The three main organs of the government are the legislature, the executive,
and the judiciary. According to the doctrine of separation of powers, the powers
and functions of the government must always be kept separate and be exercised
only by the respective organs.
This is however a very basic view of this theory. According to Wade and
Phillips, the theory has three manifestations:
Firstly, it means that one organ of the government should not discharge any
function of the other two, as for instance a Judge should not have legislative
Secondly, it means that one organ of the government should not interfere with
the other two organs when they are discharging their respective functions. For
instance, the executive should not interfere with the judiciary, which should
function as an independent body.
Lastly, it means that the same person should not belong to two (or more) organs
of the government, as for instance, a minister should not be a judicial officer.
The Legislature is the assembly of parliamentary members with the authority to
make laws for a political entity such as a country or city. Laws enacted by
legislatures are usually known as primary legislation. In addition, legislatures
may observe and steer governing actions, with the authority to amend the budget
The Executive is the part of the government which exercises the authority and
responsibility for governance in the state. They execute and enforce the law.
The executive can be the source of certain types of law, such as a decree or
executive order. Executive bureaucracies are commonly the source of regulations.
The Judiciary is the system of courts that interprets and applies the law in
legal cases. They are responsible to ensure that the violation of separation of
powers does not take place. They also keep a check on the laws made by the
Although this doctrine is as old as Plato and Aristotle, it was made popular
in the 16th and 17th centuries by the famous French philosopher, John Bodin and
British politician, Locke. However, it was Montesquieu, the French scholar, who
re-formulated this doctrine in a systematic and scientific form in his book 'Espirit
des Lois' (the Spiriti of the laws) in 1748. in his own words:
When the legislative and executive powers are United in the same person or in
the same body of magistrates, there can be no liberty, because apprehensions may
arise, lest the same Monarch should enact tyrannical laws – to execute them in a
Again, there is no liberty if the judicial power be not separated from the
legislative and the executive. When it is joined with the legislative, the life
and liberty of the subject would be exposed to arbitrary control – for the judge
would then be the legislator. When it is joined with the executive power, the
judge might behave with violence and oppression.
Miserable indeed would be the case, were the same man or the same body, whether
of nobles or of the people, to exercise those three powers, that of enacting
laws, that of executing them and that of judging the crimes of individuals.
From the historical angle, it was the absolute and autocratic monarchy which
prevailed in France during the time of Louis XIV that prompted Montesquieu to
pursue the theory with force and vigour. Montesquieu looked around him and
realized that in the reign of this monarch, French subjects enjoyed neither
rights nor liberties. It was a full-fledged monarchy where Louis XIV exercised
all possible powers – legislative, executive and judicial. Montesquieu also drew
inspiration from the liberal thoughts of writers like Locke.
However his greatest inspiration was the functioning of the English Constitution
in the earlier part of the 18h Century and he came to the conclusion that the
liberty enjoyed by an Englishman to the fullest possible extent was the result
of the total separation of the functioning of the three organs of the government
in England at that time.
Montesquieu's doctrine had a tremendous impact on the development of
administrative law, not only in France, but also in England, USA and other
countries. It can be said that just as the doctrine of rule of law shaped the
development of administrative law in England, the theory of separation of powers
had a profound impact on the development of administrative law in UA. Madison,
for instance, observed that the accumulation of legislative, executive and
judicial powers in the same hands would be the very definition of tyranny.
Blackstone also observed that if legislative, executive and judicial functions
were to be vested in one man, that would be the end of personal liberty.
The Constituent Assembly of France also declared that there would be nothing
like a constitution in a country if the doctrine of separation of powers was not
incorporated therein. Montesquieu's attitude towards monarchy is the reason why
later on the parliament has from time to time emphasized on their right to
refuse to register royalties to the Parliament of Bordeaux (French parliament),
of which Montesquieu became a President.
One feature of this doctrine is accepted by all the jurists that the judiciary
must be independent of and separate from the remaining two organs of the
government viz. legislative and executive. In the Report of International
Congress of jurists held at New Delhi in 1959, it is stated;
An independent judiciary is an indispensable requisite of a free society under
the Rule of Law. Such independence implies freedom from interference by the
Executive or the legislature with the exercise of the judicial function.
The founding fathers considered the doctrine of separation of powers as the
heart of the Constitution of United States of America [hereafter American
Constitution]. The United States federal government and forty states divide
their governments into three branches. For the purpose of this article the
author has discussed the features of separation of powers with regards to the
American Constitution and not the 40 states.
Article 1 of the American Constitution establishes the Legislative Branch
Under the Legislative branch, the Congress has the power to make laws in
America. Following the nondelegation doctrine, the Legislative branch cannot
delegate its law-making responsibility to the Executive. However, they can
provide agencies with regulatory guidelines if it provides them with an
intelligible principle to base their regulations on.
Article 2 of the American Constitution establishes the Executive branch
The Executive power is vested in the President, with a few exceptions and
qualifications. The President approves and carries out the laws created by the
Legislative Branch. According to the Constitution, the President is not required
to personally enforce the laws. The officers subordinate to him/her shall
perform these duties. The officers and bodies set up by the president usually
have Congressional oversight, e.g. War Claims Commission, the Interstate
Commerce Commission, the Federal Trade commission etc.
Article 3 of the American Constitution establishes the Judicial branch
The power to decide cases is vested by the Constitution in the Supreme Court and
lower courts established by Congress. The Judicial Branch interprets the laws
passed by the Legislative Branch. Courts exercising the judicial power are
called constitutional courts
. Congress may establish legislative courts
which do not take the form of judicial agencies or commissions, they may only
adjudicate cases related to public rights, i.e. cases between government and an
System of Checks and Balances
The American form of separation of powers is associated with a system of checks
and balances. They are a primary requirement to ensure that the functioning of
the government is smooth, even if that results in violation of the fundamental
idea of separation. Given below is a table which shows how the system of Checks
and balances works in America;
- With regards to law
- Formulates and enacts the law
- Power to veto the law
- Determines and judges which laws Congress intended to apply to a given
- Determines whether a law is unconstitutional or not.
- Determines how Congress meant the law to apply to disputes
- Mixed powers
- Can start investigations against the President.
- Vice-President presides over the senate
The Senate confirms presidential appointments of federal judges, executive
department heads, ambassadors, and many other officers.
Decision regarding appointment of federal judges, executive department heads,
ambassadors, and various other officers
House of Representatives and the Senate can remove executive and Judicial
Sole power to declare war against a nation
Wages war at the direction of the Congress
Power to grant pardons to convicted persons.
Determines how a law acts to determine the disposition of the prisoners
Creates federal courts except for the Supreme Court, and sets the number of
justices on the Supreme Court
Executes and enforces orders of the court through federal law enforcement.
Determines how a law acts to compel testimony and the production of evidence
May override presidential vetoes
Power to make decrees or declarations and promulgate lawful regulations and
Polices its own members
Discretion for determination of how laws should be interpreted to assure uniform
The doctrine of separation of powers may have been the foundation stone of the
American Constitution when it was framed in 1787. However, with the passage of
time and the growth of Administrative law, a strict adherence to the doctrine
has become almost difficult today. The President of USA sends ‘messages' to the
Congress, he actually interferes with the legislature. Moreover, he also enjoys
a right of veto. The Congress is vested with the power of impeachment, which is,
strictly speaking, a judicial act.
Likewise, the Senate exercises executive powers when it ‘considers'
international treaties and ‘confirms' the appointment of Supreme Court judges
nominated by the President. The Congress has also delegated its legislative
powers to various administrative agencies. In any event, the Supreme Court of
USA has not handed down a single ruling declaring the combination of two or more
functions in the same organ of the government to be unconstitutional.
The Constituent Assembly Debates
Dr. B. R. Ambedkar, who was amongst the members of the Constituent Assembly,
remarked that the assembly while drafting the Constitution, had dwelt in the
issue whether to incorporate the doctrine or not. Ultimately, they had rejected
the idea in toto after comparing the Parliamentary systems in India and
The assembly took into consideration the responsibility which a
non-parliamentary executive will have being independent of the Parliament. In
such a scenario the executive will be less responsible to the legislature, like
in the case of America. Whereas in a parliamentary system, the executive would
be responsible to the legislature but there would be issues regarding time and
agency for the assessment of their responsibilities.
In case of non-parliamentary system, the assessment of the responsibility of the
executive is periodic. In England such an assessment is done by the electorate
in England, where the Parliamentary system prevails, here the assessment is done
both periodically (by the electorate at the time of the election) and daily (by
the members of Parliament).
After comparing both the scenarios the assembly preferred more responsibility
The views of the Constituent Assembly have further been supplemented and
reiterated by the Supreme Court of Indian, in Ram Jawaya Kapur vs State of
Punjab , where Justice Mukherjee 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.
Further, a more clarified view was taken in the case of Kartar Singh vs State
, where Justice Ramaswamy held that;
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 above classification and demarcation interpreted by the Supreme Court does
not suggest the application of the doctrine in its absolute terms. The
Constitution of India has been inspired by the British Parliamentary system.
In India, the Executive powers are vested in the President and the governors
of different states. The President exercises his Executive 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. The President of India as a part
of the legislature but not a member of either of the houses.
The following legislations can not be initiated without the recommendation of
- Bill for formation of new states or alteration of boundaries of existing
- Bill which affects the taxation of the state or the principles laid down
for distributing the money to the states or imposing a surcharge for the
purpose of the Union
- Money bill involving expenditure from the consolidated fund of India
- The president has an interfering function with the Judiciary which is
deciding the dispute relating to the age of the judges of the constitutional
courts for the purpose of their retirement from their judicial office.
Similarly, parliament also exercises judicial functions, it can decide the
question of breach of its privilege and if proved, can punish the person
concerned. The parliament is the sole judge and courts cannot generally
question the decisions of the houses in this point.
Despite such interferences, there exists a considerable separation between the
judiciary and other organs of the Government. The Constitution confers wide
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 in 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
A simple reading of the Indian Constitution would teach us that there exists a
separation of functions instead of powers, which has been incorporated in the
Constitution, as Executive powers vest in the president, Legislative powers are
vested in the Lok Sabha, the Rajya Sabha and various State legislatures, whereas
the Supreme Court, the High Courts and other subordinate courts discharge
Judicial functions. There exists a system of checks and balances which
facilitates the judiciary to strike down any unconstitutional laws passed by the
In Asif Hameed vs State of Jammu and Kashmir
, the Apex court held
Although the doctrine of separation of powers has not been recognized under the
constitution in its absolute rigidity but 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 people's 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 judiciary has been given and independent status and the role assigned to it
is of an independent umpire to guard the constitution and ensure that other
branches do not exceed their powers as expected under the Constitutional
framework. Sir A. K. Aiyar, who was a member of the Constituent Assembly, has
The 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
We can say that the judicial structure in our country was not meant to be given
a supreme status but to coordinate the other organs. The essence of the
Constitution is that it produces a system which is the result of amalgamation of
the principle 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
Separation of powers
In India, we don't abide by the principle of separation rigidly, hence there is
a separation of functions and not of powers. To understand this better we can
consider the functions by the Cabinet ministers, who exercise both legislative
and executive functions. Article 74(1) provides an upper hand to the legislature
over executive, this was observed by the Hon'ble Supreme Court in Ram
On the question that where the amending power of the Parliament does lies and
whether Article 368 confers and unlimited amending power on Parliament, the S.C.
in Keshavanand Bharti vs State of Kerala
 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.
In the subsequent case of Indira Nehru Gandhi vs Raj Narain
Supreme Court had a chance 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. 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.
So, the main ground on which the amendment was held ultra-virus was that when
the constituent body declared that the election of P.M won't be void, it
discharged a judicial function which according to the principle of separation it
shouldn't have done. The place of this doctrine in Indian 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
The greatest and one of the most obvious benefits of the doctrine of separation
of powers is that it ensures that each organ of the government functions
independently and without any influence or interference from the other two. If
any two (or three) functions of the government are combined in the same person
or body of persons, rights and liberties of the citizens would be set at naught,
and as stated above, that would be the very definition of tyranny
There is, therefore, no doubt that the doctrine must find place – in one form or
the other – in the constitution of every civilised democracy.
However important and useful the doctrine of separation of powers maybe in
theory, its practical application has often created serious problems. The
doctrine has been criticised mainly on the following grounds:
The historical assumption of Montesquieu, namely that he drew inspiration for
his theory from the English Constitution, cannot be accepted. In fact, at no
point of time in history had English adopted this doctrine and this country was
never the classic home of separation of powers. As Donoughmore Committee
observed, Montesquieu looked across foggy England from his sunny vineyard in
Paris and completely misunderstood what he saw.
The second objection is that this theory presupposes that the three functions of
the government are independent of, and distinguishable from, one another. In
fact, however, it is not possible to draw thin demarcating lines between them
and assign each to a water-tight compartment. As observed by president Woodrow
Wilson, the government is not a machine, but a living thing whose life is
dependent on a mutual cooperation between the three organs. There, cooperation,
he observed, is indispensable just as their warfare is fatal to any country.
Again, in actual practice, it is difficult to apply this doctrine in a strict
sense, for instance, the function of the legislature is confined to legislation,
it would have no power to punish any person for contempt or for a breach of its
privilege. Nor would it be able to delegate any rule-making power to its
executive authority which is an expert in that field.
Montesquieu had devised and advocated this theory to ensure that the freedoms
and liberties of citizens were not trampled upon. However, a mere mechanical
division and separation of power and functions cannot achieve this end. What is
required to reach this goal is the prevalence of the rule of law, combined with
the strong and independent judiciary and eternal vigilance on the part of
citizens. This alone can guarantee the life and liberty, safety and freedom of
the citizens of a state.
Lastly, as read under administrative law the modern state is a welfare state
which tries to solve complex socio-economic problems of its citizens. If the
doctrine of separation of powers was to be applied in a strict sense, the
working of the government would not be possible. As observed by Prof.
Freedmann, strict separation of powers is a theoretical absurdity and a
While separation of powers is key to the workings of any government, no
democratic system exists with an absolute separation of powers or an absolute
lack of separation of powers. Governmental powers and responsibilities
intentionally overlap; they are too complex and interrelated to be neatly
compartmentalized. As a result, there is an inherent measure of competition and
conflict among the branches of government.
Despite all the criticism of the doctrine, one can't say that the theory of
separation of power need to be abundant, because that mean accepting the
diametrically opposite doctrine of integration of powers. The pitfalls of the
theory appear only when one looks at theory in its extreme sense. Those who
contend that if the doctrine of separation of power is applied, the working of
any modern government would come to a halt are obviously looking at the doctrine
in its strict sense. The bottom line seems to be that the doctrine is necessary
in modern times, but in a relative and not in an absolute sense.
In a democratic country like ours the framework and goals are enshrined in the
Constitution and the state machinery is then setup accordingly. The
constitutional provisions are made as such to support a parliamentary form of
Government where the principle can't be followed rigidly. There are numerous
instances where the issue regarding violation of the Separation of powers has
surfaced. In the case of Thiru. R. Gandhi vs Union of India, the issue
regarding the independence of judiciary arose.
Where the parliament had set up National Company Law Tribunal and National
Company Law Appellate Tribunal, which were given the jurisdiction to hear
company law matters and the High Courts jurisdiction was shifted. The Supreme
Court addressed the issue and supported the move saying that this would result
in efficiency in regards to disposing off the cases.
The appointment of the Chief of Defence questions the separation of powers among
civil bureaucrats and military officers, though desirable, was unacceptable to
the bureaucracy. Building upon politicians' fears born out of ignorance, the
bureaucracy scuttled it by arguing that too many powers in the hands of the CDS
could result in a takeover of the government by the military. Just as the idea
of a coup frightened the politicians, within the services, the Air Force
resisted the creation of the CDS. It said a CDS from the Army, who knew little
about the Air Force's core competencies, would be unhelpful to the growth of air
power, which, given the technological advances, had emerged as a strategic
These are a few instances where the principles of Separation of Powers were in
question but they were compromised in order to facilitate a system of better
governance. As we proceed the idea of separation would shift from powers to
functions, like the system in India.
- Vanderbilt, The Doctrine of separation of powers and its Present-Day
Significance, 14 LLR 38-45 (1953)
- Chapter-2 Separation of Powers: Historical Background, ShodhGanga (July
10, 2020, 11:19), https://shodhganga.inflibnet.ac.in/bitstream/10603/71955/10/10_chapter%202.pdf
- Commentaries on the Laws of England, 1765
- Clinton vs City of New York, 524 U.S. 417 (1998)
- I. Elaine Halchin and Fredrick M. Kaiser, Congressional Oversight,
Congressional Research Service (July 10, 2020, 13:05), https://fas.org/sgp/crs/misc/97-936.pdf
- Murray's Lessee vs Hoboken Land & Improvement Co., 59 U.S. (18 How) 272
- Prof. H. D. Pithawalla, Administrative Law, pg. 27 (First Edition, 2015)
- CAD vol.7 at 956 cited in H.r. Khanna, Making of the Indian Constitution
- AIR 1955 SC 549
- AIR 1967 SC 1643
- Article 53(1) of the Constitution of India
- Article 154(1) of the Constitution of India
- Article 74(1) of the Constitution of India, Rao vs. Indira AIR 1971 SC
- Article 123 of the Constitution of India
- Article 356 of the Constitution of India
- Article 274 of the Constitution of India
- Article 117 of the Constitution of India
- Article 124(2A) and 217(3), Union of India vs Jyoti Prakesh Mitter AIR
1972 SC 1093
- Article 105 of the Constitution of India
- Article 124(3) of the Constitution of India
- Article 227 of the Constitution of India
- Article 145 and 225 of the Constitution of India
- AIR 1989 SC 1899
- Glanville Austin, The Indian Constitution- Cornerstone of a Nation 174
- Separation of Powers and the Indian Constitution, Shodh Ganga (July 14,
2020, 13:52), https://shodhganga.inflibnet.ac.in/bitstream/10603/32340/9/10_chapter%204.pdf
- AIR 1973 SC 1461
- AIR 1975 SC 2299
- The editors of Encyclopaedia Britannica, Donoughmore Commission: British
Commission (July 13, 2020, 14:52), https://www.britannica.com/topic/Donoughmore-Commission
- Principles of Australian Administrative Law, 36 (1962)
- Karan Tyagi, The Doctrine of Separation of powers and its relevance in
time of coalition politics, vol. 69, no. 3, JSTOR
- Separation of power- An overview, National Conference of State
Legislatures (July 13, 2020, 18:45), https://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx
- (2004) 2 CompLJ 274 Mad