Understanding the Doctrine of Separation of Powers
The concept of Separation of Powers in its truest sense refers to a structural
and functional framework, where all the powers are not concentrated in an
individual, but systematically divided into various branches and organs of
governance. This principle was intended to prevent arbitrary use of powers and
manifest a system of checks and balances in the governance. The Doctrine is
focused on establishing exclusivity in the functioning of the three main
organs, through complete decentralization of powers.
It is broadly based on the theory of a French scholar Montesquieu who observed
that concentration of power in a single authority or a few persons is deemed to
result in tyranny in the state. Hence, propounded the delegation of powers
between three organs namely: a) the legislature for making laws; b) the
executive for enforcing laws and c) the judiciary to interpret laws. The
principle in its rigid framework implies that each organ should be independent
of the other, focusing on its specific functions without interfering with the
working of the other organ.
However, through further analysis the author will establish how the strict
division of powers proves incompetence and the functioning of the governmental
organs is overlapping in nature.
The Evolution of the theory Separation of Powers:
The Doctrine has evolved from continuous deliberation of various scholarly
political and philosophical thinkers, it can trace its ancient origin in the
4th Century itself. This period was marked by Aristotle’s, treatise of politics,
where he specifically categorized the three agencies of the government:
- The General Assembly,
- The Public officials and
- The Judiciary.
This model was first developed in Ancient Greece and gradually became
widespread in the Roman Empire as part of their uncodified constitution. It was
specifically considered a model for the democratic states, however, with the
fall of the Roman Empire the entire Europe witnessed a government structure that
consisted of concentration of power in the Monarch. In the 17th Century, Britain
proved to be the sole exception to this structure, as it comprised of the
Parliamentary form of the government.
The Parliament again saw the emergence of this Doctrine in Locke’s, Two Treatise
of government, however, in his structure the three organs were not co-equal
in nature, the legislature according to him had a supreme stance in the
governance. Another feature of this model, was the larger connotation given to
the executive than the contemporary implication. The executive functions were
left within the control of the monarch, corresponding with the dual form of
government prevailing in England at that time- The Parliament and The King.
The final development to the Doctrine in the Modern History is credited to
Baron-de-Montesquieu, for his systematic codification of the concept. In
addition to the separation of powers, he also emphasized upon the importance of
‘Political Liberty’ of a citizen. He highlighted the necessity of an independent
judiciary to prevent the power holders from abusing their authority.
The Application of Separation of Powers in Administrative Law:
The author has extensively discussed the origin and the meaning of the Doctrine
of Separation of Powers, the theory behind encompassing it and the structural
framework of the government under such a scheme.
However, the functioning and
interpretation of the Principle varies in each democracy and the machinery has
overlapping nature for the purpose of administration. While the constitutions
provide for the structural set-up and de- centralization of power, the
administrative agencies are often seen to be performing multiple functions at
the same time. This can be observed through the manifestation of judicial and
legislative powers in the hands of the executive agencies. For instance, the
Council of Ministers, who are also an integral part of the Parliament- The
Legislature; actively involved in regulating and formulating policies.
Under the scope of administration law, we aim to understand the functionality
and practicality of this Doctrine, which if applied in its rigid sense, can
cause various agencies to be redundant in their administration. The overlapping
delegation of power is justified on the grounds of increasing efficiency in
administrative agencies, as without some legislative power, they usually fail to
fulfill their purpose of incorporation.
The overlapping delegation violating the Separation of powers, can be termed as
a necessary evil
. However, such violation should be performed in under
absolute necessity through a narrow lens. This scope is constantly interpreted
for every quasi- judicial agency in an individual manner.
The U.S.A Model Of Separation Of Powers
Separation of Powers in the Constitution:The Model of Separation of Powers is strictly followed in the Constitution of
USA. It forms the core of the constitution of USA with the segregation of powers
into three independent organs.
The distinction of powers under Section 1 are as
Article I: Legislative Powers vests solely with the CongressThe Non- Delegation doctrine is strictly complied with, under which the Congress
is barred from delegating any authority for law making to other government
agencies. The first development in the interpretation of this doctrine could be
traced back to the case of Wayman, where the Congress delegated the authority
to legislate the judicial procedure to the courts. Such an action was found to
be in violation of the Doctrine of Separation of Powers and completely
Article 2: Executive Powers vested in the PresidentThe application and scope of the Doctrine of Separation of Powers varies on the
basis of the form of government established in a country. In U.S.A, the form of
government is Presidential, marking a clear distinction of powers between the
executive and the legislature. The President is the head of the state and the
chief executive, responsible for appointment and dismissal of other executive
officers, exercising a control over the policies and actions of government
The President is not bound to accept the advice of a Secretary and the ultimate
decision rests with the President. Neither the President nor any member of the
executive is a member of the Congress and a separation is maintained between the
legislative and executive organs. This system of government is fundamentally
different from the parliamentary system prevailing in India.
Article 3: Judicial Powers with the Supreme Court and Subordinate
courtsThe Judges in the Courts are appointed by the President, on the advice of the
Senate, they hold office for a fixed tenure and compensations, for independently
exercising their judicial power. The courts with such judges are termed as
‘constitutional courts’ and the other category of courts established is the
‘legislative courts.’ The Latter category of courts are refrained from
performing judicial powers for the U.S.A.
System of Checks and BalancesThe ideal application of separation, in both its functional and personnel state,
is yet not completely balanced but the nearest appropriate attempt to reach the
ideal, can be witnessed through the State Constitution of Massachusetts in the
U.S. It is said therein, that:
… The legislative department shall never exercise the executive or judicial
powers, or either of them; the executive shall never exercise the
legislative and judicial powers, or either of them; the judicial shall never
exercise the legislative or executive powers, or either of them; to the end
it may be a government of law and not of men.
In juxtaposition to the Doctrine of Separation of Powers, the system of checks
and balance, is aimed at creating some accountability across the government
agencies, to prevent abuse of power by one organ. The function of Judicial
review forms the core basis of this system, incorporated through the landmark
case under which the court exercised its powers to declare some actions of
the other branches as ‘unconstitutional’.
Critical Analysis Of The Doctrine Of Separation Of Powers In India
The theory of Separation of Powers is an integral part of the fundamental
features of the Indian Constitution. The governance is based on three primary
organs of the State namely the Legislature, the Judiciary, and the Executive,
bound by and subject to the provisions of the Constitution. It demarcates their
respective powers, jurisdictions, responsibilities and co-relation with each
This set up runs on the presumption that none of the organs of the State,
including the judiciary, would transgress the powers laid down in the
Constitution. It is expected that in the best interest of the country, all the
three institutions would complement each other and work in harmony in
furtherance of the common objective of public welfare.
- Application of the theory of Separation of Powers in India
The Constitutional history of India evidently reveals that the framers of the
constitution actively adopted the pro-responsibility approach over strict
segregation of powers. The theory of Separation of Powers was rejected on the
basis of its inefficiency in a Parliamentary form of government.
Despite K.T.Shah actively advocating a strict Separation of Powers inspired from the USA
model, the Assembly successfully concluded that for a Parliamentary
government, a strict system of regular accountability is necessary.
In India, the executive is accountable to the Legislature on a regular basis
through Parliamentary tools during the sessions. Question hours, zero hour,
No-confidence motion, adjournment motions and Debates on various matters in the
Parliament are effective in creating a robust checks and balance mechanism
under which the activities of the government agents are constantly reviewed, as
opposed to the Presidential model of government.
The Indian Constitution has
adopted the Doctrine of Separation of Powers in an implied manner, though the
theory in itself finds no mention in the provisions of the constitution, its
application can be traced through several provisions defining the powers and
functions of the organs of the government.
Upon the bare reading of the provisions of the Constitution, the intention of
the framers to divide the powers in three broad organs of government, is
reflected. It is the basic postulate of the Constitution that the law- making
powers are vested in the Legislature, the executive is responsible for enforcing
laws, however, it is a part of the Legislature in India. The judiciary is a
complete independent body exercising its power to interpret the law, without any
interference from the Legislature and Executive of the country.
- The Constitutional provisions delegating and separating powers to the
Article 50 lays down that State shall take steps to separate the judiciary
from the executive with the definite purpose of creating an independent
judiciary. Further, Article 122 and 212 guarantees immunity to the members of
the Parliament for the remarks made during the sessions, as the validity of
proceedings can not be challenged in any court of law.
This one feature ensures
that the Legislature is free from judicial intervention and scrutiny while
exercising their functions. Likewise, the conduct of the judges of the Supreme
Court and High Court cannot be reviewed and speculated in the Parliament or the
State legislature. Articles 53 and 154 respectively, provide that the executive
power of the Union and the State shall be vested with the President and the
Governor and they enjoy immunity from civil and criminal liability.
It is well established that the provisions have guaranteed enough immunity to
all the three organs of the government to function smoothly in their spheres,
without facing any interference from each and other in order to enable efficient
discharge of functions. However, in the Indian Model of Separation of Powers the
functions of the three organs can be overlapping as well.
For instance, the
Legislature performs certain judicial functions in case of impeachment of the
President, removal of judges and breach of Parliamentary privilege. The powers
to amend the law declared ultra vires by the courts, rests with the Legislature.
Th Executive makes appointments to the office of the Chief Justice and other
judges, which can affect the functioning of the Judiciary. The requisite for
performing such powers which are overlapping in nature, is to exercise them in
due process provided by the Constitution. In India, the executive is part of the
Legislature, the heads of government ministries are members of the legislature.
The council of ministers on whose aid and advise the President is advised to
function, are again elected members of the Legislature. While we analysed the
judicial functions of the Legislature, it is imperative to note that even the
Legislative functions are delegated to other organs in the Indian model of
Separation of powers for administrative purposes. The executive has the powers
to promulgate ordinances, when the Parliament is not in session and some
circumstance demand immediate action from the government.
The ordinance is
deemed to have the same enforceability as an act passed by the Parliament or
State legislature.The Constitution permits, through Article 118 and Article
208, the Legislature at the Centre and in the States respectively, the authority
to make rules for regulating their respective procedure and conduct of business
subject to the provisions of this Constitution. The executive also exercises law
making power under delegated legislation.
At this stage, it is necessary to understand that such provisions of overlapping
functions, is made in the Indian government set-up to increase efficiency in
administration and to secure the sanctity of administrative Law. For such
purposes, various tribunals and quasi- judicial bodies are also formulated to
assist the executive, however, there functions and powers are again not confined
to such executive matters as they discharge various judicial functions as
It was held by the Supreme Court that higher administrative tribunals
should always be supplemented with a member of the judiciary, to discharge
supervisory functions for the subordinate courts. Such tribunals are vested
with all three kinds of powers, their machinery is executive but they take
judicial functions for dispute resolution and legislative function to
independently form laws and policies for smooth governance. The sole objective
of bestowing such wide powers on the tribunals is to ensure that they are
efficient in administration and not mere puppets with no actual powers.
- Practical Application of Separation of Powers in India through
The development and application of the theory of Separation of powers in India
is essentially a result of Judicial interventions and interpretations to
maintain the delegation of powers in the spirit of the Constitution. Apart
from the directive principles enshrined in Part IV of the Constitution providing
for a separate executive and judiciary, the constitution has no explicit mention
indicating towards a formal division of powers. Hence, the only recourse to
understand the boundaries of applicability of the doctrine, is through these
judicial pronouncements, passed from time to time.
The first case to be accessed in this regard, is the re Delhi Laws Act, in
which the Supreme Court held that, unless specifically provided by the
constitution, one organ should refrain from performing the primary functions of
the other organ in India. The theory of Separation of powers is not an ingrained
feature of the Constitution, but is exceptional circumstances it is clear from
the bare provisions that the code of separation of powers exist; this was upheld
by a majority of 5:2 in the case.
The judgement was clear on demarcating and
segregating the powers between the three organs, however, the feature of the
overlapping functions among the organs was not addressed. The extent of powers
that can be exercised by the Legislature while making amendments or legislating
an act, and to prevent such exercise of powers from becoming arbitrary in
nature, was not well substantiated in this judgement.
It was only through the Landmark case of Keshavananda Bharti
that the concept of
‘Basic structure’ of the constitution evolved. Through this, it was recognised
by the Supreme Court that the Constitution has a basic structure which the
legislature cannot meddle with. it was unanimously agreed that under Article
368, the legislature does not have unlimited amending powers, they can not
tamper the basic features of the constitution and the amendments made shall be
in consonance with the spirit of the constitution. Hence, any amendment found in
violation of this structure would be regarded as unconstitutional and the
legislature must not attempt to dilute the principle for their convenience.
Another important case to reiterate the system of checks and balances and avoid
friction between the parties pertains to the election dispute in Indira
Gandhi’s regime. The question regarding the powers of the Parliament to take
cognizance of the specific dispute regarding the elections, was addressed by the
Supreme Court. The court held that adjudication of a specific dispute is a
judicial function which parliament, even under constitutional amending power,
The foundational ground on which the amendment was held ultravires was that when the constituent body declared that the election of P.M
would not be void, it discharged a judicial function which according to the
principle of separation is unacceptable.
The aforementioned discourse is axiomatic that the Indian Constitution is not in
favour of the application of the ‘pure doctrine’ as its rigidity can render the
organs of the government as redundant in its administration.
In principle, the doctrine bars the active jurisdiction of organs and in general
contemplates no assumption by one organ, of functions pertaining to another
organ. The status and functioning of the state had undergone continuous
development. It has evolved a great deal from a minimal, non-interventionist
state to a welfare state, wherein it has multifarious roles to play, like that
of protector arbiter, controller, provider.
This omnipresence of the 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. This can be observed through the increasing establishment of
quasi- judicial bodies and administrative forums to assist the three primary
organs of government. They seem to have been bestowed with all three sets of
responsibilities in order to increase efficiency in the administration.
After a detailed discussion on the doctrine of Separation of Powers and its
applicability in India, the author shall pursue the critical analysis of
separation of powers in the Competition Commission of India, for the purpose of
case specific study. Through this, the practical application of the doctrine in
administrative law can be gauged which would potentially aid the discussion of
Separation of Powers in India.
Constitutionality Of The Competition Commission Of India – Separation Of Powers In India
The constitutionality of the Competition Commission of India (CCI) has been a
matter of contention lately, based on its diverse functioning and apprehensions
regarding the judicial nature of the forum, not being independent from the
It is advocated that CCI is mainly a judicial body but the
appointments made, are not free from the control of the executive. Rule 3
regarding the appointment of the chairperson and members of the body was
considered to be unconstitutional, until the structure was amended in 2003 to
gain the present structure. Hence, it is eminent to observe the juxtaposition
of administration law and the constitution in the present case, on the matter of
separation of powers.
The Delhi High Court had upheld the constitutional validity of the commission,
against a petition filed on the premise that the structure of the commission
violated the doctrine of separation of powers; through the common
judgement in 2019. If the Commission is given the status of the judicial body
then the provisions under the law, for the appointment of the members is in
violation of the doctrine of separation of power.
The members are selected by
the Central government from the list of nominated members prepared by the
Selected committee. This committee comprises of the Chief Justice of India or
his nominee as per Section 8 and 9 of the Act. The control of appointment is
given to the Executive, which marks a clear encroachment over the independence
of the commission, hence, bringing into question the judicial nature given to
commission in the first place.
Further, it is submitted that upon examination of the functions discharged by
the commission that it is not solely a judicial body but performs minor
administrative and investigative functions as well. However, a line of argument
pertaining to this matter, adopted by the court is that the investigative
features of the commission are only a tool to aid its main functioning which is
judicial in nature. The author is of the opinion that without such minor
diversity in its functioning, the commission would be futile in functioning
owing to the overlapping nature of each organ of governance.
It can be concluded that the discourse about the violation of separation of
powers, is perpetual in nature and inevitable to an extent; hence, it is
necessary to strike a balance between the overlapping functions of a tribunal to
ensure that neither the powers are transgressed nor are they scarcely given
resulting in redundancy.
On the basis of the aforementioned analysis, it can be conclusively stated that
the Doctrine of Separation of Powers is very rigid in its absolute sense and the
countries adopt the theory through various interpretations, best suited for
their forms of government. The doctrine in India is adopted with a pro-
responsibility approach where the functions are divided between the organs and
not the powers in the strict sense.
The three organs of government work in
co-relation and have overlapping features for the purpose of smooth
administration and a robust mechanism of checks and balances. However, in the
modern state, it is of utmost importance to prevent the organs from
transgressing their powers and authority in discharge of their functions.
arising concerns about judicial activism which is an extended form of the power
of judicial review, is important to be addressed. It is feared that while
interpreting the statutes the judiciary is actively engaging in executive
matters by discharging administrative orders. The legislature is actively
involved in forming legislation and amending the exiting laws, in the past two
years we have at least witnessed twenty major amendments such as TADA and
Section 377 and so on. The apprehensions regarding the over exercising of
powers, by meddling with the structure and foundation of the constitution also
Hence, it is observed that such concerns are inevitable in a type of system
adopted by India, it is important that such demarcation of powers is respected
by each organ and they carry out their functions in full honesty to avoid
friction in the administration. The major point of contention usually arises
when the Constitution provisions and practicality of the administrative law, are
at odds and can not come to a consensus.
Through the example of CCI it is
important to understand that while the Doctrine of Separation of Powers exist,
the practical application of it is not always feasible for efficient output. It
shall only be complied to an extent that it helps in smooth administration and
does not become a restraining factor in the governance.
- Brahm Dutt v. Union of India Writ Petition (Civil): 490 of 2003.
- Mahindra Electric Mobility Limited and Anr. v. Competition Commission of
India and Anr W.P.(C) 11467/2018.
- The Competition Act, 2002, Section 8 & 9.
- CAD vol.7 at 956 cited in H.R.Khanna, Making of the Indian Constitution 69
- Ram Jawaya Kapur v. State of Punjab AIR (1955) SC 549.
- Kartar Singh v. State of Punjab AIR (1967) SC 1643.
- There shall be a complete separation of powers as between the principal
organs of the State viz. the legislature, the executive and the judiciary.
CAD vol.7 at 958 cited in C.H. Alexandrowics, Constitutional Developments in India
- The Constitution of India,1950, Art. 50.
- The Constitution of India,1950, Art. 122 & 212.
- Pandit M S M Sharma v. Sri Krishna Sinha, AIR (1960) SC 1186.
- Keshav Singh v. Speaker, Legislative Assembly, (1965) 1 SCR 413
- Shiv Kumar Chadha v. MCD, 1993 (3) SCC 161
- S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 125
- Shagun Singh, Development of Separation of Powers in Administrative Law in
India, National University of Research and Law 2013.
- re The Delhi Laws Act, 1912 v. The Part C States Act, 1950 1951 AIR 332.
- Indira Nehri Gandhi v. Raj Narain AIR (1975) SC 2299.
- Supra Note 10.
- Wayman v. Southard 23 U.S. 1 (1825).
- Murray's Lessee v. Hoboken Land & Improvement Co. 59 U.S 272 (1856).
- Jain Kagzi M.C., The Indian Administrative Law, University Law Publishing
Co. Pvt. Ltd. 17 (2002).
- Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803)
- G.B.Gwyn, The Meaning of Separation of Powers 3 (1963).
- C.K. Takwani, Lectures on Administrative Law 31 (2008).
- Robinson, The Division of Governmental Power in Ancient Greece 18 (1903)
- Fairlee, The Seperation of Powers 21,393 (1922)
- Montesquieu, The Spirit of Laws (Nugent) 152 (1748)