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Separation of powers in India

In India, a separation of functions rather than of powers is followed. Unlike in the US, in India, the concept of separation of powers is not adhered to strictly. However, a system of checks and balances have been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature.

Today, most of the constitutional systems do not have a strict separation of powers between the various organs in the classical sense because it is impractical. The Constitution of India embraces the idea of separation of powers in an implied manner. Despite there being no express provision recognizing the doctrine of separation of powers in its absolute form, the Constitution does make the provisions for a reasonable separation of functions and powers between the three organs of Government.

Three Organs Of Government

  1. Legislature: The chief function of the legislature is to enact laws
    • It is the basis for the functioning of the other two organs, the executive and the judiciary.
    • It is also sometimes accorded the first place among the three organs because until and unless laws are enacted, there can be no implementation and application of laws.
  2. Executive: The executive is the organ that implements the laws enacted by the legislature and enforces the will of the state.
    • It is the administrative head of the government.
    • Ministers including the Prime/Chief Ministers and President/Governors form part of the executive.
  3. Judiciary: The judiciary is that branch of the government that interprets the law, settles disputes and administers justice to all citizens.
    • The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.
    • It comprises of the Supreme Court, the High Courts, District and other subordinate courts.

What is Separation of Powers?
In the strictest sense, the doctrine of separation of powers is very rigid.
  • Background of the concept
    • This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he described the three agencies of the government as General Assembly, Public Officials and Judiciary.
    • In the Ancient Roman Republic too, a similar concept was followed.
    • In modern times, it was 18th-century French philosopher Montesquieu who made the doctrine a highly systematic and scientific one, in his book De l'esprit des lois (The Spirit of Laws).
    • His work is based on an understanding of the English system which was showing a propensity towards a greater distinction between the three organs of government.
    • The idea was developed further by John Locke.
  • Purpose of the Separation:
    It is to prevent abuse of power by a single person or a group of individuals. It will guard the society against the arbitrary, irrational and tyrannical powers of the state, safeguard freedom for all and allocate each function to the suitable organs of the state for effective discharge of their respective duties.

Meaning Of Separation Of Powers

Separation of powers divides the mechanism of governance into three branches i.e. Legislature, Executive and the Judiciary. Although different authors give different definitions, in general, we can frame three features of this doctrine.
  1. Each organ should have different persons in capacity, i.e., a person with a function in one organ should not be a part of another organ.
  2. One organ should not interfere in the functioning of the other organs.
  3. One organ should not exercise a function of another organ (they should stick to their mandate only).
Thus, these broad spheres are determined, but in a complex country like India there often arises conflict and transgression by one branch over the other.

Significance Of The Doctrine

This principle ensures that autocracy does not creep into a democratic system. It protects citizens from arbitrary rule. Hence, the importance of the Separation of Powers doctrine can be summed up as follows:
  • Keeps away autocracy
  • Safeguards individual liberty
  • Helps create an efficient administration
  • Judiciary's independence is maintained
  • Prevents the legislature from enacting arbitrary or unconstitutional laws

Constitutional Status Of Separation Of Powers In India

  • Under the Indian Constitution:
    • Legislature- Parliament ( Lok Sabha and Rajya Sabha), State legislative bodies
    • Executive- At the central level- President, At the state level- Governor
    • Judiciary- Supreme Court, High Court and all other subordinate courts
  • Some of Articles of the constitution:
    Article 50:
    This article puts an obligation over the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable.

    Articles 53 and 154: It 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.

    Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.

    Article 123: The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions.

    Article 361: The President and Governors enjoy immunity from court proceedings., they shall not be answerable to any court for the exercise and performance of the powers and duties of his office.

There is a system of checks and balances wherein the various organs impose checks on one another by certain provisions.
  • The judiciary has the power of judicial review over the actions of the executive and the legislature
  • The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
  • It can also declare unconstitutional executive actions as void.
  • The legislature also reviews the functioning of the executive.
  • Although the judiciary is independent, the judges are appointed by the executive.
  • The legislature can also alter the basis of the judgment while adhering to the constitutional limitation.
Checks and balances ensure that no one organ becomes all-too powerful. The Constitution guarantees that the discretionary power bestowed on any one organ is within the democratic principle.

Functional Overlap
  • The legislature besides exercising law-making powers exercises judicial powers in cases of breach of its privilege, impeachment of the President and the removal of the judges
  • The executive may further affect the functioning of the judiciary by making appointments to the office of Chief Justice and other judges.
  • Legislature exercising judicial powers in the case of amending a law declared ultra vires by the Court and revalidating it.
  • While discharging the function of disqualifying its members and impeachment of the judges, the legislature discharges the functions of the judiciary.
  • Legislature can impose punishment for exceeding freedom of speech in the Parliament; this comes under the powers and privileges of the parliament. But while exercising such power it is always necessary that it should be in conformity with due process.
  • The heads of each governmental ministry is a member of the legislature, thus making the executive an integral part of the legislature.
  • The council of ministers on whose advice the President and the Governor acts are elected members of the legislature
  • Legislative power that is being vested with the legislature in certain circumstances can be exercised by the executive. If the President or the Governor, when the legislature or is not in session and is satisfied that circumstances exist that necessitate immediate action may promulgate ordinance which has the same force of the Act made by the Parliament or the 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.
  • The tribunals and other quasi-judicial bodies which are a part of the executive also discharge 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.

Besides the functional overlapping, the Indian system also lacks the separation of personnel amongst the three departments.

Applying the doctrines of constitutional limitation and trust in the Indian scenario, a system is created where none of the organs can usurp the functions or powers which are assigned to another organ by express or necessary provision, neither can they divest themselves of essential functions which belong to them as under the Constitution.

Further, the Constitution of India expressly provides for a system of checks and balances in order to prevent the arbitrary or capricious use of power derived from the said supreme document. Though such a system appears dilatory of the doctrine of separation of powers, 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 established. This clearly indicates that the Indian Constitution in its plan does not provide for a strict separation of powers. Instead, it creates a system consisting of the three organs of Government and confers upon them both exclusive and overlapping powers and functions. Thus, there is no absolute separation of functions between the three organs of Government.

Judicial Pronouncement
  • Kesavananda Bharati v State of Kerala (1973): In this case, the SC held that the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic features will be declared unconstitutional.
  • Swaran Singh Case (1998): In this case, the SC held the UP Governor´┐Żs pardon of a convict unconstitutional.
  • Ram Jawaya Kapoor V State of Punjab(1955):
    In this case it was held that the Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution does not contemplate assumption by one organ or part of the state of functions that essentially belong to another.
  • Indira Nehru Gandhi v. Raj Narain (1975):
    Where the dispute regarding Prime Minister's 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 vires was that when the constituent body declared that the election of Prime Minister wouldn't be void, it discharged a judicial function that according to the principle of separation it shouldn't have done. The place of this doctrine in the Indian context was made a bit clearer after this judgment.

The doctrine of separation of powers in the strict sense is undesirable and unpractical and therefore till now it has not been fully accepted in any of the country, but this does not mean that the doctrine has no relevance in the world of today. The logic behind this doctrine is still valid.

The logic behind the doctrine is of polarity rather than strict classification, meaning thereby that the centre of authority must be dispersed to avoid absolutism. It has been well said by Lord Action, "Power corrupts and absolute power tends to corrupt absolutely" Conferment of power in a single body leads to absolutism. Thus, though it is important that power shouldn't get concentrated in one hand, a system of checks and balances must be maintained for a smooth functioning.


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