Answer:

♤ Montesquieu, a French scholar, found that concentration of power in one person or a group of persons results in tyranny. And therefore he advocated separation of power to check arbitrariness and the need for vesting the State’s power in three different organs, the legislature, the executive, and the judiciary.

♤ The doctrine of Separation of Powers implies that each organ should be independent of the other and that no organ should perform functions that belong to the other.

♤ Understanding that a government's role is to protect individual rights, but acknowledging that governments have historically been the major violators of these rights, a number of measures have been derived to reduce this likelihood. The concept of Separation of Powers is one such measure.

♤ In USA, The doctrine of Separation of Powers forms the foundation on which the whole structure of the constitution is based. Art I, vests all legislative powers in the Congress. Art II, vest all executive powers in the President and Art III, vests all judicial powers in the Supreme Court.

♤ However incorporation of this theory is subject to two factors –

o The separation of power is not ‘water-tight’

o It is subject to the doctrine of ‘checks and balance’

♤ For example - the President interferes with the exercise of powers by the Congress through his veto power. He also exercises the law-making power in exercise of his

treaty-making power. He also interferes in the functioning of the Supreme Court by appointing judges. The judiciary interferes with the powers of the Congress and the President through the exercise of its power of judicial review. Congress may terminate Presidents’ appointments, by impeachment, and restrict the president.

♤ Under the Indian Constitution, executive powers are with the President, legislative powers with Parliament and judicial powers with the Judiciary.

♤ The President’s function and powers are enumerated in the Constitution itself. Parliament is competent to make any law subject to the provisions of the Constitution and there is no other limitation on it legislative power. The Judiciary is independent in its field and there can be no interference with its judicial functions either by the Executive or by the Legislature.

♤ The Supreme Court and High Courts are given the power of judicial review and they can declare any law passed by the Parliament or the Legislature unconstitutional.

♤ However the doctrine of Separation of Powers has not been adopted in India as strictly as in USA.

♤ In India, not only is there functional overlapping but there is personnel overlapping as well. For instance a member of legislature can also become a part of the political executive.

♤ The three organs in some or the other way perform multifarious functions. For e.g. the legislature can delegate some powers to executive, thus executive can perform the function of the law making as well., In the same way the Parliament other than making laws also have judicial powers which it can exercise in the case of its contempt.