The doctrine of separation of powers emphasizes the mutual exclusiveness of the three organs of the government i.e. Legislature, Executive and Judiciary. According to this doctrine, the legislature cannot exercise executive or judicial power; the executive cannot exercise legislative or judicial power; and the judiciary cannot exercise the other two powers. Montesquieu for the first time formulated this doctrine scientifically in his book ‘The Spirit of Laws’. According to Montesquieu when the legislative and executive powers are united in same person or same body of persons there can be no liberty. There can be no liberty if judicial power is not separated from legislative and executive power.  

The aim of the doctrine of separation of powers is to guard against tyrannical and arbitrary powers of the State. The rationale underlying the doctrine has been that if all power is concentrated in one and the same organ or person, there would arise the danger that it may enact tyrannical laws, execute them in a despotic manner, and interpret them in an arbitrary fashion without any external control. Though, in the light of complex socio-economic problems in modern welfare state, it may no longer be possible to apply the separation theory strictly, nevertheless, it has not become completely redundant and its chief value lies in emphasizing that it is essential to develop adequate checks and balances to prevent administrative arbitrariness.

Position in U.S.A:  In U.S.A. the presidential system of government is based on the theory that there should be separation between the executive and the legislature. This is different from the system prevailing in Britain or India where the parliamentary form of government is adopted. In U.S.A. legislative powers are vested in Congress [Article I], executive powers are vested in President [Article III] and judicial powers are vested in Supreme Court [Article III]. The doctrine of separation of power has been influenced by the growth of Administrative Law in the U.S.A. The strict separation of power theory was dented when courts introduced the system of delegated legislation in the U.S.A.

Position in U.K.: U.K. does have a kind of separation of powers in true sense of term. Concept of checks and balances is more relevant in U.K. The three branches are not formally separated and continue to have significant overlap.

Position in India: The doctrine of separation of powers has no place in strict sense in the Constitution of India. The functions of different organs of the Government have been clearly earmarked, so that one organ of the government does not usurp the functions of another. Under Indian Constitution the executive power is vested in President, legislative power is vested in Parliament and judicial power is vested in Supreme Court.

In re Delhi Laws Act case, AIR 1951 SC 332 Supreme Court observed that although in the Constitution of India there is no express separation of power, it is clear that a legislature is created by the Constitution and detailed provisions are made for making that legislature pass laws.  The Constitution has not recognized the doctrine of separation of powers in the absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated.  Our constitution does not contemplate assumption, by one organ, of functions that essentially belong to another. In Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 Supreme Court held that Constitution does not recognize separation of powers in its absolute rigidity. 

In Ramkrishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538 Supreme Court held that there is no specific provision relating to separation of power in our Constitution but it is implicit in our Constitution. Further, Supreme Court in Keshvananda Bharti v. State of Kerala, AIR 1973 SC 1461 observed that separation of powers between the legislature, executive and the judiciary is a part of the basic structure of the Constitution. This structure cannot be destroyed by any form of amendment. In Supreme Court Advocates-on-Records Association v. Union of India, (2016) 5 SCC 1 Supreme Court held that separation of power is essential feature of the constitution, however, such separation of power is not as rigid as in U.S. Constitution. One of the elements of separation of power is system of ‘checks and balances’.

Author & Former Judge

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