SEPARATION

OF
POWERS
LAW 109
• Generally, there are three main categories of governmental functions:
1) Legislative
2) Executive
3) Judicial

• Accordingly there are three basic organs of the State :

• Legislature
• Executive
• Judiciary

• This scheme of organisation of State is an outcome of the doctrine of

Separation of Powers.
• Origin of doctrine of Separation of Powers is traceable to Plato and
Aristotle.

• The modern concept of separation of powers has emerged from the

ideas of French Philosophers, in particular Montesquieu.

• Montesquieu formulated this doctrine in a clear and precise manner

in his book The Spirit of Laws (1748).

• When Montesquieu formalised this idea, France was governed by

Monarchical Aristocracy with all powers of the State reserved in the
King and his nobility.
• The subjects had no right or liberty against the King and his nobility.

• The consequent situation under such autocratic rule resulted in

deprivation of basic needs to people while the aristocracy enjoyed a
life of abundance cocooned in its Palace.

• During this time thinkers like John Locke protested against this
ignorance on part of State towards the poor conditions of masses and
opined that people had the right to violate unjust laws and dislodge
monarchs from the seat of authority for their failure to protect basic
rights of people.
• Montesquieu was very much impressed by these liberal thoughts of
Locke.

• Also, at the same time, the system of governance of Britain with

increasing emphasis on liberties and independence amongst various
organs of government influenced Montesquieu.

• Although, in reality, there was no such independence or separation

among organs of government in Britain. This doctrine was not in
practice in Britain and Montesquieu some how misunderstood the
real structure and functioning of various organs of State in British
Model of governance.
• The crux of his doctrine implied that –
• same persons should not form part of more than one of the
three organs of Government.

• one organ of the Government should not control or interfere

with the exercise of its function by another organ.

• one organ of the Government should not exercise the

functions of other organs.

• This doctrine received appreciation from American jurists and

eventually they developed a federal model of governance.
• The concept of separation of powers was received well by thinkers in
England as well.

• English jurist Blackstone observed that if legislative, executive and

judicial functions were given to one man, there was an end of
personal liberty.

• In 1789, as an outcome of French Revolution, the Constituent

Assembly of France adopted this doctrine in its Constitution.

• The purpose of this doctrine is to ensure a proper system of checks

and balances exists amongst various organs of the govenrment.
• It seeks to achieve to the maximum extent accountability by each
branch of government.

• Further, this doctrine enables legislature and judiciary in preventing

abuse of the enormous powers vested in executive.

• 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.

• Independent judiciary is an outcome of this doctrine. Judiciary keeps

the a keen watch on administrative actions.
Application of Doctrine of Separation of Power

United States of America

• USA is by far the nearest possible model of governance that has
strictly adopted the concept of separation of powers by making it an
integral part of its Constitution.

• USA has adopted a federal system of governance where the legislative

powers are vested exclusively in the Congress, the executive powers
are vested in President and his secretariat while judicial powers are
vested in Supreme and courts subordinate to it.
• Initially this separation of powers between these three organs was
quite strictly followed. But with gradual expansion in administrative
and welfare functions of State, many aspects of strict model have
been diluted.

• Example - There has been delegation of legislative powers to various

organs and agencies of the State by the Congress; through its power
of impeachment the Congress is capable of performing judicial
functions. Senate exercises some executive powers as many
appointments and certain treaties require its approval.
England
• Although Montesquieu based his doctrine of separation of powers
taking into account the British Constitution, England was not
practicing it.

• In reality, the theory of integration of powers has been adopted in

England.

• To give and example, the Lord Chancellor was the head of the
judiciary, Chairman of the House of Lords (Legislature) and a member
of the executive and often a member of the British Government‘s
Cabinet.
• Members of the British Government (executive) including prime
minister and other ministers are also members of the British
Parliament (Legislature) and are responsible to it and they play a very
important role in legislative activities.

• Further, Executive authorities have been empowered to make laws

and rules through delegated powers of legislation.

• Judiciary has recently been separated from executive in Britain

through the Constitutional Reforms Act 2005.

• Strict separation of powers is absent in Britain.

INDIA
• Constitution of India has to a certain extent accepted and adopted the
doctrine of separation of powers but not in a strict manner.

• Legislative, executive and judicial powers are broadly divided among

legislature (Parliament and State legislatures), Executive (Union
Government, State Governments and bureaucracy) and judiciary
(Supreme Court, High Courts and Subordinate Courts in India.

• Parliament is competent to make any law subject to the provisions of

the Constitution and there is no other limitation on its 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 Parliament or Legislature
ultra vires or unconstitutional.

• Doctrine is a part of the basic structure of the Constitution (Indira Nehru

Gandhi vs Raj Narain AIR 1975 SC 2299)

• The Executive head of the State is the President and he appoints Prime
ministers and other ministers of Government.
• However, there are certain exceptions as there are elements of power
sharing amongst these basic organs of governance under the scheme of
Indian Constitution.

• The Parliament of India comprises of President (head of executive) and

the two houses – House of People and Council of States. Session of
Parliament cannot start without approval from the President.

• Also, the President has wide powers to make laws through ordinances
under Article 123 of Constitution of India.

• Many legislative functions are delegated to the executive by Parliament.

• In certain matters, Parliament exercises judicial functions e.g.
impeachment of judges and the President of India.

• Also, in our Parliamentary for of Government, the Prime minister and

other ministers are members of the Parliament as well integrating
executive with legislature (helps in keeping checks and balances).

• In times of emergency, the federal system of India turns into a unitary

one.

• Thus, although there is a separation of powers amongst various organs of

State in India but overlap of functions of one branch with another are
also present.
• Hence, this doctrine is not strictly applicable to India though is followed in spirit.