SEMINAR ON:

CRITICAL ANALYSIS OF
MONTESQUIEU’S THEORY OF
SEPARATION OF POWER

Submitted to: Submitted by:

Prof. (Dr.) Shalini Marwaha Divya Bharti
Prof. (Dr.) Nishtha Jaswal Roll no. 1211/17
Prof. (Dr.) Devinder Singh LLM 1 Semester
Law department,
Panjab University
 ACKNOWLEDGEMENT

With immense pleasure I, Divya Bharti, presenting the seminar on the topic "CRITICAL
ANALYSIS OF MONTESQUE’S THEORY OF SEPARATION OF POWER" would like to
thank Prof. (Dr.) Shalini Marwaha, Prof. (Dr.) Nishtha Jaswal and Prof. (Dr.) Devinder Singh
seminar guide who guided and helped me in the preparation of the seminar.
I am also indebted to the Department of Laws, Panjab University for their support and
cooperation.

Divya Bharti

1211/17

PREFACE
Parliamentary democracy was identified by our Founding Fathers to be the most suitable system
of governance to deal with our vast array of diversity on all fronts of our national existence.
One of the characteristic features of several Constitutional systems across the world is the
doctrine of separation of powers, providing for the functions of the three primary organs of the
State — the Executive, the Legislature and the judiciary to be carried out by separate bodies. It
also entails that none of these organs should be vested with absolute powers, so that no organ or
individual assumes powers of despotic proportions.

This doctrine of separation of powers given by French scholar Montesquieu in the eighteenth
century is an integral part of the evolution of democracy itself and is one of the most
characteristic features of our Constitutional scheme.

The present seminar, therefore, deals with the critical analysis of the doctrine of separation of
powers and a comprehensive understanding of the doctrine as used in our country under our
parliamentary system of governance as well as in USA and UK. Landmark cases will also be
discussed to understand the doctrine in detail.

CONTENTS
1. Title page
2. Acknowledgement
3. Preface
4. Meaning of Separation of Power

5. Montesquieu Theory of Separation of Power

6. Basic Principles of Separation of Power

7. Applicability of the Theory of Separation of Power

 Separation of Power in United States of America

 Separation of Power in United Kingdom (Britain)
 Constitutional Status and Practice of Separation of Power in India

8. System of checks and balance

9. Merits of the theory of Separation of Power

10. Demerits of the theory of Separation of Power

11. Judicial view on the doctrine of Separation of Power

12. Conclusion

13. Bibliography

MEANING OF SEPARATION OF POWER

“Separation of powers" refers to the idea that the major institutions of state should be
functionally independent and that no individual should have powers that span these offices.

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 Power is a method
of removing the amount of power in any group's hands, making it more difficult to abuse.
It is generally accepted that there are three main categories of governmental functions –
(i) The legislative
(ii) The Executive, and
(iii) The Judicial.
At the same time, there are three main organs of the Government in State i.e. legislature,
executive and judiciary.

According to the theory of separation of powers, these three powers and functions of the
Government must, in a free democracy, always be kept separate and exercised by separate organs
of the Government. Thus, the legislature cannot exercise executive or judicial power; the
executive cannot exercise legislative or judicial power of the Government.1

As the concept of Separation of Powers‘explained by Wade and Philips 2,it means three different
things:-
i. That the same persons should not form part of more than one of the three organs of
Government, e.g. the Ministers should not sit in Parliament;

ii. That one organ of the Government should not control or interfere with the exercise of its
function by another organ, e.g. the Judiciary should be independent of the Executive or that

Ministers should not be responsible to Parliament; and

iii. That one organ of the Government should not exercise the functions of another, e.g. the
Ministers should not have legislative powers.

MONTESQUIEU THEORY OF SEPARATION OF POWER

1
C.K.Takwani, Lectures on Administrative Law (2008) p.31.
2
Constitutional Law (1960) pp. 22-34.
According to Montesquieu, the doctrine of separation (des pouvoirs) means that one person or
body of persons should not exercise all the three types of powers.

According to him, 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 powers be not separated from the legislative and the executive. Where
it joined with 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 powers,
the judge might behave with violence and oppression. There would be end of everything if the
same man or the same body were to exercise those three powers, that of enacting laws, that of
executing the public resolutions and of trying the causes of individuals.

Montesquieu argued that the executive, legislative, and judicial functions of government should
be assigned to different bodies, so that attempts by one branch of government to infringe on
political liberty might be restrained by the other branches.

BASIC PRINCIPLES OF SEPARATION OF POWER

The following are the basic principles of the theory of Separation of Powers:

1) NO CONCENTRATION OF POWERS:
The theory of Separation of Powers involves that powers should not be concentrated in
the same person or in the same body of persons. If all powers are placed in the same
branch of government, there is bound to be tyranny.

2) DIFFUSION OF POWERS NEEDED:

The theory of separation of powers implies that powers are to be diffused by bringing
about a division of powers on the basis of functions.
3) SYSTEM OF CHECKS AND BALANCES:
 The theory of separation of powers involves a complex system of checks and balances. It
means the executive organ wields some control over the legislature and the judiciary; the
legislature over the executive and judiciary and the judiciary over the executive and
legislature. This method of one branch halting the power of the other branches will act as
an antidote to despotism.

SEPARATION OF POWER IN UNITED STATES OF AMERICA

The doctrine of Separation of Powers forms the foundation on which the whole structure of the
Constitution is based. It has been accepted and strictly adopted in U.S.A.
Article I Section 1 vests all legislative powers in the Congress. Article II; Section 1 vest all
executive powers in the President and Article III Section 1 vest all judicial powers in the
Supreme Court.

1. LEGISLATIVE POWER
Congress has the sole power to legislate for the United States. Under the non-delegation doctrine,
Congress may not delegate its lawmaking responsibilities to any other agency. The Constitution
Article I, Section 8; says to give all the power to Congress. Congress has the exclusive power to
legislate, to make laws and in addition to the enumerated powers it has all other powers vested in
the government by the Constitution.

2. EXECUTIVE POWER
Executive power is vested, with exceptions and qualifications, in the President by Article II,
Section 1, of the Constitution.
The Constitution empowers the President to ensure the faithful execution of the laws made by
Congress. Congress may itself terminate such appointments, by impeachment, and restrict the
President. The president's responsibility is to execute whatever instructions he is given by the
Congress.

3. JUDICIAL POWER
Judicial power, the power to decide cases and controversies, is vested in the Supreme Court and
inferior courts established by Congress. The judges must be appointed by the President with the
advice and consent of the Senate, hold office for life and receive compensations that may not be
diminished during their continuance in office. If a court's judges do not have such attributes, the
court may not exercise the judicial power of the United States.
Curts exercising the judicial power are called "constitutional courts." Congress may establish
"legislative courts," which do not take the form of judicial agencies or commissions, whose
members do not have the same security of tenure or compensation as the constitutional court
judges. Legislative courts may not exercise the judicial power of the United States.

CASE LAW-
In Marbury v. Madison,3a landmark case in United States law formed the basis for the exercise
of judicial review in the United States under Article III of the Constitution. This case resulted
from a petition to the Supreme Court by William Marbury, who had been appointed by President
John Adams as Justice of the Peace in the District of Columbia but whose commission was not
subsequently delivered. Marbury petitioned the Supreme Court to force Secretary of State James
Madison to deliver the documents, but the court, with John Marshall as Chief Justice, denied
Marbury's petition, holding that the part of the statute upon which he based his claim, the
Judiciary Act of 1789, was unconstitutional.

Marbury v.Madison was the first time the Supreme Court declared something "unconstitutional",
and established the concept of judicial review in the U.S. The landmark decision helped define
the "checks and balances" of the American form of government.

Despite of the express mention of this doctrine in the Constitution, U.S. incorporates certain
exceptions to the principle of separation with a view to introduce system of checks and balances.
For example, a bill passed by the Congress may be vetoed by the President in the exercise of his
legislative power. Also treaty making power is with the President but it‘s not effective till
approved by the Senate. It was the exercise of executive power of the senate due to which U.S.
couldn‘t become a member to League of Nations. The Supreme Court has the power to declare
the acts passed by the congress as unconstitutional. There are other functions of an organ also
which are exercised by the other.

3
Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803).
Therefore, the constitution which gives a good mention of the doctrine in its provisions also does
not follow it in its rigidity and hence has opted for dilution of powers.

SEPARATION OF POWER IN UNITED KINGDOM (BRITAIN)

Before we go to India, it‘s important to know the constitutional setup of the country to which
India was a colony and ultimately owes the existence of the form of government it has.

U.K. follows a Parliamentary form of government where the Crown is the nominal head and the
real legislative functions are performed by the Parliament. The existence of a cabinet system
refutes the doctrine of separation of powers completely. It is the Cabinet which is the real head of
the executive, instead of the Crown. It initiates legislations, controls the legislature, it even holds
the power to dissolve the assembly. The judiciary is independent but judges of the superior
courts can be removed on an address from both house of Parliament. The House of Lords
combines judicial and legislative functions. Legislative and adjudicatory powers are being
increasingly delegated to the executive.

The resting of two powers in a single body, therefore denies the fact that there is any kind of
separation of powers in England.

CONSTITUTIONAL STATUS AND PRACTICE OF SEPARATION OF

POWER IN INDIA

On a casual glance at the provisions of the Constitution of India, one may be inclined to say that
the doctrine of separation of powers is accepted in India. Under the Indian Constitution,
 The executive powers are with the President4
 The legislative powers with the Parliament5and
 The judicial powers with the judiciary.6

4
Art. 53 (1) ; Art. 154 (1) ; Delhi Laws Act, 1912 Re, AIR 1951 SC 332, (387, Mahajan, J.; 395, Mukherjea, J.);
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC1 : AIR 1975 SC 22999; Bandhua Muktri Morcha v. Union of
India, (1984) 3 SCC 161 (231-32): AIR 1984 SC 802: (1984) 2 SCR 67; State of H.P. v. Umed Ram Sharma, (1986)
2 SCC 68 (80-81); AIR 1986 SC 847; Union of India v. Raghubir Singh, (1989), 2 SCC 754 (765-66): AIR 1989 SC
1933.
5
Delhi Laws Act, Re, 1912, i.d., pp. 346-47 (Kania, C.J.); p. 388 (Mahajan, J.), Indira Nehru Gandhi v. Raj Narain,
id., pp. 136, 190 (SCC).
The President holds his office for a fixed period. His functions and powers are enumerated in the
Constitution itself. The Parliament is competent to make any law subject to the provisions of the
Constitution and there is no other limitation on its legislative powers. Similarly, the judiciary is
independent in its field and there can be no interference with its judicial functions either by the
executive or by the legislature. At the same time, the Court also cannot arrogate to itself any
function, which is left to the domain of the other two branches, namely, the executive and the
legislature.7

In India, the doctrine of separation of powers has not been accorded a constitutional status. Apart
from the directive principle 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 powers.

In fact, there are several constitutional provisions, which go on to say that the Indian
Constitution does not purport strict separation of powers. There is no provision in the Indian
Constitution vesting the legislative and judicial powers in any particular organ.

Article 53(1) confers the executive powers on the President of India. Article 246 confers
legislative powers on the Parliament exclusively. However, Article 79 speaks that the Parliament
shall consist of the President apart from the two Houses, the Council of States and the House of
the People. On reading Articles 53(1) and 79 together a safe conclusion as to the non-existence
of a strict separation of powers in India can be drawn.

Same is the scenario in the state level where the executive powers are vested with the Governor
(Article 154) who is also a part of the state legislature by virtue of Article 168(1). Moreover,
Chapter III of Part V of the Constitution of India reads "Legislative Powers of the President".
Article 123(1) confers powers on the President to promulgate ordinances during recess of
Parliament. A similar powers is conferred on the Governors of the States by virtue of Article

6
Article 50 of the Constitution of India, which reads as under: Separation of Judiciary from Executive—The State
shall take steps to separate the judiciary from the executive in the public services of the State.
7
State of H. P. v. Umed Ram Sharna, (1986) 2 SCC 68 (76) : AIR 1986 SC 847; State of H.P.v. A Parent of a
Student of Medical College, (1985) 3 SCC 169 (174-75) AIR 1985 SC 910 (913.14) ; Asif Hameed v. State of J&K,
1989 Supp (2) SCC 364; AIR 1989 SC 1899 (1907).
213. Article 309 confers rule-making powers on the President for service related matters. He also
exercises this rule making powers under Articles 240, 318, 146(1), 77(2), 77(3), 148(5), 101(2),
118(3), 98(2). The Governor exercises his rule making powers under Articles 166(2), 166(3),
208(3), 187(3) and under the proviso to Article 229(1). Article 357 grants the exercise of
legislative powers to the President under Proclamation issued under Article 356. The important
role played by the President as well as the Governor of the States with regard to bills introduced
in the legislature cannot be ignored. Thus the executive is bestowed with law making powers.

President also exercises judicial powers by virtue of Article 103 which says that the decision of
the President shall be final with regard to the disqualification of members of the House. Similar
powers rests with the Governor of States under Article 192(1). Under Article 72 the President
and under Article 161 the Governor has the powers to grant pardons, reprieves, respites etc. in
certain cases.

The legislature in India performs judicial function by virtue of Articles 61(1),124(4),124(5) with
regard to removal of President and Judges. The legislature also performs executive functions
when it comes to imposition of surcharge under Article 274, formation of new states, alteration
of areas, boundaries, names of existing states under Article 3.

The Judiciary frames rules for the various Courts under Article 227(2) (b) and Article 145. The
Supreme Court appoints subordinate staff under Article 146. Similarly, High Courts appoint
subordinate staff under Article 229. Thus the judiciary is also involved in legislative and
executive functions. These are some of the provisions in the Constitution of India, which reflect
the intention of the framers of the Constitution.

In the Constitutional Assembly Debates, the proposal made to include specific provisions in the
Constitution of India with regard to separation of powers was rejected by the majority. This
again goes on to emphasize the intention of the Constitution makers, which was never in favour
of having strict separation of powers in India.
From this it can be concluded that the doctrine of separation of powers in its strict sense is
undesirable and impracticable and therefore till now it has not been fully accepted in any of the
country. In theory under the constitution of the United States of America the doctrine of
Separation of powers has been strictly adopted but their also gradually the Supreme Court is
relaxing the policy. In India also own casual viewing of the constitution it can be said that India
has adopted the doctrine of separation of powers but in reality it is not show.

The three organs in some or the other way perform the task of other. For example the legislative
delegate some powers to executive, thus executive the function of the legislature. In this way the
parliament other than making laws also have judicial powers which it can exercise when its
contempt take places.

SYSTEM OF CHECKS AND BALANCES

Today, a new interpretation of the doctrine has been evolved. It seeks to emphasize upon the
functional division of powers. The principle of delegation of legislative functions is not regarded
inconsistent with the doctrine. Emphasis is laid on the balance of powers and a system of checks.
No single agency of the State should emerge as dominant one by assuming greater powers in its
hands and this can be accomplished through a system of “checks and balances”, the origin of
which, like separation of powers itself, is specifically credited to Montesquieu.

In India, the doctrine of separation of powers has been accepted with the principle of checks and
balances. The aim of checks and balances is to safeguard that different branches of government
control each other internally (checks) and serve as counter weights to the power possessed by the
other branches (balances). The legislative power should be in the hands of the legislature but the
executive and judiciary should have some checking powers over it with a view to prevent any
misuse or arbitrary use of legislative powers by the legislature. Likewise, the executive powers
should be vested with the executive but legislature and judiciary should be given some checking
powers over it.

The same should be the case of the judiciary and its power should be in some respects checked
by the legislature and executive. In other words, each organ should have some checking power
over the other two organs and there should prevail, a balance among the three organs of
government.
MERITS OR UTILITY OR IMPORTANCE OR SIGNIFICANCE OF THE
THEORY OF SEPARATION OF POWERS

 It aims at individual liberty. It is a safeguard against despotism.

 Its basic principle that concentration of powers lead to dictatorship is true for all times
and ages.
 It emphasises the necessity of providing independence to judiciary though executive and
legislature cannot be rigidly executed. Then only rights and freedoms are secure.
 The separation of powers is desirable for maintaining the efficiency in the administration.
 The separation of powers saves the people from the arbitrary rule of the executive.
 Each organ acts as a check upon the other.
 The three functions require distinct qualities in the men who conduct them.
 It helps us to understand the value of liberty.
 The theory of separation of powers lays down the cardinal principle that government
should act according to certain well established rules or laws.
 The theory admonishes the executive and the administrative wings of the government not
to interfere with the process of law and justice, so as to ensure the liberty of the
individuals in the society.

CRITICISM OR DEMERITS OF THE THEORY OF SEPARATION OF

POWERS

 There is no relationship between public liberty and the separation of powers. Liberty
depends more on the spirit and outlook of the people and their laws and institutions than
on mere constitutional machine. Liberties of the people do not depend on the theories and
dogma. They should be protected and preserved by the vigilant and educated public
opinion. As pericles pointed out the secrets of liberty is courage. Separation of power
ensures liberty but it is not the very essence of liberty.
 The theory of separation of powers makes a mistake in assuming that the three branches
of government are equally powerful and, therefore, can be independent of one another.
As a matter of fact, the legislature is by far the mightiest of them. It controls the
executive and judicial organs.

 The theory of separation of powers is not desirable because if there is complete

separation of powers, the different organs of the government will not be able to work in
co-operation and harmony. As a result there would be frequently deadlocks which may
bring the governmental machinery to a standstill.

 In the words of Prof. Garner, the theory of separation of powers is impracticable as a

working principle of government as the government is an organic unit. It cannot be
divided into water-tight compartments. ’Governments are not machines, but are bodies of
men’. To divide them is to destroy them. That is why no country in the world has been
able to follow this theory strictly.

 Finer remarks, “The theory of separation of powers throws the government into
alternating conditions of coma and confusion.”
 As Mill says, “The separation of powers will result in a clash between the three organs of
government, as each one will take interest only in its own powers.”

 If all branches are made separate and independent of each other, each branch will try to
safeguard its powers and will not protect the powers of other branches. In such case
administrative efficiency cannot be attained.

 Montesquieu went wrong in his interpretation of the British Constitution. In Britain there
is no separation between the executive and legislative organs.

 It may be pointed out that the legislature which controls the purse in superior to the rest
of the branches. Hence, the three branches of the government cannot be equated as done
by Montesquieu.
  The growth of the administrative adjudication is another development which is against
the doctrine of separation of powers. The executive is being vested with judicial powers
as well as other duties otherwise the officers do not feel secure while performing their
duties.

 In the modern age of integrated planning and welfare States, the executive is being made
more and more powerful at the cost of the legislature in order to comply with the needs.
The modern approach puts emphasis, not so much on ‘separation of power’ but on ‘co-
ordination of power.’

JUDICIAL VIEW ON THE DOCTRINE OF SEPARATION OF POWER

As clearly mentioned about the separation of powers there were times where the judiciary has
faced tough challenges in maintaining and preserving the Doctrine of separation of powers 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 powers was in
Ram Jawaya v State of Punjab8 The court in this case was of the opinion that the Doctrine of
separation of powers was not fully accepted in India. 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 recognize the
doctrine of separation of powersing 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

8
AIR 1955 SC 549
 belong to another".

Later in I.G. Golak Nath v State of Punjab9 Subha Rao, C.J opined that:
"The constitution brings into existence different
constitutional entitles, namely the union, the state and the
union territories. It creates three major instruments of
powers, namely the Legislature, the Executive and the
Judiciary. It demarcates their jurisdiction minutely and
expects them to exercise their respective powers without
overstepping there limits. They should function with the
spheres allotted to them."

The above opinion of the court clearly states the change in the courts view pertaining to the
opinion in the case of Ram Jawaya v. state of Punjab related to the doctrine of separation of
powers.

In Asif Hameed v. State of J & K10, it has been held that ―”Although the doctrine of separation
of powers has not been recognized under the constitution in its absolute rigidity but the
constitution makers have meticulously defined the functions of various organs of the state.
Legislative, Executive and Judiciary have to function within their respective spheres demarcated
under the constitution. No organ can usurp the functions assigned to another. Legislative and
executive organs, the two facets of the people‘s will, have all the powers including that of
finance. Judiciary has no power over sword or the purse. Nonetheless it has power to ensure that
the aforesaid two main organs of the state function within the constitutional limits. It is the
sentinel of democracy.”

There after one of the most land mark judgments delivered by the Supreme Court in
Keshvananda Bharti v Union of India11 the court was of the view that amending powers was now

9
AIR 1967 SC 1643
10
AIR 1989 SC 1899.
11
(1973 ) 4 SCC 255
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.12Hence this further confirmed the
opinion of the court in relation to the doctrine of separation of powers.

Then in Indira Gandhi Nehru v. Raj Narain13 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 powers, 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 powers 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 v. State of Tamil Nadu14 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, 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 do includes the above said Doctrine as the basic feature of the constitution.

12
http:/www.legalserviceindia.com
13
1975 supp SCC 1
14
AIR 2007 SC 861
In respect of separation of powers Justice Markandey Katyu said that the separation of powers
principle propounded by the French political thinker Montesquieu has been elaborately discussed
in judgment in the case of Divisional manager, Aravali Golf course v. Chander Haas.15 Judicial
activism is basically a deviation from this principle. It is based on the theory of jurisprudence
called sociological jurisprudence which arms the judiciary with wide legislative and executive
powers.

We may come directly to the subject of judicial activism where many difficulties have been
arisen. The common ancestor of both the U.S. and Indian judiciary is the British judiciary. Hence
both the countries are indebted to the British legal system for many of their principles and
institutions. In England, since parliament was supreme and there was no written constitution, the
traditional approach of the British judges was only to apply the law made by parliament to the
facts of a particular case and thereby reach to a decision based on that law. In context of law
Austin said that "Law is the command of the sovereign and since in England the sovereign was
parliament.

In this sense law was made by the parliament, not the judges. The traditional understanding of
the judicial process is that while the legislature makes laws and the executive implements them.
The judiciary's function is only to interpret and apply the law to the facts of a particular case.16
CONCLUSION

Constitution is the supreme law of the land. No organ should go beyond the role as assigned to it
by the Constitution. It is the obligation of the Judiciary, Executive and Legislature to strictly
adhere to one of the most fundamental features of the Constitution ‘Separation of Powers’. It is
needless to criticize the Constitutional Plan of separation of powers when the existing provisions
are not being religiously observed.

The founding fathers of the Constitution had defined the position and the powers of the three
organs of the state. They had realized that government being an organic entity would never be
able to achieve complete separation of powers. Therefore, aiming for a complete separation of
powers is equivalent to talking in vacuum. But, that does not mean that each branch has
15
(2008) 1 SCC 683.
16
Justice Katju.blogspot.com
exclusive powers rather they have their Constitutional limits to be adhered to. The spirit of the
Constitution is not on exclusiveness but on shared coordination.

In a democracy, vigilant attitude of the people can help ensuring a proper functioning and
prevent arbitrary exercise of the power. The three organs have to be at peace for our prosperity.
In India, we follow a separation of functions and not of Separation of powers. And hence, we
don’t abide by the principle in its rigidity. Though in India strict separation of powers like in
American sense is not followed but, the principle of ‘checks and balances’, exists as a part of this
doctrine. Therefore, none of the three organs can usurp the essential functions of the organs,
which constitute a part of the ‘basic structure’ doctrine so much so that, not even by amending
the Constitution and if any such amendment is made, the court will strike it down as
unconstitutional.

BIBLIOGRAPHY
Books:

 Bakshi, P.M. ‘The Constitution of India’,Universal Law Publishing Co. Pvt. Ltd. (2005).
 Myneni, S.R. ‘Political Science’, Allahabad Law Agency (2015)
 Jain, M.P. ‘Indian Constitutional Law’, Wadhwa and company, Nagpur, Fifth Edition,
2005

Articles Referred:

 Somnath Chatterjee, “Separation of Powers and Judicial Activism in India”, Indian

Advocate, vol. 34-35, 2006-2007

 D. Rajeev, “Separation of powers and judicial activism: Tradition versus modernity”,

Cochin University Law Review, vol. 21, 1997