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Chanderprabhu Jain College of Higher Studies
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School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi & Approved by Bar Council of India)
E-NOTES
CLASS & SECTION: LLM-1 Semester

SUBJECT CODE: GEN-103
SUBJECT NAME: System of Governance
UNIT- 1
Governance
Governance has been defined to refer to structures and processes that are designed to ensure
accountability, transparency, responsiveness, rule of law, stability, equity and inclusiveness,
empowerment, and broad-based participation. Governance also represents the norms, values and
rules of the game through which public affairs are managed in a manner that is transparent,
participatory, inclusive and responsive. Governance therefore can be subtle and may not be
easily observable. In a broad sense, governance is about the culture and institutional environment
in which citizens and stakeholders interact among themselves and participate in public affairs. It
is more than the organs of the government.
International agencies such as UNDP, the World Bank, the OECD Development Assistance
Committee (DAC) and others define governance as the exercise of authority or power in order to
manage a country’s economic, political and administrative affairs. The 2009 Global Monitoring
Report sees governance as ‘power relationships,’ ‘formal and informal processes of formulating
policies and allocating resources,’ ‘processes of decision-making’ and ‘mechanisms for holding
governments accountable.’
Often there is a tendency to equate governance with management, the latter primarily referring to
the planning, implementation and monitoring functions in order to achieve pre-defined results.
Management encompasses processes, structures and arrangements that are designed to mobilize
and transform the available physical, human and financial resources to achieve concrete
outcomes. Management refers to individuals or groups of people who are given the authority to
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achieve the desired results. Governance systems set the parameters under which management
and administrative systems will operate. Governance is about how power is distributed and
shared, how policies are formulated, priorities set and stakeholders made accountable. Table
below summarizes the difference between governance and management:
Forms of Government
Now that you are familiar with the basic responsibilities of the government, let’s understand who
makes up the government. We all know that India is a democratic country. But there are many other
countries that do not follow democracy. Let’s look at a few government types.
Democracy
In a democracy, a country’s people are involved in choosing its leader or head. The people are
involved in the process of forming a government. They have the free will and right to vote for a
party to come into power. The right to vote is not determined by wealth or class or race. In a
democracy, there are different parties that have a manifesto or an idea about how a country should
be governed. A democratic government is formed when a majority of people support a certain party
as the ruling party or power.
Within democracy again, there are several forms of democracies such as a republic, a constitutional
monarchy, a presidential system, or a parliamentary system.
Autocracy
An autocracy is a form of government where the supreme power or rule is in the hand of one
individual or entity. People or external authorities have no say in the decisions of this individual or
entity. Autocracy includes absolute monarchy where a family or a group of families, also known as
royalty, rule a country. The post of the monarch is inherited in an absolute monarchy. In this system,
the monarch’s power is not restricted by any laws or legislation. Some examples of absolute
monarchy are Saudi Arabia, Brunei, and Oman.
However, in recent times, there are constitutional monarchies, elected monarchies, or even crowned
republics or symbolic monarchies. In a constitutional monarchy, the sovereign exercises its power in
accordance with the written or unwritten constitution. An elective monarchy elects its head in
contrast to hereditary monarchy. In a symbolic monarchy, the monarch has limited authority in
constitutional matters. The monarchy is symbolic or ceremonial in nature.
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Now autocracy also includes dictatorship. And there are two types of dictatorship—civilian
dictatorship and military dictatorship. Civilian dictatorship is when absolute power is in the hands of
a single civilian. This civilian can be an elected person, a monarch, or a dictator. Example of
dictators includes the famous Adolf Hitler, Joseph Stalin, and Mao Zedong.
A military dictatorship is formed when the military takes control of power in a country. And there
may be different reasons why the military seizes power from the ruling party. Sometimes, it is
formed with the intention of saving people from corrupt politicians.
Oligarchy or Aristocracy
An oligarchy is a form of government where power or authority is in the hands of a small class of
privileged people or people who have similar or shared interests. An oligarchy is different from a
democracy in the sense that very few people have the choice to vote or change anything. And it is
different from a monarchy in the sense that power is in the hands of a few people and not a king.
Also, the power is not inherited. There are several kinds of oligarchies such as aristocracy (rule by
nobles), plutocracy (rule by wealth), timocracy (rule by an honourable), and technocracy (rule by
technical experts or educated people).
Separation of powers
In India, functions are separated from powers rather than the other way around. The idea of the
separation of powers is not properly followed in India, unlike in the US. The court has the
authority to overturn any unlawful legislation that the legislature passes thanks to a system of
checks and balances that has been put in place.
Because it is unworkable, the majority of constitutional systems today do not have a tight
division of powers among the several organs in the traditional sense. Although the theory of
separation of powers is not expressly recognized in the Constitution in its absolute form, the
Constitution does provide provisions for a fair division of duties and authority among the three
branches of government.
Background
The term “separation of powers” or “trias–politica “ was initiated by Charles de Montesquieu.
For the first time, it was accepted by Greece and then it was widely used by the Roman Republic
as the Constitution of the Roman Republic. Its root is traceable in Aristotle and Plato when this
doctrine became a segment of their marvels. In 16th and 17th-century British politicians Locke
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and Justice Bodin, a French philosopher also expressed their opinion regarding this doctrine.
Montesquieu was the first one who articulated this principle scientifically, accurately and
systemically n his book “ Esprit des Lois” (The Spirit Of Laws) which was published in the year
1785.
Montesquieu, a French scientist, originally proposed the doctrine of separation of powers in his
book “Espirit des Louis” published in 1747. (The spirit of the laws). Montesquieu discovered
that when power is concentrated in the hands of a single person or a group of people, a despotic
government emerges. To avoid this predicament and to limit the government’s arbitrary nature,
he argued that the three organs of the state, the Executive, Legislative, and Judiciary, should
have a clear distribution of power.
Montesquieu went on to clarify the idea in his own words:
“When the legislative and executive powers are united in the same person, or in the same body
or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not
separated from the legislative and executive powers. Where it joined with the legislative power,
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. There would be an end of everything, were the same man or same body, whether
of the nobles or of the people, to exercise those three powers, that of enacting laws, that of
executing the public resolutions, and of trying the causes of individuals.”
Wade and Phillips provide three definitions of the separation of powers:
1. That one branch of government should not carry out the duties of another, such as
giving ministers legislative authority;
2. That one branch of the government should not exert control over or interfere with
another branch’s performance of its duties, such as when the judiciary is separate from
the executive branch or when ministers are not answerable to Parliament;
3. That the same individuals should not serve in more than one of the three branches of
government, such as sitting as Ministers in Parliament.
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Three formulations of structural classification of governmental powers are included in the

separation of powers theory:
 A single person should not serve in more than one of the government’s three branches.
Ministers, for instance, should not be allowed to sit in the House of Commons.
 A government organ should not be allowed to meddle with another government organ.
 The functions of one organ of government should not be performed by another.

Meaning
The definition of separation of power is given by different authors. But in general, the meaning
of separation of power can be categorized into three features:
 A person forming a part of one organ should not form part of another organ.
 One organ should not interfere with the functioning of the other organs.
 One organ should not exercise the function belonging to another organ.
The separation of power is based on the concept of triaspolitica. This principle visualizes a
tripartite system where the powers are delegated and distributed among three organs outlining
their jurisdiction each.
To know more about the separation of powers and its relevance in brief, please refer to the video
below:
Three-tier machinery of state government
It is impossible for any of the organs to perform all the functions systematically and
appropriately. So for the proper functioning of the powers, the powers are distributed among the
legislature, executive and judiciary. Now let’s go into the further details of the functioning of
each organ.
Legislative
The main function of the legislature is to enact a law. Enacting a law expresses the will of the
State and it also acts as the wain to the autonomy of the State. It is the basis for the functioning
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of executive and judiciary. It is spotted as the first place among the three organs because until
and unless the law is framed the functioning of implementing and applying the law can be
exercised. The judiciary act as the advisory body which means that it can give the suggestions to
the legislature about the framing of new laws and amendment of certain legislation but cannot
function it.
Executive
It is the organs which are responsible for implementing, carrying out or enforcing the will of the
state as explicit by the constituent assembly and the legislature. The executive is the
administrative head of the government. It is called as the mainspring of the government because
if the executive crack-up, the government exhaust as it gets imbalanced. In the limited sense,
executive includes head of the minister, advisors, departmental head and his ministers.
Judiciary
It refers to those public officers whose responsibility is to apply the law framed by the legislature
to individual cases by taking into consideration the principle of natural justice, fairness.
Significance
As it is a very well known fact that whenever a large power is given in the hand of any
administering authority there are higher chances of maladministration, corruption and misuse of
power. This doctrine helps prevent the abuse of power. This doctrine protects the individual
from the arbitrary rule. The government is the violator and also protects individual liberty.
Summarily, the importance can be encapsulated in the following points:
 Ending the autocracy, it protects the liberty of the individual.
 It not only safeguards the liberty of the individual but also maintains the efficiency of
the administration.
 Focus on the requirement of independence of the judiciary
 Prevent the legislature from enacting an arbitrary rule.

Constitutional status of separation of power in India
Going through the provisions of Constitution of India one may be ready to say that it has been
accepted in India. Under the Indian Constitution:
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Parliament ( Lok Sabha and Rajya Sabha)

Legislature
State legislative bodies
At the central level- President

Executive At the state level- Governor
Judiciary Supreme Court, High Court and all other subordinate courts
The Parliament is competent enough to make any law subject to the conditions of Constitution
and there are no restrictions on its law-making powers. The president power and functions are
given in the Constitution itself (Article 62 to Article 72). The judiciary is self –dependent in its
field and there is no obstruction with its judicial functions either by Legislature or the Executive.
The High Court under Article 226 and Article 227 and Supreme Court under Article
32 and Article 136 of Constitution are given the power of judicial review and any law passed by
the legislature can be declared void by the judiciary if it is inconsistent with Fundamental
Rights (Article 13). By going through such provisions many jurists are of opinion that doctrine of
separation of powers is accepted in India.
Before looking into the case laws, let us understand what the meaning of the doctrine of
separation of power is in a strict and broad sense.
The doctrine of separation of power in a rigid sense means that when there is a proper
distinction between three organs and their functions and also there should be a system of check
and balance.
The doctrine of separation of power in a broad sense means that when there is no proper
distinction between three organs and their functions.
In the case of I.C Golakhnath vs State of Punjab, the Constitution brings in actuality the
distinct constitutional entities i.e namely, the Union territories, Union and State. It also has three
major instruments namely, judiciary, executive and legislature. It demarcates their jurisdiction
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minutely and expects them to exercise their function without interfering with others functions.
They should function within their scope.
If we go through the constitutional provision, we can find that the doctrine of separation of
power has not been accepted in a rigid sense in India. There is personnel overlapping along with
the functional overlapping. The Supreme Court can declare any law framed by the legislature
and executive void if they violate the provisions of the Constitution.
Executive also has an impact on the functioning of the judiciary as they appoint the judges and
Chief justice. The list is so exhaustive.
In the case of Indira Gandhi vs Raj Narain, the court held that In our Constitution the doctrine
of separation of power has been accepted in a broader sense. Just like in American and Australia
Constitution where a rigid sense of separation of power applies is not applicable in India.
Justice Chandrachud also expressed his views by stating:
“The political purpose of the doctrine of separation of power is not widely recognized. No
provision can be properly implemented without a check and balance system. This is the principle
of restraining which has in its precept, innate in the prudence of self- preservation that
discretion is better than its valor.”
In Ram Jawaya vs The State of Punjab, Justice Mukherjee observed:
“In India, this doctrine has been not be accepted in its rigid sense but the functions of all three
organs have been differentiated and it can be said that our constitution has not been a deliberate
assumption that functions of one organ belong to the another. It can be said through this that this
practice is accepted in India but not in a strict sense. There is no provision in Constitution which
talks about the separation of powers except Article 50 which talks about the separation of the
executive from the judiciary but this doctrine is in practice in India. All three organs interfere
with each other functions whenever necessary.”
Although, there is an explicit provision in Constitution just like American Constitution that
executive power is vested in President under Article 53(1) and in Governor under Article
154(1) but there is no provision which talks about the vesting of legislative and judiciary power
in any organ. We can conclude that there is no rigid separation of power.
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At the first instance, it appears that our Constitution is based on this doctrine itself as the
judiciary is self-sufficient and there is no interference either by executive or legislature. Court
also prohibits the administration of judiciary is not to be discussed in the parliament. Power of
judicial review and to declare any law as void is given to the Supreme Court. The judges of
Supreme Court is appointed by President in consultation. Chief Minister and judges of the
supreme court. The Supreme court make the rules and regulations for the effective conduct of
business.
However, Article 50 of the Constitution of India talks about the separation of the executive from
the judiciary as being a Directive Principle of State Policy it is not enforceable. Certain
privileges, power, immunities are given to the Member of Parliament under Article 105. This
provision makes the legislature independent. The executive power is conferred on President and
Governor they are being exempted from civil and criminal liabilities.
But, if we read carefully it is clear that doctrine is not accepted in a rigid sense. The executive is
a portion of the legislature and the executive is accountable for its conduct to the legislature and
also its derive its authority from the legislature. Since India has a parliamentary form of
government should a mutual connection and coordination between the legislature and executive.
As executive power is vested in the president but in actuality, the real head is Prime Minister of
India along with Council of Minister and president is only a nominal head. Article 74(1) talks
that executive head has to conduct in conformity with the aid and advice of Cabinet.
Ordinarily, all the legislative power is vested in the legislature but in certain circumstances, the
president may be empowered to exercise the legislative power. For example, the president can
issue ordinance under Article 123 when the parliament is not in session, making the rules when
there is an emergency. Sometimes the president may also exercise judiciary power. When a
president is being impeached, both houses take active participation and finalize the charges.
Judiciary also performs the administrative actions while formulating the regulations and giving
guidance for the subordinate court as well as perform legislative powers by framing the rules
regulating their own procedure.
So it is presumed from the provisions of the constitution that India being a parliamentary form of
government does not follow the absolute separation there is an amalgamation of the powers
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where the connections between the different wings are inevitable and it can be drawn from the
constitution itself. Every organ performs all types of functions in one or other form subject to the
check and balance by other organs. All three organs are interdependent because India has a
Parliamentary democracy. This does not mean that it is not accepted in India it has been accepted
up to a certain extent.
But when it is expressly provided that one organ shall not perform functions of the other, then it
is prohibited. In the Delhi laws case, it was stated that the legislature should exercise all the
powers of legislation only in extraordinary circumstances like when parliament is not in session
or emergency. We can say that the legislature is created by the Constitution to enact the laws.
In India, there is no separation of power but there is a separation of powers. Hence, in India, the
people are not stuck by the principle by its rigidity. For example, the cabinet minister exercises
both the executive and administrative functions. Article 74(1) states that it is mandatory for the
executive head to comply with the advice of the cabinet ministers. In Ram Jawaya vs the State of
Punjab, it was held that the executive is a part of the legislature and is accountable.
If we talk about the amending power of the Parliament under Article 368, it has been subject to
the concept of the basic structure held in case of Kesavananda Bharati vs State of Kerala.
In this case, it was held that the Parliament couldn’t amend the provision in such a way that
violated the basic structure.
And if it is made in violation of basic structure then such amendment will be declared as
unconstitutional null and void.
Going through this case law regarding the Supreme court judgment it can be observed that the
basic structure cannot be amended and strict applicability of doctrine can be seen.
Although strict separation of power is not followed in India like the American Constitution, the
system of check and balance is followed. However, no organs are to take over the essential
functions of other organs which is the part of the basic structure, not even by amending and if it
is amended, such amendment will be declared as unconstitutional.
Impact of the doctrine of separation of powers on democracy

The doctrine of separation of powers seeks to protect the centralization of power in one hand; as
history has repeatedly demonstrated, centralization of power in one or a few hands can lead to
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disastrous outcomes. The application of this principle makes the government liable, accountable,
and answerable to its citizens for its actions, thereby aiding in the promotion and protection of
human rights. This eliminates one of the most serious weaknesses of other forms of
administration, such as monarchy or dictatorship, in which the king is not accountable to his
people. When applied, the principle creates a balance of powers inside the government, in which
each of the government’s bodies’ functions are kept in check by the others while remaining
independent of one another. This assures that the laws are just, fair, and adhere to the natural
justice ideal. Furthermore, because it is independent of the other departments, the court can
administer equitable justice. Democracy is flawed without Separation of Power.
Global perspective
Separation of power has been accepted and adopted across the globe. The United States has one
of the most initially established versions of this doctrine, which finds its origin in its
constitution. The theory of separation of powers in various aspects has been included in certain
other constitutions around the world. The Australian Constitution favours the devolution of
legislative functions to the executive rather than judicial institutions. This idea is also believed to
be the foundation of the Sri Lankan Constitution. France is another country where this doctrine
has an effect, and this doctrine flows out of the French constitution. The United Kingdom too has
a separation of powers concept on an informal note. Some of the prominent countries that have
adopted this concept are as follows:
United States
The concept of separation of powers is quite specifically stated in the US Constitution. It gives
Congress, which consists of the Senate and the House of Representatives, legislative authority.
The President has executive authority, and the Supreme Court and any further Federal Courts
that Congress may establish have judicial authority. The Constitution specifically outlines the
President’s powers, and he is elected in a separate election for a fixed term of four years. He is
tasked by the Constitution with ensuring that the country’s laws are faithfully carried out. The
President has the authority to nominate and dismiss the executive officers known as the Cabinet,
who are in charge of the major state departments. This is done to maintain the separation
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between the executive and legislative branches of government. Neither the President nor any of
his secretaries may be members of the Congress, and any member of the Congress may join the
government only after resigning from his membership. The President is normally irremovable
from office, but the Senate has the power to remove him through the process of impeachment if
he commits high crimes and misdemeanors such as bribery or treason. The after-effects of
the Watergate scandal of 1972 on the President act as a prominent illustration of this. Once
nominated, the Supreme Court’s judges are not subject to the authority of either Congress or the
President. But they too could be impeached and forced out of their positions.
The Supreme Court’s authority was created in Marbury v. Madison in 1803 when it ruled that the
President’s acts and the Acts of the legislature were both in violation of the Constitution. The
Supreme Court also found that any significant delegation of legislative authority by Congress to
executive agencies was in violation of the Constitution’s tenet of the separation of powers.
United Kingdom
Unlike the United States, the United Kingdom does have a separation of powers concept and it
exists in the country more on an informal note. The United Kingdom benefits more from Black
Stone’s “mixed government” with checks and balances doctrine. The U.K. Constitution does not
have separation of powers as an essential or defining principle. Because there is no formal
division of powers in the United Kingdom due to the lack of a written constitution, any Act of
Parliament that grants any power in violation of the concept may be deemed unconstitutional.
The Parliament continues to have undisputed authority, and as a result, the Crown rules through
ministers who are elected by and answerable to the Parliament. The Act of Settlement, 1700,
effectively cemented the judiciary’s independence. The Supreme Court operates with its powers
separated from those of Parliament. The Constitutional Reforms Act of 2005‘s Section
61 outlines the structure for judicial appointments. Commission responsible for choosing judges
for the Supreme Court and the court of appeals. Thus, the Constitutional Reforms Act of 2005
has generally ensured the independence of the court.
The three branches continue to significantly overlap and are not properly divided. Administrative
tribunals rather than regular courts handle many issues that emerge during the course of
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government. However, by preserving key components of “fair judicial procedure“, the

impartiality of the tribunals is kept intact. Senior justices have frequently stated that a division of
powers is the foundation of the British Constitution. It cannot be emphasized enough how deeply
rooted in the separation of powers the British Constitution is while being mostly unwritten.
Parliament makes the laws, and the judiciary interprets them.
Australia
The separation of powers in Australia is achieved by the partition of the Australian organs of
government into the legislative, executive, and judicial branches. According to this theory, laws
are created by the legislative, implemented by the executive branch, and then interpreted by the
court. The word and its use in Australia are a result of the Australian Constitution’s language and
structure, which draws its inspiration from democratic ideas ingrained in the Westminster
system, the idea of a ‘responsible government’, and the American interpretation of the separation
of powers.
The Australian political system does not always exhibit a strong separation of powers, however,
as a result of the Westminster system’s norms. The executive is required to be chosen from the
legislative and must uphold its trust, resulting in a fusion between the two.
The Parliament, the executive government, and the judiciary are the respective headings of the
first three chapters of the Australian Constitution. Parliaments serve as the legislative branch of
government. Ministers and the departments and agencies they oversee make up the executive
branch. Judges and courts make up the judicial branch of government. Each of these chapters
starts with a section that vests the applicable power of the Commonwealth to the proper people
or organisations. On the other hand, responsible governance, in which the legislative and the
administration are essentially one, is a feature of the Constitution. However, there is a lot of
overlap in terms of both individuals and activities because the ministry (executive) is chosen
from and answerable to the parliament (legislature). The distinction between the judiciary’s
divisions is clearer.
Canada
According to the Constitution Act of 1867, there shall be a legislative branch, an executive
branch, and a judicial branch. The monarch of Canada, working through their representative, the
Governor General of Canada, is granted executive authority at the federal level. The Canadian
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Parliament, which consists of the monarch, the Senate, and the House of Commons, is given the
responsibility of passing laws. Although Parliament approved provisions for the establishment of
federal courts, the judicial authority is generally delegated to the provincial superior courts. The
Federal Court of Appeal, the Federal Court of Canada, and the Supreme Court of Canada are
currently considered to be federal courts.
The Prime Minister and other Cabinet ministers are members of Parliament, and Canada, like
other parliamentary nations utilizing the Westminster system, combines the executive and
legislative departments. The two branches, however, play different roles and occasionally even
clash with one another. The judicial branch and the elected legislative and executive branches
fall under a considerably stricter definition of the separation of powers. According to the
Supreme Court of Canada, the Constitution of Canada’s core value is judicial independence.
When it comes to carrying out their responsibilities and making decisions, the courts are separate
from the elected branches. Similar institutional features, such as the sharp division between the
judicial and elected institutions, also apply to provincial and territorial governments.
Merits of separation of power
The theory of separation of powers in its strictest form is considered undesirable and
unworkable. As a result, it is not entirely acknowledged in any nation on earth. However, its
importance resides in emphasizing the checks and balances that are required to avoid abuse of
the vast executive powers.
Creating a system of checks and balances
One aspect of the theory of separation of powers is checks and balances. According to this
characteristic, each organ has certain checking abilities over the other two organs in addition to
its own power. The inter-organ relationships are governed by a system of checks and balances
during the process.
The separation of powers thesis was good in principle. When it was attempted to be utilised in
actual life circumstances, however, various flaws became apparent in practice.
Protection of liberty and rights
According to the doctrine of the separation of powers, an individual’s freedoms and rights are
protected, and they are shielded from various types of dictatorship and oppression.
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Improvement in government efficiency

As authority is divided across government agencies, these agencies learn in-depth information
about the issues they are responsible for and improve their effectiveness. The tasks required in
governance are sometimes too many for one branch of the government to handle. Therefore, the
division of powers aids in lightening the strain on each individual branch of government.
Encourages order in governance
Each of the three branches of the government is given a certain set of responsibilities. Each
person would have to do their part solely if the concept were to be strictly followed. This
guarantees that the state is run in an orderly manner.
Prevents abuse of authority
The separation of powers is an excellent safeguard against the abuse and haughtiness of power.
Because various departments are given varying degrees of authority, the emergence of a
dictatorship is prevented. The idea is sound in that it can restrain tyranny on the part of those in
authority. The idea makes sure that too much authority is not centralised in one branch of the
government. By doing this, the desire to misuse authority is avoided.
Achieves judicial independence
The idea of judicial independence holds that the judiciary ought to be separate from the other
arms of the government. In practically every constitution, the judiciary is granted the authority to
decide all constitutional problems and the authority to deem the actions of the other branches of
government null and invalid. The idea of the separation of powers contributes to bolstering the
judiciary’s independence in carrying out its duties.
Demerits of separation of power
Although most nations have adopted this approach, it has not been without criticism. It has been
decried as undesirable in addition to being impossible. “Montes was guilty of oversimplification.
He united his theory to a hasty and superficial analysis of the constitutional principles of
liberty.” Sabine said. According to Finer, it is useless to rigorously apply the doctrine of the
division of powers to contemporary circumstances. The following arguments have been used to
refute the separation of powers doctrine.
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Misreading of the British system

The Cabinet system of government existed at the time Montesquieu formed his thesis on the
division of powers. At the time, Britain lacked a clear division of authorities. Instead, there was a
focus on who was responsible for what. Montesquieu incorrectly assumed that there was a
division of powers in Britain after seeing the British people enjoy their freedom. He had the
politics of Britain wrong.
Unhistorical
The British Constitution during the first half of the eighteenth century, as he understood it,
served as inspiration for Montesquieu. In actuality, the English Constitution did not have a
division of powers. This theory was never included in the British Constitution.
The idea is predicated on the false premise that the three branches of government—legislative,
judicial, and executive—are distinct from one another. In the current welfare state model, these
three roles overlap. The government could become more effective as a result of this division.
Not in favour of the welfare state idea
The welfare state of today must address several intricate sociopolitical economic issues facing a
nation. It is impossible to follow this concept in the current situation.
Unrealistic in and of itself
It hasn’t been discovered that concentrating one sort of power in one organ alone is conceivable
in practice. In addition to being a body that makes laws, the legislature also has oversight
responsibilities for the executive, which is an administrative entity. The judiciary has some rule-
making authority in addition to performing judicial duties.
Deadlocks and inefficiencies can result from the separation of powers:
The division of powers might result in impasses and ineffective government operations. It could
lead to circumstances where each organ engages in combat and becomes stuck with the other two
organs.
Not completely achievable
This notion is not entirely achievable. The legislature also has some judicial duties, while the
executive plays a little part in rulemaking. The legislature, for instance, carries out judicial
actions like impeachment.
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Separation of powers causes administrative challenges, which is number three. Making the
government’s organs cooperate, coordinate, and live in harmony becomes challenging. Modern
governments must “coordinate” their powers rather than strictly separate them in order to
function effectively.
Could cause confusion and deadlock
The division of powers can occasionally cause rivalry, mistrust, and conflict amongst the several
branches of government. It might cripple the government while causing discord and uncertainty.
As a result, even in times of emergency, the government frequently makes poor judgments. The
principle of the separation of powers, in Finer’s words, “throws governments into alternate
phases of coma and convulsion.” According to a different academic, “division of powers equals
confusion of powers.”
Power inequality
Although this theory is founded on the equality of powers assumption, this premise has flaws.
While the administration is most powerful under a presidential system, the legislature, which
represents the people, is most powerful in a parliamentary one.
Separation of powers is one of the factors that contribute to liberty, but it is not the only one.
Liberty also heavily depends on people’s minds, perspectives, political awareness, customs and
traditions, basic rights, the rule of law, the independence of the judiciary, economic equality, and
other factors.
Could upset the balance of power
As it carries out several crucial tasks, the government has become stronger. It is necessary to
offer welfare to the people in addition to solving problems and managing crises. All of this has
increased the executive’s authority and thrown off the balance between the three branches of
government. Not so much the “division” of authorities as their “fusion” is necessary for
planning, security, and welfare.
As a result, the theory of separation of powers in its strictest definition is seen undesirable and
unworkable. As a result, it is not entirely acknowledged in any nation on earth. However, its
importance resides in emphasising the checks and balances that are required to avoid abuse of
the vast executive powers.
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Functional overlap among organs of the government

Overlapping powers of Legislature
With the Judiciary
1. Impeachment and dismissal of judges
2. Authority to revalidate legislation that the Court had deemed ultra vires and amend
them.
3. If its privilege is violated, it has the authority to penalise the offending party.
With the Executive
1. Members of the legislature serve as the leaders of each governmental ministry.
2. It can dissolve the government with a vote of no confidence.
3. The ability to evaluate the executive’s job.
4. President’s impeachment.
5. Members of the legislature are chosen to the council of ministers, on whose advice the
President and Governor act.
Overlapping powers of Executive
With the Judiciary
1. Selecting candidates for the Chief Justice and other judicial positions.
2. The authority to commute sentences, reprieves, respites, or pardons for those found
guilty of crimes.
3. The tribunals and other quasi-judicial organisations of the executive carry out judicial
duties as well.
With the Legislative
1. The authority to enact an ordinance that carries the same weight as a law passed by
the state legislature or the parliament.
2. Subject to the limitations of this Constitution, they have the power to enact rules
governing their particular process and conduct of business.
3. Powers are granted by a delegated law.
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Overlapping powers of Judiciary

With the Legislative
1. The Supreme Court serves as an Executive under Article 142 in order to ensure full
justice.
With the Executive
1. Legal review, or the authority to examine executive action to see if the Constitution is
being violated.
2. The basic structure of the Constitution cannot be changed.
Conclusion
“Power corrupts and absolute power tends to corrupt absolutely” – Lord Action.
Exercising the doctrine of separation power cannot be applied in the strict sense in any
contemporary countries like The United States, Nepal, France etc. But still, this doctrine has
relevancy nowadays. Our government is an organized system and it is very difficult to divide
into watertight compartments.
For the smooth functioning of any government, cooperation and coordination among all three
wings of the government are necessary. Professor Garner said that “this doctrine is impracticable
as working principle of Government. It is difficult to divide the functions of each organ on an
accurate basis”.
Although liberty heavily depends on the balance between the three branches of government,
increased concern for welfare and security has resulted in the transfer of greater authority to the
executive. The liberty of the individual, as well as that person’s wellbeing and the security of the
state, should all be equally important in a perfect society. Without a question, this would
necessitate a strong government, but it would also necessitate a system of checks and balances
and the division of powers.
In my opinion, this doctrine has a great significance as it protects the liberty of the individual
from the arbitrary rule and prevents the organs from usurping the essential functions of other
organs.
19

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Chanderprabhu Jain College of Higher Studies

CLASS & SECTION: LLM-1 Semester

Wade and Phillips provide three definitions of the separation of powers:

Three formulations of structural classification of governmental powers are included in the

 The functions of one organ of government should not be performed by another.

 Ending the autocracy, it protects the liberty of the individual.

 Focus on the requirement of independence of the judiciary

 Prevent the legislature from enacting an arbitrary rule.

Parliament ( Lok Sabha and Rajya Sabha)

At the central level- President

Impact of the doctrine of separation of powers on democracy

government. However, by preserving key components of “fair judicial procedure“, the

Improvement in government efficiency

Misreading of the British system

Functional overlap among organs of the government

Overlapping powers of Judiciary

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