1)In general, separation of powers has accepted three main categories of government: legislative, executive, and judicial, with each exercising its respective powers and functions.
2)Montesquieu first formulated the theory of separation of powers. According to him: "When legislative and executive powers are united in the same person, there can be no liberty. If there is no liberty, judicial power cannot be separated from legislative and executive power."
3)According to Wade & Phillips, separation of powers means three things:
a)The same person should not form a part of more than one of the three organs of government.
b)One organ should not control or interfere with another.
c)One organ should not exercise the powers of another.
Demerits of the Doctrine of Separation of Powers
1)This doctrine was never adopted in the British Constitution nor adopted at any time.
2)It is based on the assumption of three distinct functions of government; however, there are no watertight compartments.
3)It is practically impossible to accept entirely.
4)The modern state cannot solve socio-economic issues with this strict doctrine.
5)The fundamental idea of Montesquieu for the doctrine is liberty and freedom of the individual, but it cannot be achieved solely by separation of powers.
Separation of Powers in Practice
A) India:
1)At a casual glance, separation of powers is accepted: executive power is vested in the President, legislative powers in Parliament, and judicial power in the judiciary (Supreme Court, High Courts, and subordinate courts).
2)Golak Nath v. State of Punjab (1967): The Supreme Court held that there is a separation of powers in the Constitution of India among legislature, executive, and judiciary with clear demarcation, and they exercise their powers without overstepping limits.
3)Supreme Court Advocates-on-Record Association v. Union of India (2016): The Supreme Court held that separation of powers is an essential and basic structure of the Constitution, though not as rigid as in the US. Overlapping functions of one branch with another do not constitute a violation.
4)Article 53 vests executive powers in the President. Article 72 gives the President the power of pardoning (judicial in nature), and Article 123 provides the power to promulgate ordinances (legislative in nature).
Therefore, there is no strict doctrine of separation of powers in India.
B)United States:
Accepted and strictly adopted in the US Constitution.
Article I vests legislative functions in Congress; Article II vests executive functions in the President; Article III vests judicial functions in the Supreme Court.
Based on "checks and balances"; powers and functions vested in one organ cannot be exercised by another.
However, with the growth of the administrative process, the President (although executive) can send messages to Congress and exercise veto power. Additionally, Congress can impeach the President, exercising a judicial power.
C) England:
Never accepted and never adopted in Britain.
The Lord Chancellor is the head of the judiciary, Chairman of the House of Lords (legislature), and often a member of the executive/cabinet.