14. Separation of Powers

The basic assumption behind the concept of separation of powers is that when power is concentrated in the hands of one/few, it/they can subvert the state machinery to favour individual or group interests over the common interest. The separation of powers is a way of reducing the amount of power in any group’s hands, making it more difficult to abuse.

This doctrine claims that state power is not a single entity but rather a composite of different governmental functions (i.e. legislative, executive, and judicial) carried out by state bodies independently of each other. The legislature enacts laws; the executive enforces those laws; and the judiciary interprets those laws.

The traditional views on separation of powers are presented by Montesquieu who vigorously advocated for a “strict or pure or total or complete or absolute” separation of powers and personnel between three organs of the state i.e. the Executive, Legislature and Judiciary; power being diffused between three separate bodies exercising separate functions with no overlaps in function or personnel.

However, the Indian state represents a contemporary approach to the doctrine of separation of powers. There is no strict separation of powers under our Constitution, both in principle and practice. Since the executive or the council of ministers in parliamentary democracies such as India or UK is also a part of the legislature, a rigid separation of powers cannot exist.

India, in fact, has also adopted the doctrine of checks and balances along with the doctrine of separation of powers. Under this doctrine, separate branches of the government viz. legislature, executive, judiciary are empowered to keep each other in check. Hence in India, each branch of the government, while performing its activities, does not seek to interfere in the sphere of another branch, but at the same time seeks to ensure that the other branch is not misusing its powers or exceeding its mandate. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs.

An important question here is the relation among these three organs of the state, i.e. whether there should be a complete separation of powers or should there be co-ordination among them.

In the words of Dr. Durga Das 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.”

What is significant is the word “properly” and therefore conceives of a broad division of powers where the core function is one, which is exclusively conferred on that particular organ of State, though there may be some overlap in regard to the fringe areas of the topics so entrusted. The pronouncement on this aspect of law by the courts is that under the Indian Constitution there is a broad separation of powers.