Administrative Law

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Doctrine of Separation of Powers

Today, most of the constitutional systems do not have a strict separation of powers between
the various organs in the classical sense because it is impractical. In the following sections,
we will see the prevailing system in India, what the relationship between each organ is, and
the constitutional provisions thereof.

Before proceeding with the relationships, let us examine in brief what the functions of each
organ of the government are.

What is the Legislature?

The chief function of the legislature is to enact laws.

• It is the basis for the functioning of the other two organs, the executive and the judiciary.
• It is also sometimes accorded the first place among the three organs because until and unless laws
are enacted, there can be no implementation and application of laws.

What is the Executive?

The executive is the organ that implements the laws enacted by the legislature and enforces
the will of the state.

• It is the administrative head of the government.

• Ministers including the Prime/Chief Ministers and President/Governors form part of the executive.

What is the Judiciary?

The judiciary is that branch of the government that interprets the law, settles disputes and
administers justice to all citizens.

• The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.
• It comprises of the Supreme Court, the High Courts, District and other subordinate courts.
• For more on Indian Judiciary, click on the linked article.

What is ‘Separation of Powers’?

In the strictest sense, the doctrine of separation of powers is very rigid.

Background of the concept

• This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he described
the three agencies of the government as General Assembly, Public Officials and Judiciary.
• In the Ancient Roman Republic too, a similar concept was followed.
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• In modern times, it was 18th-century French philosopher Montesquieu who made the doctrine a
highly systematic and scientific one, in his book De l’esprit des lois (The Spirit of Laws).
• His work is based on an understanding of the English system which was showing a propensity
towards a greater distinction between the three organs of government.
• The idea was developed further by John Locke.

Purpose of the Separation

The purpose of separation of powers is to prevent abuse of power by a single person or a

group of individuals. It will guard the society against the arbitrary, irrational and tyrannical
powers of the state, safeguard freedom for all and allocate each function to the suitable
organs of the state for effective discharge of their respective duties.

Meaning of Separation of Powers

Separation of powers divides the mechanism of governance into three branches i.e.
Legislature, Executive and the Judiciary. Although different authors give different
definitions, in general, we can frame three features of this doctrine.

1. Each organ should have different persons in capacity, i.e., a person with a function in one organ
should not be a part of another organ.
2. One organ should not interfere in the functioning of the other organs.
3. One organ should not exercise a function of another organ (they should stick to their mandate
only).

Thus, these broad spheres are determined, but in a complex country like India there often
arises conflict and transgression by one branch over the other.

Significance of the doctrine

Why do we need a separation of powers between the various organs of the State? Whenever
there is a concentration of power in one centre/authority, there is bound to be greater chances
of maladministration, corruption, nepotism and abuse of power. This principle ensures that
autocracy does not creep into a democratic system. It protects citizens from arbitrary rule.
Hence, the importance of the Separation of Powers doctrine can be summed up as follows:

1. Keeps away autocracy

2. Safeguards individual liberty
3. Helps create an efficient administration
4. Judiciary’s independence is maintained
5. Prevents the legislature from enacting arbitrary or unconstitutional laws

Doctrine of checks and balances

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The doctrine of checks and balances states that each organ of the government shall
act on the other organs in such a way as to prevent them from becoming totalitarian
and to prompt them towards fulfilling their constitutional obligations.

• Checks and balances manifest through various procedures set in place to

reduce errors, prevent improper functioning, and decrease the risk of
centralization of power.
• Various provisions under the Indian Constitution provide for checks and
balances in the governance framework of the Indian State.

Relationship between the doctrine of

separation of powers and the checks and
balances.
The doctrine of separation of powers is a fundamental principle in a democratic
government, which entails dividing the powers of the state into three separate
branches: the legislative, executive, and judicial. Checks and balances are designed
to maintain the system of separation of powers, keeping each branch in its place.

• And so, the Indian Constitution does not accept the principle of strict
separation of powers rather, it mostly relies on the principle of checks and
balances
• This pairing of separated powers with an intricate system of checks and
balances is designed to give each branch fortifications against
encroachments by the others.
• The aim of this principle is to prevent the concentration of unchecked
power and to provide for checks and balances, in which the powers of one
branch of government are limited by the powers of another branch to
prevent abuses of power and avoid autocracy.

What are the various instruments of checks

and balances under the Indian polity?
Checks and balances between Legislature and Executive

Legislature control on Executive Executive control on Legislature

• Article 61: Provision for • Article
the Impeachment of the 85: The President can summon, prorogue bot
President by the Parliament. h Houses of Parliament and dissolve the
• Article 75: Calls for House of People from time to time.
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a responsible • Article 86: The President may send messages

government where the council to either House of Parliament with respect to a
of ministers shall be Bill then pending in Parliament or otherwise.
collectively responsible to • Article 103: President finally decides on the
the House of people. disqualification of the members of Parliament
• Through the use of legislative based on the opinion of the Election
devices like - Commission.
o Question Hour • Article 108: The President can summon a
o No-confidence Motion joint sitting for both houses of the Parliament.
o Vote of Thanks on the • Article 111: Veto Power of the President of
President’s address. India where he/she can exercise an absolute
o Approval of Budget veto, suspensive veto or pocket veto with
• Parliamentary regard to legislative bills.
committees: They study and • Article 118: President makes rules for the
deliberate on a range of subject procedure with respect to the joint sitting of
matters, bills, and budgets of the Parliament after consultation with the
all the ministries and ensure Chairman and the Speaker.
checks to the Executive. • Article 123: The President may
promulgate ordinances when the Parliament
is not in session.
• Delegated legislation: Where the executive
makes rules and passes orders to give effect to
the laws.

Checks and balances between Legislature and Judiciary

Legislature control on Judiciary Judiciary control on Legislature

• Article 124: Judges of Higher • Article 13: Power of the judiciary to interpret
Judiciary can be removed by the constitution and to declare any such law or
order of the President only order of the legislature and executive void if it
after the address by each finds them to conflict with the Part III of
house of the Parliament. the Constitution.
• Article 124: Parliament • Doctrine of Basic Structure: In Kesavananda
prescribes the total strength of Bharati (1973), the Supreme Court held that
the Supreme Court. Parliament can amend the Constitution only to
• Article 138: The Supreme the extent that it does not alter its “basic
Court shall have such structure”.
jurisdiction and further • Article 142: The Supreme Court in the exercise
powers with respect to any of of its jurisdiction, may pass
the matters in the union list as such decree or order as is necessary for
the Parliament may by law doing complete justice.
confer. • Article 32 and Article 226: The Higher
• Article 140: The Parliament judiciary can issue writs, orders or directions.
has the power to confer upon
the Supreme Court such
supplemental powers as
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necessary.
• The legislature has the power
to amend laws declared ultra
vires by the Court and
revalidate them.

Checks and balances between Executive and Judiciary

Executive control on Judiciary Judiciary control on Executive

• Article 124 and Article • Article 13: Power of the judiciary to interpret the
217: The President constitution and to declare any such law or order of
appoints all the judges of the legislature and executive void if it finds them
the higher judiciary. to conflict with the Part III of the Constitution of
• Article 124: Also, a Judge India.
of the Supreme Court shall • Article 32 and Article 226: The Higher judiciary
be removed by an order of can issue writs, orders or directions against the
the President passed after executive action.
an address by each House • Article 142: The Supreme Court, in the exercise of
of Parliament. its jurisdiction, may pass such decree or order as
• Article 145: The Supreme is necessary for doing complete justice.
Court can make rules for
regulating the procedure of
the court with the approval
of the President.
• Article 72: The
Constitution provides the
President with clemency
powers as a check against
judicial errors.

What are the various factors which undermine

the principle of checks and balances?
The system of checks and balances is designed to prevent any one branch of
government from becoming too powerful and abusing its authority. However, there
are several limitations to this system:

• One issue is the lack of clear demarcation and separation of powers

between the different branches of government, leading
to overlaps and conflicts.
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• Another issue is the concentration of power in the Executive branch,

particularly the Prime Minister's Office, which can lead to a lack of
accountability.
• The Judiciary has been criticised for judicial overreach, which implies
excessive interference of the judiciary with the legislature and the executive.
• One party dominance in the house of people, instances of bypassing
parliamentary accountability mechanisms such as standing
committees, is eroding the checks of the Legislative over the Executive.