Doctrine of Separation of Powers

Though the doctrine is traceable to Aristotle, but writings of Locke and Montesquieu gave it a
base on which modern attempts to distinguish between legislative, executive and judicial
power is grounded. Doctrine of Separation of Powers means that one person or body of
persons should not exercise all the three forms of power of the governance - Executive,
Legislature and Judiciary. i.e. there should not concentration of powers in the hands of any
particular institution or agency of the Government.
The theory of separation of powers signifies three formulations of structural classification of
governmental powers:
(i) The same person should not form part of more than one of the three organs of the
government. For example, Judges cannot be Legislators.
(ii) One organ of the government should not interfere with any other organ of the
government.
(iii) One organ of the government should not exercise the functions assigned to any
other organ.
In India, the doctrine of separation of powers has not been accorded a constitutional status.
Apart from the Directive Principles laid down in Article 50 which enjoins separation of judiciary
from the executive, the constitutional scheme does not embody any formalistic and dogmatic
division of powers.
In Indira Nehru Gandhi vs. Raj Narain, it was observed that in the Indian Constitution there is
separation of powers in a broad sense only. A rigid separation of powers as under the American
Constitution does not apply to India. However, the court held that thought the constituent
power is independent of the doctrine of separation of powers to implant the theory of basic
structure as developed in the case of Kesavananda Bharati vs. State of Kerala on the ordinary
legislative powers will be an encroachment on the theory of separation of powers. It was added
that 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. This scheme
of the Constitution cannot be changed even by resorting to Article 368 of the Constitution.

Ram Jawaya Kapur Vs State of Punjab AIR 1955 SC 549
Indira Gandhi Vs Raj Narain 1975 Supp SCC 1: AIR 1975 SC 2299: Supreme Court of India held
that the doctrine of separation of powers is present in the Constitution in the broad sense only.
A rigid separation as seen in the American Constitution cannot be seen.
Kesavananda Bharati Vs State of Kerala (1973) 4 SCC 225: AIR 1973 SC 1461
P Kannadasan Vs State of Tamil Nadu (1996) 5 SCC 670: 'Check and balance' inherent in the
system of government incorporation separation of powers.
University of Kerala v Council, Principals, Colleges, Kerala and Others, AIR 2010 SC 2532. The
Court elaborately explained the scope of separation of powers of different organs of the State
under our Constitution; the validity of judicial legislation and if it is at all permissible, its limits;
and the validity of judicial activism and the need for judicial restraint, etc. The Court observed:
"At the outset, we would say that it is not possible for this Court to give any direction for
amending the Act or the statutory rules. It is for the Parliament to amend the Act and the
Rules."