About Separation of powers

  1. The term "separation of powers" or "trias-politica" was coined by Charles de Montesquieu. It was first adopted by Greece and then widely used by the Roman Republic as the constitution of the Roman Republic.
  2. The division of powers is observed in the administration of federal and democratic countries. According to this rule, the state is divided into three separate branches -legislative, executive and judicial power, each with different independent powers and responsibilities so that one branch does not interfere with the functioning of the other two branches.
  3. Basically, there is a rule that every state government must follow to enact, implement and correctly apply a law in a particular case. If this principle is not followed, the possibility of abuse of power and corruption is greater.
  4. If one follows this doctrine, there is less chance that a tyrannical law will be passed because they know that the other branch will control it. It aims at strict limitation of power and aims to bring exclusivity to the activities of each body.


Constitutional status of Separation of Power in India

Under the Indian Constitution:

  1. Legislature: Parliament (Lok Sabha and Rajya Sabha) and State legislative bodies
  2. Executive: At the central level- President and At the state level- Governor
  3. Judiciary: Supreme Court, High Court and all other subordinate courts
  4. The Parliament is competent enough to make any law subject to the conditions of Constitution and there are no restrictions on its law-making powers. The president power and functions are given in the Constitution itself (Article 62 to Article 72).
  5. The judiciary is self –dependent in its field and there is no obstruction with its judicial functions either by Legislature or the Executive.
  6. The High Court under Article 226 and Article 227 and Supreme Court under Article 32 and Article 136 of Constitution are given the power of judicial review and any law passed by the legislature can be declared void by the judiciary if it is inconsistent with Fundamental Rights (Article 13).
  7. By going through such provisions many jurists are of opinion that doctrine of separation of powers is accepted in India.


The System of Checks and Balances

  1. Another aspect of the theory of separation of powers is the System of Checks and Balances. According to this characteristic, in addition to its own power, each organ has a certain ability to control two other organs. During the process, the relationship between organs is regulated by a system of checks and balances.
  2. Although the Indian Constitution provides for three organs of government with well- defined functions, it does not recommend a rigid separation of powers. Equally great emphasis is placed on ensuring an effective balance of power in government bodies.

The purpose of a governance system is to prevent arbitrary or capricious use of power.

The provisions of the Constitution that provide for separation of functions and powers between the three organs of Government are:

  1. Article 50 directs the State to take steps to separate the judiciary from the executive.
  2. Articles 74 and 163 restrict the courts from inquiring into the advice tendered by the Council of Ministers to the President and the Governor.
  3. Articles 122 and 212 restrict the courts from questioning the validity of proceedings in the Parliament and the Legislatures.
  4. Articles 121 and 211 restrict the Parliament and the State Legislature from discussing the Judicial conduct of a judge of the Supreme Court and the High Courts unless the resolution of removal of the judge is under consideration.
  5. Article 361 provides immunity to the President or the Governor from being answerable to any court for the exercise and performance of the powers and duties of his office.


Checks and balances between the three organs are ensured through:

  1. The power of the Judiciary to exercise judicial review over legislative and executive actions.
  2. The Judiciary is bound by the procedure established by law in adjudication on question of law.
  3. Appointment of Judges by the Executive head and removal of judges on the basis of a resolution passed by the Parliament.
  4. Parliamentary form of Government where in the executive is responsible to the legislature.
  5. Thus, the Constitution of India prevents the possibility of arbitrariness and tyranny by providing for functional separation of powers between the three organs of Government along with effective checks and balances between the three organs wherein one organ exercises control over the other.



The theory of separation of powers in its strictest form is considered undesirable and impossible to implement. Therefore, it is not fully recognized anywhere on earth. Its

importance, however, lies in emphasizing the checks and balances necessary to prevent widespread abuse of executive power.

  1. Protection of Freedom and Rights

According to the doctrine of separation of powers, individual freedoms and rights are protected and protected against various dictatorships and oppression.

  1. Improving the Efficiency of the Government

Since powers are divided between government agencies, those agencies become fully familiar with their responsibilities and improve their efficiency. The tasks required of government are sometimes too many for one branch of government to handle. Therefore, separation of powers helps relieve pressure on each branch of government.

  1. Encourages government organization

Each of the three branches of government is given a specific set of responsibilities. Each person should contribute his share only if the concept is strictly followed. This ensures proper governance of the country.

  1. Prevents abuse of power

Separation of powers is a great defense against abuse of power and pride. Since different departments are given varying degrees of power, the emergence of a dictatorship is prevented. The idea is good in the sense that it can curb the tyranny of those in power. The idea is to ensure that too much power is not concentrated in one branch of government. This avoids the desire to abuse authority.



Although this strategy has been adopted by most nations, it has not been without controversy. In addition to being impossible, it has been criticized as undesirable. Montes simplified things too much. He combined his theory with a hasty and superficial analysis of the liberty

principles in the Constitution.

  1. Misinterpretation of the British system

At the time Montesquieu developed his thesis on the division of powers, the Cabinet system of government was in place. Britain lacked a distinct authority structure at the time. Who was accountable for what instead was the focus. After witnessing the British people enjoying their freedom, Montesquieu made the incorrect assumption that there was a division of power in Britain. He misunderstood British politics.

  1. Unhistorical

According to his interpretation, Montesquieu was inspired by the British Constitution in the first half of the eighteenth century. In point of fact, there was no division of powers in the English Constitution. The British Constitution never included this theory.

  1. Based on False Assumption

The false assumption that the legislative, judicial, and executive branches of government are distinct is the foundation of the concept. These three functions overlap in the current welfare state model. This division could increase the effectiveness of the government.

Disagree with the concept of a welfare state. The welfare state of today must address a number of complex socio-political and economic issues facing a nation. This idea cannot be applied in the current circumstance.

  1. Unrealistic in and of itself

It has not been demonstrated that it is practical to concentrate a single type of power on a single organ. The legislature has oversight responsibilities for the executive, which is an administrative entity, in addition to being a body that makes laws. In addition to carrying out judicial responsibilities, the judiciary has some authority to make rules.

  1. The separation of powers can result in impasses and inefficiencies. 

The division of powers may cause government operations to be ineffective and impasse. It could result in situations where one organ fights with the other two and becomes stuck.

  1. Not entirely realizable

This idea is not entirely realizable. The legislature also has some judicial responsibilities, and the executive has a small role in making rules. Impeachment, for instance, is a judicial procedure that is carried out by the legislature.

  1. Administrative Difficulties

Administrative difficulties arise when powers are divided. It becomes difficult to get the various parts of the government to work together, coordinate, and live in harmony. In order for modern governments to function effectively, they must "coordinate" rather than strictly separate their powers.

  1. Result in rivalry, mistrust, and conflict

The division of powers can occasionally result in rivalry, mistrust, and conflict among the various branches of government. This could lead to confusion and impasse. It could make the government ineffective while also causing conflict and uncertainty. Consequently, the government frequently makes poor decisions, even during times of emergency. Finer stated, "throws governments into alternate phases of coma and convulsion" due to the separation of powers principle. "Division of powers equals confusion of powers," asserts a different academic.


Overlapping Powers of Legislature

With the Judiciary

  1. Authority to revalidate legislation that the Court had deemed ultra vires and amend them. If its privilege is violated, it has the authority to penalise the offending party.
  2. Impeachment and dismissal of judges.

With the Executive

  1. Members of the legislature are chosen to the council of ministers, on whose advice the President and Governor act.
  2. The ability to evaluate the executive’s job.
  3. Members of the legislature serve as the leaders of each governmental ministry.
  4. It can dissolve the government with a vote of no confidence.
  5. President’s impeachment.


Overlapping powers of Executive

With the Judiciary

  1. The tribunals and other quasi-judicial organisations of the executive carry out judicial duties as well.
  2. Selecting candidates for the Chief Justice and other judicial positions.
  3. The authority to commute sentences, reprieves, respites, or pardons for those found guilty of crimes.

With the Legislative

  1. Powers are granted by a delegated law.
  2. The authority to enact an ordinance that carries the same weight as a law passed by the state legislature or the parliament.
  3. Subject to the limitations of this Constitution, they have the power to enact rules governing their particular process and conduct of business.


Overlapping powers of Judiciary

With the Legislative

  1. The basic structure of the Constitution cannot be changed.
  2. The Supreme Court serves as an Executive under Article 142 in order to ensure full justice.
  3. With the Executive
  4. Legal review, or the authority to examine executive action to see if the Constitution is being violated.



  1. INTER STATE COUNCIL: The Constitution of India in Article 263, provided that an Inter-State Council (ISC) may be established "if at any time it appears to the President that the public interests would be served by the establishment of a Council". The Inter-State Council is a recommendatory body that examines and discusses matters in which some or all of the States, or the Union, and one or more States have a common interest in better coordinating policy and action on that subject. It shall also discuss with the States any other matter of general interest which the President may refer to the Council. The Constitution does not provide for the executive role of the Interstate Council.
  2. JUDICIARY: Article 131 of the constitution is unique because of the fact that Supreme Court has the power to directly listen to matters between 2 states governments or between the Centre and the state, thus the author wanted to understand more of this article and so has tried to read and summarise the fundamental principles of the article
  3. NITI AAYOG: NITI Aayog has been constituted to actualise the important goal of cooperative federalism and to enable good governance in India. On the premise that strong states make a strong nation, NITI Aayog acts as the quintessential platform for the Government of India by bringing States together as ‘Team India’ to work towards the national development agenda.

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