Introduction

“…there is no liberty if the powers of judging are not separated from the legislative and executive.” -Montesquieu

The separation of powers is a prerequisite for the efficient administration of federal democratic states. According to this doctrine, the state power is divided into three distinct branches – legislative, executive, and judiciary. Each branch has its own independent power and clearly demarcated responsibilities. This separation is essential to ensure that no branch interferes with the functioning of the other two.

Essentially, it is the rule that every State Government should follow to enact a law, implement the law, and check its validity. Ignoring this principle increases the risk of misuse of power and corruption. Conversely, adhering to this doctrine reduces the likelihood of tyrannical laws, as the legislature is aware that its actions will be checked by another branch. It focuses on a strict demarcation of power and ensures exclusivity in the functioning of each organ.

In India, the emphasis is on separating functions rather than powers. The concept of separation of powers is ideologically followed, unlike in the United States. Although the Constitution does not explicitly recognize this theory in its absolute form, it provides for a fair division of duties and authority among the three branches of government.

Meaning of Separation of Powers

The definition of separation of powers is given by different authors as follows:

Wade and Phillips provide three key elements of the idea of separation of powers:

• One branch of government should not carry out the duties of another, such as giving ministers legislative authority.

• One branch should not control or interfere with another branch’s performance of duties, for example, when the judiciary is separate from the executive, or when ministers are not answerable to Parliament.

• The same individuals should not serve in more than one branch of government, such as sitting as ministers in Parliament.

Richard Benwell and Oonagh Gay define it as: “Separation of powers refers to the idea that the major institutions of state should be functionally independent and that no individual should hold powers spanning these offices.”

Marchamont Nedham, writing under Cromwell’s Protectorate in 1656, stated that separation of powers requires the legislative and executive powers to be in different ‘hands and persons’.

In general, the meaning of separation of powers can be categorized into three features:

• A person forming a part of one organ should not form part of another organ.

• One organ should not interfere with the functioning of other organs.

• One organ should not exercise the functions of another organ.

The separation of powers is based on the concept of “trias politica”. This principle envisions a tripartite system where powers are delegated and distributed among three organs, clearly outlining their jurisdiction.

The doctrine of separation of powers in a rigid sense means there is a proper distinction between the three organs and their functions, along with a system of checks and balances.

The doctrine of separation of powers in a broad sense means that although there is no strict distinction between the three organs and their functions, a broad division is still maintained.