Understand that a governments role is to protect individual rights, but
acknowledging that government have historically been the major violators of
these rights, a number of measures have been devised to reduce this likelihood.
The concept of Separation of powers is one such measure. The premise behind
the Separation of Power is that when a single person or group has a large amount
of power, they can become dangerous to citizens. The separation of Power is a
method of removing the amount of power in any groups hands, making it more
difficult to abuse. It is generally accepted that there are three main
categories of governmental functions: (i) the legislative, (ii) the Executive,
and (iii) the Judicial. At the same time, there are three main organs of the
Government in state i.e. legislature, executive and judiciary. According to the
theory of separation of powers, these three powers and functions of the
Government must, in a free democracy, always be kept separate and exercised by
separate organs of the Government. Thus, the legislature cannot exercise
executive or judicial power; the executive exercise legislative or judicial
power of the Government.
As the concept of Separation of Powers explained by
Wade and Philips, it means three different things:-
That the same persons should not form part of more than one of the three organs
of Government, e.g. the Ministers should not sit in Parliament;
That one organ of the Government should not control or interfere with the
exercise of its function by another organ, e.g. the Judiciary should be
independent of the Executive or that Ministers should not be responsible to
Parliament; and that one organ of the Government should not exercise the functions of another,
e.g. the Ministers should not have legislative powers.
The doctrine of separation of power in its true sense is very rigid and
this is one of the reasons of why it is not strictly accepted by the large
number of countries in the world. The main object, as per Montesquieu “
Doctrine of separation of power is that there should be government of law rather
than having willed and whims of the official. Also another most important
feature of this doctrine is that there should be independence of judiciary i.e.
it should be free from the other organs of the state and if it is so then
justice would be delivered properly. The judiciary is the scale through which
one can measure the actual development of the state if the judiciary is not
independent then it is the first step towards a tyrannical form a government
i.e. power is concentrated in a single hand and if it is so the there is a cent
percent chance of misuse of power. Hence the Doctrine of separation of power do
plays a vital role in the creation of a fair government and also fair and proper
justice is dispensed by the judiciary as there is independence of judiciary.
Also the importance of the above said doctrine can be traced back to as early
as 1789 where the constituent Assembly of France in 1789 was of the view that
œthere would be nothing like a Constitution in the country where the doctrine of
separation of power is not accepted.
Separation of Powers In Usa:
The doctrine of separation of powers forms the foundation on which the
whole structure of the constitution is based. It has been accepted and strictly
adopted in U.S.A. Article I; Section 1 vests all legislative powers in the
congress. Article III; Section 1 vests all judicial powers in the supreme court.
Jefferson quoted, œThe concentration of legislative, executive and
judicial powers in the same hands in precisely the definition of despotic
Government. On the basis of this theory, the Supreme courts was not given power
to decide political questions so that there was not interference in the exercise
of power of the executive branch of government. Also overriding power of
judicial review is not given to the Supreme Court. The President interferes
with the exercise of powers by the congress through his veto power. He also
exercise the law making power in exercise of his treaty “ making power. He
also interferes in the functioning of the Supreme Court by appointing judges.
The judiciary interferes with the powers of the congress and the president
through the exercise of its power of judicial review. It can be said that the
Supreme Court has made more amendments to the American Constitution than the
congress. To prevent one branch from becoming supreme, protect the œopulent
minority from the majority, and to induce the branches to cooperate, governance
systems that employ a separation of powers need a way to balance each of the
branches. Typically this was accomplished through a system of checks and
balances, the origin of which, like separation of powers itself, is
specifically credited to Montesquieu. Checks and balances allow for a system
based regulation that allows one branch to limit another, such as the power of
congress to alter the composition and jurisdiction of the federal courts.
Congress as the sole power to legislate for the United States. Under the
non delegation doctrine, Congress may not delegate its law making
responsibilities to any other agency. In this vein, the Supreme Court held in
the 1998 case Clinton v. City of New York that congress could not delegate a
line item vote to the president, by which he was empowered to selectively
nullify certain provisions of a bill before signing it. The Constitution
Article I, Section 8; says to give all the power to congress. Congress has the
exclusive power to legislate, to makes law and in addition to the enumerated
powers it has all other powers vested in the government by the Constitution.
Where Congress does not make great and sweeping delegations of its authority,
the Supreme Court has been less stringent. One of the earliest cases involving
the exact limits of non “ delegation was Wayman v. Southard (1825). Congress
had delegated to the courts the power to prescribe judicial procedure; it was
contended that congress had thereby unconstitutionally clothed the judiciary
with legislative powers.
Executive power is vested, with exceptions and qualifications, in the
president by Article II, Section 1, of the Constitution. By law the president
becomes the Commander in Chief of the Army and Navy, Militia of several states
when called into service, has power to make treaties and appointments to office
œwith the Advice and Consent of the Senate receive Ambassadors and Public
Ministers, and œtake care that the laws be faithfully executed (Section 3.) By
using these words, the Constitution does not require the president to personally
enforce the law; rather, officers subordinate to the president may perform such
duties. The Constitution empowers the president to ensure the faithful
execution of the laws made by congress. Congress may itself terminate such
appointments, by impeachment, and restrict the president, The presidents
responsibility is to execute whatever instructions he is given by the congress.
Congress often writes legislation to restrain executive officials to the
performance of their duties, as authorized by the laws Congress passes. In INS
v. Chadha (1983), the Supreme Court decided (a) The prescription for legislative
action in Article I, Section 1 requiring all legislative powers to be vested in
a Congress consisting of a Senate and a House of Representatives and Section 7
requiring every bill passed by the House and Senate, before becoming law, to be
presented to the president, and, if he disapproves, to be repassed by two “
thirds of the Senate and House represents the Framers decision that the
legislative power of the Federal Government be exercised in accord with a
single, finely wrought and exhaustively considered procedure. This procedure is
an integral part of the constitutional design for the separation of powers.
Further rulings clarified the case; even both Houses acting together cannot
override Executive vetos without a 2/3 majority. Legislation may always
[prescribe regulations governing executive officers.
Judicial power the power to decide cases and controversies is vested in
the Supreme Court and inferior courts established by Congress. The judges must
be appointed by the president with the advice and consent of the Senate, hold
office for life and receive compensations that may not be diminished during
their continuance in office. If a courts judges do not have such attributes,
the court may not exercise the judicial power of the United States. Courts
exercising the judicial power are called œconstitutional courts. Congress may
establish œlegislative courts, which do not take the form of judicial agencies
or commissions, whose members do not have the same security of tenure or
compensation as the constitutional court judges. Legislative courts may not
exercise the judicial power of the United States. In Murrays Lessee v. Hoboken
Land & Improvement Co. (1856), the Supreme Court held that a legislative court
may not decide œa suit at the common law, or in equity, or admiralty, as such a
suit is inherently judicial. Legislative courts may only adjudicate œpublic
rights. Even though of above all, Separation of Powers is not accepted in
American in its strict sense, only it has attracted the makers of most modern
Constitution, especially during 19th Century.
In a leading case: Marbury v. Madison, is a landmark case in United States law.
It is formed the basis for the exercise of judicial review in the United States
under Article III of the Constitution. This case resulted from a petition to
the Supreme Court by William Marbury, who had been appointed by President John
Adams as justice of the peace in the District of Columbia but whose commission
was not subsequently delivered. Marbury petitioned the Supreme Court to force
Secretary of State James Madison to deliver the document, but the court, with
John Marshall as Chief Justice, denied Marburys petition, holding that the part
of the statute upon which he based his claim, the judiciary Act of 1789, was
Marbury v. Madison was the first time the Supreme Court declared something
œunconstitutional, and established the concept of judicial review in the U.S.
(the idea that courts may oversee and nullify the actions of another branch of
government). The landmark decision helped define the œchecks and balances of
the American form of government.
Separation of Powers has again became a current issue of some controversy
concerning debates about judicial independence and political efforts in increase
the accountability of judges for the quality of their work, avoiding conflicts
of interest, and charges that some judges allegedly disregard procedural rules,
statutes, and higher court precedents.
It is said on one side of this debate the separation of powers means that
powers are shared among different branches; no one branch may act unilaterally
on issues, but most obtain some form of agreement across branches. That is, it
is argued that œchecks and balances apply to the judicial branch as well as to
the other branches. It is said on the other side of this debate the separation
of powers means that the judiciary is independent and untouchable with in the
judiciaries sphere. In this view, separation of powers means that the
judiciary alone holds all powers relative to the judicial function, and that the
Legislative and Executive branches may nor interfere in any aspect of the
The doctrine of separation finds its home in U.S. It forms the basis of
the American constitutional structure. Article I vests the legislative power in
the congress; Article II vests executive power in the President and Article III
vests judicial power in the Supreme Court. The framers of the American
constitution believed that the principle of separation of powers would help to
prevent the rise of tyrannical government by making it impossible for a single
group of persons to exercise too much power. Accordingly they intended that the
balance of power should be attained by checks and balances between separate
organs of the government. This alternative system existing with the separation
of prevents any organ to become supreme.
Despite of the express mention of this doctrine in the Constitution, U.S.
incorporates certain exceptions to the principle of separation with a view to
introduce system of checks and balances. For example, a bill passed by the
congress may be vetoed by the President in the exercise of his legislative
power. Also treaty making power is with the President but its not effective
till approved by the senate. It was the exercise of executive power of the
senate due to which U.S. couldnt become a member to league of Nations. The
Supreme Court has the power to declare the acts passed by the congress as
unconstitutional. There are other functions of an organ also which are
exercised by the other. India, too, followed U.S. in adoption of the checks and
balances which make sure that the individuals organs doesnt behold the powers
This means that functioning of one organ is checked by the other to an
extent so that no organ may misuse the power. Therefore, the constitution which
gives a good mention of the doctrine in its provisions also does not follow it
in its rigidity and hence has opted for dilution of powers just like India.
Before we go to India, its important to know the constitutional setup of
the country to which India was a colony and ultimately owes the existence of the
form of government it has. U.K. follows a Parliamentary form of government
where the Crown is the nominal head and the real legislative functions are
performed by the Parliament. The existence of a cabinet system refutes the
doctrine of separation of powers completely. It is the Cabinet which is the
real head of the executive, instead of the Crown. It initiates legislations,
controls the legislature, it even holds the power to dissolve the assembly. The
resting of two powers in the single body, therefore denies the fact that there
is any kind of separation of powers in England.
Separation Of Powers And The Indian Constitution:
The Constitutional History of India reveals that the framers of the Indian
Constitution had no sympathy with the doctrine. This is evident from its
express rejection in spite of attempts being made. It even sheds no light to the
application of the doctrine during the British Regime. The Constituent
Assembly, while in the process of drafting the Constitution, had dwelt at length
for incorporating the doctrine and ultimately rejected the idea in toto. Dr.
B.R.A. Ambedkar, who was one among the members of the Constituent Assembly,
while comparing the Parliamentary and Presidential systems of India and America
respectively, remarked as thus.
Looking at it from the point of view of responsibility, a non parliamentary
executive, being independent of parliament, tends to be less responsible to the
legislature while a parliamentary system differs from a non “ parliamentary
system in as much as the former is more responsible than the latter but they
also differ as to time and agency for assessment of their responsibility. Under
the non “ parliamentary system, such as the one exists in U.S.A. the assessment
of the responsibility of the executive is periodic. It takes place once in two
years. It is done by the electorate in England, where the parliamentary system
prevails; the assessment of responsibility is both periodic and daily. The
daily assessment is done by the members of the parliament through questions,
resolutions, no confidence motions, adjournment motions and debates on address.
Periodic assessment is done by the electorate at the time of the election which
may take place every five years of earlier. The daily assessment of
responsibility which is not available under the American system is, it is felt,
far more effective than the periodic assessment and far more necessary in a
country like India. The draft constitution, in recommending the parliamentary
system of government, has preferred more responsibility than stability.
The above view of Dr. Ambedkar thus substantiates that Indian Constitution
does not make any absolute or rigid separation of powers of three organs owing
to its pro “ responsibility approach rather than having stability at the centre
stage. This has, however been further supplemented and reiterated by the Indian
Supreme Court in Ram Jawaya Kapur v. State of Punjab, the Court though Mukherjee
J. held that.
The Indian Constitution has indeed not recognized the doctrine of
separation of powers in its absolute rigidity, but the functions of different
parts or branches of the government have been 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 another.
A more refined and clarified view taken in Ram Jawayas case can be found
in Katar Singh v. State of Punjab, where Ramaswamy J. stated.
It is the basic postulate under the 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 functional classification and sufficient demarcation, as is held by the
Supreme Court, indeed does not suggest the application of the doctrine in its
absolute terms. Rather it just gives a slight glimpse as to the character of
the Indian Constitution which is shares with the pure doctrine discussed
above, that is, inter “ alia the acceptance of the philosophy behind the
doctrine pertaining to rigors of concentration of power and the avoidance of
tyranny, of having a rule of law and not rule of men. The same can be
substantiated through a detailed analysis of the provisions of the Constitution
which is the next course of action this chapter attempts to take.
Executive in India, like any other Westminster system, is a subset of
legislature and virtually there is a fusion between them, thus generally no
friction arises between them. The Constitution of India has indeed adopted the
British Parliamentary system, where in the political executive controls the
Parliament. In addition, the Cabinet or the Council of Ministers enjoys a
majority in the legislatures and virtually control both, the legislature as well
as the executive. Just like the British Cabinet, its Indian counterpart Can be
called as œa hyphen which joins a buckle which the legislative part of the state
to its executive part.
Under the Indian Constitution, the executive powers are vested with the
President and Governors for respective states. The President is, therefore,
regarded as the Chief Executive of Indian Union who exercises his powers as per
the constitutional mandate on the aid and advice of the council of ministers.
The president is also empowered to promulgate ordinances in exercise his
extensive legislative powers which extend to all matters that are within the
legislative competence of the Parliament. Such a power is Co “ extensive with
the legislative power of the parliament. Apart from ordinance making, he is
also vested with powers to frame rules and regulations relating to the service
matters. In the absence of Parliamentary enactments, these rules and
regulations hold the field and regulate the entire course of public service
under the Union and the States. Promulgation of emergency is emergent situations
is yet another sphere of legislative power which the President is closed with.
While exercising the power after the promulgation of emergency, he can make
laws for the state after the dissolution of state legislature following the
declaration of emergency in a particular state, on failure of the constitutional
Like the British Crown, the President of India is a part of the legislature
though he is not a member of any house of the Parliament. No bill for the
formation of new states or alternation of boundaries etc. of the existing
states, or effecting taxation in which States are interested or affecting the
principles laid down for distributing money to the states or imposing a
surcharge for the purposes of the Union and no money Bill or Bill involving
expenditure from the consolidated fund of India can be introduced for
legislation except on the recommendation of the President. Besides this, he also
has powers to grant pardons, reprieves respites or remissions of punishment or
to suspend, remit or commute; the sentence of any person convicted any offence
which is of judicial nature. He also performs similar judicial functions in
deciding a dispute relating to the age of the judges of the constitutional
courts for the purpose of their retirement from their judicial office.
In a similar manner, Parliament also exercises judicial functions. While
performing judicial functions, it can decide the question of breach of its
privilege and if proved, can punish the person concerned. While doing so, the
Parliament is the sole judge and Courts cannot generally question the decision
of the Houses on this point. Moreover, in case of impeachment of the president,
one house of the Parliament acts as a prosecutor and the other House
investigates the levelled charges and decides whether they substantiate or not.
There is however, a considerable institutional separation between the judiciary
and other organs of the government. The Constitutional confers wife powers
however; a certain amount of executive control is vested in the higher judiciary
with respect to subordinate judiciary. At the same time, the power of
appointment of high courts and Supreme Court judges including the Chief Justice
of India, vests partially with the executive, that is to say, the President of
India who is turn exercises this power in consultation with the Governors of the
concerned states and the Chief Justice of the concerned High Court in case of a
high court judge and Chief Justice of India in case of a Supreme Court Judge.
Moreover, the judges of constitutional Courts cannot be removed except for
proved misconduct or incapacity and unless an address supported by two “ thirds
of the members and absolute majority of the total membership of the House is
passed in each House of the Parliament and presented to the President. Apart
from exercising routine judicial functions, the superior constitutional courts
also performs certain executive and administrative functions as well. High
Courts have supervisory powers over all subordinate courts and tribunals and
also the power to transfer cases. In addition, the High Courts as well as the
Supreme Court also have legislative powers by virtue of which they can frame
rules regulating their own procedure for the conduct and disposal of cases.
The foregoing exercise establishes the proposition expounded by the Supreme
Court in Ram Jaways Case.
The analysis clearly shows that the concept of Separation of powers, so far as
the Indian Constitution is concerned, reveals and artistic blend and an adroit
admixture of judicial, legislative and executive functions. Separation sought
to be achieved by Indian Constitution is not in an absolute or literal sense.
Despite being evident that the constitution nowhere expressly bows in line to
the concept, albeit it remains an essential framework of the constitutional
scheme. Agreeing on this premise, it has also been accorded the status of basic
structure by the Supreme Court. Therefore, it can axiomatically be said that
Indian Constitution does not contemplate separation as embodied in the pure
doctrine, it rather perceives and accords to it in its central sense, that it
to say, not in its literal sense, rather in its purposive sense, I.e. non
conferment of unfettered powers in a single body of men and to motivate checks
Another point of concern which requires clarification is whether the three
organs, though not rigidly separate, can usurp their powers or are they requires
by the constitution to work only within the respective area earmarked in a
narrow- sense. To put it differently, whether the constitution mandates
encroachment by one organ into the domain of another on the pretext of failure
or inaction of the other organ is the next question that needs to be addressed
in is context.
Though theoretically, this issue has been addressed by the Supreme Court,
however, in has failed to cater basis in practice which is evident from the
growing amount of judicial encroachment in the domain of other organs. In Asif
Hameed v. State of J & K, it has been held that:
œAlthough the doctrine of separation of powers has not been recognized
under the constitution makers have meticulously defined the functions of various
organs of the state. Legislative, Executive and Judiciary have to function
within their respective spheres demarcated under the constitution. No organ can
usurp the functions assigned to another. Legislative and executive organs, the
two facets of the peoples will, have all the powers including that of finance.
Judiciary has no power over sword or the purse. Nonetheless it has power to
ensure that the aforesaid two main organs of the state function within the
constitutional limits. It is the sentinel of democracy.
The prime point of our concern here is whether the judicial organ of the
state is conferred with a constitutional mandate so as to overstep its limits
while discharging its main functions. That is to say whether the judiciary can
interfere and encroach in the executive or legislative domain if just demands
so, or it cannot do so simple by virtue of the fact that the concept of
separation of powers puts fetters on it. To answer these points, one need to
ascertain as to what statute the judiciary has been accorded in the Indian
Constitutional. Is it supreme as compared to the other organs or is subordinate
Judiciary under Indian Constitution has been given an independent status.
It has been assigned the role of an independent umpire to guard the
constitution and thereby ensure that other branches may not exceed their powers
and function within the constitutional framework. Commenting and clarifying the
concept of independence of judiciary, Sir A.K. Aiyar, who was one of the framers
of the constitution, had observed that
œThe doctrine of independence (of judiciary) is not to be raised to a level
of a dogma so as to enable the judiciary to function as a kind of super “
legislature or super executive. The judiciary is there to interpret the
constitution or to adjudicate upon the rights between the parties concerned.
It can thus very aptly be said that creation of judicial organ in India was
not at al meant to give to it a supreme status as compared to the other co “
ordinate organs. Rather, with powers and functions sufficiently distinguished
and demarcated, what is expected out of judiciary is to act as a watchdog to
oversee and prods to keep the other organs with in the constitutional bounds.
The essence of the Constitution is that it produces a system which is the
result of amalgamation of the principles of separation of powers with the
doctrine of parliamentary sovereignty in a manner to give effect to both, yet
without the rigidity of the two systems. The Parliamentary democracy is
cemented as the corner stone of constitutional edifice in preference to the
Presidential system of governance.
Separation of Powers And Judicial Pronouncements In India:
In India, we follow a separation of functions and not of powers. And
hence, we dont abide by the principle in its rigidity. An example of it can be
seen in the exercise of functions by the Cabinet ministers, who exercise both
legislative and executive functions. Art.74(1) wins them an upper hand over the
executive by making their aid and advice mandatory for the formal head. The
executive, thus, is derived from the legislature and is dependent on it, for its
legitimacy, this was the observation made by the Honble S.C. in Ram Jawaya v.
On the question that where the amending power of the Parliament does lies
and whether Art.368 confers and unlimited amending power on Parliament, the S.C.
in Keshavanand Bharti held that amending power was now subject to the basic
features of the constitution. And hence, any amendment tapering these essential
features will be struck down as unconstitutional. Beg. J. added that separation
of powers is a part of the basic structure of constitution. None of the three
separate organs of the republic can take over the functions assigned to the
other. The scheme cannot be changed even by resorting to Art.368 of the
constitution. There are attempts made to dilute the principle, to the level of
usurpation of judicial power by the legislature.
In a subsequent case law, S.C. had occasion to apply the Keshavanand ruling
regarding the non “ amend ability of the basic features of the Constitution and
strict adherence to doctrine of separation of powers can be seen. In
Nehru Gandhi v. Raj Narain, where the dispute regarding P.M. 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 power. So, the main ground on which the
amendment was held ultravires was that when the constituent body declared that
the election of P.M. wont be void, it discharged a judicial function which
according to the principle of separation it shouldnt have done. The place of
this doctrine in India context was made a bit clearer after this judgment.
Though in India strict separation of powers like in American sense is not
followed but, the principle of checks and balances a part of this basic
structure doctrine so much so that, not even by amending the constitution and
if any such amendment is made, the court will strike it down as
It has been well said by Lord Action:- œPower corrupts and absolute power
tends to corrupt absolutely. Conferment of power in a single body leads to
absolutism. But, even after distinguishing the functions, when an authority
wields public power, then providing absolute and sole discretion to the body in
the matters regarding its sphere of influence may also cause abuse of such
power. Therefore, the doctrine of separation of powers is a theoretical concept
and is impracticable to follow it absolutely. The status of modern state is a
lot more different than what is used to be. It has evolved a great deal from a
minimal, non “ interventionist state to an welfare state, wherein it has
multifarious roles to play, like that of protector arbiter, controller,
provider. This omnipresence of that state has rendered its functions becoming
diverse and problems, interdependent and any serious attempt to define and
separate those functions would cause inefficiency in government. Hence, a
distinction is made between essential and incidental powers of an organ.
According to this differentiation one organ cannot claim the powers essentially
belonging to other organ because that would be a violation of the principle of
separation of powers. But, it can claim the exercise of the incidental
functions of another organ. This distinction prevents encroachment of an organ
into the essential sphere of activity of the other.
In a democratic country goals are enshrined in the Constitution and the
state machinery is then setup accordingly. And here it can be seen that
constitutional provisions are made as such to support a parliamentary form of
Government where the principle cannot be followed rigidly. The S.C. rulings
also justify that the alternative system of checks and balances is the
requirement, not the strict doctrine. A constitutionalism, the philosophical
concept of the constitution also insists on limitations being placed upon
governmental power to secure basic freedoms of the individual. Hence, the
conclusion drawn out of the study is that there is no strict separation of
powers but the different branches of the government have been sufficiently