SEPERATION OF POWERS

I. INTRODUCTION
It is an obvious articulation that, there is an inherent danger in
giving all powers to a single individual, office or organ. As Lord
Acton says, “Power corrupts and absolute power corrupts
absolutely”. The concept of separation of powers thus emerges
from this apprehension.

II. MEANING
The doctrine of separation of powers emphasises on the “Mutual
Exclusiveness” of the three organs of a modern Government
namely, the legislature, executive and judiciary. The legislature
makes the laws, executive implements/enforces the laws made by
the legislature and the judiciary interprets them.

III. RATIONALE
The idea behind the Doctrine is to ensure distribution of powers
as against its concentration in a single body. It therefore, aims
to prevent monopoly. The Doctrine signifies three formulations
of structural classification of governmental powers. These are:
 The same person should not form part of more than one
of the three organs of the Government.
 One organ of the Government should not interfere with
any other organ of the former.
 One organ of the Government should not exercise the
functions assigned to any other organ.

IV. HISTORY
French jurist Baron de Montesquieu propounded the Doctrine
of Separation of Powers in the 18th century, in his book titled,
“Spirit of Law”. According to him, “When the legislative and
executive powers are united in the same person, or in the same
body of Magistrates, there can be no liberty….Again, there is no
liberty if the judicial power be not separated from the legislative
and executive”. Montesquieu feared tyranny in the absence of
separation of powers which, he believed was vital for
democratic governance. His model was also known as “TRIAS
POLITICA” wherein, the State was divided into branches or
estates, each estate being given separate and independent
powers and areas of responsibility.
 The Doctrine, in its pure form, as advocated by Montesquieu, is
strictly adhered to in the United States of America.

V. NATURE
The Doctrine of Separation of Powers is DILUTORY in nature that
is; it does not imply absolute demarcation. It thus, cannot be
literally applied to any modern government, whose powers
cannot be kept in water-tight compartments. If that is done, it
shall make the government chaotic, unworkable and
potentially dangerous. Therefore, some overlapping has to be
permitted.

VI. ADVANTAGES
 It ensures a system of checks and balances.
 Negates tyranny.
 Protects democracy.
 It guarantees the independence of judiciary and the power of
judicial review.
 It warrants the supremacy of the Constitution. The legislature
is also sub-servient to it. The latter is created by the
Constitution and is also, governed by the same.
 It assures protection of individual rights.

VII. SEPERATION OF POWERS IN INDIA

 The Doctrine of Separation of Powers is not accorded a
constitutional status in our country except for Article
50 of the Indian Constitution (Directive Principles of
State Policy), which enjoins separation of judiciary from
the executive. Basically, the constitutional scheme does
not embody any formalistic division of powers.
 We do not follow this doctrine with rigidity but, the
essential functions of each governmental organ, have
been sufficiently differentiated or demarcated.
 It is an assumption that one organ of the State will
not perform the functions of another organ of the
State. However, functional overlapping is permissible
under constitutional limits.

VIII. INSTANCES ILLUSTRATING SEPERATION OF POWERS IN

INDIA
 ARTICLE 53(1) provides that the executive power of the Union
shall be vested in the President and, shall be exercised by him
 directly or through officers subordinate to him, in accordance
with the Constitution.
 Article 154 (1) specifies that the executive power of the State
vests in the Governor.
 Article 141 of the Constitution states that the law declared by
the Supreme Court shall be binding on all courts within the
territory of India.
However, there is a functional overlapping between the three organs
which is justified on the basis of the theory of checks and balances.
Thus, the exceptions are:
 No bill can become an Act unless Presidential assent is
received. Here, President being the executive head performs
legislative functions.
 Article 123 of the Constitution of India further states about the
power of the President to promulgate ordinance when both
houses of the Parliament are not in session. Here, too the
executive performs legislative functions. Similarly, Article 213
is applicable to the Governor of a State.
 Article 72 states that the President shall have the power to
grant pardon, reprieve, respite or remission of punishment or
sentence. To that extent, executive is performing judicial
functions.
 Under Article 145, the Supreme Court has been given power to
provide for rules and regulations governing its own procedures
and administration, for performance of judicial functions. To
that extent, it performs legislative functions.

IX. JUDICIAL APPROACH TOWARDS THE DOCTRINE OF

SEPERATION OF POWERS IN INDIA

 IN RE DELHI LAWS ACT (1951), the Supreme Court

declared that such type of doctrine has no mention in the
Indian Constitution. This trend continued till 1955 until,
in a constitutional law case, the Court made a deviation.

 RAM JAWAYA v. STATE OF PUNJAB

Facts: The Punjab Government, by series of notifications
(with the sole aim of nationalizing text books), placed some
restrictions upon the petitioner’s business of printing and
selling text books for the schools. Private publishing houses
were thus, ousted from carrying out such business activity.
This order was challenged on the ground that the executive
 power of the State did not extend to undertaking trading
activities without a legislative sanction.

Observation and Decision: The Court held that, “Ordinarily,

the executive power connotes the residue of governmental
functions that remain after legislative and judicial functions
are taken away. Indian Constitution has not indeed
recognized the doctrine of separation of powers in its
absolute rigidity but different branches of the Government
have been sufficiently differentiated and, it can be very well
said that our Constitution does not contemplate assumption
of all power by one organ.”
Therefore, an act would be within the executive power of the
State, if it is not an act which has been assigned by the
Constitution to other authorities and, it is not contrary to
provisions of any law. Also, it should not encroach upon the
legal rights of any member of the public.

 In KESHAVANANDA BHARTI v. STATE OF KERELA,

the Supreme Court recognized the Doctrine of
Separation of Powers as a basic feature of the Indian
Constitution. This was upheld in INDIRA NEHRU
GANDHI v. RAJ NARAIN.

 ASIF HAMEED v. STATE OF JAMMU AND KASHMIR

The Supreme Court declared that, “Rigid separation of
powers does not apply to the Indian set-up. The
principles have been recognized only in a broad sense.
The aim is to prevent the concentration of powers in
any one organ, which may otherwise upset the fine
balance and destroy the fundamental basis of
democratic government.”

X. CONCLUSION
Doctrine of separation of powers in today’s context of liberalisation,
privatisation and globalisation cannot be interpreted to mean a strict
principle of restraint but community powers exercised in the spirit of
co-operation by various organs of the State, in the interest of people.
Thus, though on the whole, the doctrine in its strict sense is
impracticable nevertheless, its value lies in the emphasis on those
checks and balances which are necessary to prevent an abuse of
enormous powers of the executive. The object of the doctrine is to
have, “a government of law rather than of official will or whim”.