Separation of Powers
Elaboration
- Concept: Given by Montesquieu (The Spirit of the Laws, 1748): legislative, executive and judicial powers should be vested in separate bodies to prevent tyranny. Strictly followed in the USA (checks and balances).
- India does not follow strict separation. It follows functional overlap with institutional separation.
- Legislature performs executive functions: ministers are MPs;
- Executive performs legislative functions: ordinances ( Art 123, 213), delegated legislation;
- Executive performs judicial functions: tribunals ( Arts 323A, 323B), quasi-judicial bodies;
- Judiciary performs legislative functions: rule-making power (Art 145), judicial law-making (Vishaka guidelines);
- Legislature performs judicial functions: contempt of the House, breach of privilege, impeachment.
- Constitutional provisions on separation: Art 50 (DPSP: separate judiciary from executive in public services), Art 121, 211 (no discussion of judges' conduct in legislature except impeachment), Art 122, 212 (courts cannot inquire into legislative proceedings), Arts 124, 125, 217 (security of tenure and salary), Art 361 (President/Governor immunity).
- Key cases:
- Ram Jawaya Kapur v State of Punjab (1955): India does not follow rigid separation; functions are broadly differentiated; the executive can't encroach on essential legislative function.
- Indira Gandhi v Raj Narain (1975): Separation of powers is part of the basic structure; Parliament cannot exercise judicial power (e.g., decide an election dispute).
- Kesavananda (1973): Basic structure includes separation of powers.
- I.R. Coelho (2007), Kihoto Hollohan (1992) (Speaker as tribunal subject to judicial review).
- Golaknath (1967), Keshav Singh case (1965) (legislative privilege vs judicial review).
Key points to remember
- Separation of powers = basic structure (Indira Gandhi, 1975), although not rigid.
- Ram Jawaya Kapur (1955): India doesn't have strict separation, but each organ has its own essential functions.
- Judiciary-Executive separation: Art 50 (a DPSP), and CrPC separated judicial and executive magistrates.
- Montesquieu → USA; Parliament-executive fusion → India/UK.
PYQ / MCQ
1. The doctrine of separation of powers was propounded by:
(a) Locke
(b) Montesquieu
(c) Rousseau
(d) Bentham
Answer: (b)
2. In which case did the SC hold that India does not follow a rigid separation of powers?
(a) Ram Jawaya Kapur
(b) Golaknath
(c) Shankari Prasad
(d) Maneka Gandhi Answer: (a)
3.Which Article directs the state to separate the judiciary from the executive?
(a) Art 40
(b) Art 50
(c) Art 51
(d) Art 44
Answer: (b)