.

RELATIONSHIP BETWEEN LEGISLATURE AND JUDICIARY

Even though the functions of the executive and the judiciary are well-defined in the Constitution,
the system of checks and balances ensures that each one can impose checks on the other.

 The judiciary can strike down laws that it considers unconstitutional or arbitrary.

 The legislature, on its part, has protested against judicial activism and tried to frame laws
to circumvent certain judgements.

 Judicial activism is said to be against the principle of separation of powers.

 There have been instances where the courts have issued laws and policies through
judgements. For example, the Vishakha Guidelines where the SC issued guidelines on
sexual harassment.

 In 2010, the SC directed the government to undertake the distribution of food grains.

25
P Kannadasan V State of Tamil Nadu AIR 1996 SUPREME COURT 2560

15
  If the judiciary oversteps its mandate and crosses over into the territory of the legislature
or the executive, it is called judicial overreach26.

JUDICIAL SUPREMACY AND PARLIAMENTARY

SOVEREIGNTY

To strike a balance between the judiciary and the legislature, the Indian constitution uses the
following principles:

 The doctrine of Parliamentary Sovereignty has been adapted from the British
Constitution.

 The doctrine of Judicial Supremacy has been adapted from the American Constitution.

 The power of judicial review of the Supreme Court of India is narrower in scope than the
Supreme Court of the USA.

 The Constitution of India guarantees „established procedure by law‟ in Article 21 instead

of the „due process of law‟ provided in the American Constitution.

 The Indian Constitution has opted for an amalgamation of Britain‟s principle of

parliamentary sovereignty and the judicial supremacy of the USA.

 The Supreme Court, on the one hand, can declare the parliamentary enactments as
unconstitutional using the power of judicial review.

 The Parliament, on the other hand, can amend a large chunk of the Constitution using its
constituent power27.

RELATIONSHIP BETWEEN LEGISLATURE AND EXECUTIVE

26
Thomas M. Cooley „The General Principles of Constitutional law in the United States of America‟ (1994).
27
Parliamentary Sovereignty v. Judicial Supremacy in the World and India," Legal Bites,
https://www.legalbites.in/topics/articles/parliamentary-sovereignty-v-judicial-supremacy-world-and-india-
895546#:~:text=In%20India%2C%20the%20Constitution%20provides,court%20decisions%20in%20some%20case
s last visited 20 January, 2024

16
The Constitution states that the executive branch of the State (Council of Ministers) shall be
collectively responsible to the Legislature (Lok Sabha). This implies that the Parliament should
supervise the work of the government and hold it accountable for its actions.

 In a parliamentary form of government, the executive is not separated from the legislature
in that the members of the council of ministers are members of the legislature.

 The executive loses power when it loses the confidence of the legislature. The
executive/council of ministers is dismissed if it loses the legislature‟s confidence before
its tenure is over. So, the legislature controls the executive through a vote of no-
confidence.

 The head of government and head of state are different. The head of the government is
the Prime Minister while the head of state is the President.

 The parliament makes laws in general broad terms and delegates the powers to the
executive to formulate detailed policies and implement them.

 In a presidential form of government, the executive is not accountable to the legislature.

One person is the head of both the State as well as the government. A minister need not
be from the legislature28.

RELATIONSHIP BETWEEN EXECUTIVE AND JUDICIARY

There are several provisions in the Constitution that make the judiciary independent. This is
because, it is believed that for a democracy to remain efficient and effective, the judiciary must
be independent. The judiciary is said to be the guardian of the Constitution. If the executive also
assumes judicial powers, that sort of government tends to become oppressive.

However, there are some judicial functions which are performed by the executive as well. They
are:

1. The appointments of the judges are made by the executive.

28
"Separation of Power in the Indian Constitution," BYJU's Free IAS Prep, https://byjus.com/free-ias-
prep/separation-power-indian-
constitution/#:~:text=The%20executive%20is%20the%20organ,form%20part%20of%20the%20executive last
visited 10 January, 2024

17
 2. The President and the Governors also enjoy the power to pardon, reprieve, etc. These are
direct judicial functions.

3. Under the system of administrative adjudication, the executive agencies have the power
to hear and decide cases involving particular fields of administrative activity.

The judiciary also performs some executive functions. It can review the actions of the executive
and declare them void if found unconstitutional.

CHECKS AND BALANCES

The strict separation of powers that was envisaged in the classical sense is not practicable
anymore, but the logic behind this doctrine is still valid. The logic behind this doctrine is of
polarity rather than strict classification meaning thereby that the centre of authority must be
dispersed to avoid absolutism. Hence, the doctrine can be better appreciated as a doctrine of
checks and balances.

 In Indira Nehru Gandhi’s case29, Chandrachud J. observed – No Constitution can

survive without a conscious adherence to its fine checks and balances. Just as courts
ought not to enter into problems intertwined in the political thicket, Parliament must also
respect the preserve of the courts. The principle of separation of powers is a principle of
restraint which “has in it the precept, inmate in the prudence of self-preservation; that
discretion is the better part of valour”.

 The doctrine of separation of powers in today‟s context of liberalization, privatization

and globalization cannot be interpreted to mean either “separation of powers” or “checks
and balance” or “principles of restraint”, but “community of powers” exercised in the
spirit of cooperation by various organs of the state in the best interest of the people30.

CONCLUSION

29
Indira Nehru Gandhi V Raj Narain, Ray Appeal (civil) 887 of 1975
30
System of Checks and Balances," Unacademy, https://unacademy.com/content/karnataka-psc/study-
material/polity/system-of-checks-and-balances/#:~:text=...Read%20full-
,Answer%3A%20Under%20the%20principle%20of%20checks%20and%20balances%2C%20each%20branch,the%
20executive%2C%20and%20the%20judiciary last visited 23 January 2024

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In conclusion, the doctrine of separation of powers, though not strictly adhered to in its classical
sense, remains a fundamental principle in constitutional governance. As evident in constitutional
systems worldwide, including India, the concept has evolved into a nuanced application that
recognizes the impracticality of a rigid separation while preserving the essential values it seeks to
uphold. The tripartite division of powers among the legislature, executive, and judiciary serves as
a mechanism for checks and balances, aiming to prevent the concentration of power and protect
individual liberties. The historical roots of the separation of powers can be traced back to
philosophers like Aristotle, but it was Montesquieu who provided a comprehensive and
influential framework in the 18th century. The idea is to create a balance of power, ensuring that
no single person or group becomes too powerful, thereby mitigating the risk of tyranny. The
principle suggests that each organ of the government should operate independently, with a clear
demarcation of functions to prevent overreach.

In India, the constitutional framers did not adopt a strict interpretation of the separation of
powers. The Constitution recognizes the distinct functions of the legislature, executive, and
judiciary, but there exists a certain degree of overlap and interdependence. The Parliament, being
the legislative branch, is responsible for making laws, while the executive, headed by the
President at the center and Governors in states, implements these laws. The judiciary, including
the Supreme Court and High Courts, interprets and ensures the constitutionality of laws. The
constitutional status of the separation of powers in India is implicit, forming part of the basic
structure of the Constitution. While Article 50 places an obligation on the State to separate the
judiciary from the executive, it falls under the Directive Principles of State Policy, making it
non-enforceable. Articles 121, 211, and 361 provide immunity and restrictions on discussing the
conduct of judges. Additionally, Article 123 grants the President legislative powers to
promulgate ordinances under certain circumstances.

The Indian system predominantly follows a separation of functions rather than a strict separation
of powers. The judiciary, through the power of judicial review, acts as a check on the actions of
the executive and legislature. It can strike down laws deemed unconstitutional and ensure that
the government functions within the constitutional limits. The judiciary's independence is
maintained, but the appointment of judges is done by the executive, introducing an element of
interdependence. The relationship between the legislature and the judiciary, and between the

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executive and the judiciary, involves a delicate balance. The judiciary exercises checks on
legislative and executive actions, ensuring they align with the constitutional principles. Judicial
supremacy, borrowed from the American system, coexists with parliamentary sovereignty
adapted from the British tradition, reflecting a unique amalgamation in the Indian constitutional
framework. The concept of checks and balances ensures that no single organ becomes
excessively powerful. The judiciary has the power of judicial review, but the Parliament can
amend the Constitution. The President, as part of the executive, can promulgate ordinances, yet
the judiciary can review and strike down executive actions. This interplay of powers maintains a
dynamic equilibrium, preventing any organ from encroaching upon the functions of others.

Several landmark judicial pronouncements, such as the Kesavananda Bharati case and the
Swaran Singh case, have reinforced the importance of the separation of powers as a basic feature
of the Constitution. The judiciary has consistently asserted its role as the guardian of the
Constitution, ensuring that the principles of checks and balances are upheld. The separation of
powers in the contemporary context goes beyond a strict division and is better understood as a
doctrine of checks and balances. The Indian Constitution, with its unique blend of parliamentary
sovereignty and judicial supremacy, reflects a pragmatic approach to governance. The separation
of powers remains indispensable for safeguarding individual liberties, preventing autocracy, and
maintaining an efficient administration. As India navigates the complexities of a diverse and
dynamic society, the adherence to the spirit of cooperation among the three organs of the state
becomes crucial for the well-being of the nation and its people.

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