A Comparative study of Doctrine of Separation of Powers in India and

U.S.A*: A Research Paper

Yogesh Kumar**

Abstract: The Doctrine of Separation of Power was in existence from a long time but was
not as organised as it is today. Various jurists and law Philosophers at that time had
propounded various meanings of it. The role of government is to protect individual rights, but
acknowledging that government have historically been the major violators of these rights, a
number of measures have been devised to reduce this likelihood. The concept of separation of
power’s is one of them. The premise behind the separation of powers is that when a single
person or group has a large amount of power, they can become dangerous to citizens. The
Separation of powers is a method of removing the amount of power in any group’s hands,
making it even more difficult to abuse. It can be treated as an ‘paramount saviour’ for
individuals from the abuse of power of government.

The methods that I have collected relevant data from includes ‘observation’, ‘Interviews’,
‘Secondary Data Analysis’ along with ‘ qualitative approach’ that forms the Archival study
of this Doctrine . A comparative view of Doctrine of Separation of powers in India and in
USA along with several relevant and important cases pertaining to the core of this research
has been elaborated here.

The contents are summarised as initially an small introduction and ideal definition and
meaning of doctrine of separation of powers , little insight into background of doctrine of
separation of power, three tier machinery of state government, significance of doctrine of
separation of power ,constitutional position with important articles such as Article 50, Article
122 and 212, Article 53 and 154 and Article 361 pertaining to the doctrine, functional overlap
of doctrine of separation of powers in India, situation in practicality, status of doctrine of
separation of powers in USA along with cases like Marbury v. Madison, the level of co-
relation and how much the the doctrine differ from each other in reference to functioning in
India and USA and lastly given my own opinion regarding the functioning as to how the
government can achieve better results .

The objective it to establish a research on already existing data and information about the
Doctrine of Separation of Power and to overfold the hidden facts relating to this doctrine so
that the reader may get a beneficial understanding about this doctrine.

Keywords: Paramount saviour, observation, interviews, Articles, overfold

Introduction and meaning of separation of powers

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The Separation of Powers is based on the principle of ‘trias politica’. The Doctrine of
Separation of Power is the forerunner to all the constitutions of the world, which came into
existence since the days of the ‘’Magna Carta’’. Though Montesquieu was under the
erroneous impression that the foundations of the British Constitution lay in the principle of
Separation of Power, it found its genesis in the American Constitution. Montesquieu had a
feeling that it would be a panacea to good governance but it had its own drawbacks. A
complete Separation of Power without adequate checks and balances would have nullified
any constitution. It was only with this in mind the founding fathers of various constitutions
have accepted this theory with modifications to make it relevant to the changing times1.

The Doctrine of ‘’Separation of Powers’’, a vintage product of scientific political philosophy

is closely connected with the concept of ‘’Judicial activism’’. ‘’Separation of Powers’’ is
embedded in the Indian constitution set up as one of its basic features. The sovereign power
or the administrative power has been bifurcated into three classes or wings:

 Legislative
 Executive
 Judiciary

The Doctrine of Separation of powers envisages a tripartite system. Powers are delegated by
the constitution to the three organs and limiting the jurisdiction of each2 .

The position in India is that the doctrine of separation of powers has not been accorded
constitutional status. In the Constituent Assembly, there was a proposal to incorporate this
doctrine in the Constitution but it was knowingly not accepted and as such dropped. Apart
from the Directive principles laid down in Article 50 which enjoins Separation of Judiciary
from the executive, the constitutional scheme does not embody any formalistic and dogmatic
division of powers3.

Historical Background
The Doctrine of Separation of Powers is based on the tripartite model. The writings of Locke
and Montesquieu gave it a base with reference to modern attempts to distinguish between
legislative, executive and judiciary.

The Doctrine may be traced to ancient and medieval theories of mixed government, which
argued that the processes of government should involve the different elements in society such
as monarchic, aristocratic, and democratic interests. The first modern formulation of the
doctrine was that of the French writer Montesquieu in De I’esprit des lois, 1748, although the
English philosopher John Locke had earlier argued that legislative power should be divided
between king and parliament4.

Locke distinguished between what he called:

1
http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf
2
http://www.sharadtripathi.com/2013/06/understanding-the-doctrine-of-separation-of-powers/
3
Upadhyaya :  Administrative law,(Central Law Agency,8th edition) p.48
4
http://www.britannica.com/EBchecked/topic/473411/separation-of-powers

2
 1. Discontinous legislative power
2. Continous executive power
3. Federative power.

It was Montesquieu who for the first time gave it a systematic and scientific formulation in
his book’ Esprit des lois {The Spirit of Laws}, while others derived the contents of this
doctrine from the developments in the British constitutional history of the 18 th Century. At
that time , the King exercised legislative powers and the courts exercised judicial powers,
though later on England did not stick to this structural classification of functions.

After the end of the war of independence in America by 1787 5 the founding fathers of the
American constitution drafted the constitution of America and in that itself they inserted the
Doctrine of Separation of Power and by this instance America became the first country to
implement the Doctrine of Separation of Power. Later Rousseau also supported the said
theory propounded by Montesquieu. England follows the parliamentary form of government
where the crown is only a titular head. The mere existence of the cabinet system negates the
doctrine of separation of power in England as the executive represented by the cabinet
remains in power at the sweet will of the parliament.

Three tier machinery of state government

As we all know there are three organs of government: the executive, the legislative and the
judiciary. The three tier machinery establishes a core independent functioning of these three
branches. According to this theory, powers are of three kinds: Legislative, executive and
judicial and that each of these powers should be vested in a separate and distinct organ, for if
all these powers, or any two of them, are united in the same organ or individual, there can be
no liberty. If, for instance, legislative and executive powers unite, there is apprehension that
the organ concerned may enact tyrannical laws and execute them in a tyrannical manner.
Again, there can be no liberty if the judicial power is not separated from the legislative and
the executive. Where it joined the legislative, the life and liberty of the subject would be
exposed to arbitrary control, for the judge would then be the legislator. Where it joined with
the executive power, the judge might behave with violence and oppression6.

Writing in 1748, Montesquieu said:

“When the legislative and the executive 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 exact  tyrannical laws, to execute them in a tyrannical manner.
Again there is no liberty if the judicial power be not separated from the legislative and the
executive. Where it joined with the legislative, the life and the liberty of the subject would be
exposed to arbitrary control; for the judge would be then a legislator. Where it joined to the
executive power, the judge might behave with violence and oppression.

5
http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf
6
Upadhyaya; Administrative Law (Central Law Agency; 8th edition), p.46

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There would be an end of everything, where the same man or the same body, whether of
nobles or of the people, to exercise those three powers, that of enacting laws, that of
executing the public resolutions and of trying the causes of individuals.7

Legislative: The most fundamental function of the legislature is to enact a law. Enactment of
law is crucial to the will and formation of a state. And thus legislative is the fundamental
premise for the functioning of Executive and Judiciary. It ranks on the first place among the
three organs because until and unless the law is framed and finalized the operation of
implementing and applying the law cannot be exercised. 8 The judiciary functions as the
advisory body, meaning that it can give the required suggestions to the legislature about the
building and framing of new laws and amendment as advised by the legislation but cannot
function it. Thus it’s almost solely dependent on the legislative.

Executive: The principal responsibility of this organ is thoroughly implementing and

carrying out or enforcing the will of the state, as demonstrated in our Constitution. The
Executive is the administrative head of the Government. Without the presence of the
Executive, the Government would get completely imbalanced and thus collapse. In pivotal
positional terms, Executive includes the head of the Minister, advisors, departmental head
and his ministers.

Judiciary: The term directly refers to those public officers whose shoulders the responsibility
is applying the law framed by the legislature 9 to every individual of the nation. They are
assigned to diffuse every critical societal case by taking into consideration the principle of
justice. The Judiciary is also the final key to the proper implementation of a law. As the
Judiciary is the one interacting the most with the commoners, it needs to be more aquatinted
with the societal standards.

Thus, we can all come to a concluding agreement that the “Separation of The Powers” is a
great model to follow for law enforcement and the more secured nation as a whole. And
though the system needs a lot of hard work, the results of having a pacifying government is
the absolute best.

Importance and significance

The doctrine of separation of power in its true sense is very rigid and this is one of the
reasons why it is not accepted by a large number of countries in the world. The main object
as per Montesquieu in the Doctrine of separation of power is that there should be government
of law rather than having Will and whims of the official. Also, another most important
feature of the above-said doctrine is that there should be the independence of judiciary i.e. it

7
THE SPIRIT OF THE LAWS, p.151-152, quoted in Thakker, C.K Administrative Law (Eastern Book
Company), p.31
8
Massey, I.P ; Administrative Law, p.39-40
9
Separation of Powers in India, July 1 By Monisha Chakraborty

4
 should be free from the other organs of the state and if it is so then justice would be delivered
properly.

The judiciary is the scale through which one can measure the actual development of the state
if the judiciary is not independent then it is the first step towards a tyrannical form of
government i.e. power is concentrated in a single hand and if it is so then there is a cent
percent chance of misuse of power. Hence the Doctrine of separation of power does play a
vital role in the creation of a fair government and also fair and proper justice is dispensed by
the judiciary as there is the independence of the judiciary10.

Also, the importance of the above-said doctrine can be traced back to as early as 1789 where
the constituent Assembly of France in 1789 was of the view that “there would be nothing like
a Constitution in the country where the doctrine of separation of power is not accepted”. Also
in 1787, the American constitution inserted the provision pertaining to the Doctrine of
separation of power at the time of the drafting of the constitution in 1787.11

Constitutional position of the Doctrine of Separation of Power along with

important Articles and cases

The Constitution of India lays down a functional separation of the organs of the State in the
following manner:

 Article 50: State shall take steps to separate the judiciary from the executive. This is
for the purpose of ensuring the independence of judiciary12.
 Article 122 and 212: validity of proceedings in Parliament and the Legislatures
cannot be called into question in any Court. This ensures the separation and immunity of the
legislatures from judicial intervention on the allegation of procedural irregularity.
 Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be
discussed in the Parliament and the State Legislature, according to Article 121 and 211 of the
Constitution.
 Articles 53 and 154 respectively, provide that the executive power of the Union and
the State shall be vested with the President and the Governor and they enjoy immunity from
civil and criminal liability.
 Article 361: the President or the Governor shall not be answerable to any court for
the exercise and performance of the powers and duties of his office.

The separation of power there were times where the judiciary has faced tough
challenges in maintaining and preserving the Doctrine of separation of power and it
has in the process of preservation of the above said Doctrine has delivered landmark
judgments which clearly talks about the independence of judiciary as well as the
success of judiciary in India for the last six decades.

The first major judgment by the judiciary in relation to Doctrine of separation of

power was in Ram Jawaya v State of Punjab13. The court in the above case was of
the opinion that the Doctrine of separation of power was not fully accepted in India.

10
http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf
11
Takwani, C.K; Lectures on Administrative Law (Eastern Book Company 4 th edition)
12
http://www.ijtr.nic.in/articles/art35.pdf
13
AIR 1955 SC 549

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 Further, the view of Mukherjee J adds weight to the argument that the above-said
doctrine is not fully accepted in India. He states that:

“The Indian constitution has not indeed recognized the doctrine of separation of
powering its absolute rigidity but the functions of the different parts or branches of
the government 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 belong to another”.

Later in I.C. Golak Nath v State of Punjab14, The above opinion of the court clearly states
the change in the court’s views pertaining to the opinion in the case of Ram Jawaya v State
of Punjab related to the doctrine of separation of power. The came one of the most landmark
judgments delivered by the Supreme Court in Keshvananda Bharti v Union of India the
court was of the view that amending power was now subject to the basic features of the
constitution. And hence, any amendment tampering these essential features will be struck
down as unconstitutional. Beg, J. added that separation of powers is a part of the basic
structure of the constitution. None of the three separate organs of the republic can take over
the functions assigned to the other . Hence this further confirmed the opinion of the court in
relation to the doctrine of separation of power.

Then in Indira Gandhi Nehru v. Raj Narain, where the dispute regarding P.M. election was
pending before the Supreme Court, opined that adjudication of a specific dispute is a judicial
function which parliament, even under constitutional amending power, cannot exercise i.e.
the parliament does not have the jurisdiction to perform a function which the other organ is
responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions
of the three organs of the state. Also, the constituent Assembly Of France in 1789 was of the
view that “there would be nothing like a Constitution in the country where the doctrine of
separation of power is not accepted.” So if there is a provision then there should be proper
implementation and this judgment emphasis on that point only.

Also in I.R. Coelho vs. State of Tamil Nadu15, S.C. took the opinion opined by the Supreme
court in Kesavananda Bharati case pertaining to the doctrine of basic structure and held that
the Ninth Schedule is violative of the above-said doctrine and hence from now on the Ninth
Schedule will be amenable to judicial review which also forms part of the basic structure
theory.

From the above few case laws right from Ram Jawaya v state of Punjab in 1955 to I.R.
Coelho v. State of Tamil Nadu in there has been a wide change of opinion as in the
beginning the court was of the opinion that as such there is no Doctrine of Separation of
Power in the constitution of India but then as the passage of time the opinion of the Supreme
Court has also changed and now it does include the above said Doctrine as the basic feature
of the Constitution.

Functional overlap

 The legislature besides exercising law-making powers exercises judicial powers in

cases of breach of its privilege, impeachment of the President and the removal of the judges16.
14
AIR 1967 SC 1643
15
AIR 2007 SC 8617
16
Basu, Administrative Law(1996) p.26

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 The executive may further affect the functioning of the judiciary by making
appointments to the office of Chief Justice and other judges.
 Legislature exercising judicial powers in the case of amending a law declared ultra
vires by the Court17 and revalidating it.
 While discharging the function of disqualifying its members and impeachment of the
judges, the legislature discharges the functions of the judiciary.
 Legislature can impose punishment for exceeding freedom of speech in the
Parliament; this comes under the powers and privileges of the parliament. But while
exercising such power it is always necessary that it should be in conformity with due process.
 The heads of each governmental ministry is a member of the legislature, thus making
the executive an integral part of the legislature.
 The council of ministers on whose advice the President and the Governor acts
are elected members of the legislature.
 Legislative power that is being vested with the legislature in certain circumstances can
be exercised by the executive. If the President or the Governor, when the legislature or is not
in session 18and is satisfied that circumstances exist that necessitate immediate action may
promulgate ordinance which has the same force of the Act made by the Parliament or the
State legislature.
 The Constitution permits, through Article 118 and Article 208, the Legislature at the
Centre and in the States respectively, the authority to make rules for regulating their
respective procedure and conduct of business subject to the provisions of this Constitution.
The executive also exercises law making power under delegated legislation.
 The tribunals and other quasi-judicial bodies which are a part of the executive also
discharge judicial functions. Administrative tribunals which are a part of the executive also
discharge judicial functions.
 Higher administrative tribunals 19should always have a member of the judiciary. The
higher judiciary is conferred with the power of supervising the functioning of subordinate
courts. It also acts as a legislature while making laws regulating its conduct and rules
regarding disposal of cases.

Besides the functional overlapping, the Indian system also lacks the separation of personnel
amongst the three departments.

Applying the doctrines of constitutional limitation and trust in the Indian scenario, a system is
created where none of the organs can usurp the functions or powers which are assigned to
another organ by express or necessary provision, neither can they divest themselves of
essential functions which belong to them as under the Constitution.

Separation of Powers in USA

It has been accepted and strictly adopted in USA. Article ; Section 1 vests all legislative
power in the congress. Article III; section 1 vests all judicial power in the Supreme court.

Jefferson quoted: ‘’The concentration of legislative, executive and judicial power in the same
hands is precisely the definition of despotic government. On the basis of this theory, the SC
was not given power to decide political questions so that there was not interference in the
17
Takwani, C.K : Lectures on Administrative Law (Eastern Book Company, 4 th edition)
18
Massey. I.P Administrative Law
19
Upadhyaya :  Administrative law,(Central Law Agency,8th edition) p.48

7
exercise of the power of the executive branch. Also overriding power of judicial review is not
given to the SC. 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 SC by appointing judges’’.

The judiciary interferes with the power of the congress and the president through its power of
judicial review. It can be said that the SC made more amendments to the American
constitution than the congress. To prevent one branch from becoming superior and to induce
the branches to co-operate, governance system that employs a separation of power need a
way to balance each of the branches. Typically this was accomplished through a system of
checks and balances. This doctrine allows for a system based regulation that allows one
branch to limit another20.

Principle of Checks and Balances

The doctrine of separations of powers may be traced back to an earlier theory known as the
theory of mixed government from which it has been evolved. That theory is of great antiquity
and was adumbrated in the writings of Polybius, a great historian who was captured by the
Romans in 167 BC and kept in Rome as a Political hostage for 17 years in his history of
Rome.

Polybius explained the reasons for the exceptional stability of the Roman Government which
enabled Rome to establish a worldwide empire. He advanced the theory that the powers of
Rome stemmed from her mixed government. Unmixed systems of government that is the
three primary forms of government namely, Monarchy, Aristocracy, and Democracy – were
considered by Polybius as inherently unstable and liable to rapid degeneration.

The Roman constitutions counteracted that instability and tendency to degeneration by a

happy mixture of principles drawn from all the three primary forms of government. The
consuls, the Senate and the popular Assemblies exemplified the monarchical, the aristocratic
and the democratic principles respectively.

The powers of Government were distributed between them in such a way that each checked
and was checked by the others so that an equipoise or equilibrium was achieved which
imparted a remarkable stability to the constitutional structure. It is from the work of Polybius
that political theorist in the 17th Century evolved that theory of separation of powers and the
closely related theory of Checks and Balances21.

Conclusion

In a strict sense, the principle of separation of powers cannot be applied in any modern
Government either may be U.K., U.S.A., France, India or Australia. But it does not mean that
the principle has no relevance nowadays. Government is an organic unity. It cannot be
divided into watertight compartments.

20
http://www.legalserviceindia.com/legal/article-35-doctrine-of-separation-of-powers.html
21

http://www.vsrdjournals.com/vsrd/Issue/2012_06_June/Web/5_Lellala_Vishwanadham_654_Resear
ch

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History proves this fact. If there is a complete separation of powers the government cannot
run smoothly and effectively. The smooth running of government is possible only by co-
operation and mutual adjustment of all the three organs of the government. Prof. Garner has
rightly said, “the doctrine is impracticable as a working principle of Government.” It is not
possible to categorize the functions of all three branches of Government on a mathematical
basis. The observation of Frankfurter is notable in this connection. According to him
“Enforcement of a rigid conception of separation of powers would make Government
impossible.”

It is my opinion that the doctrine of Montesquieu is not merely a “myth” it also carries a
truth, but in the sense that each organ of the Government should exercise its power on the
principle of “Checks and Balances” signifying the fact that none of the organs of Government
should usurp the essential functions of the other organs. Professor Laski has aptly
remarked: “It is necessary to have a separation of functions which need not imply a
separation of personnel22.

22
http://www.ijtr.nic.in/articles/art35.pdf