In India, the doctrine cannot claim any historical background. The legislature
did not appear as a body separate from the executive till the middle of
19th century. The doctrine of separations of powers has not been accorded a
constitutional status. It was only after the independence that a constituent
assembly was constituted to draft a constitution for the country. There was a
proposal to incorporate the doctrine in the constitution but it was turned
The doctrine of separation of power is not followed strictly. Apart from
the directive principles of state policy laid down in Article 50 which talks
about the separation of judiciary from the executive, the constitutional scheme
does not embody any formalistic division of powers. In India, there are three
main categories of governmental functions: Legislative, Executive and Judiciary.
In separation of power all the functions and powers of government should be
separate to each organ and each organ has to be in free democracy.
should interfere in the decisions of other organ or no organ can exercise powers
of other organ. Doctrine of separation of power is accepted in India. Theory of
separation of power signifies three formulation of Structural classification of
Governmental powers. Same person should not form part of more than one of the
three organs of the government. One organ of government should not exercise
the functions assigned to any other organ.
- To identify the powers of the different organs of government.
- The aim is to trace the history of the doctrine of separation of power
by analysing the relevant case laws.
- To find out the status of this theory as it exists today, in India.
According to the theory of Separation of Powers, these three departments of the
Government must be in a free democracy, always be kept separate by three
separate department of the Government. The functions of the legislature is to
make laws while the function of the executive is to execute and that of the
judiciary is to enforce and interpret them. None of the these three departments
should interfere with exercise of the function of the other departments.
theory signifies the following three different things:
- That the same person should not form more than one of the three
departments of the government. Eg: Ministers should not sit in the parliament
- That one department of the government should not interfere with any
other department. Eg: The judiciary should be independent of the executive or
that Ministers should not be responsible to Parliament.
- That one department of the government should not exercise the functions
assigned to any other department. Eg: The Ministers should not have
Thus, the doctrine lays emphasis on the separation both at the functional as
well as personal level. In an ideal set up the separation in both these aspects
should be clear and complete. Montesquieu for the first time formulated this
doctrine systematically, scientifically and clearly in his book Esprit Des
 published in the year 1748.
According to Montesquieu
, If the executive
and the legislature are the same body of person there would be danger of the
legislature enacting tyrannical laws which the executive will administer to
attain for its own ends. He further said that if one person could exercise both
the executive and judicial powers in the same matter there would be arbitrary
power which would amount to complete severity and there would be no objectivity
of laws (4).
The doctrine of separation of powers means that no one person
should be vested with all the three types of powers. The idea of this theory
stems from the logical concept that if the law-makers should also be the
administrators of law and justice, then the people at large will be left without
remedy in case any injustice is done as there will be no superior authority.
concentration of power in one person results in tyranny, and thus, for decentralisation of power to check arbitrariness, there is a need for vesting
the governmental power in three different organs. In theory, the doctrine of
separation of powers is supposed to have a classification of functions and
But because of the complex nature of a modern state, where
the process of law making, administration and adjudication cannot be clearly
assigned to separate institutions, the application of this doctrine in strict
sense is very difficult that's why there is functional and personal overlapping
exist in our system. The basic concept behind this is that when a single person
has a large amount of power, they can become dangerous to society and citizens.
Later Rousseau also supported the said theory propounded by Montesquieu. England
follows the parliamentary form of government where the crown is a titular head.
The mere existence of the cabinet system negates the doctrine of separation of
power in England as the executive represented by the cabinet remains in power at
the sweet will of the parliament.
The Constitution of India shows the idea of separation of power in an implied
manner. By looking into various provision of the Constitution, it is evident
that the Constitution intends that the powers of legislation shall be exercised
exclusively by the executive and judiciary. Similarly, the judicial powers can
be said to be vested with the judiciary. The judiciary is independent and there
can be no interference either by the Executive or by the Legislature.
executive powers of the Union and the state are vested in the president and the
According to Indian Constitution, state shall take steps to separate the
judiciary from the executive.
This is for the purpose of ensuring the
independence of judiciary. Constitutional provision provides validity of
proceedings in parliament and the Legislatures cannot be called into question in
any court within the territory of India. Judicial conduct of a judge of the
Supreme court and the High court cannot be discussed in the parliament and the
The executive power of the Union and the State shall be
vested with the President and the Governor and according to Article 361 they
enjoy immunity from civil and criminal liability. Applying the doctrines of
constitutional provision in the Indian scenario, a system is created where none
of the department can usurp the functions or powers which are vested into
another organ by express. Further the Constitution of India expressly provides
for a system of checks and balances in order to prevent the arbitrary use of
power. It is essential in order to enable the just and equitable functioning of
such a constitutional system.
By giving such powers, a mechanism for the control
over the exercise of constitutional powers by the respective organs is
mentioned. This clearly indicates that the Indian Constitution in its function
does not provide for a strict separation of powers in India. It creates a system
consisting of the three departments of Government and confers them both
exclusive and overlapping powers and functions. Thus, there is no absolute
separation of function between the three departments of Government.
Check And Balance Theory
Check and Balance is an internal control mechanism in which to avoid mistakes,
error and fraud in the output. These are commonly used in the accounting and
finance since this the common grounds for errors and fraud. The accounting and
finance unit is susceptible for errors and fraud so there is a segregation of
incompatible duties. Check and Balance can also be implemented in the
administrative agencies since there is an organizational structure within the
For instance, in the hiring process the administrative staff is the one
preparing the background checks and performs related duties in the hiring of the
people. However, after the applicants passed the examination the supervisor will
take place and will assess the ability, skills and attitude of the applicant if
he/she can do the work. After the assessment the end-user will do some final
testing and approve the employment of the applicant.
Judicial Control over Legislature
- Article 13: This section talks about the Judicial Review, under this
judicial review the laws made by the legislature and this process is known
as judicial review. It refers to the power of the judiciary to interpret the
constitution and to declare any such law or order of the legislature and
executive void, if it finds them to conflict the Constitution of India. The
Constitution of India is supreme law of the land.
- Article 145: Under this Article, Supreme Court has right to make law for
regulating its own procedure.
Judicial Control over Executive
- Article 32: Under this Article, one can file writ directly to the
Supreme court in case some fundamental rights are infringed.
- Article 226: Under this Article, one can file writ in the High court
directly if any fundamental rights are violated.
Legislative Control over Executive
- Article 61: Under this Article, the procedure for impeachment of
president is mentioned. If president violates any constitutional provision,
then parliament has the power to impeach the president.
- Article 75: Clause 5 of this Article, talks that the council of
ministers are collectively responsible for the House of People.
- Article 352: Under this Article, the parliament passes a resolution for
passing the National Emergency.
- Article 123: Parliament passes an ordinance, under this Article
president has rights to make ordinance when the parliament is not in
Legislative Control over Judiciary:
- Article 124: Under this Article, it discussed about the establishment of
Supreme court and Removal of Judges. Legislature has the right to making
laws for regulating on how the court will proceed.
Executive Control over Legislative and Judiciary
- Article 111: When bill is passed by both the houses of Parliament
it have the President's (Executive body) consent. President has three
to give his consent, to withhold his consent, to return the bill.
- Article 103: Disqualification and removal of member of
parliament. President can remove on the grounds of violation of power.
President removes them by taking opinion of the election commission.
The President's function and powers are enumerated in the Constitution itself.
The Parliament is competent to make any law subject to the provisions of the
Constitution and there is no other limitation on is legislative power. The
Judiciary is independent in its field and there can be no interference with its
judicial functions either by the Executive or by the legislature. The Supreme
court and High courts are given the powers of judicial review and they can
declare any law passed by the parliament or the legislature unconstitutional. In
India not only functional overlapping is there but also personal overlapping
The Supreme court has the power to declare unconstitutional any laws
passed by the legislature and the action taken by the executive if they violate
any provision of the constitution. Even the powers to amend the constitution by
Parliament is subject to the review of the court. The President of India who is
the executive head exercises law-making powers in the shape of ordinance making
power and also the judicial powers. The council of ministers is selected
from the legislature and is responsible to the legislature.
Pratibha v State of Karnataka:
The Supreme Court observed that since the
executive power of the state executive is co-extensive with that of the state
legislature, it follows that the state executive may make rule regarding any
matter within the legislative competence of the state legislature, without prior
legislative authority, except where a law is required because of the rule so
framed would violate any provision of the constitution which requires
Shri Sitaram Sugar Co. Ltd. V Union of India:
The Supreme Court has observed
that in general, the court would not exercise its power of judicial review to
interfere with a policy made by the government in exercise of its power under
Article 162, particularly where it involves technical, scientific or economic
expertise. Proper functioning of state administration should not be jeopardised
owing to ego clashes between high officers. Such officers should be aware that
power should be exercised for public good, and not for personal benefit.
Harish Uppal v Union of India:
The Supreme court has observed that the
Supreme court power to frame rules including rules regarding condition on which
a person including an advocate can practice in the Supreme court. Such a rule
would not be valid and binding on all. Such a rule if framed would not have
anything to do with the disciplinary jurisdiction of Bar Councils.
Judicial Opinion On Separation Of PowerDelhi Laws Act, 1912, Re:
The court held by a majority of 5:2, that the
theory of separation of powers is not [art and parcel of our constitution but it
was also held that except for exceptional circumstances like in Article 123 and
357, it is evident that constitution intends that the powers of legislation
shall be exercised by the Legislature.
Ram Krishna Dalmia v Justice Tendolkar:
Justice Das observed that the
constitution does not express the existence of separation of powers, and it is
true that division of powers of the government into legislative, executive and
judiciary is implicit in the constitution but the doctrine does not form an
essential basis of foundation stone of the constitutional framework as it does
Asif Hamid v State of Jammu & Kashmir:
The Supreme Court has observed that
Legislature, executive and judiciary have to functions within their own sphere
as mentioned under the constitution. The functioning of the democracy depends
upon the strength and independence of each of its departments. Judicial review
is a powerful weapon to restraint unconstitutional exercise of power by the
legislature and executive. Judicial review is like social and economic justice.
While exercise of powers by the legislature and executive is subject to judicial
restraint, the only check on our own exercise of power is the self-imposed
discipline of judicial restraint.
Ram Jawaya Kapoor v State of Punjab:
The court observed that the doctrine of
separation of power is not expressly mentioned in the constitution, but it also
stands to be violated when the functions of one department of Government are
performed by another.
Indira Gandhi v Raj NarainsFacts:
In this case, an appeal was filed by the appellant against the decision
of the Allahabad High court invalidating Smt. Indira Gandhi's election on the
ground of corrupt practices. In the meantime, the Parliament passed the
39th Constitutional Amendment which introduces and added a new Article 329 A to
the Constitution of India. Stated by Article 329A that the election of the Prime
Minister and the speaker cannot be challenged in any court in the country.
can be rather challenged before a committee formed by the Parliament itself.
Although the Supreme court validated the election of Indira Gandhi but declared
the 39th Amendment to be unconstitutional as it violated the basic structure of
the constitution. The 39th Amendment was made to validate with retrospective
effect the election of the then Prime Minister which was set aside by the
Allahabad High Court.
The main question involved in this case was of the validity of the clause
(4) of the Constitution 39th Amendment Act, 1975. The contention was that this
clause in question not only wiped out the high court judgement but also the
election and the law relating thereto.
Supreme court invalidated clause (4) of Article 329A inserted in the
Constitution Act, 1975 to immunise the election dispute to the office of the
prime Minister from any kind of judicial review. Indira Gandhi won the election
by misusing her powers. Therefore, the elections are held void under Article
329A clause 4 of the Constitution. In this case it is held that Separation of
Power is the basic feature of the Constitution.
Kesavananda Bharati v State of Kerala
Facts: In this case writ petition was filed by the petitioner under Article 32
of the Constitution for enforcement of his fundamental right under Article 14,
16, 19(1)(f), 25 and 31 of the Constitution. He prayed that provision of Kerala
Land Reforms Act, 1963 as amended by Kerala Land Reforms Act, 1969 declared
Ultra vires and void on the ground that some of its provision
are violative of fundamental rights. During pendency of the Writ parliament
passed there new Amendment those amendments are 24, 25 and 29th Amendment.
Petitioner also challenged the validity of these three new amendments.
Whether land laws challenged by way of writ petition are in consonance
with Article 31C of the Constitution?
The basic structure theory passed in this case. It was held that
parliament has limited power to amendment of Constitution but the basic
structure of the constitution cannot be amended. Parliament has power to amend
or omit laws and rules even it has power to amend Constitution also. But, this
power is limited. There is no such power to parliament for amendment of the
Constitution unless, there is no default or anything which is not for the
welfare or benefit of public. Therefore, the basic structure of the constitution
cannot be amended.
I.C.Golaknath v State of Punjab:
The Supreme court took the help of doctrine of
basic structure as propounded in Kesavnanda Bharati case
 and said that
9th schedule is violative of this doctrine and hence the 9th schedule is
violative of this doctrine and hence the 9th schedule was made amenable to
judicial review which also forms part of the basic structure.
brings into existence different constitutional entities. It demarcates their
jurisdiction minutely and expects them to exercise their respective powers
without overstepping their limits. They should function within the spheres given
Comparison Between UK And USA
- Doctrine of Separation of power has been accepted and strictly adopted
by US constitution while not accepted strictly in UK.
- Integration of power has not been adopted in the UK.
- Legislative powers are vested in the Congress. Executive power vested in
the President. Judiciary power vested to the Supreme court and its
subordinate court of the US.
- In England all three powers are vested in three separate organs of the
government and each one has its peculiar features but, there is sharing
out of the powers of the government.
Outcome Of Hypothesis
The Doctrine of Separation of Powers suffers from inherent and not absolute
limitations. The theory has not been codified as such and the only defects that
can be drawn, are the ones which have been experienced, after its practical
- Ram Jawaya Kapur v. State of Punjab does not recognize the principle fully
but makes only a reference to it. The theory was given full recognition in a
plethora of cases after the judgment in this case.
- It can be said, that application of the doctrine in its strictest sense
is not only undesirable but also impracticable and considering the situation
as it exists today, the system of checks and balances has become a practical
necessity for better functioning of the Government.
The aim of doctrine of separation of power is to bring conclusiveness in the
functioning of the three organs
. No organs should perform functions that belong
to the other. Though, theoretically, the doctrine of separation of powers was
very sound, many criticism have been brought forward when it was sought to be
applied in real life situations.
Some of the criticism:
Division of function: This doctrine is based on the assumption that the
three functions of the Government are independent and distinguishable from
one another. But in fact, it is not so. There are no watertight components.
It is not easy to draw a demarcating line between one power and another with
Adherence to it not possible to welfare state: It is impossible to take
certain actions if this doctrine is accepted in its entirety. Thus, if the
legislature can only legislate, then it cannot punish anyone who commits a
breach of its privilege, nor can it delegate any legislative function even
though it does not know the details of the subject matter of the legislation
and the executive authority has expertise over it, nor could the courts
frame rules of procedure to be adopted by them for the disposal of cases.
Separation of powers thus can only be relative and not absolute.
- The modern state is a welfare state and it has to solve complex
socio-economic problems and in this state of affairs also, it is not
possible to stick to this doctrine. Enforcement of rigid conception of
separation of power would make modern government impossible. Strict
separation of power is a theoretical absurdity and practically impossible.
Practical difficulties in its acceptance: In practice it has not been
found possible to concentrate power of one kind in one organ only. The
legislature does not act merely as law making body, but also act as an
overseer of the executive, the administrative organ has legislative
function. The judiciary has not only judicial functions but also has some
rule making powers.
- The modern interpretation of the doctrine means that the discretion must
be drawn between essential and incidental powers and one
organ of the government cannot usurp or encroach upon the essential
functions belonging to another organ but may exercise some incidental
- Although Montesquieu doctrine aims is to secure the liberty and freedom
of the individual, yet it is impossible to achieve the same through the
mechanical division of functions and powers.
For freedom and liberty, it is
essential that there should be rule of law and impartial and independent
judiciary and eternal vigilance on the part of the subjects.
Some have argued that while functions may be demarcated powers should always
remain supreme. But it is impossible to perform functions without the necessary
powers. At one point of time this theory held great value against the despotism
of a king and later of a parliament. Such despotism does not exist today. The
modern day governments require protection against the domination of parliament
and of civil servants. The separation of powers is too mechanical in nature to
be of any avail against these types of domination.
What is required is not separation of powers but coordination or articulation of
powers. Although this doctrine of separation of powers ensures a certain degree
of efficiency it can even give rise to jealousy, suspicion and internal
friction. In the words of Finer, the theory of separation of powers throws the
government into alternative conditions of coma and convulsion.
The doctrine of separation of power has come a long way from its theoretical
form. The more separation of powers between the three departments is not
sufficient for the elimination of dangers of arbitrary government. Therefore, a
system of checks and balances is a practical necessity in order to achieve the
successful end of the doctrine.
Such a system like separation of power is
necessary in order to strengthen its actual usage. It is evident that
governments in their actual operation do not opt for the strict operation of
powers because it is impracticable, however, application of this concept can be
seen in almost all the countries in its mixed form.
Doctrine of Separation of
Power in today's context of liberalizations, privatizations and globalizations
cannot be interpreted to mean either separation of powers
or checks and
or principle of restraint
but community of powers exercised in the
spirit of cooperation by various departments of state in the best interest of
the people. It is to be noted that the doctrine of separation of powers should
not be taken to mean that the executive and the legislature cannot be directed
by the judiciary to discharge their functions if they are found inactive in
discharging of the function assigned to them by the constitution.
court has been made the guardian and protector of the constitution and therefore
it can direct the legislature and executive to discharge their functions
properly. The judiciary in India, in addition to the judicial functions, has
been assigned the functioning to see that the constitution is not violated by
any authority including the executive and the legislature. For the maintenance
of rule of law in the country it is necessary that each department of the
government perform its functions properly.
- Separation of power is a Doctrine which is made great thought.
- Concept behind this Doctrine is really appreciable. Because powers in
hands of a single person can make him corrupt or arrogant.
- All powers in one hand means violation of rights of public and no
decision will be for the benefit of public in such case. Therefore, the
powers are distributed among the three separate organs of the government.
- Separation powers are given to each organ still these organs exercising
powers of other organs. Such exercise of powers of one organ by another
organ is not the violation of separation of power. Such process is known as
- This concept gives flexibility to Constitution from the doctrine of
separation of power.
- Delegated legislations plays an important role in the constitution
because sometimes it is necessary to take decision with the help of other
organ or in any situation like when parliament is not in session if that
some emergency comes in front of government who will handle the situation.
So, for that circumstances delegated legislations is very important.
- It can be said that the government should be for the benefit of the
public and for the public welfare. But, welfare or justice is not a thing
which can only be feel so it can also be visible Justice must not only done
but also appears to be done.
 Proposal proposed by Prof. K.T. Shah, a member of constituent assembly
 minister should not sit in the parliament
 AIR 1959 SC 549
 Wade and Phillips
 The Spirit of the Laws
 Article 50
 Article 122 and 212
 Article 121 and 211
 Article 53 and 154
 Article 103(1) and 217(3)
 AIR 1991 Kant 205
 AIR 1990 SC 1277
 AIR 2003 SC 739
 Article 145
 AIR 1951 SC 332
 1959 SCR 229
 AIR 1989 SC 1899
 AIR 1955 SC 549
 AIR 1973 SC 1461