Doctrine of Separation of Powers

The doctrine of separation of power was formulated by Montesquieu. In simple terms, it means that the concentration of power in only one person would result into difficulty and not proper management of the functions, therefore there should be proper distribution of power among the wings, clearly mentioned as- Legislative, which is responsible for the making of the law, Executive, which is responsible for the implementation of law and Judiciary, which is looks after the laws made by the legislative. These are the 3 wings of the government which operate and there is a system of Checks and Balances to ensure that their there is proper functioning among them.

This doctrine was advocated keeping in mind the following points:

  1. The same individual should not be a part of other of the wings.
  2. One wing should not exercise the function of the other wing.
  3. One wing should not intervene with the other wings.

This doctrine supports the structural classification of the governmental powers only and cannot be applied in strict sense in reality as the powers among these wings cannot be kept into water-tight compartments and this is one of the criticisms of this doctrine.

Taking support of the case of Indira Gandhi vs Raj Narain,[1] where the election of the Prime Minister (Indira Gandhi) was on corrupt basis and meanwhile a provision was passed stating that no power of judicial review in the process of election of Prime Minister and it was held that judicial decision cannot be overturned by the legislative process. Separation of power is the basic structure of the Constitution and this must be followed, but this was used in much broad sense which is difficult to be implemented in the real scenario.

This can further be explained with the case of Asif Hameed vs State of J&K,[2] wherein the issue was with regard to competency of the High Court to issue directions to State government to constitute a “statutory body” for selection to medical college and whether the selection so made by other authority is invalid on the ground alone?

The court held that although, separation of power is recognised under the Constitution of India. But the constitutional makers have very carefully defined the functions of the 3 organs of the government as their powers and functions are demarcated within their own sphere under the Constitution of India, none of them overlap with the functions of the other. Apart from this court also held that the Constitution gives power to executive to lay down the policies and procedures for the admission to medical colleges in State, so the High Court has no authority to divest the executive of its power and the judgment of High court was et aside as it was against the doctrine of separation of power.

Therefore, we can clearly state from the above discussions that this doctrine is functional rather than structural and cannot be applied as it is not at all possible to be applied to the modern government.

[1] 1975 AIR 590

[2] AIR 1989 SC 1899.

Aishwarya Says:

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