The separation of powers is a model for the governance of a state.

Under this model, a state's

government is divided into branches, each with separate and independent powers and areas of
responsibility so that the powers of one branch are not in con ict with the powers associated with
the other branches. The typical division is into three branches: a legislature, an executive, and a
judiciary. Separation of powers, therefore, refers to the division of responsibilities into distinct
branches to limit any one branch from exercising the core functions of another. The intent of
separation of powers is to prevent the concentration of unchecked power by providing for "checks"
and "balances" to avoid autocracy, over-reaching by one branch over another, and the attending
ef ciency of governing by one actor without need for negotiation and compromise with any other.It
could enact a tyrannical law, execute it in a despotic manner and interpret it in an arbitrary manner
without any external control. The purpose underlying this doctrine is to diffuse governmental
authority so as to prevent absolutism and guard against tyrannical and arbitrary powers of the state,
and to allocate each function to the institution best suited to discharge it.

Historical Background
The tripartite model of governance has its origin in Ancient Greece and Rome. Though the
doctrine is traceable to Aristotle the writings of Locke and Montesquieu gave it a base on which
modern attempts to distinguish between legislative, executive and judicial power is grounded.
The rst modern formulation of the doctrine was that of the French writer Montesquieu in De
l’esprit des lois (1748), although the English philosopher John Locke had earlier argued that
legislative power should be divided between the King and Parliament.

Locke distinguished between what he called:

1. Discontinuous Legislative power
2. Continuous Executive power
3. Federative power.

He included within ‘discontinuous legislative power’ the general rule-making power called into
action from time to time and not continuously. ‘Continuous executive power’ included all those
powers, which we now call executive and judicial. By ‘federative power’ he meant the power of
conducting foreign affairs.

Montesquieu’s Theory
According to this theory, powers are of three kinds: Legislative, Executive and Judicial and that
each of these powers should be vested in a separate and distinct organ, for if all these powers, or
any two of them, are united in the same organ or individual, there can be no liberty. If, for instance,
legislative and executive powers unite, there is apprehension that the organ concerned may enact
tyrannical laws and execute them in a tyrannical manner. Again, there can be no liberty if the
judicial power is not separated from the legislative and the executive. Where it joined the legislative,
the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be
the legislator. Where it joined with the executive power, the judge might behave with violence and
oppression.

Page 1 of 4
fi
fi

fl

The theory of separation of powers thus signi es three formulations of structural classi cation of
governmental powers:

1. The same person should not form part of more than one of the three organs of the
government. For example, ministers should not sit in Parliament.
2. One organ of the government should not interfere with any other organ of the government.
3. One organ of the government should not exercise the functions assigned to any other organ.

Importance
The doctrine of separation of power in its true sense is very rigid and this is one of the reasons why
it is not accepted by a large number of countries in the world. The main object as per Montesquieu
in the Doctrine of separation of power is that there should be government of law rather than
having will and whims of the of cial. Also, another most important feature of the above-said
doctrine is that there should be the independence of judiciary i.e. it should be free from the other
organs of the state and if it is so then justice would be delivered properly.
The judiciary is the scale through which one can measure the actual development of the state if the
judiciary is not independent then it is the rst step towards a tyrannical form of government i.e.
power is concentrated in a single hand and if it is so then there is a cent percent chance of misuse
of power. Hence the Doctrine of separation of power does play a vital role in the creation of a fair
government and also fair and proper justice is dispensed by the judiciary as there is the
independence of the judiciary.
Also, the importance of the above-said doctrine can be traced back to as early as 1787, wherein the
provision pertaining to the Doctrine of separation of power was inserted in the American
constitution.

SEPARATION OF POWERS IN USA

The doctrine of separation forms the basis of American constitutional structure. Article 1 of the
United States Constitution establishes the Legislative Branch, which consists of Congress. 
Congress, in addition to other enumerated responsibilities, is responsible for creating laws.  As a
general rule, the nondelegation doctrine prohibits the Legislative Branch from delegating its
lawmaking responsibilities.  Congress can, however, provide agencies with regulatory guidelines if it
provides them with an “intelligible principle” to base their regulations on.  For more information on
the Legislative Branch, refer to “Congress.”
Article 2 of the United States Constitution establishes the Executive Branch, which consists of the
President.  The President approves and carries out the laws created by the Legislative Branch.  For
more information on the Executive Branch, refer to “Executive Branch.” 
Article 3 of the United States Constitution establishes the Judicial Branch, which consists of the
United States Supreme Court.  The Judicial Branch interprets the laws passed by the Legislative
Branch.  For more information on the Judicial Branch, refer to “Judiciary.”
Separation of Powers in the United States is associated with the Checks and Balances system.  The
Checks and Balances system provides each branch of government with individual powers to check
the other branches and prevent any one branch from becoming too powerful.  For example,
Congress has the power to create laws, the President has the power to veto them, and the Supreme
Court may declare laws unconstitutional.  

Page 2 of 4

fi

fi

fi

fi

SEPARATION OF POWERS IN ENGLAND

Although Motesquieu derived the concept of his doctrine of separation of powers from the British
Constitution, as a matter of fact at no point of time this doctrine was accepted in its strict sense in
England. On the contrary, in reality, the theory of integration of powers has been adopted in
England. It is true that the three powers are vested in three organs and each has its own peculiar
features, but it cannot be said that there is no ‘sharing out’ of the powers of the government. Thus,
the King, though an executive head is also an integral part of the Legislature. Similarly, all his
Ministers are also members of one or the other Houses of the Parliament.
The U.K. does have a kind of separation of powers, but unlike United States it is informal. Black
Stones theory of ‘Mixed Government’ with checks and balances is more relevant to the U.K.
Separation of powers is not an absolute or predominant feature of the U.K. Constitution. The
three branches are not formally separated and continue to have signi cant overlap.

Constitutional Provisions
Under Article 53 the executive powers of the union are vested with the President and under Article
154 the Governor is vested with execution powers but they do exercise their powers with the aid
and advice of the council of ministers at the Centre (Article 74) and at the State, as the case may
be. Both President and Governor exercise the power of ordinance making under the constitution
thus performing legislative functions. President makes laws for a State, after the dissolution of the
State Legislature, following the imposition of the President’s Rule (Article 356). President has the
power to disqualify any member of the house under Article 103. The judges of the Supreme Court
are appointed by the President, while the parliament has the power to impeach the judges. The
President has the power to decide a disputed question of the age of a judge of Supreme Court or
any High Court for purpose of set restrain from the judicial service.
The Union Council of Ministers is responsible to the Lok Sabha (Article 75). This house has the
powers to start impeachment proceedings against the President (Article 61) and the judges of the
Supreme Court. The members of Council of Ministers will be members of either house of
Parliament under Article 75(5) which means there is overlapping of personnel also.[vii]

The judicial function of Parliament is too substantial in certain respects. It can consider the
question of breach of any known parliamentary privilege; and in a case where the charge is
established have power to punish for their contempt.
The High Courts in certain marginal spheres perform such functions which are administrative
rather than judicial. Their power of supervision over other subordinate courts under Article 227 is
more of the administrative nature than judicial. When under Article 228 they have power to make
transfer of cases, they exercise administrative control over the State district courts as well. The
legislative power of the High Courts and the Supreme Court includes their power to frame rules
which is fairly wide.
The Executive in India is authorized to legislate in the name of delegated legislation. In the name
of administrative adjudication of the right of individual citizens, the administrative agencies, which
are statutory tribunals and domestic tribunals have been constituted and perform judicial function.
[viii]

Page 3 of 4

fi

Page 4 of 4