Separation of Powers

At a Glance

• What it is The doctrine that legislative, executive and judicial powers are separated and vested in three independent organs of government
• Propounded by Montesquieu, the French political thinker, in The Spirit of Laws (1748)
• Purpose To promote individual liberty; concentration of powers in one person or body would result in despotism
• Basis of The American presidential system
• Parliamentary system Rests on cooperation and coordination between the legislature and the executive; a fusion of powers
• In India Separation of powers between the legislature, the executive and the judiciary is a basic-structure element
• Exam link UPSC Prelims, Polity: Basic Concepts

Where Does It Fit?

The rule of law makes the Government act within the law. The separation of powers is a related idea about who exercises which power. It explains why the American and parliamentary systems differ, and it leads to the next topic, judicial review, which allows the courts to check the other organs.

What Is the Separation of Powers?

The theory of separation of powers was propounded by Montesquieu, a French political thinker, in his book The Spirit of Laws (1748), to promote individual liberty. He stated that concentration of powers in one person or a body of persons would result in despotism and negate individual liberty. The doctrine holds that the legislative, executive and judicial powers of the Government are separated and vested in three independent organs of the Government.

The constitutional scholar Louis Henkin listed separation of powers, with checks and balances, among the eight elements of constitutionalism. The others are popular sovereignty, the rule of law, democratic government, an independent judiciary, civilian control of the military, police governed by law and judicial control, and respect for individual rights.

How Does the American System Separate Powers?

The doctrine of separation of powers is the basis of the American constitutional system. The first three articles of the American Constitution manifest it.

• Article I: all legislative powers are vested in the Congress.
• Article II: the executive powers are vested in the President.
• Article III: the judicial powers are vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.

The system of checks and balances in the American Constitution is an outcome of the adoption of this principle. It enables each organ of the Government to exercise partial control on others, so that no organ becomes autocratic and irresponsible. Examples of checks and balances in the American system are given below.

• The President can veto the bills passed by the Congress, through a pocket veto and a qualified veto.
• The Senate confirms the higher appointments made, and the international treaties concluded, by the President.
• The Congress determines the organisation and appellate jurisdiction of the judiciary.
• The President appoints the judges with the consent of the Senate.
• The Supreme Court can declare congressional laws and Presidential orders ultra vires.

In the American presidential system the President and his or her secretaries are not responsible to the Congress for their acts, and they do not possess membership in the Congress.

Why Does the Parliamentary System Go Against It?

The parliamentary system is based on the principle of co-operation and co-ordination between the legislative and executive organs, while the presidential system is based on the doctrine of separation of powers between the two organs.

In the parliamentary system the legislature and the executive are together and inseparable. The cabinet acts as the leader of the legislature as well as of the executive. Bagehot pointed out that the cabinet is “a hyphen that joins the buckle that binds the executive and legislative departments together”. Hence the whole system goes against the letter and spirit of the theory of separation of powers. In fact, there is a fusion of powers. Ministers are members of both the legislature and the executive.

Where Does India Stand?

India has opted for the British parliamentary system and not the American presidential system. Ministers are members of Parliament, and the executive is responsible to the legislature. The Supreme Court nevertheless treats the separation of powers as part of the basic structure. It listed “separation of powers between the legislature, the executive and the judiciary” as an element of the basic structure in the Kesavananda Bharati case (1973), and it listed separation of powers again in the I.R. Coelho case (2007), along with the rule of law.

The Constitution also contains a Directive Principle, in Article 50, that directs the State to separate the judiciary from the executive in the public services of the State.

What Did the Supreme Court Say in 2007?

While delivering a judgment in December 2007, the Supreme Court called for judicial restraint and asked courts not to take over the functions of the legislature or the executive. It said that there is a broad separation of powers under the Constitution, and that each organ of the State must have respect for the others and should not encroach on their domain. The Bench quoted Montesquieu’s warning in The Spirit of Laws as particularly apt for the Indian judiciary, which is criticised for overreach. It said that judicial activism must not become judicial adventurism, and that the remedy for a legislature or executive that is not functioning properly lies with the people at the next elections, and not in the judiciary taking over their functions.

Why Is This Topic Important?

• Distinguishes the two systems: It is the main reason given for the difference between the American presidential system and the parliamentary system.
• A basic-structure element: The Supreme Court has listed it among the elements of the basic structure.
• Judicial overreach debate: The 2007 observations on judicial restraint link it to questions on judicial activism.

What Came Next?

The next topic, judicial review, shows how the courts check the legislative and executive organs. The basic structure doctrine and the comparison of parliamentary and presidential forms of government follow.

Key People and Terms

• Montesquieu French thinker who propounded the theory in The Spirit of Laws (1748)
• Checks and balances Each organ exercises partial control over the others
• Fusion of powers The legislature and executive are inseparable in a parliamentary system
• Bagehot Described the cabinet as a hyphen joining the executive and the legislature
• Article 50 Directive Principle: separation of the judiciary from the executive in public services
• Judicial restraint Courts should not take over the functions of the legislature or the executive

Exam Corner

Mains Angle

A question on this theme usually asks how far India follows the doctrine and where the courts fit in. Use these points to add depth.

• Why it was proposed: Montesquieu argued that concentration of powers in one person or body would result in despotism and negate individual liberty.
• Parliamentary fusion: The cabinet joins the executive and the legislature, so the parliamentary system goes against the letter and spirit of the theory.
• Yet a basic feature: The Supreme Court lists separation of powers among the basic-structure elements.
• Judicial overreach: In 2007 the Supreme Court said judges cannot cross their limits and take over functions that belong to another organ, and that judicial restraint complements the balance of power.
• Judicial independence: Article 50 directs the separation of the judiciary from the executive in the public services.