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Introduction

When we go through the strict connotation of the doctrine of separation of powers

it implies that powers of the three organs of the government vis, legislature,
executive and judiciary should be kept separate from each other. The legislature
should make the laws, the executive should execute and the judiciary should
interpret them. None of these should exercise the function of any of the remaining
two organs. Nor should any of these organs interfere in any way with the
independent functioning of the other two organs. Theory of separation of powers
propounded by the French political thinker Baron de Montesquieu in his Esprit des
Lois exercised great influence on the French legal system. This doctrine has not
been recognized in its absolute rigidity in the Indian constitution. However it has
time and again reiterated that the functions of the different branches of the
government has been sufficiently demarcated in our constitution and consequently
it can be very well said that the constitution does not contemplate assumption, by
one organ of the state, of functions that essentially belong to the other. The
concept of separation of powers or of divided authority is clearly woven in the
fabric of American Constitutional law. This doctrine has been most directly
incorporated in the US Constitution by its provisions like, all legislative powers
shall be vested in the congress.(Article I Section I)the executive powers shall be
vested in the president(Article II Section I) and the judicial powers shall be in one
supreme court and in such inferior courts as congress may from time to time
ordain and establish (Article III Section I) In theory, no one organ of the
government can encroach upon the power of the other. Separation of powers may,
therefore, be a plausible constitutional doctrine but as a matter of practice a
complete separation is never possible. In a modern governmental setup the
legislative, the executive and the judicial functions may overlap, and the power
exercised by three branches are potentially coextensive as viewed by Marshal,
C.J. in Osborn v. Bank of United States 6 L.Ed 204. Frankfurter, J. of US Supreme
Court also observed that, enforcement of rigid concept of separation of powers
would make modern government impossible. Doctrine of separation of power has
an intimate impact on the growth of administrative law and administrative process.
It is generally accepted that there are three main categories of governmental
functions, Legislative, Executive & Judicial. According to theory of separation of
powers the three powers and functions of the government in a democracy always
be kept free & separate and be exercised by three separate organs of the
government. Thus the legislature can not exercise the executive or the judicial
power, the executive cannot exercise legislative or judicial power and similarly the
judiciary cannot exercise legislative or executive powers of the government.
Montesquieu in 1748 said that,

“When the legislative and the executive functions are united in the same person
together or in the same body of magistrates, there can be no liberty , because
apprehensions may arise, lest the same monarch or senate shall enact tyrannical
laws, to execute them in tyrannical manner. Again there is no liberty if the judicial
power be not separated from that of the legislative and the executive, were it joined
with the legislative functions, the life and the liberty of the subjects would be
exposed to arbitrary control, for the judge would be 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, whether of the nobles
or of the peoples, to exercise those three powers, that of the enacting laws, that of
executing public resolutions and of trying the cause of the individuals.
According to Wade and Phillips Separation of Powers may mean three different
things:

1. That the same should not form part of more than one of the three organs of
the government; for example the ministers should not sit in the parliament.
2. That one organ of the government should not control or interfere with the
exercise of its functions by another organ for example judiciary should be
independent of the executive or the ministers should not be responsible to
Parliament and
3. That one organ of the government should not exercise the functions of the
other. For example ministers should not have legislative powers.

Blackstone observed that if the legislative, executive and judicial functions

were given to one man, there was an end to the personal liberty. The
Constituent Assembly declared in 1789 that there would be nothing like a
constitution in the country where the doctrine of separation of powers was not
accepted. Doctrine of Separation of Powers as propounded by Montesquieu had
tremendous impact on the development of Administrative law and the
functioning of the government.

Rationale of Separation of Powers

The rationale of the doctrine of separation of powers is to uphold the individual

liberty and rule of law. Vesting of all power in one authority obviously promotes
tyranny. The value of this doctrine lies in the fact that it seeks to preserve the
human liberty by avoiding the concentration of powers in one body or one person.
Brandies, J. scientifically explained the purpose of separation of powers and said,
the rationale of division of powers or the separation of powers is not to promote
efficiency in the administration but to preclude the exercise of arbitrary power. He
further emphasized that its purpose is not to avoid friction amongst various organs
of the state by keeping them separate butto protect people from autocracy by
means of inevitable friction due to distribution of powers. Therefore the basic
purpose of the doctrine is to divide governance against itself by creating distinct
centers of power so that they could prevent each other from threatening tyranny.
The purpose of the doctrine of separation of powers is to have ‘a government of
law rather than of official will or whim’ Montesquieu emphasized that if the total
power of the government is divided among autonomous organs, one will act as a
check on the other and in such a way liberty can survive. The logic behind the
doctrine is polarity rather than strict classification meaning thereby that the centre
of authority must be dispersed to avoid absolutism. Most important aspect of the
doctrine of separation of power is judicial independence from the administrative
discretion. There is no liberty if the judicial power be not separated from the
legislative and the executive. The logic behind this doctrine is that if all the power
is concentrated in one and the same organ, there would arise the danger that it
would enact tyrannical, execute them in the despotic manner and interpret them in
an arbitrary fashion without any external control. Merger of all the powers or
functions in one body will lead to autocracy and negation of liberty. Pointing
towards political usefulness of the doctrine. Chandrachaud, J. in the case of Indira
Nehru Gandhi v. Raj Narain 1975 SCC 1, 260 observed that the doctrine of
separation of powers is now widely recognized. No constitution can survive
without a constitutional adherence to its fine checks and balances. R. Coelho v.
State of T.N. 2007 SCC a landmark Judgment delivered by the apex court. In this
case, the court has emphasized on the importance of separation of powers and the
system of checks and balances envisaged in our Constitution. It observed that for
preservation of liberty and prevention of tyranny, it is absolutely essential to vest
separate powers in three different organs. The court has reiterated that the
separation of powers between legislature, executive and the judiciary constitutes
one of the basic features of Constitution. It was further observed that constitutional
amendments are subject to limitations and if question of limitation is to be decided
by parliament itself which enacts the impugned amendments and gives that law a
complete immunity; it would disturb the checks and balances in the Constitution.
The authority to enact the law and decide the legality of limitations cannot vest in
one organ. The validity of the limitation of the rights in part-III of constitution of
India can only be examined by another independent organ, namely, the judiciary.

Historical background of Doctrine of Separation of Powers.

The doctrine of separation of powers has emerged in several forms at different

periods. This doctrine is normally associated with the French Philosopher
Montesquieu, but the origin of this principle can be traced back to Aristotle who
opined that government should be composed of three organs of the government
namely the deliberative (Legislative) the magisterial (executive) and the judicial.
However the scope of this doctrine was not worked out fully until Locke and
Montesquieu elaborated this concept in 18th century. Following this principle John
Locke, James Madison wrote in the federal papers that:

‘the accumulation of all the powers, legislative, executive and judiciary, in the
same hands, whether of one, a few or many and whether hereditary, self appointed
or elective, may justly be pronounced the very definition of tyranny’. Montesquieu
gave it a basis on which modern attempts to distinguish between legislative,
executive and judicial power is grounded. French philosopher John Bodinand
British Politician Locke respectively had expressed their views about the theory of
separation of powers. But it was Montesquieu who for the first time formulated
this doctrine systematically, scientifically and clearly in his book ‘Esprit des Lois’
(The Spirit of Laws) published in the year 1748.

Locke distinguished between what he called

a) Discontinuous Legislative Power,

b) Continuous Executive Power,

c) Federative Power.
1. Discontinuous legislative power includes the general rule making power
called into action from time to time and not continuously.
2. Continuous executive power includes all that power included all those
powers which we now call as executive and judicial powers.
3. By Federative powers, Locke meant the power of conducting Foreign
affairs.

The constitutional law of England recognizes this doctrine but this was not given
the constitutional status nor was it theoretically accepted. However, in several
judgments, the existence of this doctrine has been acknowledged.

The American constitution basing itself on this doctrine vests the executive power
in the president who is elected for a fixed term of four years, legislative powers are
vested in the congress and the judicial powers is vested in a system of courts with
the Supreme Court at the apex.

Separation of powers in India

In the Indian constitution there is no such defined and express incorporation of the
doctrine of separation of powers, save and except that the executive power of the
union is vested in the president under article 53(1). Article 53(1) provides that the
executive power of the union shall vest in the president and it shall be exercised by
him in accordance with the constitution either directly nor indirectly or through
officers subordinate to him. Similarly executive power of the state is vested in the
governor under article 154(1). But so far as legislative and judicial powers are
concerned they are not vested on any authority. under article 50 one of the
directives of the state policy , state is to take steps to separate judiciary from the
executive in the public services of the state, but this has nothing to do with the
vesting of power. However it is the constitutional duty of the judiciary to
adjudicate the disputes between the citizens, citizens and the states and the states
interse and the states and centre in accordance with the constitution and the law
Kartar Singh v. State of Punjab 1994 (3) SCC569.

Subha Roa C.J. observed in the case of Golak Nath v. State of Punjab AIR 1967SC
1643 that the constitution brings into existence different constitutional entities,
namely the union, the states and the union territories. It creates three major
instruments of power namely, the legislature, the executive and the judiciary. It
demarcates their jurisdiction minutely and expects them to exercise their respective
powers without overstepping their limits. They should function within the spheres
allotted to them.

Indra Nehru Ghandi vs. Raj Narayan 1975 SCC 1, Ray, C.J. observed that in
Indian constitution there is separation of powers in the broad sense only. A rigid
separation of powers as under US Constitution or Australian constitution does not
apply to India.

The constitution of India does not recognize the division of powers in its strict
sense. In the case of Ram Jwaya Kapur v. State of Punjab AIR 1955 SC 549, the
Indian Constitution has not indeed recognized the doctrine of separation of powers
 in its absolute rigidity but the function of different parts or the branches of the
government have been sufficiently differentiated and consequently it can very well
be said that the constitution cannot contemplate assumption, by one organ or part
of the state, of the functions that essentially belong to another. Theory of
separation of powers indeed broadly holds the field in our constitutional scheme. In
the case of Keshvananda Bharti v. State of Kerela AIR 1973 SC 1461,Separation
of powers came to be recognized as one of the basic features of the constitution
and thus cannot be altered. In the case of Asif Hameed v. State of Jammu &
Kashmir (1989) SCC 364 the court observed that although the doctrine of
separation of powers has not been recognized under the constitution in its absolute
rigidity but the constitutional makers have meticulously defined the functions of
various organs of the state. Legislature, Executive and Judiciary has to function
within their own sphere demarcated under the constitution. No organ can usurp the
functions assigned to another.

Bhagwati, J. in the case of Minerva Mills Ltd v. Union of India(1980) 3 SCC

observed under our constitution we have no rigid separation of powers as in the
United States of America but there is a broad demarcation, though , having regard to
the complex nature of the governmental functions, certain degree of overlapping is
inevitable. The reason for this broad separation of powers is that the ‘concentration of
power in any one organ may destroy the fundamental premises of a democratic
government to which we are pledged. Under our constitution the executive is
endowed with certain legislative powers, for instance the ordinance making powers
under article 123 and 213.it also has certain judicial powers under article 103 and
under article 192. The legislature is also empowered to exercise certain judicial
powers under article 105 and 195. The judiciary also exercises certain legislative and
executive powers under article 145, 146, 227 and 229. In addition the executive
exercises substantial quasi-judicial powers under several statutory provisions
whereby tribunals have been setup. Parliament, the highest legislative body in the
country also exercises quasi-judicial powers in the case of impeachment of judges
article 124(1) and article 217 of the constitution and also in respect of contempt of
legislatures article 194(3). In the case of Kartar Singh v. State of Punjab (1994) 4
SCC k.Ramaswamy, J stated, it is basic postulate under Indian constitution that the
legal sovereign power has been distributed between the legislature to make the law,
the executive to implement the law and the judiciary to interpret the law within the
limits set down by the constitution.

The constitution of India recognizes the doctrine of separation of powers but not in
the strict sense of the term. Professor wade writes that the objection of Montesquieu
was against accumulation and monopoly rather than interaction. Montesquieu never
used the word ‘separation’ therefore not impassable barriers and alterable frontiers
but mutual restrain in the exercise of powers by the three organs of the state is the
soul of the doctrine of separation of powers.

Working of Doctrine of Separation of Powers in modern constitutions

The working of this doctrine can be studied under three heads;

a) With respect to separation of personnel.

b) With respect to separation of functions.
c) Non-interference in each other’s function.
a) With Respect to Separation of Personnel: The first requirement is that no
person should form part of more than one of the three organs of the government. In
USA the executive organ consists of the president and his cabinet. In England it is
king and his cabinet, in India it is president and council of ministers. The
legislative organs consist of two houses, House of Representatives and senate in
USA. In England it consists of two houses, House of commons and house Lords
and president and two houses (house of people and council of states) in India. The
judicial organ in India and USA consist of supreme and its subordinate courts and
in England House of Lords Court of Appeal and subordinate courts.

Legislature and Executive: In USA neither the president nor his cabinet can sit or
vote in any house of congress. The English sovereign and Indian president is an
integral part of both executive and the legislature and ministers are also the
members of the legislature.

Executive and Judiciary: In U.S.A as well as in India Judges do not form part of
the Executive and no members of the executive are judges of the courts, in England
there is some overlapping. The judicial committee of Privy Council which is a part
of the executive is also the highest court of appeal for British colonies.

Judiciary and Legislature: Between judiciary and legislature also there is

complete separation of personnel in India and U.S.A. Neither the members of the
houses are the members of the court nor do the judges sit in the houses of the
legislature. But in England appellate committee of the House of Lords (upper
house of legislature) is final appellate court for the United Kingdom’s.

b) Separation as to functions: The second requirement of the doctrine is that one

should not exercise the functions of the other organ. In the constitution of USA
under article 1 it says that all the legislative powers shall be vested in the
Congress, article 11 says that all the executive power shall be vested in the
president of and article 111 provides that judicial powers shall vest in the supreme
court and in such inferior courts as the congress mar from time to time ordain.
Under Indian constitution executive power of the union shall be vested in the
president and executive power of the state shall be vested in the governor. There is
no express vesting of the legislative or the judicial powers in similar terms but the
jurisdiction of the courts and legislatures is clearly defined.

Legislature and Executive: Essentially legislation is the business of legislature

but the president possess some of the legislative powers under article 123 during
the recess of the parliament. Besides this legislature nowadays lays down broad
outlines. The detailed rules are made by the executive under the delegated powers
of legislation. However the legislature cannot abdicate essential legislative powers
and provides guidelines within which executive should make rules. The executive
rules are also required to be laid down before the houses. Thus the legislature
exercises sufficient control.

Executive and Judiciary: Although judicial functions are performed by the courts
certain matters are adjudicated by some special tribunals manned by the persons
from administrative wing. However, in India the adjudication by these tribunals is
subject to appeal to the Supreme Court whose verdict will be final. Article 103
provides that on matters of disqualification of members of either house of
parliament the decision of president shall be final.

Legislature and Judiciary: There is no overlapping of functions as o as under

English constitution. There House of Lords, a legislative wing is also a highest
court of appeal for United Kingdom. But in India also parliament or state
legislatures have power to punish for contempt of house. The courts also have
some rule making powers for regulating their procedure.

c) Non- interference in each other’s functions: Lastly it is to be considered how

far one organ controls or interferes with the functions of other organ because rigid
application of the doctrine requires that one organ should not control the functions
of another.
Legislature and Executive: Under parliamentary system executive is responsible
to the legislature. Ministry cannot survive if it loses the confidence of the
legislature. The president can also be impeached. To this extent legislature controls
the executive. On the other hand mostly bills are initiated by ministers and they can
defeat any measure if they choose to do so. In that way they control the legislature.
The executive has also prerogative to summon and prorogue the houses and to
dissolve the house of people.

Executive and Judiciary: The judiciary has the power to interpret the laws and to
decide upon the validity of rules made by the executive and thus controls the
executive actions. On the other hand judges are appointed by the executive and
thus judiciary can be controlled by the executive. However once they are appointed
the judges of high and Supreme Court cannot be terminated by the executive and
can work independently if they choose.

Judiciary and Legislature: Judiciary interprets laws made by the legislature and
can declare them unconstitutional. Judiciary is also controlled by the legislature in
various ways. Judges of the Supreme Court and high court can be removed by
impeachment process as given in article 124 (4) and article 218. Salaries
allowances and privileges of judges of the supreme court and now prescribed by
law made by parliament. This can work as an inducement but not as threat because
privileges accorded to them cannot be varied to their disadvantage after their
appointment.

Conclusion

Under the traditional theory of separation of powers, the legislature, the judiciary
and the executive enjoy separate and distinct domain. Policy making and the
implementation are conventionally regarded as the executive domain of legislature
and the executive respectively with the judiciary performing supervisory function.
The Indian constitution does envisage distinct roles for the three organs of the
state. It absorbs the theory of separation of powers but to an extent. Specific
provisions of the constitution vest in each of these organs powers and functions to
be exercised in manner laid down in the differentiation of functions in the
constitution itself. But this division of powers does not carve out mutually
exclusive domain. The Supreme Court has itself recognized the differentiation of
functions between the legislature, the executive and the judiciary and reasoned that
although the constitution did not incorporate a rigid separation of powers, no organ
could constitutionally assume the powers that essentially belonged to other organ.
Thus, the doctrine of “separation of powers” is acknowledged as an integral part of
the basic features of our Constitution. It is also commonly agreed that all the three
organs of the State, i.e., the Legislature, the Judiciary, and the Executive are bound
by and subject to the provisions of the Constitution, which demarcates their
respective powers, jurisdictions, responsibilities and relationship with one another.
It is assumed that none of the organs of the State, including the judiciary, would
exceed its powers as laid down in the Constitution. It is also expected that in the
overall interest of the country, even though their jurisdictions are separated and
demarcated, all the institutions would work in harmony and in tandem to maximize
the public good. In today’s concept of liberalization, privatization and
globalization the doctrine separation of powers cannot be interpreted to mean
absolute division of powers in the strict sense but community of powers exercised
in the spirit of cooperation by various organs of the state in the best interest of the
people. In any modern constitution the powers of the government cannot be kept
in watertight compartments nor can any government run on the principle of strict
separation of powers. That is why the Indian constitution has not recognized the
separation of powers in the absolute rigidity.