The concept of separation of powers is the rudimentary element for the governance of
a democratic country. This principle corroborates fairness, impartiality and uprightness in the
workings of a government. Although it is not followed in its strict sense yet, most of the
democratic countries have adopted its diluted version under their respective constitutions. In
most of the democratic countries, it is accepted that the three branches are the legislature, the
executive and the judiciary.
According to this theory, the powers and the functions of these
branches must be distinct and separated in a free democracy. These organs work and perform
their functions independently without the interference of one into others in order to avoid any
kind of conflict. It means that the executive cannot exercise legislative and judicial powers, the
legislature cannot exercise executive and judicial powers and the judiciary cannot exercise
legislative and executive powers.
Meaning Of Separation Of Powers
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. 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.
should not interfere in the functioning of the other organs. One organ should not exercise a
function of another organ (they should stick to their mandate only). Thus, these broad spheres are
determined, but in a complex country like India there often arises conflict and transgression by
one branch over the other.
Objectives of Separation of Powers:
The following are the fundamental objectives of the doctrine of separation of
- Firstly, it aims to eliminate arbitrariness, totalitarianism and tyranny
and promote an
accountable and democratic form of government.
- Secondly, it prevents the misuse of powers within the different organs of the
government. The Indian Constitution provides certain limits and boundaries for each
domain of the government and they are supposed to perform their function within such
limits. In India, the Constitution is the ultimate sovereign and if anything goes beyond
the provisions of the constitution, it will automatically be considered as null, void and
- Thirdly, it keeps a check on all the branches of the government by
accountable for themselves.
- Fourthly, separation of powers maintains a balance among the three organs of
government by dividing the powers among them so that powers do not concentrate on
any one branch leading to arbitrariness.
- Fifthly, this principle allows all the branches to specialize themselves in their
respective field with an intention to enhance and improve the efficiency of the
Elements of Separation of Powers
The legislative organ of the government is also known as the rule-making body. The primary
function of the legislature is to make laws for good governance of a state. It has the authority of
amending the existing rules and regulations as well. Generally, the parliament holds the power of
making rules and laws.
This branch of government is responsible for governing the state. The executives mainly
implement and enforce the laws made by the legislature. The President and the Bureaucrats form
the Executive branch of government.
Judiciary plays a very crucial role in any state. It interprets and applies the laws made by the
legislature and safeguards the rights of the individuals. It also resolves the disputes within the
state or internationally.
There are various advantages with the acceptance of this doctrine in the system;
- The efficiency of the organs of state increased due to separation of
works hence time
- Since the experts will handle the matters of their parts so the degree
of purity and correctness
- There is the division of work and hence division of skill and labour occurs.
- Due to division of work there is no overlapping remains in the system
and hence nobody
interfere with others working area.
- Since the overlapping removed then there is no possibility of the
competition in between
As there are advantages attached to this doctrine, there are some disadvantages
can also occur due to this doctrine:
- As I have said there will be increased efficiency but reverse effect can also be seen because of
the overlapping between rights of the organs if we are not following the doctrine in its strict
sense because organs may fight for the supremacy over each other.
- There is also a possibility of competition between organs again for
proving ones supremacy
over the other organ.
- There is also possibility of delay of process because there will not be any supervisor over
other hence the actions of the organs can become arbitrary.Provisions that Substantiate Separation of Power
Article 53(1) and Article 154 of the Indian Constitution clearly say that the Executive powers of
the Union and the States are vest in the President and Governor respectively and shall only be
exercised directly by him or through his subordinate officers.
Article 122 and Article 212 of the Indian Constitution state that the courts cannot inquire in the
proceedings of Parliament and the State Legislature. This ensures that there will be no
interference of the judiciary in the legislature.
Article 105 and Article 194 of the Indian Constitution specify that the MPs and
MLAs cannot be
called by the court for whatever they speak in the session.
Article 50 of the Indian Constitution encourages the separation of judiciary
from the executive in
Article 245 of the Indian Constitution gives authority to Parliament and State
making laws for the whole country and the states respectively.
Article 121 and Article 211 of the Indian Constitution state that the judicial
conduct of any judge
of the Supreme Court or High Court shall not be discussed in Parliament or State
Article 361 of the Indian Constitution specifies that the President and the
Governor are not
accountable to any court for exercising their powers and performance of duties
in his office.
Separation of Powers and Judicial Pronouncements in India
The first major judgment by the judiciary in relation to Doctrine of separation
of power was
in Ram Jawaya v state of Punjab
[i]. The court in the above case was of the opinion that the
doctrine of separation of power was not fully accepted in India. Further, the
view of Mukherjea
J. adds weight to the argument that the above-said doctrine is not fully
accepted in India. He
"The Indian Constitution has not indeed recognized the doctrine of separation of powering its
absolute rigidity but the functions of the different parts or branches of the government have been
1 AIR 1955 SC 549.sufficiently differentiated and consequently it can very well be said that our constitution does not
contemplate assumption, by one organ or part of the state, of functions that essentially belong to
Then in Indira Nehru Gandhi v. Raj Nara
in[ii], where the dispute regarding Prime Minister's
election was pending before the Supreme Court, it was held that adjudication of a specific
dispute is a judicial function which parliament, even under constitutional amending power,
cannot exercise. So, the main ground on which the amendment was held ultra vires was that
when the constituent body declared that the election of Prime Minister wouldn't be void, it
discharged a judicial function that according to the principle of separation it shouldn't have done.
The place of this doctrine in the Indian context was made a bit clearer after
The doctrine of separation of powers must be interpreted in a relative form. In the era of
liberalisation, privatisation and globalisation, separation of power has to be expounded in a wider
perspective. It should not be curb to the principle of restraint or strict classification only but a
group power exercised in the spirit of cooperation, coordination and in the interest of the welfare
of the state.
Though this doctrine is unfeasible in its rigid perception nevertheless its
effectiveness lies in the prominence on those checks and balances which are necessary in order
to avert maladroit government and to prevent abuse of powers by the different organs of the
- 21975 Supp SCC 1