Origin
The idea is traceable to Aristotle (Politics), Cicero and John Locke, but its classical modern exposition is by Baron de Montesquieu in De L’Esprit des Lois (The Spirit of the Laws, 1748). Observing the English Constitution, Montesquieu argued: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.”
Three Postulates
- The same person should not form part of more than one organ.
- One organ should not interfere with / control another.
- One organ should not perform the functions of another.
Rationale
- Prevents concentration of power and tyranny.
- Enables each organ to specialise.
- Provides mutual checks and balances.
- Safeguards individual liberty and Rule of Law.
Separation of Powers in Different Constitutions
| Country | Nature of Separation | Illustration |
|---|---|---|
| USA | Rigid, reinforced by elaborate checks & balances. | President ≠ Congress; Congress ≠ Supreme Court; presidential veto, Senate confirmation, judicial review. |
| UK | Functional, flexible; fusion of legislature and executive (parliamentary system). | PM & Cabinet are MPs; Lord Chancellor (historically) was in all three organs — now reformed by Constitutional Reform Act, 2005. |
| France | Separation + strong administrative courts (Droit Administratif). | Conseil d’État separate from ordinary courts. |
| India | Functional separation with overlaps; checks & balances; forms part of basic structure. | Executive makes delegated legislation; tribunals exercise judicial power; Parliament has limited judicial powers (impeachment). |
The Indian Constitutional Scheme
India adopts a functional, not rigid, separation. Illustrative provisions:
- Articles 53 & 154 — executive power vested in President / Governor.
- Article 50 (DPSP) — separation of judiciary from executive.
- Articles 121 & 211 — no discussion in legislature on judges’ conduct.
- Articles 122 & 212 — courts not to inquire into legislative proceedings.
- Article 361 — immunity of President / Governor.
- Articles 123 & 213 — ordinance-making power of the Executive.
- Articles 323A & 323B — adjudicatory functions by tribunals.
- Article 142 — Supreme Court can do complete justice.
Judicial Pronouncements
Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 — Mukherjea C.J.: Indian Constitution has not recognised the doctrine in its absolute rigidity; organs are not watertight compartments but there is sufficient demarcation.
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 — Separation of Powers held to be part of the basic structure.
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 — the 39th Amendment inserting Article 329A(4) struck down as it violated separation of powers — Parliament cannot usurp judicial power.
I.R. Coelho v. State of T.N., (2007) 2 SCC 1 — Judicial review and separation of powers are inter-twined basic features.
SCAORA v. Union of India (NJAC), (2016) 5 SCC 1 — independence of judiciary flows from separation of powers; NJAC Act struck down.
State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296 — Governor cannot usurp High Court’s functions.
Erosion in Modern Times
- Rise of delegated legislation (executive makes rules).
- Rise of administrative adjudication (executive adjudicates).
- Expansive judicial review by courts (judicial encroachment on executive policy — Vineet Narain, Vishaka).
- PIL / Continuing mandamus — courts enter policy sphere.
Conclusion
In India, separation of powers works as a functional separation with mutual checks and balances, forming part of the basic structure of the Constitution. Absolute separation is impossible in a modern welfare State, but the doctrine survives as the constitutional guarantor of liberty and good governance.
Three organs = “L.E.J.” (Legislature, Executive, Judiciary) — and three postulates = P.F.C. — Personal, Functional, Control separation.