Author’s details

Sargun Kaur

3^rd year, Ba.llb.

Panjab University 

Introduction 

The concept of separation of power in a country is deeply rooted in the governance systems of various countries around the world. The doctrine of separation of powers fundamentally means that functions and powers are distributed amongst different sections of governance so that one does not interfere with another, ensuring the smooth functioning of the administration. This ensures the smoothness, equality, and legitimacy of each organ. Giving each organ a distinctive function, delegating it power to perform respective functions. 

In almost all democratic countries the powers are divided amongst three organs of the government. These organs are the legislative, the judiciary, and the executive. The organs must not intervene with each other to ensure fair functioning. 

Historical background

Aristotle talked about the separation of powers in his book ‘Politics’ which was first written in 350 BCE. He talked about how every constitution has three branches- the judiciary, the deliberative, and the public officials. 

The idea was then re-drafted and assembled by Montesquieu, where he exclusively named three organs of the government- the executive, the judiciary, and the legislature. He stated that these organs should be granted distinct capabilities, independent of one another. To guarantee proper function, one organ should not interfere with the other’s. The principle underlying this is that if authority is delegated to a single individual, the functioning may become arbitrary.

Wade and Philips describe the doctrine of separation of powers as follows:

1. All the power should not be vested in one organ of the government.
2. One organ should not interfere with the other organs’ functioning. 
3. They should be independent of each other. 

Indian Perspective

Much like many countries following the doctrine of separation of powers, India too has three different organs of the government. These are The Legislature- the organ that makes the laws; the Executive- that enforces the laws and the Judiciary- that implements the laws. 

The framers of the Constitution were not in favour of the separation of powers mainly due to the federal nature of the government with the division of powers between the central and the state. They saw it as a continuation of the Britishers divide-and-rule policy. As a result, the doctrine is not singularly defined anywhere in the Constitution nevertheless there are provisions that differentiate one organ from another.

Article 50 talks about the separation of the judiciary from the executive

Says “The State shall take steps to separate the judiciary from the executive in the public services of the State.”

Articles 211  and 121 talk about non-interference in the working of judges

Article 121 Restriction on discussion in Parliament

No discussions shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties expect upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided.

Article 211 Restriction on discussion in the Legislature

No discussion shall take place in the Legislature of a Stale with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.

Articles 53 and 154 state the executive power of the states in the president at the center and in the governor at the state level.

These articles perspicuously define that different organs have different powers and functions; they should not interfere into the functioning of each other except in exceptional circumstances as Article 123 empowers the president to make ordinances where the parliament is not in session. This ordinance as same power as an act of parliament with the exception being that it has to be passed by both houses of the parliament or it will expire after 6 weeks.

Objectives

1. All these branches of the government have their own roles to play. It is their basic function to fulfill all the responsibilities within their roles and not interfere into the functioning of another. Each accountable for their own duties and actions.
2. It aims to overcome irregularities, authoritarianism and autarchy of the government and make it more democratic.
3. The division of powers helps with delegating roles to different organs so that each is responsible for their own function and there is balance of power amongst the functionaries. 
4. These organs can also keep check on each other thereby making sure that independence does not turn into arbitrariness. Each can keep the other in line.
5. This way each branch will have a specific role that they play which will increase their expertise. In these branches only experts are then recruited which further increase efficiency, smooth functioning, also multiply the efficiency of the government. 

Practical Application of Separation of Powers 

As discussed before there is no clearly mentioned about the separation of powers of the three individual organs of the government. Though, there are some articles that talk about the specific functions that each body must perform under the ambit of powers the constitution has conferred it. 

Now, to talk about how this doctrine is applied in reality lets take a look at some historical landmark cases. 

In Keshvananda Bharti v. State of Kerala and Anr.  the question of altering the basic structure of the constitution arose. The arguments was whether the judiciary could interfere in law making process if the law being passed is unconstitutional. The court held that the doctrine of separation of powers should be strictly adhered to and one organ must not interfere in another. After long standing arguments the court held that everyone must adhere to the basic structure of the constitution which is fixed and not up for amendments. Besides, the basic structure includes separation of powers. 

In Golak Nath v. state of Punjab, the SC says

“The three organs of the government have to exercise their functions keeping in mind certain encroachments assigned by the constitution. The constitution demarcates the jurisdiction of the three organs minutely and expects them to be exercised within their respective powers without overstepping their limits. All the organs must function within the spheres allotted to them by the constitution. No authority which is created by the Constitution is supreme. The constitution of India is sovereign and all the authorities must function under the supreme law of the land i.e. the Constitution.”

Ram Jawaya Kapur v State of Punjab

The court said that the doctrine is not rigidly defined anywhere nevertheless the government has followed it strictly and not wavered from its path. One must always walk straight on its path without hindering someone else’s functioning. 

Conclusion 

The doctrine of separation of powers is an important doctrine that is incorporated in various countries throughout the world. It has been followed strictly in countries like America, France, India, Australia etc. It has become an integral part of a democratic system so that each organ shall do what it has been power to do and not get out of line to prevent arbitrariness. The doctrine is also necessary to ensure that each organ can keep a check on the working of each other as their functions are interlinked. The court in various cases has laid down its preference for this doctrine to emphasize its importance. Hence, diving powers and duties amongst different organs lead to the smooth functioning of the government.

1. Admin. (2021, August 24). What is the Article 121? [Get the Answers at BYJU’S]. BYJUS. https://byjus.com/ias-questions/what-is-the-article-121/

2.  Constitution of India. (2024, June 13). Article 211: Restriction on discussion in the Legislature – Constitution of India. https://www.constitutionofindia.net/articles/article-211-restriction-on-discussion-in-the-legislature/

3. Constitution of India. (2023, June 1). Article 123: Power of President to promulgate Ordinances during recess of Parliament – Constitution of India. https://www.constitutionofindia.net/articles/article-123-power-of-president-to-promulgate-ordinances-during-recess-of-parliament/

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5. Pandit, M. (2024, September 1). Separation of powers in the view of administrative law – Academike. Academike. https://www.lawctopus.com/academike/separation-ofpowers-in-the-view-of-administrative-law/