The crux, the pivotal point of a federal constitution is the separation of powers and functions between the centre and the states. The doctrine of separation was first coined by Greek philosopher Aristotle and further carry forwarded by Montesquieu. The doctrine talks about division of powers among three forms of government i.e. Legislature, Executive and Judiciary in order to maintain effective functioning of government system as well as to keep check on them.
A study of federations now extant in the world shows that there is no fixed formula, or asset pattern for division of powers between the centre and the regional governments. Usually certain powers are allotted exclusively to the centre; certain powers are allotted exclusively to the regions, and there may be common or concurrent area for both to operate simultaneously.
The main idea behind the concept of separation of powers is to have transparency in the mechanism of the government and to ensure liberty of citizens with effective implementation of all the laws formulated by the state. This doctrine ensures that there should be division of powers so that one person or body of persons should not exercise all the powers. This doctrine states that the powers and responsibilities of all the three organs should be clearly defines and kept separate which is mandatory for ensuring the liberty of people.
In order to make a political system stable, the powers need to be divided and balanced. The theory of separation of powers states that the three forms of government must be separate and independent from each other. Therefore it aims to create a strict demarcation of powers and functions of the forms of government.
Its righty said by John Dalberg-Acton that “Absolute Power Corrupts Absolutely”
Separation of Power in India
The foundation for federal set up was laid down in the Government of India Act, 1935. Though in every respect the distribution of powers between the union and the states as contemplated in the 1935 Act has not been adopted in the Constitution but the basic framework is same.
Under the Indian constitution, executive powers are vested to the President, Parliament is vested with legislative powers and judicial powers are endowed to the judiciary (Supreme Court, High Court and Subordinate Court).
The constitution brings in to existence different constitutional entities namely the union, the states and the union territories. It creates three major instruments of power, the Legislature, the Executive, and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function with the spheres allotted to them.
In India this doctrine of separation of powers has not been accepted in stricter sense. There is functional overlapping as well as personal overlapping. For instance, the Supreme Court has been given power to declare void the laws passed by the legislature and the actions taken by the executive if they violate any provisions of the constitution or the laws passed by the legislature in case of executive actions. On the other hand the executive has the power to affect the functioning of the judiciary by making appointments to the office of Chief Justice and other Judges. Indira Nehru Gandhi v/s Raj Narain it was observed that in the constitution there is separation of powers in a broad sense only a rigid separation of power as under the American constitution does not apply to India.
Separation of Power in U.S.A
In U.S.A the federation came into existence as a result of the voluntary compact between 13 sovereign states. These states surrendered a part of their sovereign powers to a federal entity and retained with themselves the unsurrendered residue. The constitution of U.S.A was brought into force in 1787 making it one of the oldest and the most respected member of the family of modern federal constitution and is regarded as a precursor of the modern federalism. The U.S constitution adopts a very simple method for centre-state distribution of powers. It has only one list specifically enumeration the powers of the centre. A few enumerated and specified powers have been thus allocated to the centre, and the unenumerated residue of powers has been left to the states.
The doctrine of separation of power forms the basis of American constitutional structure. The Article I, II, III delegate and separate powers of the centre and the states.
Article 1 vests legislative power in the congress, Article 2 vests executive powers in the president and Article 3 vests judicial powers in the Supreme Court. In U.S.A there is presidential form of government which is based on the theory of separation of powers between the executive and the legislature. The President is the head of the state as well as chief executive. He appoints and dismisses other executive officers and thus controls the policies and actions of the government departments. The persons in charge of various departments designed as the secretaries of state hold office at his pleasure and responsible to him and are more like his personal advisors.
The President is not bound to accept the advice of a secretary and the ultimate decision rests with the President. Neither the President nor any member of the executive is a member of the congress and a separation is maintained between the legislative and executive organs.
This system of government is fundamentally different from the parliamentary system prevailing in India. In U.S.A the President is not responsible to the congress unlike India, where the cabinet is collectively responsible to the parliament. The president has a fixed term of office and does not depend on majority support in the congress. Before the expiry of his term, he can be removed only by the extremely cumbersome process of impeachment. President cannot disapprove the congress whereas in India Prime Minister has the power to seek dissolution of the Parliament. The executive therefore is not in a position to provide effective leadership to the legislature and it is not always that the congress accepts the programmes and policies proposed by the executive.
The U.S constitution guarantees the independent judiciary. However at the district as well as in the Supreme Court the judges are appointed by the President and there term of office is lifetime. And at the state or provincial level courts the judges are elected by the citizens of that state or province and that too for lifetime.
Separation of Power in England
Although Montesquieu has defined the concept of separation of power from British constitution, but still at no point of time his doctrine was accepted in strict sense in English. On the contrary, England has adopted the theory of Integration of Power. It is true that the three powers are vested in three organs and each has its own peculiar features, but it cannot be said that there is no sharing out of powers of the government, thus the King is the executive head as well as an integral part of the legislature.
Similarly, all the ministers are also members of one or the other houses of the parliament. The Lord Chancellor is head of the judiciary, chairman of the houses of commons (legislature) a member of the executive and often a member of the cabinet. The house of commons ultimately controls the legislature. The judiciary is independent but the judges of the Supreme Court can be removed on an address from both houses of parliament.
In U.K, the concept of separation of power exists but not in formal sense as it is in U.S.A. The concept of mixed government with checks and balances given by Blackstone is more predominant in U.K. The three branches are not formally separated and continue to have overlapped as it is in India.
Comparing the scheme of distribution of powers in the U.S.A with that in India we find that in America there is only one list while in India there are three lists. In America only the exclusive powers of the centre are defined; there is no concurrent field and the residue vests with the states. In India, the exclusive powers of the centre as well as of the states are defined, there is a large concurrent area and the residue vests in the centre and not the states. Functions assigned to the centre in India are much more numerous and complex in ambit than those assigned to the centre in the U.S.A. Defence and external affairs are central subjects in both the countries but the centre’s external powers appears to be broader in India than in the U.S.A. The Supreme Court in the U.S.A has helped in the growth of the centre as a powerful entity; whereas in India the centre has been conceded a powerful status by the constitution itself which is more pervasive than that of the centre in the U.S.A.
On the other hand the structure and concept of separation of power is India and U.K is almost similar to each other as India being a British colony for over 200 years. The Indian separation of power which is influenced by the government of India Act, 1935 was enacted by the British legislators. This is the reason that India and U.K envisages almost similar idea of separation of power.
In the contemporary world, the doctrine of separation of powers is only structural and not functional. The doctrine cannot be fully executed in its rigidity because the needs of the vast and diverse population. But, it is being practised in a modified form in order to avoid corruption and tyranny of one organ of the government. The modified form includes division of three organs structurally and functionally so that any of the branches does not act beyond the scope of its authority except in cases of emergency or checks and balances in order to prevent despotism. Therefore, it can be concluded that Montesquieu concept is not a myth but it actually holds truth, but in a modified sense. In today’s environment this doctrine should be exercised in the manner in which the best interest of the citizens can be achieved.
 I.C Golak Nath v/s State of Punjab, 1967
Author: Ramanjot Singh (Kurukshetra University, Kurukshetra)