SEPARATION 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
petitioners 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 todays 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.