The doctrine of separation of powers is included by following a somewhat modern
approach in our Indian Constitution. In simpler words, there is no explicit
division of powers enshrined in our constitution, both in principle and
exercise. In India, there are 3 separate divisions of the government through
which the country is governed.
The legislative branch of the state has law-making power, the executive has to
enforce these laws and the judiciary has to apply these laws to the specific
incidents arising out of the breach of these enacted and enforced laws.
Activities of each branch while exercising its function tend to overlap with
each other as an explicit separation of powers is not practical as well as
possible while dealing with the general public. Therefore, when any functionary
tries to act within its sphere, the act seems to be interfering with some other
The interesting question which appears in this situation is that what should be
the ideal relation among these 3 divisions of the government, i.e., should the
boundaries between the powers of each branch are explicitly drawn or there
should be some sort of coordination between them all?
So far as the courts are concerned, the application of the doctrine (the theory
of separation of powers) may involve two propositions: namely, a) that none of
the three organs of Government, Legislative Executive, and Judicial, can
exercise any power which properly belongs to either of the other two; b) that
the legislature cannot delegate its powers.- Dr. D.D. Basu
Separation of Powers
Indian Constitution follows the doctrine of separation of powers amongst
different divisions of state in an indirect manner. Although there is no direct
provision identifying the doctrine of separation of powers, the Constitution
does make provisions signifying for a reasonable division of powers and
functions among the 3 divisions of government.
A close look into various provisions of the constitution affirms this further
that the makers of the Constitution intended that the power of law-making
(legislating) shall be exclusively exercised by the legislature. The executive
shall have the role of implementing these legislated laws. In the same way, the
judicial powers can be said to be given to the judiciary.
The judiciary is sovereign in its arena and there can be no intrusion with its
judicial roles either by the Executive or by the Legislature. Also, the
executive authorities of the Union and the State are bestowed in the hands of
the President and the Governor separately.
The Constitution of India lays down a practical separation of the organs of
the State in the following manner:
Article 50: It is among one of the Directive Principles of State Policy. It says, �The
state shall take measures to isolate the judiciary from the executive.� The
purpose behind this is to ensure the independence of the judiciary.
Article 122 and 212: Legitimacy of proceedings in the Parliament and the Legislatures cannot be
called into inquiry in any Court. The purpose for this is the division and
immunity of the legislatures from judicial interference on the charges of
procedural irregularity. 
Article 121 and 211: Judicial behavior of a judge of the Supreme Court and the High Courts cannot
be debated in the Parliament and the State Legislatures. 
Articles 53 and 154: Respectively, ensures that the executive power of the Union and the State
shall be bestowed with the President and the Governor and they enjoy
protection from criminal and civil liability. 
Article 361: The President or the Governor shall not be answerable to any court for the
exercise and performance of the powers and duties of his office. 
The legislature apart from exercising legislating powers exercises judicial
powers in cases of breach of its privilege, removal of judges, and the
impeachment of the President.
The executive interferes with the functioning of the judiciary by making
appointments to the office of Chief Justice and other judges by approving the
recommendations send by the Collegium. Legislature exercises judicial powers in
the instances of amending a law stated unconstitutional by the Court and
revalidating it. While exercising the function of impeachment of the judges and
disqualifying its members, the legislature steps in discharging the functions of
The legislature can also impose punishment for over-exercising the freedom of
speech and expression on the floors of the Parliament; this comes under the
privileges and powers of the parliament. But while the legislature exercises
such power it is always required that it should be in consonance with due
process. The heads of every governmental ministry are active members of the
legislature, thus making the executive an inseparable part of the legislature.
The President and the Governor act on the aid and advice of the council of
ministers who are elected members of the legislature. In certain situations, the
law-making powers which are vested with the legislature are exercised by the
executive, i.e.; delegated legislation. When the legislature is not in session,
and the President or governor is satisfied that the situation calls for an
immediate formulation of law may promulgate ordinances which has the same value
as if the act was passed by the legislature.
The Constitution allows, through Article 208 and Article 118, the Legislature at
the States and in the Centre respectively, the power of making rules for
regulating their respective practice and conduct of business subject to the
provisions of this Constitution. The executive also exercises legislating power
under deputized legislation.
The tribunals and other quasi-judicial bodies which are also part of the second
organ of state i.e., executive also does judicial functions. Administrative
tribunals which are a part of the executive also discharge judicial functions.
Higher administrative tribunals should always have a member of the judiciary.
The higher judiciary is conferred with the power of supervising the functioning
of subordinate courts. It also acts as a legislature while making laws
regulating its conduct and rules regarding disposal of cases. 
Apart from the overlapping of the powers amongst themselves, the Indian system
also lacks in separating the personnel in between the three organs. For example-
Some M.Ps who are part of legislature is also part of the executive as
Applying the principles of trust and constitutional restriction in the Indian
set-up, a system is created where none of the divisions can seize the powers or
functions which are attributed to another branch by an express or necessary
provision, neither can they separate themselves of the essential functions which
belong to them as per the Constitution.
Further, the Indian Constitution expressly provides for a system of checks and
balances for the prevention of the capricious or arbitrary use of power given by
the said supreme document. Though this system appears to dilute the principle of
separation of powers, it is must in order to enable the fair and impartial
functioning of such a constitutional system in practicality.
By giving such powers of one to another, a device for the check and balance over
the exercise of constitutional powers by the respective organs is established.
This clearly shows that the Constitution in its document does not call for a
stringent separation of powers. Instead, it calls for a system consisting of the
3 divisions of state and gives them both special and overlapping functions and
powers. Thus, there is no absolute, discrete separation of powers amongst the 3
divisions of Government.
- D D Basu Memorial Lecture - Speech Delivered by Shri K K Venugopal |
United States Constitution | Separation Of Powers, n.d. Retrieved December
19,2020, from https://www.scribd.com/doc/128694745/
- Concept Behind Securing The Independence Of Judiciary Vis-�-vis Article
50 Of Constitution Of India, n.d.
- https://rajyasabha.nic.in/rsnew/rsat_work/CHAPTER%E2%80%948.pdf [pg.256]
- AK Subbiah And Another, v. The Chairman, Karnataka Legislative Council,
Bangalore And Another. Karnataka High Court (18 Aug, 1978)
- S.R. Bommai vs Union of India on 11 March 1994 AIR 1918, 1994 SCC (3) 1
- 361, 361a Constitution| Protection of President and Governors and
Rajpramukhs Protection of Publication of Proceedings of Parliament and State
- Application Of Theory Of Separation Of Powers In India, n.d. Retrieved
December 19,2020, from http://www.legalserviceindia.com/legal/article-3631-application-of-theory-of-separation-of-powers-inindia.html