1

“The dignity and stability of government in all its branches, the morals of the people,
and every blessing of society depend so much upon an upright and skillful
administration of justice, that the judicial power ought to be distinct from both the
legislative and executive, and independent upon both, that so it may be a check upon
both, as both should be checks upon that.”
- By John Adams.

INTRODUCTION
The term Separation of powers is ascribed to French political philosopher Baron de
Montesquieu1. Montesquieu described division of political power among an executive,
a legislature, and a judiciary. He based this model on the British constitutional system, in which
he perceived a separation of powers among the monarch, Parliament, and the courts of law.
Subsequent writers have noted that this was misleading, because the United Kingdom had a very
closely connected legislature and executive, with further links to the judiciary (though combined
with judicial independence).
Montesquieu did specify that the independence of the judiciary has to be real and not apparent
merely. The judiciary was generally seen as the most important of powers, independent and
unchecked", and also considered it dangerous.
In democratic systems of governance based on the trias politica, a fundamental parallel and a
fundamental difference exists between presidential systems and constitutional
monarchic parliamentary system of government.
The parallel is that the three branches of government (legislative, executive, judicial) exist
largely independent of each other. Each has its own competences, prerogatives and domain of
activity and exercising control over each other.
 The legislative body has control over the executive finances, and has judiciary powers; it
also has control of the way the judiciary works.
 The judiciary often has control of laws not being contradictory to the constitution or other
laws and it has the power to correct and control the way the executive body exercises it
powers (to execute the law)

1
Narang A.S., India Political System, Process and development, Gitanjali Publishing House, New Delhi, 2015, p. 672
- 674

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The difference is:

 In presidential systems the president appoints his administration (ministers, judges etc.)
or a government headed by a prime minister is formed within the parliament (based on the
majority in the parliament) (like in France). The later might lead to a "cohabitation" where a
president and his government belong to different parties or to different coalition. Also further
down the ladder of political power regional or local legislative bodies and the chief executive
is elected (State governor and State Senate in the US, the Conceal Communal and
Bourgemestre in France).
 In constitutional monarchic parliamentary systems only the legislative body is elected
and a government formed on the basis of majority or coalitions of parties. Elected members
of parliament have to resign form their mandate in order to accept an Executive office. This
is true in regional and local councils are elected and the executive nominated.
In a parliamentary system, when the term of the legislature ends, so too may the tenure of the
executive selected by that legislature. Although in a presidential system the executive's term may
or may not coincide with the legislatures, their selection is technically independent of the
legislature.
The two branch power systems may have systems in which certain branches have more than one
power. Often a legislative body is elected, while the executive is nominated. The nominated
executive branch also has power of presenting legislation, while the legislative body is only has a
controlling function. In those systems the judiciary is subservient to the executive and has no
power to control either the executive or the legality of new legislative texts.
The separation of powers is a doctrine which provides a separate authority, which makes it
possible for the authorities to check each others checks and balances

THEORY OF SEPARATION OF POWERS

In a juridical commentary we are not concerned with the political implications of this doctrine,
which may be found in any text book on political science. 2 We shall discuss the question from
the juristic standpoint. So far as the court concerned the application of the doctrine may involve
two propositions3, namely, (a) that none of the three organs of government, legislative, executive
2
E.g. Garner, Introduction to Political Science, chapter XIII
3
Cf. Wishart v. Fraser (1941)64 CLR 470

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and judicial can exercise any power which properly belongs to either of the other two: (b) that
the legislature cannot delegate its power.
Under present paper we shall discuss the broader question (a) above, viz. whether any organ of
government can, under a written constitution like ours, assume to exercise any power properly
belonging to any other organ, under the constitution.
The theory of separation of powers, as it was originally enunciated aimed at a personal
separation of powers. This is the sense in which Montesquieu 4, the modern exponent of the
doctrine asserted, “When the legislative and executive powers are united in the same person, or
on the same body or magistrates, there can be no liberty. Again there is no liberty if the judicial
power is not separated from the legislative and executive powers. Were it joined with the
legislative power, the life and liberty of the subject would be exposed to arbitrary control; for the
judge would then be the legislator were it joined with executive power , the judge might behave
with violence and oppression. There would be and of everything were the same man or same
body to exercise these there powers….”
In Federalist, James Madison has explained the above statement and has stated that, “The
accumulation of all powers – legislative, executive and judiciary – in the same hands, may justly
pronounced as the very definition of tyranny…. Montesquieu who is generally credited with this
claim did not mean that these departments ought to have no “partial agency” in, or no control
over, the acts of one department is exercised by the same hands which possess the whole power
of another department, the fundamental principles of a free constitution are subverted.”
Madison continued in federalist, “But the great security against a gradual concentration of the
several powers in the same department consists in giving to those who administer each
department, the necessary constitutional means and personal motives to resist encroachment of
the others……”

OBJECT OF THE SEPARATION OF POWER

4
Montesquieu, L ‘Esprit des Lois, 1748

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While stating the reason for separation of powers, it is stated: “the constitution thus created
simultaneously a neat division of legislative, executive and judicial power and instituted device
by which each branch be controlled to some degree by the others. The objectives of this scheme
of separated powers are to prevent one branch over dominating the others and to prevent a fusion
of executive, legislative or judicial power into a common hand.5
In Constitutional Law,6 it is stated as the theory of separation and checks and balances thus: the
constitution distributes national power among the legislative, executive and judicial branches of
the national government. The resulting scheme is usually described as one of either “Separation
of powers” or “checks and balances”. The former description captures the constitutional effort to
allocate different sorts of power among three governmental entities that are constituted in
different ways. The latter description, in some ways more accurate, focuses on the constitutional
effort to ensure that the system will be able to guard against usurpation of authority by any one
branch.
The two different descriptions emphasize different aspects of the distribution of national power.
Indeed, to some extent, the two work against each other. The principle of separation suggests
three autonomous entities working independently. The principles of checks and balances
suggests overlapping functions in which each branch is able to intrude on and thereby checks the
power of others. Throughout American history, the distribution of national powers has been said
to serve two distinct purposes. The first is efficiency and the second is the prevention of tyranny.
The separation of powers diffuses governmental power, diminishing the likelihood that any one
branch will be able to use governmental power against the citizenry.
Montesquieu finds that tyranny pervades when there is no separation of power. “There would be
an end to everything, were the same man or somebody, whether of the nobles or of the people, to
exercise those three powers, that of executing laws, that of executing the public resolutions, and
of trying the causes of individuals.”7
So Blackstone observe: “Whereby the right of making and enforcing the law is vested in the
same man or one and the same body of men, there can be no liberty.”8

5
Massy on American Constitution Law- Power and Liberties, 2 nd Edn.2005 chap V “Separation of Powers”. Pp 333-
334.
6
By Stone Seidman,Sunstein,tushentand Karlan,5th Edn. 2005 .
7
Referred in I R Choelho v. State of Tamil Nadu, (2007) 2 SCC 1: AIR 2007 SC 861
8
Blackstone, Commentaries vol 1 p 269.

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Again Madiason said: “The accumulation of all powers --- legislative, executive and judiciary, in
the same hands whether of one, a few, or many, and whether hereditary self-appointed or
elective, may justly be pronounced the very definition of tyranny.”9

SEPARATION OF POWER IN USA

The framers of American constitution vested the legislative, executive and judicial powers in
three distinct authorities, by the express letter of the constitution.
Article I says: “All legislative powers herein granted shall be vested in a congress.”
Article II says: “The executive powers shall be vested in President”
Article III similarly states: “The judicial power….. Shall be vested in one supreme court…….”
The American Constitution further ensures that not only that there should be separation of the
judiciary from the other two organs, it also ensures that there should be separation of the
legislature from the executive. To achieve that end, they provided by Article I, section 6(2) of the
constitution that no Senator or Representative during the time for which he is elected, be
appointed to any civil office under the authority of the United State.
In modern practice, therefore, the theory of separation of powers has come to mean organic
separation or separation function, viz., that one organ of government should not usurp function
belonging to another organ.
It is in this sense the American Court observed in 1881: in the case, Kilbourn v. Thompson 10,
that, “It is essential to the successful working of this system that the person entrusted with the
power in any of these branches shall not be permitted to encroach upon the power confided to the
others; but that each shall by the law of its creation be limited to the exercise of powers
appropriates to its department and no other….”
In the result, 11“It may be stated…., as a general rule inherent in the American constitutional
system that, unless otherwise expressly provided or incidental to the power conferred the
legislature can not exercise either executive or judicial power; the executive cannot exercise
either legislative or judicial power: the judiciary cannot exercise executive or legislative power.”
But even there, any rigid separation is impracticable under modern conditions when the problems
of government are interdependent. As 12Woodrow Wilson realized it:
9
Madison , The Federalist no 47.
10
(1881) 103(US) 168 (190)
11
Springer v. Philippine island, (1928) 103 US 168(192).
12
Woodrow Wilson, constitutional Government in the US., (1908), p 56

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“The trouble with the theory is that government is not machine, but a living thing……..No living
thing can have its organs offset against each other as checks, and live. Government is not body of
blind forces, it is body men, with highly differentiated functions, no doubt, in our modern day of
specialization, but with a common task and purpose, their co-operation is indispensible; their
warfare fetal.”
“In designing the structure of our government and dividing and allocating the sovereign power
among three co-equal branches, the framers of the constitution sought to provide a
comprehensive system, but the separate powers were not intended to operate with absolute
independence.”
Though it may still be possible to acknowledge that functions of the government are divisible
into three categories,- legislative, magisterial and judicial, as they were in the days of Aristotle,
it is impossible in a modern state , to assign these functions exclusively to the three organs- the
legislature, the executive and the judiciary. To put it conversely, it is not possible to define the
function of the three organs with such mathematical precision and say that the business of the
legislature is to make, of the executive to execute, and of the judiciary to interpret and apply, the
law to practical cases.
What is the effect of separation of power?
“The practical effect of separation of power is that legislature can not exercise executive or
judicial power, the executive cannot exercise legislative or judicial power and judiciary can not
exercise legislative or executive power. The doctrine derived from principle separation of power
is that certain function, because of their essential nature, may properly be exercised by a
particular branch of government and such function can not be delegated to another branch and
that one department may not interfere with another by usurping its powers or by supervising their
power. And to hold that an act is unconstitutional on the ground that it violates the principles of
separation of powers, the test applied is-whether the act disturbs the proper balance between the
co-ordinate branches and the enquiry must focus on the extent to which it prevents the executive
and the judiciary, as the case may be, from accomplishing its constitutionally assigned function.?
Or whether one branch has exercised its enumerated powers by assuming a function reserved by
the constitution to another.13

13
Judicial Review of Public Function by J. Fazal Karim, 1st edn. 2006, pp. 73-74.

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According to Madison, the separation of power meant that one of three departments of
government must not have the whole of another branch vested in it, nor obtained control over
another branch. But although separated, they must be connected by a system of check and
balances. The chief danger in a republic with a representative legislature is that legislature (rather
than executive) would encroach on the other departments. The learned author further says that as
per American constitution, separation of power is by no means complete. Thus, the President
may veto measures passed by the congress, though his veto may be overridden by two-thirds
vote by both houses. The President has power to negotiate the treaties, but must be rectified by
two- thirds vote of Senate. The Senate may refuse to confirm appointment made by the
President, and the Judges though appointed for life, may be removed by impeachment. The three
braches are inter-related; they act as check each other.

Alexander Hamilton in The Federalist, remarks on the independence of judiciary to preserve the
separation of powers and rights of the people. “The complete independence of the court of justice
is a peculiarly essential in a limited constitution. By a limited constitution, “ I understand one
which contains specified exception to the legislative authority, such as, for instance, that it shall
pass no bills of attainder, no ex post fact laws, and the like. Limitation of this kind can be
preserved in practice in no other way than through the medium of courts of justice, whose duty it
must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all
the reservations of particular rights or privileges would amount to nothing.”14

Montesquieu had chiefly aimed to indicate by his formula the aspiration of his time and country.
He could not and did not wish to propose a definite and permanent solution of all question
brought up by the government of men and their long felt longing and fairness of justice.15

Exception to the doctrine:

(1) In order to function efficiently, each department must exercise incidental powers which may
be said to be strictly of different character than its essential function. For example, the court
must, in order to efficiently, possess the power of making rules for maintaining the discipline or

14
Referred in I R Choelho v. State of Tamil Nadu, (2007) 2 SCC 1: AIR 2007 SC 861

15
Harward Law Review 1010(1923-24)33 by Prof. Frankfurt.

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regulating procedure, even though that power may be of the nature of legislative power. The
power of making rules of procedure in the courts is not regarded as of the essence of the function
of legislature. Again, interpreting laws and in formulating case-laws, the court do. In fact,
perform a function analogous to law making. In particular, in dealing with new problems, where
authority is lacking, the courts have to create the law, even though under colour of interpretation
of the deduction from existing law.16
(2) Similarly, the ascertainment of a state of facts upon the testimony of witness may be
incidental to some executive action and is not confined to judicial powers. In fact, the most
glaring violation of the strict theory of separation of powers is to be found in administrative
agencies in to American government system today. Most of the bodies combine in themselves
the legislative function of investigation and prevention of complaints against the breach of
statute which has to administer as well as of the rules and regulations made by it self, and the
judicial function of adjudicating disputes and complaints arising under the statute and sub
ordinate legislation. Questions have indeed been raised from time to time whether such
concentration of functions offends against the principle of separation of powers or even the more
widely acknowledged common law principle that the function of prosecutors and judge should
not be combined in the same hands. Nevertheless the American Supreme Court upheld such
concentration of functions, by restoring to some quibbles.
17
Firstly, it has said that the function of subordinate legislation and administrative adjudication
are not essentially legislative or judicial function, but not quasi legislative and quasi judicial.
Secondly, as to the concentration of the function of investigator, prosecutor and the judge in the
same administrative tribunal, the court has said that it is necessary for effectuating the policy of
the legislature in a matter requiring administrative determination by a court of law. Even the
charge of bias against an administrative tribunal because of its having pre- conceived views on
the subject matter of adjudications has been brushed aside on the same ground. In England, it has
been held that the person who had taken part in the promulgation of an order or regulation cannot
after words sit for adjudication of a matter arising out of such order 18, because of the likelihood
of their being biased. In the United State, on the other hand, it has been held that members of the

16
Wayman v. Southward. (1825) 10WH I (42).
17
Wong Yang Sang v. Mc Grath, (1950) 339 US 33 (45), Jackson J.
18
R v. Sutherland Justices, (1901) 2kb 357.

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Federal Trade commission, who in their testimony before congressional committees had
expressed the opinion that the multiple basing point system was in the nature of a restraint of
trade in violation of that act by restoring to the multiple basing points system, because of it was a
policy of congress that complaint against such trade practices should be heard by persons who
had gained experience from their work as commissioners. No English case gone so far.19
(3) The modern interpretation of the doctrine of separation of powers, therefore, is that on organ
or department of government should not usurp the function which essentially belongs to another
organ. Thus, the formulation of legislative policy or the general principles of law is an essential
function of legislature and cannot be usurped by another organ, say, the executive.20
(4) It is by an application of this doctrine that the American Supreme Court has set self imposed
limits to its on jurisdiction even where there are no specific limits in the constitution itself in that
behalf. The principle evolved is that the judiciary will not intrude into areas which are committed
to the other branches of the government, even though the question raised may be capable of
being resolved through the judicial process.21
(5) On the other hand, the administration of justice including the trial of criminal cases, is a
essential function of the court. Hence, neither the doctrine of separation of powers nor of
political power can authorize the president to claim absolute privilege to refuse the summon of
the court to produce any relevant evidence in his possession, even though as the head of the
executive he enjoy the absolute immunity from arrest, imprisonment or even labiality for
damages, for anything done discharge of his official functions.22
To sum up, the modern view is that though the American constitution adopted the doctrine of
separation of powers in dividing the powers as between the three organs of government, in its
actual working, it was never conceded that these organs could operate with absolute
independence. What the doctrine means is that no organ should be allowed to usurp the function
vested in the constitution in another organ; or that it could not increase its own powers at the
expense of another branch of the government, or to impair the ‘cheeks and balances’ between the
three branches (which is an offshoot from the American doctrine of separation of powers)

19
Federal Trade Comm. V. Cement Institute , (1948) 333 US 368.
20
Mutual film corporation v. industrial commission, (1915) 236 US 230; yakus v. US, (1943) 321.
21
Flats v. Cohen, (1968) 392 US 83.
22
Nixon v. Fitzerland (1982) 457 US 731.

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SEPARATION OF POWERS IN U.K.

In the parliamentary system of government as its extends in England, there is blending of the
legislative and executive functions in the hands of the executive organ, and on other hand, the
legislature has supreme power to determine its own power and those of the others organs of the
government; deemed to be functions belonging to other organ of the government. Thus, by a
self-denying ordinance, the English Parliament has provided no measure relating to the raising of
revenue or expenditure of the executive, because financial administration has been regarded as
an essential responsibility and function of the executive.
At the same time, it is an equally fundamental principle of the English system that the executive
shall have no power to impose the taxes in any form without the concurrence of the legislature, -
taxation being regarded as an essentially legislative function.23
As between the judiciary and the legislature, it has been held that though there is no limitation on
the legislature by a written constitution, the British system involves the following principles:
(i) That judicial power would be exercised by court, presided by judicial officers.
(ii) Though the legislative may prescribe a fixed or maximum penalty for an offence, as a general
rule, the selection of a penalty in a particular case is a judicial function, which cannot be
entrusted either to the executive or the legislature. If the legislature seeks to exercise this power
or to punish the individual offender by legislation, that would be a Bill of Attainder, which is
condemned by the Bill of Rights.
(iii) The carrying out of a punishment is an executive power, and, subject to any restriction
imposed by law, it lies within the power of the executive to regulate the conditions under which
punishment carried out.
(iv) Even though the assessment of the penalty in a particular case does not belong to the
province of the executive, the prerogative of mercy, i.e.., the power to remit the sentence in the
case of a particular offender, though it has been lawfully imposed by a competent court in the
exercise of judicial function, is in executive power.24
In Hinds v. The Queen25, a privy council case from Jamaica, Lord Diplock stated,…the United
Kingdom have no written constitution comparable with that of Australia and USA, yet in the
sense that the legislature, the executive, the judicial powers are vested in three separate organs,

23
Attorney – General v. will’s united dairies, (1921) 91 LJ KB 897; Farries v. Scottish milk board, 1937AC 126.
24
Hinds v. R, (1976) 1 AII ER 650(660) PC.
25
(1977) AC

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the basic concept of separation of powers is recognized even in the unwritten constitution of that
country. Again, in Duport steels ltd. V. Sirs, (1980) 1 ALL ER 529. Lord Diplock observed : It
cannot be too strongly emphasized that the British constitution, though largely unwritten , is
firmly based on separation of powers. Parliaments makes the laws; the judiciary interprets them.
In H V. Home office,(1939) 3 ALL ER 537 house of lords held that, parliament makes the law,
executive carries the law into effect and judiciary enforce the law. In Reg V. Home secretary, it
was observed: it is a feature of the peculiarity British conception of the separation of powers that
the parliament, the executive and the courts have each their distinct and largely domain.
Parliament has legally unchallengeable rights to make whatever laws its thinks fit. The executive
carries on the administration of the country in accordance with the powers conferred on it by
law. The courts interpret the laws and see that they are obeyed.26
Even though the doctrine of separation of powers has deep roots in U.K., it is also admitted fact
that political theories and eminent academic lawyers of England have largely disavowed the
doctrine and have urged that it has no place in their constitution. The learned authors point out all
members of political executive is members of the legislature and hence there is no separation
power between legislature and the executive.
To sum up, there is not, and never has been a strict separation of powers in the English
constitution. Historically the crown has been an element in the exercise of three kinds of powers-
legislative, executive and judicial. A court cannot effectively adjudicate unless it has such
executive power as it enables it to conduct the proceedings without interference and to secure the
enforcement of its decisions. Justice of peace have administrative or ministerial as well as
judicial function. Central Government departments and local authorities have law making and
adjudicatory powers delegated to them by statute. The Government including the cabinet is
composed of member of legislature. The House of Lords has both legislative and judicial
function and the Lord Chancellor has executive function as well. And Parliament, whose original
functions were of a judicial nature, has power to do anything under the force of act of
Parliament. Disputes as to legality of acts of government are to be decided by judges who are
independent of the executive. It is in this sense and is this sense only that the British constitution,
though largely unwritten, firmly based upon the separation of powers. In unwritten constitution,

26
Reg v. Home Secretary, (1995) 2 WLR 464.

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it is venerated as a principle of policy rather than of law, though it is now reinforced by the
developing law of Human Rights.

SEPARATION OF POWERS IN AUSTRALIA

The Commonwealth of Australia Constitution Act, 1900 purports to follow the doctrine of
separation of powers by vesting the three branches of governmental power in three different
bodies. Thus
Sec. 1 says that- “the legislative power of commonwealth shall be vested in Parliament….”
Sec. 61 provides- “The executive power of the commonwealth is vested in the queen and is
exercisable by the governor general as the queen representative…”
Sec. 71, on the other hand, provides- “the judicial power of common wealth shall be vested in a
federal supreme court…. And in such other federal courts as the parliaments creates…”
It is evident, therefore, that in the absence of any contrary provision, the principle of separation
of powers is embodied in the Constitution. It was intended to confine to each of the three
departments of government the exercise of power with which it was invested by the
constitution.27
It has accordingly, been held that under the Australian Constitution, judicial and non-judicial
functions cannot be united in the same person or body of persons and judicial functions can be
vested only in a court. Nor it can designate a non-judicial body (such as industrial arbitrator) as a
court and then confer judicial function upon it. Thus though it is possible to create ‘tribunal’ with
‘the trapings of a court’, such as a board of review, to review the decision of the commissioner of
taxation,28 to vest judicial powers, such as a power to fining or imprisoning a citizen, in any
tribunal other than a court would be violative of sec. 71 of the constitution act.29
Conversely, non-judicial power cannot be vested in the court except in so far as such powers are
incidental to the judicial power, within the meaning of sec. 51.
The theory also applies, broadly, as between the legislative and executive functions but in this
sphere, it admits of an exception of the executive being vested with the power to make
subordinate legislation. But such delegation of legislative power and the delegated always
remains under the control of legislature.

27
Victorian Stevdoring co. v. Digan, (1931)46 CLR 73(96).
28
Shell co. v. Fed. Commr. Of Taxation.(1931)AC275
29
A.G. of Australia v. The Boiler Makers Society, (1957) 2ALL ER 45(51) PC.

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In Roche V. kronheimer, the court upheld the validity of delegated legislation, wherein it was
observed that legislative powers in itself includes the power of delegation.

SEPARATION OF POWERS IN INDIA

Though the executive power of the union and of a state are vested in our Constitution in the
President and the Governor, respectively by article53 (1) and 154(1), there is no corresponding
provision in our constitution vesting the legislative and judicial power in a particular organ. It
has accordingly been held that there is no rigid separation of power under our constitution as
under the Australian constitution. As a result, there is no bar against vesting the judicial powers
of the state in tribunal other than a court, strictly so-called. The very fact that article 136(1) or
227(1) mentions both courts and tribunals shows that the judicial power of the state may vested
in courts and tribunals, even though the two classes of judicial authorities may differ as to the
nature as the question referred to them, the procedure to be followed by them and the like.

But though the Supreme Court, In re Delhi Laws Act Case 30 noticed that our constitution does
not vest the legislative and judicial powers in the Legislature and the Judiciary in many words,
the majority, in effect, imported the essence of the modern doctrine of separation of powers,
applying the doctrine of constitutional limits and trust. None of the organs of the government
under the constitution can, therefore, usurp the function or powers which are assigned to another
organ by the constitution, expressly or by necessary implication. On the same principle, none of
the organs can divest itself of the essential functions which belong to it under the constitution.
It was pointed out that though the functions (other than the executive) were not vested in
particular bodies, the constitution, being a written one, the powers and functions of each must be
found in the constitution itself. Thus, subject to certain exceptions like article 123 and 213
(power to make ordinance during the recess of legislature) and article 357 (exercise of legislative
power by President in case of breakdown of constitutional machinery in the state), it is evident
that the constitution intends that the power of legislation shall be exercised exclusively by the
legislature created by the constitution, i.e., by the parliament in case of the union.

As Kania C.J. observed, “Although in the constitution of India there is no express separation of
powers, it is clear that a legislature is created by the constitution and detailed provisions are
30
1951, SCR 747: AIR 1951 SC 332

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made for making that legislature pass laws. Is it than too much to say that under the constitution
the duty to make the laws, the duty to exercise its own wisdom judgment and patriotism in
making laws is primarily cast on the legislature? Does it not imply that unless it can be gathered
from other provisions of the constitution, other bodies “executive or judicial, are not intended to
discharge legislative function?”
Similarly, Mukherjea J. observed, “Law making undoubtedly is a task of the highest importance
and responsibility and as our constitution has entrusted this task to particular bodies of persons
chosen in particular ways; and not only does it set up a machinery for law making but regulates
the methods by which it is to be exercised and makes specific provisions for cases where the
departure from the normal procedure has been sanctioned, the prima facie presumption must be
that intention of the constitution is that the duty of law making is to be performed primarily by
the legislative body itself.”
Mahajan J. as regard judicial power also expressed “…..the constitutions trust to the judgment of
the body constituted in the manner indicated in the constitution and to exercise of its discretion
by following the procedure prescribed therein. On the same principle, the judges are not allowed
to surrender their judgment to others. It is they alone who are trusted with decision of case. They
can, however delegate ancillary powers to others, for instance, in a suit for accounts and in
dissolution of partnership, commissioners can be entrusted with power authorizing them to give
decision on point of difference between parties as to items of account”.
In Jayantilal Amritalal Shodhan v. F. N. Rana 31 it was observed thus; “it cannot be assumed that
the legislative functions are exclusively performed by the legislature, executive functions by
executive and judicial functions by judiciary alone. Our constitution has not made an absolute or
rigid division of functions between three agencies of the state.
It is evident from a study of other constitutions that the doctrine of separation of power in its
essence does not depend upon the form of the government, though its application may differ in
extent.32 The doctrine of statutory construction and of constitutional trust upon which our
Supreme Court has relied, to come to the same result, are also applicable to any written
constitution, subject of course, to modifications warranted by the provisions of each
constitution.
Judicial Trend on Separation of Power:
31
AIR 1964 SC 648:(1964)5 SCR 294
32
Jayantilal Amritalal Shodhan v. F. N. Rana AIR 1964 SC648:(1964)5 SCR 294

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Apart from the directive principles laid down in Part-IV of the constitution which provides for
separation of judiciary from the executive, the constitutional scheme does not provide any
formalistic division of powers. The Supreme Court observed that the Indian constitution has not
recognized the doctrine of separation of powers. In Indira Nehru Gandhi v. Raj Naryan33  Ray
C.J. observed that, “Indian constitution recognizes the theory of separation of powers in broad
sense only”. However prior to that in Keshvanand Bharti v. State of Kerla34 out of thirteen judges
Justice Beg held that separation of power is a part of basic structure of the constitution, however
it was not approved by the other judges or in subsequent cases by the Supreme Court.
In Rai Shaib Ram Jawaya Kapur v. State of Punjab 35 it was observed that the Indian constitution
had not indeed recognized the doctrine of separation of powers in its absolute rigidity but the
functions of different parts or branches of the Govt. have been sufficiently differentiated and
consequently it can very well be said that our constitution does not contemplate assumption, by
one organ or part of the state, of functions that essentially belongs to another. Similarly in Asif
Hamid v. state of Jammu & Kashmir ,36 it was stated that legislature, executive and judiciary have
to function within their own sphere as demarcated under the constitution. No organ can usurp the
functions assigned to another. The functioning of the democracy depends upon the strength and
independence of each of its organs. Judicial review is a powerful weapon to restrain
unconstitutional exercise of power by the legislature and executive. However the only check on
judicial power is the self-imposed discipline of judicial restraint. Therefore this doctrine cannot
be liberally applied to any modern government, because neither the powers can be kept in water
tight compartments nor can any government can run on strict separation of powers. Nowadays
this doctrine is shaken by the judicial review and judicial activism. Recently the Maharashtra
government passed a regulation for the increase of result of S.S.C. students and to curb the
menace of students suicide in the wake of unexpected results, it provides for the “Best of five’
formula according to which the percentage of the students are to be calculated on the basis of
only those five subjects in which the students have secured the maximum marks. This regulation
was challenged by the parents of the student who were studying in the C.B.S.E. and I.C.S.E.
Boards, providing education in Maharashtra state in the High court of Bombay on the ground of

33
AIR 1975 SC 2299
34
AIR 1973 SC 1469
35
AIR 1955 SC 123
36
AIR 1989 SC 1899

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violation of fundamental rights i.e. right to equality. High court rejected the formula of “best of
five” holding the classification between students of S.S.C. and C.B.S.E. as unreasonable and
contrary to the principle of equality here court intervene in the policy decision of the
government, government again approached to the supreme court for appeal against the order of
high court and the supreme court modified the order of High court and in its interim order and
directed the Government to apply the alleged rule for both the students of S.S.C. and I.C.S.E. In
such kind of cases court must have to exercise a self imposed restraint. Because the statement of
marks are already distributed among the students and now it is not practically possible to deduct
those marks or to prepare a fresh statement of marks, therefore High court ought to have apply
the doctrine of prospective overruling. The principle which was earlier applied by the supreme
court in Golaknath v.State of punjab37 in which the policy of the govt. to distribute the lands
under land reform scheme was challenged before the supreme court on the ground of violation of
fundamental right Subba Rao J. of the Supreme Court held such distribution of land as
unconstitutional but apply its decision prospectively and stated that it is not practically possible
to collect the land which are already distributed to the farmers or for the welfare of the state
therefore it is desirable in the interest of justice to apply the decision with prospective effect and
held that after the date of this decision government cannot acquire the property of any person and
parliament doesn’t have the power to amend the fundamental right. Similarly in Suman Gupta v.
State of Jammu and Kashmir38 the state government reserved certain seats in medical colleges for
the students residing in the particular state on reciprocal basis, this policy of state was challenged
on the ground that it discriminate among the students on the ground of place of birth . The
Supreme Court rejected the policy on the ground of discrimination but meanwhile the students
who are the beneficiaries of this policy had completed their substantial education, and now it is
not in the interest of justice to cancel their admission, therefore here also supreme court applied
the doctrine of prospective overruling and held that the government must not apply the impugned
policy from next academic year.

Therefore by using the doctrine of prospective overruling in the above to cases Supreme Court
maintained the balance between judiciary and other organs of the government. It can also be
maintained by using the self restraint by the judges. In Divisional Manager, Aravali Golf club v.

37
AIR 1967 SC 1643
38
AIR 1983 SC 1235

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Chander Hass and Another39 Supreme court warned the High Court for its over activism. The
appellant in the present case appointed the respondents as malis on daily wages, subsequently
they were asked to perform the duties of tractor drivers, though there was no post of tractor
drivers in the establishment. They were continued to be paid wages for the post of mali, after a
few years appellant started paying them wages of tractor driver on daily wage basis. Though they
continued to work for about a decade as tractor drivers, their services were regularized against
the post of mali and not as tractor driver. The respondents then filed a civil suit claiming
regularization against the post of tractor driver. The appellant contested the suit on the ground
inter alia; that there was no sanctioned post off tractor driver hence there was no question of
appointing the plaintiff on the post of tractor driver accepting that plea the trial court dismissed
the suit.
However the first appellate court reversed the order of trial court and directed the defendants to
get the post of tractor driver sanctioned and to regularize the plaintiff on that post. A single judge
of high court upheld the judgment of the first appellate court. The appellant then filed an appeal
before Supreme Court by special leave before the Supreme Court the club submitted that there
was no post of tractor driver, and therefore, there was no question of regularizing the respondents
in the said post. Allowing the appeal the Supreme Court held that since there was no sanctioned
post of tractor driver against which the respondents could be regularized as tractor driver, the
direction of the first appellate court and the single judge to create the post of tractor driver and
regularizing the services was completely beyond their jurisdiction. The court cannot direct the
creation of post. Creation and sanction of post is a prerogative of the executive or legislative
authorities and the court cannot arrogate to itself this purely executive or legislative function, and
direct creation of posts in any organization. The court further said that the creation of a post is an
executive or legislative function and it involves economic factors. Hence, the courts cannot take
upon themselves the power of creation of post. Similarly, in Madhu Holmagi v. Union of
India40wherein an Advocate filed a public interest litigation challenging the “Agreement 123” i.e.
Indo-US nuclear treaty proposed to be entered by the Indian government, petitioner contended
that court must have to scrutinize the all documents relating to the agreement123 and must have
to prevent the Indian government from entering in to the nuclear deal. In this court dismissed the
petition and also imposed a cost of Rs 5000 on the petitioner stating that it is an abuse of court
39
 2008(1)SCC 683
40
 2008(6) ALL MR 94

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proceeding. Because the question raised by the petitioner is a question of policy decision, which
is to be decided by the parliament and not by the judiciary.
In Re Delhi Laws Act case laid down two principles, same are as follows:

(1) That the essential legislative function cannot be delegated.

(2) That the conditional legislation and the conferment of the power of subordinate
legislation, short of delegation of the essential legislative functions are valid.

In Rajnarain v. Patna Administration Committee41 and Harishanker v. State of M.P.42, the

Supreme Court has, by unanimous judgments, affirmed the forgoing two propositions as being
established by the Delhi Laws Act case. The essential legislative functions cannot be assumed by
another body with the formers consent.
In India, there is no clear agreement as to the precise scope of the three kinds of power or
function. Briefly speaking,-
“The legislative power is the power to make laws and to alter them at discretion; the executive
power is the power to see then the laws are duly executed and enforced; the judicial power is the
power to construe and apply the laws when controversies arise concerning what has been done or
omitted under it.”43
(1) Legislative Function - The legislative function consists in the laying down of rules of
conduct binding on the members of the state and includes the making of new law, and the
alteration or repeal of existing law, or the application of existing law with substantial
modification.44 In a modern state, however, the function of legislature does not consist simply
of law-making. In formulating a policy, it has to determine how the policy shall be carried
out, by whom and how funds shall be available for the purpose.45
(2) Executive Function- The executive function includes the direction of the policy and the
administration of the affairs of the state within the limits of the law of the land, 46 and detailed
carrying on of government according to law.47
41
AIR 1954 SC 569
42
AIR 1954 SC 465
43
Cooley, Constitutional Law, p. 48
44
Banarsi Das v. State of M.P., 1958 SC 909 : 1959 SCR 427.
45
Yakus v. U.S. (1949) 321 US 414.
46
Rai Shaib Ram Jawaya Kapur v. State of Punjab, (1955)2 SCR 225(236):AIR 1955 SC 123.

47
Garner Political Science and Government, p 677

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(3) Judicial Function- The primary function of the judicial organ is to interpret the law and to
apply in it all cases and disputes before the court for their decision. The judicial power is the
power which every sovereign authority must of necessity have to decide controversies
between its subjects, or between it self and its subjects, whether the rights relate to the life,
liberty or property.48 As to the interpretation of a law, it is to be noted that the courts have no
general power to interpret the laws passed by the legislature; they can decide case properly
brought before them, and in determination of those particular case, they can interpret the will
of the legislature according the establish canon of interpretation. Judicial power is the power
of a court to decide and pronounce a judgment and carry it into effect between persons and
parties who bring a case before it for decision.49
(4) Executive and Legislative Function- The essentials of the legislative function being the
determination of the legislative policy 50 and its formulation and promulgation as defined and
binding rules of conduct, the executive cannot, in the exercise of its administrative powers,
assume the power to make the laws. The power to ‘make law’ means the power to determine
what the law shall be, as distinguished from any question relating to the execution of law. 51
Similarly, taxation and appropriation of public money are regarded as legitimate function of
the legislature of all countries which have adopted the English system of representative
government. The executive would not be allowed to usurp these functions even indirectly.
Hence the executive cannot make the agreement involving expenditure of public money, nor
impose the financial burden on the subject without the authority of the legislature. 52
Similarly, the setting up the courts is a legislature power, and the executive cannot, thereof,
establish a tribunal without Parliamentary authority.53
(5) Judicial and Legislative Function- The distinction between a judicial and a legislative act is
well defined. One determines what the law is, and what rights the parties, the other prescribes
what the law shall be in future cases arising under it.54 A judicial inquiry investigates,
declares and enforces the liabilities as they stand on present or past facts under the laws

48
Huddart Parker v. Moorehead (1908) 8 CLR 330 (357) approved by Privy Council in Shell Co. v. Fed.
Commissioner, (1931) AC 275 (295).
49
Muskar v. U.S. (1911) 219 US 346 (356).
50
Yakus v. U.S. (1949) 321 US 414.
51
Cf. Jatindera v. Province of Bihar, (1949) FLJ 225 (239,248)
52
A.G. v. Commonwealth,(1935) 52 CLR 533.
53
Waterside Workers Federation v. commonwealth (1920) 14 CLR 276.
54
Field, J. in Sinking Fund Cases,(1878) 99 US 700.

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supposed already exist. That is its purpose and end. Legislation, on the other hand, looks to
the future, and changes existing conditions by making a new rule to be applied thereafter to
all or some part of those subject to its power. 55 To declare what the law is or has been is a
judicial power; to declare what the law shall be is legislative. It is not for the judges to alter
the law, even though they have reasons to doubt the wisdom or justice of any provision or to
find that the legislature has made a mistake or was even deceived.56
Public Policy- It is for the democratically elected Legislature to determine what would be for
the benefit of the society and well-being of its members and, hence, in the public interest.
These involve questions of public policy. If a court were to dictate what is or is not in public
interest, it would be usurping the function of the legislature by the judiciary.57
Taxation- Nor will the judiciary encroach upon the proper sphere of the legislature on other
matters. Thus, the leaving of a tax, that is to say, the determination that a given tax shall be
imposed, assessed and collected in a certain manner, is a legislative function.58
Penalties- Similarly, the prescribing of penalties for the violation of laws is a legislative act
and the courts have no power to add to the penalties prescribed by law.59
Interpretation of the constitution and laws- conversely, the function of adjudication,
interpretation of the constitution and judicial review, are judicial function which the court
cannot abdicate or delegate to any other organ, just as they can not be usurped by any other
authority, - legislative60 or executive.61
Application of law to particular cases- On the other hand, as has been already stated,
interpretation of laws is the exclusive function of the judiciary; the legislature is not
competent to say how its own laws should be interpreted or applied in particular cases. 62The
function of legislature is to affect the rights of individuals in the abstract laying down rules of
general applicability, addressed to unspecified person; it is the business of the courts to apply

55
Prentis v Atlantic Coast Co. (1908) 211 US 210.
56
Labrador v. Queen (1893)AC 104.
57
Hinds v. R (1976) 1ALL ER 353 (370) PC.
58
Willoughby, Constitutional Law, Vol. iii, p. 667.
59
Steuart & Bro. v. Bowles, (1943)322 US 398.
60
Liyanage v. R.,(1966) ALL ER, 650 (658-6) PC.
61
Prithivi Cotton Mills v. Broach Borough Municipality, AIR 1970 SC 1292 : (1969) 2 SCC 280
62
Kesvananda Bharti v. State of Kerala, AIR 1973 SC 1461 : (1973 ) 4 SCC 225, Sampath v. Union of India, AIR
1987 SC 368 (388) : (1987) 1 SCC 124 (CB) & Rai Shaib Ram jawaya kapur v. State of Punjab,
(1955)2SCR225(236):AIR 1955 SC 123.

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those rules in the determination of the rights of particular individuals who seeks such
adjudication from the courts.
Nor should the legislature take up the function of adjudicating disputes between private
parties as to their legal rights, which the function duly constituted courts in all civilized
countries. Such ad hoc legislation directed against particular individuals relating to their legal
rights is “Not far removed from the notorious parliamentary procedure formerly employed in
Britain of punishing individual delinquents by passing bill of attainder.”63
(6) Judicial and Executive function- Since it is the business of the courts to apply the
constitution and the laws in the cases properly brought before them, the judiciary exercises
control over executive action in so far as it would refuse to uphold as valid any act of the
government which is not supported by the constitution 64 or by some law. The authority of the
courts as regard executive action arises when the executive exceeds its authority, in which
case the agents and instrument through which the action is carried out, are personally
responsible to law and the courts. Even under the unwritten constitution of England, it is the
duty of the courts to see whether the executive acts in excess of the law. 65
Judicial control over executive action is, however, limited by the principle that the judiciary
will not encroach upon what belongs properly to the executive sphere.
From this it follows that it is not the business of the courts to pass judgment upon the policy
of executive action e.g. the acts of the department of foreign affairs. The exercise of political
power is not within the province of judicial department.66
The constitution has many commands that are not enforceable by courts because they clearly
fall outside the conditions and purpose that circumscribe judicial action. The constitution has
left the performance at many duties in governmental scheme to depend on the fidelity of the
executive and legislative action and ultimately, on the vigilance of the people in exercising
their political rights.”67

63
Chiranjit lal v. Union of India, (1950)SCR 869(891) : AIR 1951 SC41,Sastri J.
64
Kendall v. US. (1838) 12 pet 524.
65
Municipal Council v. Campbell ,(1925) AC 338 P C; Westminster Cropn. v. N.W. Rly., (1905) AC 426; Minister
of Health v. R., (1931) AC 494.
66
Willims v. Suffolk Ins. CO., (1839)13 Pet 415; State of Rajasthan V. Union of India., AIR 1977 SC 1361: (1977)
3SCC 592( paras. 35,133, 143-4, 177-8, 201, 203, 206.).
67
Colegrove v. Green, (1945) 328 US 549 (556).

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But the courts have the power to determine whether a constitutional power has been
exercised or has been used mala fide.68
Discretionary Power- Another self-imposed limitation is that courts will not interfere with
matters which are by the legislature committed to the discretion of administrative authorities.
Of course, where the administrative authority refuses to exercise the discretion which it is
duty to exercise under the law the court may compel it to exercise it, but the court will never
direct how the discretion is to be exercised.69
Criticism: Recently the Supreme Court in the case of Ram Jethmalani v. Union of India 70,
decided on 04/07/2010 speaking through J. Sudershan Reddy and J. Surinder Singh Nijjar, by
taking up the powers of executive, constituted special investigation team (SIT) consisting of
justices namely, B.P. Jeevan Reddy J. as Chairman and M.B. Shah J. as Vice-Chairman, on the
basis of media reports and considering the opinion of CBI. Is this action of Supreme Court
justified?, in my opinion it can be seen as apparent violation of doctrine of separation of powers
because government is already in process getting the information of account hollers as well as
black monies. But it has to kept to in mind that all this can only be done by way of law.

After the above judgment another bench comprising of G.S. Singhvi and A.K. Ganguly JJs. of
the same court71 in Delhi Jal Board v. National campaign for Dignity and Right of Sewerage and
Allied Workers, given on 12 July, 2011 justifying the directions issued by the Delhi High Court
for protection of sewerage workers on public interest litigation, the bench said, “the superior
courts will be failing in their constitutional duty if they decline to entertain petitions filed by
genuine social group, NGOs and social workers for espousing the cause of those who are
deprived of the basic rights available to every human being, what to say of fundamental rights
guaranteed under the Constitution.”
Further the Court goes on to observe, “the most unfortunate part of the scenario is that when ever
of the three constituents of the state i.e. the judiciary issues directions for ensuring that the right
to equality, life and liberty no longer remains illusory for those who suffer from the handicaps of
poverty, illiteracy and ignorance, and directions are given for implementation of the laws enacted

68
State of Rajasthan V. Union of India., AIR 1977 SC 1361: (1977) 3SCC 592.
69
Cooley, Constitutional Law, p 203.
70
W.P. (C) No. 176 of 2009
71
Quoted in ‘The Hindu’ on 15/07/2011.

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by the legislature for the benefits of the have-nots, a theoretical debate is started by raising the
bogey of judicial activism or overreach.”
By seeing the two conflicting decisions of the Supreme Court we find that it depends on case to
case basis how this doctrine can be maintained? It is a true fact in the present scenario that other
two parts of the government i.e. the legislature and the executive are not performing the
functions entrusted to them and in this condition whenever the Supreme Court tries to correct the
position, it is said that judicial activism is being done by the Supreme Court. It is also a true fact
that in that process our Hon’ble Supreme Court transgressed its limits constitutionally assigned
to it. But whatever the Supreme Court does, it does only to uphold the spirit of the Constitution.

To sum up, our constitution, of course, differs from the American and Australian constitution in
so far as there is no attempt at any express introduction of the doctrine of separation of powers,
by ‘vesting’ the executive, legislative & judicial powers in different organs. Our constitution vest
the executive power in the President [Article53 (1)], but there is no corresponding ‘vesting’
provision as regards the legislative and judicial powers. From this, it is evident that the framers
did not intend to introduce any rigid application of the doctrine of separation of powers into our
constitution as would tend to divide them into water-tight compartments. As we shall see just
now, at least between the legislature and the judiciary there is no such rigid separation of powers
under our constitution, as debars the American legislature to set aside judgments of courts,
compel them to grant new trials order the discharge of offenders or direct what steps shall he
taken in the progress of a judicial enquiry.
Nevertheless whatever doubt might have existed at the time of early case of the Delhi Laws Act
Reference, the essence of the doctrine of separation of powers between the legislature, the
executive and the judiciary, has been placed on the highest pedestal in the full bench decision in
Kesvananda’s case, by asserting that it is one of the basic features of the constitution which
cannot be taken away even by exercising of power of constitutional amendment vested by Article
368 of the constitution.
As to the applicability of the doctrine of separation of powers under the Indian constitution, the
following observations of J Bhagwati in the constitution bench case of Minerva Mills,“Under our
constitution we have no rigid separation of powers as in the United State of America, but there is
a broad demarcation though, having regard to the complex nature of the governmental function,
certain degree of overlapping is inevitable. The reason for this broad separation of powers is that

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“the concentration of powers in any one organ may”, to quote the words of J Chandrchud (as he
then was) in Smt. Indira Gandhi’s case, by upsetting that fine balance between the three organs,
destroy the fundamental premises of a democratic government to which are pledged.”
Another corollary deduced by Indian Supreme Court from the doctrine of separation of powers is
the doctrine of independence of the judiciary, which is another basic feature of the constitution,-
the most prominent function of the judiciary being to enforce the mandates of the constitution
against the other organs of the state to keep them within their constitutional limits.

CONCLUSION
Countries under our comparative studies such we have seen that USA and Australia’s
constitution expressly incorporate the Doctrine of Separation of Powers and on the other hand in
England, Canada and India the above doctrine has been impliedly incorporated. Though
incorporated either expressly or impliedly, no rigid application of this doctrine has been found
and is very difficult to apply in a strict manner due to several socio-economic as well as political
reasons. If all the authorities have to work properly then there always will be some overlapping
of function in the form of interdependence without which no agency will be able to function in
satisfactory manner.

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Bibliography

 Basu D.D., Comparative Constitution, 2nd edn. 2007.

 Basu’s D.D., commentary on the constitution of India, vol. (iv) 2008.
 Basu’s D.D. select Constitution of the world, 4th edn. 2009.

 Blackstone, commentaries vol 1

 Cooley, Constitutional Law
 Datar P Arvind on the Constitution of India, 2nd edn. Rep. 2010.
 DR. Dhamija Ashok : Need to Amend a Constitution and Doctrine of Basic Features,
edn. 2007.
 Garner, Introduction to Political Science,
 The Hindu News Paper.
 Harward Law Review 1010(1923-24)33 by Prof. Frankfurt.
 Jain M.P., Indian Constitutional Law, 6th edn. 2010.

 Massy on American constitution law- power and liberties, 2 nd edn. 2005, “separation of
powers”.
 Montesquieu, L ‘Esprit des Lois (Sprit of law), 1748
 Pyle world constitution.

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 Wilson Woodrow, Constitutional Government in the US., (1908),

 Willoughby, Constitutional Law.

Source of Information:

 Library of Jamia Millia Islamia, Department as well as Central. New Delhi.

 Library of Indian Law Institute. New Delhi.
 Digital Library of Delhi University. Delhi
 Online Library of Toronto University, Canada.
 Library of CCS University, Department as well as Central. Meerut City.
 Internet / Google:

 http://en.wikipedia.org/wiki/Separation of Powers

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