SEPARATION OF POWERS

LEGAL METHOD: UNIT 3

Kanchan Lavania, ASSISTANT PROFESSOR, VSLLS, VIPS, DELHI
 Origin
◦ ORIGIN OF THE CONCEPT IS TRACEABLE TO PLATO AND ARISTOTLE.
◦ The concept of separation of powers was first seen in the works of Aristotle in the 4th Century BC wherein he
described the three agencies of the government as General Assembly, Public Officials and Judiciary.
◦ IN 16TH AND 17TH-CENTURY BRITISH POLITICIAN LOCKE AND JUSTICE BODIN, A
FRENCH PHILOSOPHER ALSO EXPRESSED THEIR OPINION REGARDING THIS DOCTRINE.
◦ BUT THE TERM “SEPARATION OF POWERS” OR “TRIAS –POLITICA “ WAS INITIATED BY
CHARLES DE MONTESQUIEU.
◦ Montesquieu was The First One Who Articulated This Principle Scientifically, Accurately And
Systemically in his Book “ ESPRIT DES LOIS” (THE SPIRIT OF LAWS) WHICH WAS
PUBLISHED IN THE YEAR 1785.
Montesquieu in the Spirit of Laws, 1748
◦ “WHEN THE EXECUTIVE AND LEGISLATIVE POWERS ARE UNITED IN THE SAME PERSON, OR IN THE SAME
BODY OF MAGISTRATES, THERE CAN BE NO LIBERTY, BECAUSE APPREHENSIONS MAY ARISE, LEST THE SAME
MONARCH OR SENATE SHOULD ENACT TYRANNICAL LAWS, TO EXECUTE THEM IN TYRANNICAL MANNER.

◦ AGAIN THERE IS NO LIBERTY IF THE JUDICIAL POWER BE NOT SEPARATED FROM THE LEGISLATIVE AND
EXECUTIVE POWERS. WERE IT JOINED WITH LEGISLATIVE THE LIFE AND LIBERTY OF THE SUBJECT WOULD BE
EXPOSED TO ARBITRARY CONTROL, FOR THE JUDGE WOULD THEN BE A LEGISLATOR. WERE IT JOINED WITH
THE EXECUTIVE POWER, THE JUDGE MIGHT BEHAVE WITH VIOLENCE AND OPPRESSION.

◦ MISERABLE INDEED WOULD BE THE CASE, WERE THE SAME MAN OR THE SAME BODY, WHETHER OF NOBLES
OR PEOPLE, TO EXERCISE THOSE THREE POWERS, THAT OF ENACTING LAWS, THAT OF EXECUTING THE
PUBLIC RESOLUTIONS AND THAT OF JUDGING THE CRIMES OR DIFFERENCES OF INDIVIDUALS.”
Meaning
◦ THE DEFINITION OF SEPARATION OF POWER IS GIVEN BY DIFFERENT AUTHORS. BUT IN
GENERAL, THE MEANING OF SEPARATION OF POWER CAN BE CATEGORIZED INTO THREE
FEATURES:
◦ PERSON FORMING A PART OF AN ORGANS SHOULD NOT FORM THE PART OF OTHER
ORGANS. EG. MINISTERS SHOULD NOT SIT IN THE PARLIAMENT
◦ ONE ORGAN SHOULD NOT INTERFERE WITH THE FUNCTIONING OF THE OTHER ORGANS.
EG. JUDICIARY MUST BE INDEPENDENT OF THE EXECUTIVE AND
◦ ONE ORGAN SHOULD NOT EXERCISE THE FUNCTION BELONGING TO ANOTHER ORGAN.
EG. MINISTERS SHOULD NOT HAVE LEGISLATIVE POWERS.
defects
◦ IT IS NOT EASY TO DEMARCATE A LINE BETWEEN ONE POWER AND THE OTHER WITH
MATHEMATICAL PRECISION, THERE ARE NO WATERTIGHT COMPARTMENTS.
◦ IT IS IMPOSSIBLE TO TAKE CERTAIN ACTIONS IF THIS DOCTRINE IS ACCEPTED IN
ITS ENTIRETY. THUS, IF LEGISLATURE CAN ONLY LEGISLATE, THEN IT CANNOT PUNISH
ANYONE FOR BREACH OF ITS PRIVILEGE; NOR CAN IT DELEGATE ANY LEGISLATIVE
FUNCTIONS EVEN THOUGH IT DOES NOT KNOW THE DETAILS OF THE SUBJECT MATTER
AND EXECUTIVE HAS EXPERTISE OVER IT; NOR COULD THE COURTS FRAME RULES OF
PROCEDURE TO BE ADOPTED BY THEM FOR DISPOSAL OF CASES!
◦ MODERN STATE IS A WELFARE STATE, IT HAS TO SOLVE COMPLEX MECHANICAL
PROBLEMS.
Importance
◦ ENDING THE AUTOCRACY, IT PROTECTS THE LIBERTY OF THE INDIVIDUAL AND ALSO
MAINTAINS THE EFFICIENCY OF THE ADMINISTRATION.
◦ EMPHASIS ON CHECKS AND BALANCES WHICH ARE NECESSARY TO PREVENT ABUSE
OF ENORMOUS POWERS
◦ FOCUS ON THE REQUIREMENT OF INDEPENDENCE OF THE JUDICIARY.
◦ Transparency: The application of this principle makes the government liable, accountable and
answerable to its citizens for its actions thereby aiding in the promotion and protection of Human
Rights.
 Position in India
◦ Doctrine of separation of powers has not been accepted in India in stricto sensu term.
There is no provision in the Constitution itself regarding division of functions of the
government and exercise thereof.
◦ Though, under article 53(1) and art 154(1), the executive power of union and the state
is vested in the President and the Governor respectively, there is no corresponding
provision vesting legislative and judicial powers in any particular organ.
 Legislature exercising control over
judiciary
◦ Parliament has the right to legislate on the constitution, organisation, jurisdiction, and powers of the
Supreme Court and High Courts. State legislatures have a similar power with regard to the District and
Subordinate Judiciary, 20 as well as the power to determine the jurisdiction of all courts within its territory.
(Constitution of India 1950, sch 7, List 1, Entries 77–79)
◦ Parliament can also determine the number of judges to be appointed in the Supreme Court-
Constitution of India 1950, art 124.
- Terms and conditions of service, including salaries of judges, are also subject to legislative control-
Constitution of India 1950, arts 125 and 221; The Supreme Court Judges (Salaries and Conditions of
Service) Act 1958; The High Court Judges (Salaries and Conditions of Service) Act 1954.
 Legislature exercising judicial powers
◦ and has the power to remove judges of the Supreme and High Court- Constitution of India 1950, arts 124(4), 124(5),
and 218.
◦ it sometimes performs judicial functions in punishing for its violation of parliamentary privileges. (Constitution of
India 1950, art 194(3) and 105)
◦ Further, the Speakers/Chairmen, while exercising powers and discharging functions under the Tenth Schedule to the
Constitution, act as a tribunal.
◦ Legislatures can also change the basis on which a decision is given by a court and thus in effect nullify the impact of
a judicial decision. Such retrospective validation of a law declared by a court to be invalid is usually resorted to after a
tax is declared as illegally collected under an ineffective or an invalid law.
◦ (The recent resolution of a tax dispute in favour of the Vodafone Group by the Supreme Court in Vodafone International
Holdings BV v Union of India (2012) 6 SCC 613 and the subsequent retrospective change of the law by Parliament is an
example of this. Until recently after governments’ defeat at various international forums passed a finance bill of
2021 that held application of retrospective taxation is revoked and will only have a perspective effect post the finance
bill of 2012.)
Executive exercising Legislative
powers
◦ Bills originate with the executive and with a majority in Parliament or the State legislatures, it follows that
the executive predominates in the legislative process.
◦ Article 245 does not provide or prohibit legislation by the executive. In fact, the powers of the executive at
the Centre on matters in respect of which Parliament has the power to make laws are, under Article 73,
coextensive with Parliament. The power is exercised in the name of the President, who is to act on the
advice of his ministers. A similar power is given under Article 162 to the Governor, coextensive with the
State legislature. Executive orders under either of these Articles have an equal efficacy as an Act of the
Parliament or State legislature, as the case may be.
◦ Likewise Parliament exercises legislative functions but many legislative functions are also delegated to the
executive.
Continued…
◦ The Constitution also expressly recognises the legislative powers of the executive in Chapter III of Part
V the heading of which is ‘Legislative Powers of the President’. Clause (2) of Article 123 in that chapter
provides that an ordinance promulgated under Article 123 ‘shall have the same force and effect as an Act
of Parliament’. Similarly Chapter IV’s heading refers to ‘The Legislative Powers of the Governor’ and
Article 213 has granted power to the Governor to promulgate ordinances when the Legislative Assembly
is not in session. There is no limit on the subjects on which such ordinances may not be issued, nor is the
prior approval of the concerned legislature required.
◦ But perhaps the most egregious form of legislative power granted under the Constitution to the executive
are those listed under emergency provisions. T
Executive exercising Judicial
powers
◦ The executive exercises judicial powers under several provisions.
◦ For instance, it has the ability (in the name of the President) to decide whether a Member of a House of
Parliament has become disqualified to continue as such. – Article 103
◦ It has the right to advise the President/Governor, advice he is bound to accept, to grant pardon to or
modify the punishment of a convicted person- article 72 and 161.
◦ Article 311 allows the executive to hold an inquiry into charges against any person holding a civil post
under the Union or the State and to award punishment.
◦ The executive also staffs administrative tribunals set up under Article 323A as well as other tribunals set
up under Article 323B to discharge functions earlier carried on by courts.
Judiciary exercising other
powers
◦ Similarly, judiciary also exercises some executive and administrative powers like the HC have
supervisory powers over all subordinate courts and tribunals and also power to transfer cases- Article
227.
◦ HC and SC have legislative powers as well and they frame rules regulating their own procedure.

◦ In SC Advocates on Record v. UOI (2016) 5 SCC 1, it was held that SOP is an essential feature and is
a part of basic structure of the Constitution but SOP however is not rigid as in the USA. One of the
element of SOP is system of “checks and balances”. There is no violation of SOP as soon as there is
overlap of functions of one branch of gov with another branch but when one branch takes an essential
function of another, there is violation of SOP.
Constitutional provisions favoring Separation of Powers

◦ Article 50: This article puts an obligation over the State to separate the judiciary from the executive.
◦ Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a judge of the
Supreme Court or High Court.
◦ Articles 122 & 212: The validity of proceedings in Parliament and the legislatures cannot be called into
question in any Court.
◦ Article 361: The President or the Governor shall not be answerable to any court for the exercise and
performance of the past and duties of his or her office
Case laws
◦ 1. Ram Jawaya v. State of Punjab AIR 1955 SC 549
◦ 2. Asif Hameed v. State of J & K AIR 1989 SC 1899
◦ 3. State of West Bengal & Ors. v. Committee for Protection of
Democratic Rights (2010) 3 SCC 670
◦ 4. I. R. Coelho v. State of Tamil Nadu AIR 2007 SC 61
◦ 5. State of Himachal Pradesh v. Satpal Saini (2017) 11 SCC 42