The separation of powers, sometimes vaguely used interchangeably with the ‘Trias politica’ principle is a model for the governance of a state. It is established in documents that dogma of separation of powers considers the idea that the governmental functions must be based on a tripartite division of legislature, executive and judiciary. The three organs should be separate, distinct and independent in its own sphere so that one does not intrude the territory of the other. Previous literature denoted that Aristotle who first perceived and saw that there is a specialization of function in each Constitution developed this doctrine. Later many theorists such as Montesquieu, John Locke and James Harrington described these functions as legislative, executive and judicial. All the theories originated by these political thinkers in relation to the principle of separation of powers were on a basic presumption that the liberties of the people should be protected from the tyrannical and despotic rulers when all the powers are vested and exercised by the very same persons (Vishnoo Bhagwan, 2010).



The model was first developed in ancient Greece. Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. The typical division of branches is into a legislature, an executive, and a judiciary. It can be differentiated with the merging of powers in a parliamentary system where the executive and legislature are unified. Theory of Separation of Powers is based on the concept and based on the the idea that for the sake of individual freedom. Cooley emphasizes the prominence of the doctrine of separation of powers as “This arrangement gives each department a certain independence, which operates as a restraint upon such action of others as might encroach on the rights and liberties of the people, and makes it possible to establish and enforce guarantees against attempts at tyranny.
The modern design of the principle of separation of powers was elaborated in constitutional theory of John Locke (1632-1704). He wrote in his second treaties of Civil Government as follows: ‘It may be too great a temptation for the humane frailty, apt to grasp at powers, for the same persons who have power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from the law, both in its making and execution to their own private advantage'.

Elements of separation of powers:

It is generally acknowledged that there are three main categories of governmental functions-

1. Legislative
2. Executive
3. Judicial

Likewise, there are three main organs of the Government in a State-

• Legislature
• Executive
• Judiciary.

The theory of Separation of Powers confers all the three organs of the government should be separated from each other. Each department should be assigned to a different set of persons limited to its own sphere of activities having independent jurisdictions from, the other. No organ of the government should release any functions which it is not obliged to do. The theory signified that, each branch of the Government must be confined to the exercise of its own function and not allowed to interrupt upon the functions of other branches. In this way each branch will be a check to others and so single group of people will be able to control the machinery of the state.
The theory of separation of the powers signifies the following three different things:
That the same person should not form part of more than one of the three organs of the government.
That one organ of the government should not interfere with any other organ of the government.
That one organ of the government should not exercise the functions assigned to any other organ. This is traditional concept of theory of separation of power, which is dissimilar from modern conception. New concept of separation of power has arisen because in those days when these researchers and theorists explained their ideas as the economy was very simple. Furthermore, in earlier period, areas of governmental activities were not broad. Social problems were not very complex and national and international situations were not that tricky.

The Legislature:

The Legislature has been considered as high-esteem in the Indian Constitution. It is mainly associated with enactment of general rules of law that are relevant to all aspects of the conduct of its inhabitants and institutions. The Parliament is the Union Legislature of India consists of two bodies such as Lok Sabha and the Rajya Sabha. It passes laws, impose taxes, authorizes borrowing, and prepares and implements the budget, has sole power to declare war, can start investigations, especially against the executive branch, appoints the heads of the executive branch and sometimes appoints judges as well as it has the power to ratify treaties. As it is presenters for the will of the people by safeguarding a true and complete democracy, it can be supposed that it cannot be done all by the Legislature itself. It is an impending threat to democracy if an absolute power is given to the nation’s purse holder. By making the executive responsible to the popular house, the Constitution safeguards a proper mechanism of checks and balances to the dogma of separation of powers. The entire system has other facades which can help achieve the same. Therefore, this brings the role of the other two pillars: the judiciary and the Executive.

The Judiciary:

Indian constitution is drafted so precisely that it provides for an independent and unprejudiced Judiciary as the interpreter of the Constitution and as custodian of the rights of the populations through the process of judicial review. This mandates the judiciary to interpret the laws but not to make them. They are not to lay down the general norms of behaviour for the government. Judiciary is an important organ of the government (Harihar Bhattacharyya, 2015). The Supreme Court of India is one of the very powerful courts in the world. Since 1950, the judiciary has played vital role in interpreting and in protecting the Constitution.
The higher judiciary in India, especially the honourable Supreme Court has become an epicenter of debate over its role in entertaining and deciding public-interest-petitions. In deciding these petitions, the judiciary issues many directions to the Government which includes framing of legislation in many areas. The role of the judiciary should only be limited to inspecting the constitutionality of the legislation and not directing the government to enact legislation. The scope of judicial review does not extend beyond enquiring whether a questioned legislation or an executive action falls within the competence of the Legislature or of the executive authority or is consistent with the Fundamental Rights guaranteed by the Constitution or with its other mandatory provisions.
Independence of Judiciary means that:

1. The other organs of the government like the executive and legislature must not restrain the functioning of the judiciary in such a way that it is unable to do justice.
2. The other organs of the government should not interfere with the decision of the judiciary.
3. Judges must be able to perform their functions without fear or favour.

Executive:

The Executive can refuse laws, can command of the military, makes verdicts or declarations and disseminate lawful regulations and executive orders, can reject to spend money allocated for certain purposes, can appoints judges, and has the power to grant pardons to convicted criminals. The Executive is strong support of democracy and equally expected to be free of intrusions from the other two organs of constitution. It is established that Executive is independent of the two but the incongruity persists. It is completely eroded in actual practice. The reason is that each time the executive is questioned for its actions by the judiciary and the Legislature. This weakens the independence of the Executive to the maximum. It is not that the question of responsibility pops up only in the case of executive. The judiciary and legislature are equally answerable but in their cases, a built-in system from within would be available for discharging those functions. This is the real state of affairs, which exists in practice.
Though the Indian Constitution allocates executive powers to the President and Governors (Article 53 (1) and Article 154 (1), they are authorised with certain legislative powers (Articles 123, 213 and 356) and certain judicial powers (Articles 103 and 192). Likewise, the legislature exercises certain judicial functions (Articles 105 and 194) and judiciary exercises few legislative and executive functions (Articles 145, 146, 227 and 229). However, the judiciary is made separate from the executive in the public services of the State (Article 50). In some states, complete separation of judiciary from executive has been accomplished through legislation.
According to Article 52 and 53 of Indian constitution:
52. The President of India - There shall be a President of India.
53. Executive power of the Union. - (1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
(3) Nothing in this article shall-(a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority; or (b) prevent Parliament from conferring by law functions on authorities other than the President.
Executive powers: All the executive actions of the Union government are taken in his name. He assigns officials of the Union Government, Prime Minister, and Council of ministers at the advice of the Prime Minister, Chief Justice and judges of Supreme Court and High Court at the advice of the Chief Justice of India. He appoints the chairman of UPSC, Comptroller and Auditor general of India, Attorney General of India, Chief Election Commissioner and other Election Commissioners, Governor of the states, members of Finance Commission and ambassadors.

Judicial powers:

The President appoints the Chief Justice of the Supreme Court and other judges on the advice of the Chief Justice. The President enjoys legal protection. He can grant pardon, reprieve, and respite or remise punishment. The President can terminate the judges by two-thirds majority of the members present in two houses. If they consider a question of law or a matter of public importance which has arisen, they can ask for the advisory opinion of the Supreme Court. However, they may or may not accept that opinion.

Legislative powers:

The President summons both houses of the Parliament and prorogues the session of the two houses and can dissolve the Lok Sabha but uses these powers according to the advice of the Council of Ministers headed by the Minister. The introductory speech of the Parliament at the beginning of the first session each year is delivered by him where he outlines the new policies of the government. A bill that the Parliament has passed can become a law only after the President gives their agreement to it. He can return a bill to the Parliament for reconsideration but this is not so in case of money bill. But in case the Parliament sends it back for the second time, the President is obliged to sign it. The President can promulgate ordinances when the Parliament is not in session but must get it approved within six weeks. Furthermore, this is so only in case of the Union and Concurrent list.