Separation of

Powers
Dr. Sushma Sharma,
Associate Professor,
NLIU, Bhopal
Encyclopaedia Britannica
 Separation of powers, division of the legislative, 
executive, and judicial functions of government
 among separate and independent bodies. Such a
separation, it has been argued, limits the
possibility of arbitrary excesses by government,
since the sanction of all three branches is required
for the making, executing, and administering of
laws.
Montesquieu

 The name most associated with the doctrine of the separation of powers is
that of Charles Louis de Secondat, Baron Montesquieu.
 His influence upon later thought and upon the development of institutions
far outstrips, in this connection, that of any of the earlier writers we have
considered.
 It is clear, however, that Montesquieu did not invent the doctrine of the
separation of powers, and that much of what he had to say in Book XI,
Chapter 6 of the De l’Esprit des Loix was taken over from contemporary
English writers, and from John Locke.
  Montesquieu, it is true, contributed new ideas to the doctrine. he
emphasized certain elements in it that had not previously received such
attention, particularly in relation to the judiciary, and he accorded the
doctrine a more important position than did most previous writers.
History
 SOP in-
 Ancient Greek Times-Plato
 Ancient Rome-Aristotle
 Middle Ages-Thomas Acquinas
 Enlightenment Period- Lobbes,Lock,Rousseau
 Montesquieu
The Idea
 Montesquieu, found that concentration of power in one
person or a group of persons results in tyranny. And
therefore for decentralization of power to check
arbitrariness, he felt the need for vesting the
governmental power in three different organs, the
legislature, the executives, and the judiciary. The
principle implies that each organ should be independent
of the other and that no organ should perform functions
that belong to the other.
ORIGIN OF “SEPARATION OF
POWERS”
 Philosophical development and its origins can be traced to 4th century B.C., when
Aristotle, in his treatise entitled Politics, described the three agencies of the government
viz. the General Assembly, the Public Officials, and the Judiciary.268In republican Rome,
there was a somewhat similar system consisting of public assemblies, the senate and the
public officials, all operating on the principle of checks and balances.
 Following the fall of the Roman Empire, Europe became fragmented into nation states,
and from the end of the middle ages until the 18th century, the dominant governmental
structure consisted of a concentrated power residing in the
 Aristotle also described three elements in every constitution as the deliberative element,
the element of magistracies, and the judicial element. See generally Robinson, ―The
Division of Governmental Power in Ancient Greece
 Pol.Sci.Q.614 (1903).
 269 J.Bryce, Modern Democracies 391 (1921) cited in Sam.J.Ervin, Seperation of
Powers: Judicial Independence‖ from the website: http://www.jstor.org/stable/1191032
(last accessed on 16-12-2010). [114]
Idea of Separation
Weaknesses
 Artificial
 Impossible
 Undesirable
Checks and Balances
 Montesquieu perceived a separation with an admixture of checks and balances.
In discussing the importance of delineations of power among the three branches,
he wrote:278
 ―When the legislative and executive powers are united in the same person or
body, there can be no liberty, because apprehensions might arise lest the same
monarch or senate should enact tyrannical laws, to execute them in a tyrannical
manner. Again there is no liberty, if the judiciary power be not separated from
the legislative and executive. Where 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. Where it joined with the executive power, the judge might
behave with violence and oppression. There would be an end of everything,
where the same man or the same body, whether of the nobles or the people, to
exercise those three powers, that of enacting the laws, that of executing the
public resolutions, and of trying the cases of individuals.
Expounded by James Madison of U.S.A. as-

 ―The accumulation of all powers, legislative,

executive and judicial, in the same hands whether
of one, a few, or many and whether hereditary,
self-appointed or elective, may justly be
pronounced the very definition of tyranny.
Criticism-Professor Ullman
 Professor Ullman says that ―he looked across the
foggy England from his sunny vineyard in Paris
and completely misconstrued what he saw.
 This is however evident from the fact that in U.K.,
the principle of separation of powers has neither
been accorded a constitutional status, nor even has
it been theoretically enshrined.
Wade and Philips
Concept of Separation of Powers‘ explained by means three different
things:-
 i. That the same persons should not form part of more than one of the
three organs of Government, e.g. the Ministers should not sit in
Parliament;
 ii. That one organ of the Government should not control or interfere
with the exercise of its function by another organ, e.g. the Judiciary
should be independent of the Executive or that Ministers should not
be responsible to Parliament; and
 iii. That one organ of the Government should not exercise the
functions of another, e.g. the Ministers should not have legislative
powers.
D.D.Basu
 “So far as the courts are concerned, the application
of the doctrine (the theory of separation of powers)
may involve two propositions: namely,
 a) that none of the three organs of Government,
Legislative Executive and Judicial, can exercise any
power which properly belongs to either of the other
two;
 b) that the legislature cannot delegate its powers.”
 -Dr. D.D. Basu
USA-Separation of Powers
Constitution of India: functional
separation of the organs
 Article 50: State shall take steps to separate the judiciary from the executive. This is
for the purpose of ensuring the independence of judiciary.
 Article 122 and 212: validity of proceedings in Parliament and the Legislatures cannot
be called into question in any Court. This ensures the separation and immunity of the
legislatures from judicial intervention on the allegation of procedural irregularity.
 Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be
discussed in the Parliament and the State Legislature, according to Article 121 and 211
of the Constitution.
 Articles 53 and 154 respectively, provide that the executive power of the Union and
the State shall be vested with the President and the Governor and they enjoy immunity
from civil and criminal liability.
 Article 361: the President or the Governor shall not be answerable to any court for the
exercise and performance of the powers and duties of his office.
 Although prima facie it appears that the Constitution has based
itself upon the doctrine of strict separation of powers. But, if
studied carefully, it is clear that it is more inclined towards
proper checks and balances. 
 The doctrine has not been awarded Constitutional status.
The Constitution doesn’t explicitly back any doctrine.
 Article 75 implies the executive is collectively responsible to
the Lok Sabha.
 Articles 13, 32, 131-136, 143, 226 and 246 imply the doctrine
of Judicial Review. Judiciary can strike down any legislation
that violates the Constitution. 
Functional Overlap
 The legislature besides exercising law-making powers exercises judicial powers in
cases of breach of its privilege, impeachment of the President and the removal of
the judges.
 The executive may further affect the functioning of the judiciary by making
appointments to the office of Chief Justice and other judges.
 Legislature exercising judicial powers in the case of amending a law declared ultra
vires by the Court and revalidating it.
 While discharging the function of disqualifying its members and impeachment of
the judges, the legislature discharges the functions of the judiciary.
 Legislature can impose punishment for exceeding freedom of speech in the
Parliament; this comes under the powers and privileges of the parliament. But
while exercising such power it is always necessary that it should be in conformity
with due process.
Overlap..
 The heads of each governmental ministry is a member of the legislature, thus making the
executive an integral part of the legislature.
 The council of ministers on whose advice the President and the Governor acts are elected
members of the legislature.
 Legislative power that is being vested with the legislature in certain circumstances can be
exercised by the executive. If the President or the Governor, when the legislature or is not in
session and is satisfied that circumstances exist that necessitate immediate action may
promulgate ordinance which has the same force of the Act made by the Parliament or the State
legislature.
 The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre
and in the States respectively, the authority to make rules for regulating their respective
procedure and conduct of business subject to the provisions of this Constitution. The executive
also exercises law making power under delegated legislation.
 The tribunals and other quasi-judicial bodies which are a part of the executive also discharge
judicial functions. Administrative tribunals which are a part of the executive also discharge
judicial functions.
Overlap…
 Higher administrative tribunals should always have a member of the
judiciary. The higher judiciary is conferred with the power of
supervising the functioning of subordinate courts. It also acts as a
legislature while making laws regulating its conduct and rules
regarding disposal of cases.
 Besides the functional overlapping, the Indian system also lacks the
separation of personnel amongst the three departments.
 Applying the doctrines of constitutional limitation and trust in the
Indian scenario, a system is created where none of the organs can
usurp the functions or powers which are assigned to another organ by
express or necessary provision, neither can they divest themselves of
essential functions which belong to them as under the Constitution.
Overlap…
 Further, the Constitution of India expressly provides for a system of checks
and balances in order to prevent the arbitrary or capricious use of power
derived from the said supreme document. Though such a system appears
dilatory of the doctrine of separation of powers, it is essential in order to
enable the just and equitable functioning of such a constitutional system. 
 By giving such powers, a mechanism for the control over the exercise of
constitutional powers by the respective organs is established. This clearly
indicates that the Indian Constitution in its plan does not provide for a
strict separation of powers.
 Instead, it creates a system consisting of the three organs of Government
and confers upon them both exclusive and overlapping powers and
functions. Thus, there is no absolute separation of functions between the
three organs of Government.
S.C.on SOP
 Judgment of SC in Ram Jawaya Case:-
 Supreme Court of India (SC) had to deal with the question of the extent
of executive power and executive function in a situation where the
executive was alleged to have violated the fundamental rights of the
citizens vested in them by the Constitution of India without a legislative
sanction. 
 This landmark judgment delivered by our apex court in the wake of our
independence is now acting as a touchstone for understanding the federal
feature of the Indian Constitution through the separation of powers.
 Even years after this judgment, it becomes an important case not only in
understanding the separation of powers in the Indian context but also
worldwide as it discusses the basis for the new understanding of the
doctrine of separation of powers in present times.
Indian Position-
 First, the Indian constitution ensures that the different branches
control each other. This is intended to make them accountable to
each other – these are the ‘checks’;
 Secondly, the constitution divides power between the different
branches of government – these are the ‘balances’. Balance aims to
ensure that no individual or group of people in government is ‘all-
powerful’. Power is shared and not concentrated in one branch.
 It’s quite evident that the Constitution of India does not accept the
principle of strict separation of powers. Though it appears dilatory
of the doctrine of separation of powers, it is essential in order to
enable a just and equitable functioning and close coordination. 
Criticism
 New Dimensions-
 Delegated Legiaslation
 Tribunals
 Regulatory Authorities
 Challenges
Questions
 What is Separation of Power? Examine the idea
of separation of powers enshrined in the Indian
Constitution with suitable examples?
 How SOP in India is based on the principles of
Checks and Balances?
Thank You
 Thank You