SEPARATION OF

POWERS
INTRODUCTION

The separation of powers is a very important

principle of Constitutional Law functioning
worldwide. In different countries and political
systems the separation of powers is done in
different ways and different structures.
Concentrating too much power in the hands of a
person further more when it can be abused by
people and are not the ones with whom power
should be concentrated to.
 Separation of powers
⚫ Separation of powers means the division of
government functions into three independent
branches.
⚫ It stands for an act of vesting the legislative,
executive, and judicial powers of government in
separate manner.
⚫ The doctrine of the separation of powers distinct the
state in three main columns, the legislative which
prepares and approves the laws and regulations, the
executive which applies the law, and the judiciary
which oversees the application and the applicability of
a certain law.
Early References
⚫ Aristotle
⚫ Plato
⚫ Jean Bodin
⚫ John Locke: (Legislative, executive, federative powers)
DOCTRINE BY MONTESQUIEU
⚫ The theory of Doctrine of Separation of Power was
first propounded by Montesquieu, a French scholar in
1748 and published in his book ‘Espirit des Louis’
(The Spirit of the Laws). Montesquieu found that if
the power is concentrated in a single person’s hand or
a group of people then it results in a tyrannical form
of government. To avoid this situation with a view to
checking the arbitrariness of the government he
suggested that there should be clear-cut division of
power between the three organs of the state i.e.
Executive, Legislative and the Judiciary.
Words of Montesquieu
⚫ “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 or senate should enact tyrannical laws,
to execute them in tyrannical manner.
⚫ Again, there is no liberty if judicial power be not separated
from the legislative and the executive powers.
⚫ Were it 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.
Words of Montesquieu(contd.)
⚫ Were it 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 the nobles or of the people, to
exercise those three powers………”
Three Formulations Of Structural
Classification Of Governmental Powers
⚫ 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.
⚫ One organ of the government should not interfere
with any other organ of the government.
⚫ One organ of the government should not exercise
the functions assigned to any other organ.
Separation of powers in US
⚫ The United States of America according to the
Constitution is a country with a pure presidential
system where the president is elected by the people
themselves. The power in the United States is
separated in three main branches, the executive, the
legislative and the judicial. In order to prevent the
abuse of power this branches are kept distinct between
each other. The separation of powers in United States
is associated with a system of checks and powers.
 Separation of powers in UK
⚫ England follows a parliamentary form of
government where the Crown is the nominal
head and CoM with PM at its head is real head.
⚫ the legislative functions are performed by the
Parliament. The King though an executive
head, is also an integral part of the legislature
and all his ministers are also members of one or
other of the Houses of the Parliament.
 The judiciary is independent but judges of the
superior courts can be removed on an address
from both house of Parliament. The House of
Lords combines judicial and legislative
functions. Legislative and adjudicatory powers
are being increasingly delegated to the
executive. The resting of two powers in a single
body, therefore denies the fact that there is any
kind of separation of powers in England.
Separation of powers in INDIA
⚫ The President’s function and powers are enumerated in the
Constitution itself.
⚫ Parliament is competent to make any law subject to the
provisions of the Constitution and there is no other limitation
on it legislative power.
⚫ The Judiciary is independent in its field and there can be no
interference with its judicial functions either by the Executive
or by the Legislature.
⚫ The Supreme Court and High Courts are given the power of
judicial review and they can declare any law passed by the
Parliament or the Legislature unconstitutional. Taking into
account these factors, some jurists are of the opinion that the
doctrine of Separation of Powers has been accepted in the
Indian Constitution.
⚫ If we study the constitutional provisions carefully, it is
clear that the doctrine of Separation of Powers has not
been accepted in India in its strict sense. In India, not
only there is functional overlapping but there is
personnel overlapping also. The Supreme Court has
power to declare void the laws passed by the
legislature and the actions taken by the executive if
they violate any provision of the Constitution or the
law passed by the legislature in case of executive
actions. The executive can affect the functioning of
the judiciary by making appointments to the office of
Chief Justice and other judges.
Judicial Pronouncements

⚫ Ram Jawaya v state of Punjab(AIR 1955 SC 549)

Court held in this case that the doctrine of separation of
power was not fully accepted in India. Mukherjea J. stated
“The Indian Constitution has not indeed recognized the
doctrine of separation of powering its absolute rigidity but
the functions of the 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”.
⚫ Indira Nehru Gandhi v. Raj Narain(1975 Supp SCC )
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
and held it as ultra vires. Place of this doctrine in Indian
context was made a bit clearer after this judgment.
Keshvananda Bharti v Union of India(1973 ) 4 SCC 255
Court held that separation of powers is a part of the basic
structure of the constitution. None of the three separate
organs of the republic can take over the functions assigned
to the other.
CONCLUSION
⚫ 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.
⚫ 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.
Hence the doctrine can be better appreciated as a
doctrine of ‘check and balance’.
THANK YOU!!!