its a ppt on seperation of powers

1. The Doctrine of
Separation of Powers
A Fundamental Principle of Modern Governance

2. The Doctrine of Separation of Powers
The doctrine of Separation of Powers deals with the mutual relations
among the three organs of the Government namely legislature, executive
and judiciary.
• A person forming a part of one organ should not form part of
another organ.
• One organ should not interfere with the functioning of the other
organs.
• One organ should not exercise the function belonging to another
organ.
The meaning of
separation of power can
be categorized into three
features:

3. Three Branches of Government
Legislature (Parliament and State Legislature)
Executive(President, Vice-President, Governor, Council of Ministers)
Judiciary (Supreme Court, High Court and Subordinate courts)

4. Importance in Modern Democracies
• Separation of power is a great defense against the misuse and arrogance of
authority.
• A dictatorship cannot take hold because different branches of government are
granted diverse levels of power.
• The concept ensures that too much power is not concentrated in a single branch of
government. This helps to prevent the impulse to abuse power

5. Origins of the Doctrine
It was Aristotle who for the first time
classified the functions of the
Government into three categories viz.,
deliberative, magisterial and judicial.
John Locke categorized the powers of the Government
into three parts namely:
• Continuous executive power- implies the executive and the judicial
power
• Discontinous legislative power- implies the rule making power
• Federative power- signifies the power regulating the foreign affairs

6. Origins of the Doctrine
The French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit
of Laws) published in 1748, for the first time enunciated the principle
of separation of powers. That’s why he is known as modern exponent
of this theory.
Montesquieu discovered that when power is concentrated in the
hands of a single person or a group of people, a despotic
government emerges. To avoid this predicament and to limit the
government’s arbitrary nature, he argued that the three organs of the
state, the Executive, Legislative, and Judiciary, should have a clear
distribution of power.

7. Montesquieu went on to clarify the idea in his own words:
“When the legislative and executive powers are united in the same person, or in the same
body or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is
not separated from the legislative and executive powers. Where it joined with the legislative
power, 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 oppression. There would be an end of everything, were the same
man or same body, whether of the 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.”

8. Key principles of the Doctrine of Separation of Powers
• Accountability
• Avoiding the concentration of power
• Checks and balances
The separation of powers is
a fundamental concept in
democratic systems of
government that aims to
prevent the abuse of power
and promote the proper
functioning of government.
It is typically divided into
three key principles:

9. Accountability
Definition: Accountability refers to the idea that those in power are answerable for their actions
and decisions, and they can be held responsible for any misconduct or failure to perform their
duties.
Purpose: Accountability is essential for ensuring that public officials act in the best interests of
the people and the rule of law. It promotes transparency, ethical behavior, and public trust in
government.
Examples: Accountability mechanisms may include elections, where citizens can choose their
representatives, and oversight institutions, such as ombudsman offices, ethics committees, and
independent watchdog organizations that investigate and report on government actions.

10. Avoiding Concentration of Power
Definition: This principle emphasizes the need to prevent too much power from being concentrated in a
single individual, group, or branch of government.
Purpose: Concentration of power can lead to authoritarianism, tyranny, or corruption, as unchecked
authority can easily be abused. By distributing power and limiting the authority of any one entity, this
principle aims to protect individual rights and democratic values.
Examples: Constitutions and laws often include provisions to limit the term lengths of elected officials,
impose term limits, or establish independent bodies to oversee government actions. For instance, many
countries have constitutional term limits for the presidency to prevent a single person from holding
power indefinitely.

11. Checks and Balances
Definition: This principle involves distributing the powers and responsibilities of government
among different branches (usually the legislative, executive, and judicial branches) in a way that
each branch can limit or check the actions of the other branches.
Purpose: The primary goal is to prevent any one branch from becoming too powerful and
potentially abusing its authority. By providing a system of checks and balances, it ensures that
each branch can review, influence, and sometimes block the actions of the others.
Examples: In the United States, the system of checks and balances is evident in how the President
can veto legislation passed by Congress, but Congress can override the veto with a supermajority
vote. Similarly, the judiciary can review the constitutionality of both legislative and executive
actions.

12. Instruments of Checks & Balances
• On Judiciary: Impeachment and the removal of the judges. Power to
amend laws declared ultra vires by the Court and revalidating it.
• On Executive: Through a no-confidence vote it can dissolve the
Government. Power to assess works of the executive through the question
hour and zero hour.
Legislative
Control
• On Judiciary: Making appointments to the office of Chief Justice and
other judges.
• On Legislature: Powers under delegated legislation. Authority to make
rules for regulating their respective procedure and conduct of business
subject to the provisions of this Constitution.
Executive
Control
• On Executive: Judicial review i.e., the power to review executive action
to determine if it violates the Constitution.
• On Legislature: Unamendability of the constitution under the basic
structure doctrine pronounced by the Supreme Court in Kesavananda
Bharati Case 1973.
Judicial Control

13. Indian Constitution and Separation of Power
The doctrine of separation of powers has no place in strict sense in
Indian Constitution, but the functions of different organs of the
Government have been sufficiently differentiated, so that one organ
of the Government could not usurp the function of another.
In Constituent Assembly Debates Prof. K.T. Shah a member of
Constituent Assembly laid emphasis to insert by amendment a new
Article 40-A concerned with doctrine of separation of powers. This
Article reads: “There shall be complete separation of powers as
between the principal organs of the State, viz; the legislative, the
executive, and the judicial.”

14. Dr. B.R. Ambedkar, one of the important architect of Indian Constitution, disagreeing with the
argument of Prof. K.T. Shah, advocated thus:
“There is no dispute whatsoever that the executive should be separated from the judiciary. With
regard to the separation of the executive from the legislature, it is true that such a separation does
exist in the Constitution of United States; but many Americans themselves were quite dissatisfied
with the rigid separation embodied in the American Constitution between the executive and
legislature......... There is not slightest doubt in my mind and in the minds of many students of
Political Science, that the work of Parliament is so complicated, so vast that unless and until the
members of the Legislature receive direct guidance and initiative from the members of the
Executive, sitting in Parliament, it would be very difficult for Members of Parliament to carry on
the work of the Legislature. I personally therefore, do not think that there is any very great loss that
is likely to occur if we do not adopt the American method of separating the Executive from the
Legislature.”

15. The Indian constitution lay down the principle of separation of power into different articles:
• Article 50: It says separation of judiciary from executive- the state shall take steps to separate the
judiciary from the executive in the public services of the state.
• Article 74(1) council of ministers to aid and advise president: There shall be a council of
ministers with the prime minister at the head to aid and advise the president who shall, in the
exercise of his functions, act in accordance with such advice.
• Article 121 Restriction on discussion in parliament: No discussion shall take place in
parliament with respect to the conduct of any judge of the Supreme Court or of a High Court in
the discharge of his duties expect upon a motion for presenting an address to neither the president
praying nor the removal of the judge as hereinafter provided.
• Article 122 courts not to inquire into proceedings of parliament: The validity of any
proceedings in parliament shall not be question on the ground of any alleged irregularity of
procedure.

16. Personnel and Functional overlapping in India
1. Overlapping Powers of Legislature
With Judiciary
• Impeachment and the removal of the judges.
• Power to amend laws declared ultra vires by the
Court and revalidating it.
• In case of breach of its privilege and it can
punish the person concerned.
With Executive
• The heads of each governmental ministries are
members of the legislature.
• Through a no-confidence vote, it can dissolve the
Government.
• Power to assess the works of the executive.
• Impeachment of the President.
• The council of ministers on whose advice the
President and the Governor acts are elected
members of the legislature.

17. 2. Overlapping Powers of The Executive
With Judiciary
• Making appointments to the office of Chief
Justice and other judges.
• Powers to grant pardons, reprieve, respite or
remission of punishments or sentence of any
person convicted of any offence.
• The tribunals and other quasi-judicial bodies
which are a part of the executive also discharge
judicial functions.
With Legislative
• Power to promulgate ordinance which has the
same force of the Act made by the Parliament or
the State legislature.
• Authority to make rules for regulating their
respective procedure and conduct of business
subject to the provisions of this Constitution.
• Powers under delegated legislation.

18. 3. Overlapping Powers of The Judiciary
With Executive
• Under Article 142, the Supreme Court functions
as an Executive in order to bring about the
complete justice.
• Judicial review, i.e. the power to review
executive action to determine if it violates the
Constitution.
With Legislative
• Judicial review, i.e. the power to review law
passed by legislative action to determine if it
violates the Constitution.
• Unamendability of Constitution under basic
structure.

19. Separation of Powers and the Indian Judiciary
Ram Jawaya vs The State of Punjab (1955)
In India, this doctrine has been not be accepted in its rigid sense but the functions of all three organs have been
differentiated and it can be said that our constitution has not been a deliberate assumption that functions of one organ
belong to the another.
Kesavananda Bharati v. State of Kerela (1973)
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.
Indira Gandhi vs Raj Narain (1975)
The court held that In our Constitution the doctrine of separation of power has been accepted in a broader sense. Just
like in American Constitution where a rigid sense of separation of power applies is not applicable in India.

20. Anoop Baranwal vs UOI (2023) - Appointment of election commissioners in absence of law
Unanimous judgment on the question of appointment of Election Commissioners and held that instead of the Union
making the appointments, a committee consisting of: PM, LoO, CJI Shall be making the appointments.
Same-sex marriage case (2023)
Several petitions were filed in the Supreme Court seeking legal recognition of same-sex marriages in India. Referring
to the 1997 Vishaka verdict that laid down the guidelines to handle cases of sexual harassment at workplace, the CJI
said it was a classic example where the court laid down the framework pending the legislature coming up with a law in
this regard.
Manipur reservation case (2023)
High court order that asked the state government to send a recommendation to the Centre within 4 weeks on the
demand for ST status. Though SC stepped in, and assailed the order was wrong yet it declined to put a stay on it.
Rakesh Vaishnav vs UOI (2021) - Farmer’s Protest
Apex court stayed the implementation of the laws.

21. Supreme Court Advocates-on-Record Association vs. UOI (2015) - NJAC
The Court reasoned that the 99th Amendment was unconstitutional. In arriving at this conclusion, the
Court evaluated the theory of separation of powers and held that the interference of the executive in the
appointment of judges to the higher judiciary was a violation of the theory.
The Court relied on the reasoning laid down by the Supreme Court in Bhim Singh v. Union of India
(2010) “The Constitution does not prohibit overlap of functions, but in fact provides for some overlap as
a parliamentary democracy. But what it prohibits is such exercise of function of the other branch which
results in wresting away of the regime of constitutional accountability. Thus, the test for the violation of
separation of powers must be as “a law would be in violation of separation of powers not if it results in
some overlap of functions of different branches of the State, but if it takes over an essential function of
the other branch leading to lapse in constitutional accountability.”

22. Separation Of Power In India, UK And USA
- A Comparison
In India and UK, there is no separation of powers between the legislature
and the executive. They have a parliamentary form of government which
involves the dual concept of the close relationship between the legislature
and the executive and the responsibility of the executive before the
legislature.
However, the Constitutions of India and the UK clearly demarcate the
legislative and executive functions.

23. In India, Judiciary works as an independent machinery and carries out its work without any
interference from the legislature and executive.
In the UK there is no separation of powers. The British Parliament has control over the executive
and the British House of Lords is both the upper house of Parliament as well as the highest court
of appeal. (till 2005)
In the USA, there is both a separation of powers and well as a system of checks and balances
among the three different organs of government. The USA has a presidential form of Government
which requires both separation of powers and also a system of checks and balances among the
three different organs of the government (the Legislature, Executive and Judiciary).

24. Advantages of the Separation of Powers
The efficiency of the organs of state increased due to separation of works hence time
consumption decreases.
Since the experts will handle the matters of their parts so the degree of purity and correctness
increases.
There is the division of work and hence division of skill and labour occurs.
Due to division of work there is no overlapping remains in the system and hence nobody
interfere with others working area.
Since the overlapping removed then there is no possibility of the competition in between
different organs

25. Limitations
• It is extraordinarily difficult to distinguish the powers of the legislature, executive and
judiciary precisely. A smooth and stable government can exist only if there is
cooperation among the three organs. Any attempt made to separate these organs into
watertight compartments may lead to failure and inefficiency in the government.
• If this concept is adopted in its totality, then it will become impossible to take certain
actions. Consequently, neither the legislature can delegate the law making power to the
executive which may have expertise in the subject matter, nor the courts can make laws
related to the functioning of courts and proceedings.

26. • In the present scenario, a state works for the welfare and prosperity of the people. It has
to resolve the complex issues of society. In such circumstances, the principle of
separation of power seems to be impossible. The imposition of this doctrine in its rigid
conception will not lead to the effectuation of the objectives of the modern state. Thus,
separation of power is theoretically improbable and practically impossible.
• Montesquieu’s theory aimed to protect and safeguard the freedom and liberty of the
individuals which is impossible by the strict enforcement of separation of powers.

27. Conclusion
In conclusion, the doctrine of separation of powers is undeniably essential for effective
governance, serving as a crucial safeguard against tyranny and ensuring accountability within a
democratic system. While it may not always be possible to strictly implement a clear and rigid
separation of powers, a small degree of overlapping functions is necessary for maintaining the
delicate balance required for smooth governance. This overlap acts as a vital mechanism for
checks and balances, preventing any one branch of government from overstepping its
boundaries and interfering with the essential functions of others. Therefore, the key lies in
striking the right balance, where cooperation complements separation, and where
accountability is upheld without compromising the integrity of the separate branches. In doing
so, we can ensure that the principles of democracy and the rule of law continue to thrive in our
society.