SEPARATION OF POWERS

The term "trias politica" or "separation of powers" was coined by Montesquieu, an 18th
century French social and political philosopher. His publication, Spirit of the Laws, is
considered one of the great works in the history of political theory and jurisprudence, and it
inspired the Declaration of the Rights of Man and the Constitution of the United States.
Under his model, the political authority of the state is divided into legislative, executive and
judicial powers. He asserted that, to most effectively promote liberty, these three powers must
be separate and acting independently.

Separation of powers, therefore, refers to the division of government responsibilities into

distinct branches to limit any one branch from exercising the core functions of another. The
intent is to prevent the concentration of power and provide for checks and balances.

The traditional characterizations of the powers of the branches of American government are:

 The legislative branch is responsible for enacting the laws of the state and
appropriating the money necessary to operate the government.
 The executive branch is responsible for implementing and administering the public
policy enacted and funded by the legislative branch.
 The judicial branch is responsible for interpreting the constitution and laws and
applying their interpretations to controversies brought before it.

Indian Constitution And Separation Of Powers

Though, just like American constitution, in Indian constitution also, there is express mention
that the executive power of the Union and of a State is vested by the constitution in the
President and the Governor, respectively, by articles 53(1) and 154(1), but there is no
corresponding provision vesting the legislative and judicial powers in any particular organ. It
has accordingly been held that there is no rigid separation of powers.

Although prima facie it appears that our constitution has based itself upon doctrine of
separation of powers. Judiciary is independent in its field and there can be no interference
with its judicial functions either by the executive or the legislature. Constitution restricts the
discussion of the conduct of any judge in the Parliament. The High Courts and the Supreme
Court has been given the power of judicial review and they can declare any law passed by
parliament as unconstitutional. The judges of the S.C. are appointed by the President in
consultation with the CJI and judges of the S.C. The S.C. has power to make Rules for
efficient conduction of business.

It is noteworthy that A. 50 of the constitution puts an obligation over state to take steps to
separate the judiciary from the executive. But, since it is a DPSP, therefore it’s
unenforceable.

In a similar fashion certain constitutional provisions also provide for Powers, Privileges and
Immunities to the MPs , Immunity from judicial scrutiny into the proceedings of the house ,
etc. Such provisions are thereby making legislature independent, in a way. The Constitution
provides for conferment of executive power on the President. His powers and functions are
enumerated in the constitution itself. The President and the Governor enjoy immunity from
civil and criminal liabilities.

The three organs of the government which we know as the executive, the judiciary and
legislature represent the people and their will in our country and are responsible for the
smooth running of a democratic government in our society. The legislature is the law-making
body, the executive is responsible for the enforcement of all such laws and the judiciary deals
with the cases that arise from a breach of law. Thus they are all interlinked organs of the
government and their roles and functions tend to overlap with each other, as it isn’t possible
to separate the three from each other completely. This has been the cause for not only serious
political debate in our country but has raised many philosophic and jurisprudential debates
among legal scholars and the law fraternity. Whether there should be a complete separation
of powers or a well co-ordinated system of distribution of powers thus becomes the focal
point of contemplation.

It is often understood that in our country the debate about the separation of powers dates as
long back as the Constitution itself. It was extensively debated in the Constituent Assembly.
It was not given constitutional status in our Constitution finally but it does clearly seem that
the constitution of India has been made keeping the separation of powers doctrine in mind,
but nowhere is this explicitly stated or embraced by the constitution itself. Since ours is a
parliamentary system of governance, though an effort has been made by the framers of the
constitution to keep the organs of the government separated from each other, but a lot of
overlapping and combination of powers has been given to each organ.

The legislative and executive wings are closely connected with each other due to this, the
executive is responsible to the legislature for its actions and derives its powers from the
legistlature. The head of the executive is the president, but a closer look shows that he is only
a nominal head and the real power rests with the Prime Minister and his Cabinet of ministers
as in Article 74(1). In certain situations the President has the capacity to exercise judicial and
legislative functions. For example, while issuing ordinances Art? The judiciary too performs
administrative and legislative functions. The parliament too may perform judicial functions,
for example if a president is to be impeached both houses of Parliament are to take an active
participatory role. Thus all three organs act as a check and balance to each other and work in
coordination and cooperation to make our parliamentary system of governance work. India
being an extremely large and diverse country needs a system like this where all organs are
responsible to each other as well as coordinated to each other, otherwise making governance
possible becomes a very rigid and difficult task.

Separation of Powers and Judicial Pronouncements in India

In India, we follow a separation of functions and not of powers. And hence, we don’t abide
by the principle in its rigidity. An example of it can be seen in the exercise of functions by the
Cabinet ministers, who exercise both legislative and executive functions. A. 74(1) wins them
an upper hand over the executive by making their aid and advice mandatory for the formal
head. The executive, thus, is derived from the legislature and is dependant on it, for its
legitimacy. This was the observation made by the Hon’ble S.C. in Ram Jawaya v. Punjab.

On the question that where the amending power of the Parliament does lies and whether A.
368 confers an unlimited amending power on Parliament, the S.C. in Kesavananda Bharati
held that amending power was now subject to the basic features of the constitution. And
hence, any amendment tampering these essential features will be struck down as
unconstitutional. Beg, J. added 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. This scheme cannot be changed even by resorting to A. 368 of the
Constitution . There are attempts made to dilute the principle, to the level of usurpation of
judicial power by the legislature.
In a subsequent case law, S.C. had occasion to apply the Kesavananda ruling regarding the
non-amend ability of the basic features of the constitution and a strict adherence to doctrine
of separation of powers can be seen. In Indira Gandhi Nehru v. Raj Narain, where the
dispute regarding P.M. 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 ultravires was that when the constituent body declared that the election
of P.M. won’t be void, it discharged a judicial function which according to the principle of
separation it shouldn’t have done. The place of this doctrine in Indian context was made a bit
clearer after this judgment.

Though in India strict separation of powers like in American sense is not followed but, the
principle of ‘checks and balances’, a part of this doctrine is. Therefore, none of the three
organs can usurp the essential functions of the organs, which constitute a part of ‘basic
structure’ doctrine so much so that, not even by amending the constitution and if any such
amendment is made, the court will strike it down as unconstitutional.

CONCLUSION

In the modern world, the Separation of Powers has come to not only mean organs such as the
Executive, the legislature and the judiciary but also institutions such as the press and
academic institutions. The organs of an open society which hold power have thus increased
with the media playing a huge role. Thus, in a modern society, implementation of Separation
of Powers doctrine in its strictest sense, the way Montesquieu envisaged it to be in his book
The Spirit of laws is an extremely difficult task. Even civil institutions wield a lot of power in
all spheres of governance.

In India, the separation of powers theory has been used as a guiding philosophy to separate
powers as much as possible but not completely, so that the organs of government are
alienated from each other. In our parliamentary form of governance a lot of cooperation is
required and thus each organ must correspond to the other on some level so as to function
smoothly. Since vesting any one organ with too much power maybe very dangerous, a system
of checks and balances has been developed over the years, which has even been consistent
with many rulings of the Supreme Court as has been discussed previously. Hence though the
doctrine of separation of powers is a theoretical concept and may be very difficult to follow
completely a compromised version of it is used in our country. For example the judicial
review and activism functions of the judiciary is an important element of our system of
justice to keep a check on the legislature who are the law makers of the land, so that they do
not exceed their powers and work within the allowances that the constitution has made for
them. the separation of the judiciary from the other organs though is taken very seriously so
that the common man’s liberty can in no circumstances be compromised and a fair remedy be
available to any individual citizen of the state.

Thus the Indian Constitution, which is an extremely carefully planned document designed to
uphold the integrity and liberty of every citizen, has not in its entirety embraced the doctrine
of separation of powers but has indeed drawn a lot from the concept and kept it as a guiding
principle. But the doctrine of Separation of Powers has been included in our basic structure
doctrine as has been ruled and upheld by the Supreme Court in a number of cases. Thus it
holds a position of utmost importance, albeit has been modified to suit the needs of a modern
all pervasive state.