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
What is Separation of Powers?
- Legislature: The chief function of the legislature is to enact
- 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.
- 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.
- 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
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
- 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.
- 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.
- One organ should not interfere in the functioning of the other organs.
- 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
Constitutional Status Of Separation Of Powers In India
There is a system of checks and balances wherein the various organs impose
checks on one another by certain provisions.
- 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
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.
- 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
- 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.
- 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
- 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
- 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
- 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
- Swaran Singh Case (1998): In this case, the SC held the UP Governor�s 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