Comparison of Constitutions

The doctrine of Separation of Powers emphasizes the mutual exclusiveness of the three organs of government, viz., legislature, executive and judiciary. The main underlying idea is that there should not be concentration of all the functions/powers in one organ.

Separation of power in US:

• The American Constitution follows strict separation of power. Its Art. I vests legislative power in the Congress; Art. II vests executive power in the President and Art. III vests judicial power in the Supreme Court.
• The Presidential form of government envisioned under this is based on the theory of separation between the executive and the legislature.
• On the basis of the Doctrine of Separation of Powers, the Supreme Court was not given the power to decide political questions. Also, overriding power of judicial review was not given to the Supreme Court until a landmark case of Marbury v. Madison.
• The US Constitution however incorporates some exceptions to the doctrine of separation with a view to introduce the system of checks and balances. For instance, a bill passed by the Congress may be vetoed by the President and, to this extent the President may be said to be exercising a legislative function.
• Therefore, in theory, the US insists on the absolute rigid separation of powers, but in practice, this principle is combined with the principle of checks and balances.

Separation of power in Britain:

• In Britain, there is a Parliamentary form of government, wherein the king is the nominal head, and the actual legislative functions are performed by the Parliament. Although the king is the chief executive, he is also an integral part of the legislature, and all his ministers are also members of specific houses of the Parliament.
• Britain has the concept of separation of powers, but it is not in a formal sense like in the United States. The three branches are not officially separated, but there is still a large overlap as in India.
• Therefore, the U.K. has a non-rigid separation of power which implies that the doctrine of Separation of Power is implemented in a broad sense as a result of which the functions of all three organs overlap with one another.

Separation of Power in India:

• The idea of Separation of power forms the basic structure of the Indian Constitution. However, a closer look at the provisions of the Indian Constitution, indicate that there is no strict separation of power in India and there are large exceptions:
  • There is personnel and functional overlapping between the executive and the legislature.
  • Even the power to amend the Constitution by Parliament is subject to the scrutiny of the Court. The Court can declare any amendment void if it changes the basic structure of the constitution.
  • The President of India who is the supreme executive authority in India exercises law making power in the form of ordinance making power under Article-123.
  • The executive branch also influences the operation of the judiciary by appointing Chief Justices and other judges.

Thus, India has adopted the doctrine of separation of powers not in an absolute rigid sense but with the system of checks and balances. Also the doctrine of separation power cannot be practically applied in the strict sense in any contemporary democracy.