PATNA UNIVERSITY

P.G. DEPARTMENT OF LAW

Second Semester Project Assignment 2017

SEPARATION OF POWER

Project submitted to:

Dr. VANI BHUSHAN
Faculty, P.G. Department of Law
Patna University

Project submitted by:

ASHWINI KUMAR
ROLL NO.- 03
SEMESTER- 2nd
SESSION- 2016-18
COURSE- LL.M.

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 ACKNOWLEDGMENT

In this, first semester of LL.M. Course at PG Deptt. Of Law, Patna University, I have got the
good fortune to learn ADMINISTRATIVE LAW. Here, the guidance of Dr. Vani Bhushan,
Faculty of law, made me able to understand the concept and, thus, I greatly owe to him. He had
given a proper direction to my study of ADMINISTRATIVE LAW. His unfettered support
made me able to complete this project.

I am thankful to other faculty members of Patna University for their co-operation.

I am also thankful to the librarians of Patna University for their support.

I remain, of course, entirely responsible for any errors.

ASHWINI KUMAR

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 TABLE OF CONTENTS

Research Methodology.................................................................................................................... 4

Aims & Objectives........................................................................................................................... 4

Hypothesis ....................................................................................................................................... 4

Scope And Limitation ...................................................................................................................... 4

Sources ............................................................................................................................................ 4

INTRODUCTION .......................................................................................................................... 5

MEANING OF SEPARATION OF POWERS .............................................................................. 7

IMPORTANCE OF THE DOCTRINE .......................................................................................... 8

ORIGIN OF SEPARATION OF POWERS ................................................................................ 9

MONTESQUIEUS THEORY OF SEPARATION OF POWERS.............................................. 11

SEPARATION OF POWERS IN USA AND UK ........................................................................ 12

U.S.A......................................................................................................................................... 12

U.K. ........................................................................................................................................... 14

SEPARATION OF POWERS & THE INDIAN CONSTITUTION ............................................ 15

SEPARATION OF POWERS AND JUDCIAL PRONOUNCEMENTS IN INDIA .................. 21

CONCLUSION ............................................................................................................................. 22

BIBLIOGRAPHY ......................................................................................................................... 24

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 RESEARCH METHODOLOGY

Doctrinal research asks what the law is on a particular issue. It is concerned with analysis of the
legal doctrine and how it has been developed and applied.

AIMS & OBJECTIVES

1. The researcher through this paper aims to trace the history of the doctrine of separation of
powers by analyzing relevant case laws.
2. The researcher shall make an attempt to find out the status of this theory, as it exists today, in
India.

HYPOTHESIS

1. The researcher assumes that the Doctrine of Separation of Powers is essential for
democratic country.
2. The researcher assumes that strict separation of power is essential for protection of liberty.
3. The researcher assumes that the doctrine of Separation of Powers has been
strictly followed in India.

SOURCES

The sources used by the researcher in this project work are primary as well as secondary sources,
details of which are given as under:-

Primary sources: The primary sources used in this project work include Select Constitution of
World and judicial precedents. The reference of various judicial pronouncements was necessary
because vide those judicial pronouncements the scope of subject matter has been explained.

Secondary sources: As far as secondary sources are concerned books and commentaries have
been studied in the present work.

SCOPE AND LIMITATION

This project work is descriptive study of the subject matter.

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 INTRODUCTION

Today all the Constitutional systems in the world might not be opting for the strict separation of
powers because that is undesirable and impracticable but implications of this concept can be seen
in almost all the countries in its diluted form. It is widely accepted that for a political system to
be stable, the holders of power need to be balanced off against each other. The principle of
separation of powers deals with the mutual relations among the three organs of the government,
namely legislature, executive and judiciary. This doctrine tries to bring exclusiveness in the
functioning of the three organs and hence a strict demarcation of power is the aim sought to be
achieved by this principle. This doctrine signifies the fact that one person or body of persons
should not exercise all the three powers of the government. Montesquieu, a French scholar,
found that concentration of power in one person or a group of persons results in tyranny. And
therefore for decentralization of power to check arbitrariness, he felt the need for vesting the
governmental power in three different organs, the legislature, the executives, and the judiciary.
The principle implies that each organ should be independent of the other and that no organ
should perform functions that belong to the other.

The legitimacy of an active judiciary is closely connected with the constitutional limits
enshrined in the constitution which are based on a broad division of powers among the three
organs of the state. In this set up, each organ is earmarked with certain specific functions any
usurpation of such earmarked functions by other organs raises certain serious questions relating
to the harmonious working of the Constitution. For these reasons, the primary objection that outs
the concept of Judicial Activism is the doctrine of Separation of Powers.

Since early times, it has been a prime concern of most of the political thinkers to devise methods
that can best stand as a bulwark against the arbitrary exercise of governmental powers. To this
effect, it has often been many a time suggested that there should be no concentration of power in
a single man or a body of men and the government should be that of a government of law and not
of men. The frank acknowledgement of the role of government in a society linked with a
determination to bring it under control by placing limits on its power has influenced the minds of
myriad political thinkers as well as the advocates of constitutionalism who from time to time
have come up with distinct theories to grapple with the burgeoning problem.

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The doctrine of separation of powers has always stood alongside other theories, as a fundamental
political maxim, surmounted with the intellectual propositions of many philosophers who in
some way or the other, developed and perceived it as per their own apprehensions and
understandings. A close analysis of the literature available on the doctrine goes on to suggest that
even for people most closely associated with the doctrine, only concerned themselves himself
with the demonstration of its adoption and its application in the constitution of United States.
Further, the unanimous disagreement amongst the authorities on Montesquieus attempt of
defining the doctrine also illustrates the point.

By no stretch of imagination is the doctrine a simple and an immediately

recognizable, unambiguous set of concept. It rather represents an area of political
thought where there has been an extraordinary confusion in defining and the use of its
attributes. Interestingly, standing alone as a theory of government, the doctrine has
uniformly failed to provide an adequate basis for an effective and a stable political
system. Nevertheless, having made all the necessary qualifications, the essential and
vital ideas behind the doctrine still remain of utmost importance in various political
systems in the world over today.

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 MEANING OF SEPARATION OF POWERS

Understanding that a government's role is to protect individual rights, but acknowledging that
governments have historically been the major violators of these rights, a number of measures
have been devised to reduce this likelihood. The concept of Separation of Powers is one such
measure. The premise behind the Separation of Powers is that when a single person or group has
a large amount of power, they can become dangerous to citizens. The Separation of Power is a
method of removing the amount of power in any group's hands, making it more difficult to
abuse.

It is generally accepted that there are three main categories of governmental functions (i) the
legislative, (ii) the Executive, and (iii) the Judicial. At the same time, there are three main organs
of the Government in State i.e. legislature, executive and judiciary. According to the theory of
separation of powers, these three powers and functions of the Government must, in a free
democracy, always be kept separate and exercised by separate organs of the Government. Thus,
the legislature cannot exercise executive or judicial power; the executive cannot exercise
legislative or judicial power of the Government.1

As the concept of Separation of Powers explained by Wade and Philips, it means three different
things:

A. That the same persons should not form part of more than one of the three organs of
Government, e.g. the Ministers should not sit in Parliament;
B. That one organ of the Government should not control or interfere with the exercise of its
function by another organ, e.g. the Judiciary should be independent of the Executive or
that Ministers should not be responsible to Parliament; and
C. That one organ of the Government should not exercise the functions of another, e.g. the
Ministers should not have legislative powers.

1
C.K.Takwani, Lectures on Administrative Law (2008) p.31

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 IMPORTANCE OF THE DOCTRINE

The doctrine of separation of power in its true sense is very rigid and this is one of the reasons of
why it is not strictly accepted by a large number of countries in the world. The main object, as
per Montesquieu - Doctrine of separation of power is that there should be government of law
rather than having willed and whims of the official. Also another most important feature of this
doctrine is that there should be independence of judiciary i.e. it should be free from the other
organs of the state and if it is so then justice would be delivered properly. The judiciary is the
scale through which one can measure the actual development of the state if the judiciary is not
independent then it is the first step towards a tyrannical form of government i.e. power is
concentrated in a single hand and if it is so then there is a cent percent chance of misuse of
power. Hence the Doctrine of separation of power do plays a vital role in the creation of a fair
government and also fair and proper justice is dispensed by the judiciary as there is
independence of judiciary. Also the importance of the above said doctrine can be traced back to
as early as 1789 where the constituent Assembly of France in 1789 was of the view that there
would be nothing like a Constitution in the country where the doctrine of separation of power is
not accepted.

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 ORIGIN OF SEPARATION OF POWERS

The concept of separation of powers grew out of centuries of political and philosophical
development. Its origins can be traced to 4th century B.C., when Aristotle, in his treatise entitled
Politics, described the three agencies of the government viz. the General Assembly, the Public
Officials, and the Judiciary. In republican Rome, there was a somewhat similar system consisting
of public assemblies, the senate and the public officials, all operating on the principle of checks
and balances. Following the fall of the Roman Empire, Europe became fragmented into nation
states, and from the end of the middle ages until the 18th century, the dominant governmental
structure consisted of a concentrated power residing in the hereditary ruler, the sole exception
being the development of English Parliament in the 17th century.

With the birth of the Parliament, the theory of the three branches of government reappeared, this
time in John Lockes Two Treatise of Government (1689), where these powers were defined as
legislative, executive, and federative. Locke, however did not consider the three branches to
be co-equal, and nor considered them as designed to operate independently. He considered the
legislative branch to be supreme, while the executive and federative functions as internal and
external affairs respectively, which were left within the control of the monarch, a scheme which
obviously corresponded with the dual form of government prevailing in England at that time,
that is, The Parliament and The King.

During those times, in England the term executive had a much broader connotation in contrast
to how it is understood today. What we now call executive and judicial functions were then
simply known as Executive Power. The King was considered as the repository of all executive
and judicial powers and was believed to be the sole protector of the laws of nature. However, the
need for the independence of the judiciary from the hands of the king and his other servants was
a long felt demand since early times.

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On similar lines, Chief Justice Coke in 1607 went a step further and said that judicial matters
were not to be decided by natural reason but by the artificial reason and judgment of law, which
law is an act which requires long study and experience before that a man can attain cognizance
of it. Nonetheless, it was much clear in the minds of people that the only part that the king
played in administration of justice was that of the appointment of judges.

Having felt that judiciary should be separate and independent from the clutches of the King,
another theory that aimed at the separation of legislative and executive (including judicial)
functions grew autonomously by the influence of the writings of several other political writers of
that time. Throughout the 17th and 18th centuries, English writers endeavored to expound one
theory of separation in the absence of the other. It was not until Baron-de-Montesquieu that a
really influential synthesis of the duo appeared.

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 MONTESQUIEUS THEORY OF SEPARATION OF POWERS

Baron-de-Montesquieu was a French philosopher who is aptly known, criticisms apart, for the
theorization of the concept of separation of powers into a profoundly systematic and scientific
doctrine in his book De L Espirit des Lois (The Spirit of Laws), published in the year 1748. He
based his theory on his understanding of the English system which since the time of Locke had
generated a more independent judiciary and a tendency towards a greater distinction amongst the
three branches.

Apart from natural liberty, Montesquieu laid greater emphasis on political liberty of a citizen.
He defined political liberty as peace of mind that arises from the opinion each person has of
his security and said that in order to have such liberty, it is necessary that the government be
such that one citizen need not fear another. He further observed that liberty is constantly
endangered by the tendency of men to abuse governmental power and that to prevent such abuse
it is necessary to construct a government where power would check power. This suggests that
Montesquieu perceived a separation with an adroit admixture of checks and balances. In
discussing the importance of delineations of power among the three branches, he wrote:2

When the legislative and executive powers are united in the same person or body, there
can be no liberty, because apprehensions might arise lest the same monarch or senate
should enact tyrannical laws, to execute them in a tyrannical manner. Again there is no
liberty, if the judiciary power be not separated from the legislative and executive. Where
it joined with the legislative, the life and liberty of the subject would be exposed to
arbitrary control; for the judge would then be the legislator. Where it joined with the
executive power, the judge might behave with violence and oppression. There would be
an end of everything, where the same man or the same body, whether of the nobles or the
people, to exercise those three powers, that of enacting the laws, that of executing the
public resolutions, and of trying the cases of individuals.

2
Montesquieu, The Spirit of Laws (Nugent) (1748) 152

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 SEPARATION OF POWERS IN USA AND UK

Despite the safeguards it gives against tyranny, the modern day societies find it very difficult to
apply it rigidly. In principle they go for separation of powers and dilution of powers
simultaneously.

U.S.A.

The doctrine of Separation of Powers forms the foundation on which the whole structure of the
Constitution is based. It has been accepted and strictly adopted in U.S.A. Article I; Section 1
vests all legislative powers in the Congress. Article II; Section 1 vest all executive powers in the
President and Article III; Section 1 vests all judicial powers in the Supreme Court.

Jefferson quoted, The concentration of legislative, executive and judicial powers in the same
hands in precisely the definition of despotic Government. On the basis of this theory, the
Supreme Courts was not given power to decide political questions so that there was not
interference in the exercise of power of the executive branch of government. Also overriding
power of judicial review is not given to the Supreme Court. The President interferes with the
exercise of powers by the Congress through his veto power. He also exercises the law-making
power in exercise of his treaty-making power. He also interferes in the functioning of the
Supreme Court by appointing judges.

The judiciary interferes with the powers of the Congress and the President through the exercise
of its power of judicial review. It can be said that the Supreme Court has made more
amendments to the American Constitution than the Congress. To prevent one branch from
becoming supreme, separations of powers need a way to balance each of the branches. Typically
this was accomplished through a system of "checks and balances", the origin of which, like
separation of powers itself, is specifically credited to Montesquieu. Checks and balances allow
for a system based regulation that allows one branch to limit another, such as the power of
Congress to alter the composition and jurisdiction of the federal courts.

Congress has the sole power to legislate for the United States. Under the non-delegation doctrine,
Congress may not delegate its lawmaking responsibilities to any other agency.

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Executive power is vested, with exceptions and qualifications, in the president by Article II,
Section 1, of the Constitution. By law the president becomes the Commander in Chief of the
Army and Navy, Militia of several states when called into service, has power to make treaties
and appointments to office ...with the Advice and Consent of the Senate-- receive
Ambassadors and Public Ministers, and ...take care that the laws be faithfully executed
(Section 3.) By using these words, the Constitution does not require the president to personally
enforce the law; rather, officers subordinate to the president may perform such duties. The
Constitution empowers the president to ensure the faithful execution of the laws made by
Congress. Congress may itself terminate such appointments, by impeachment, and restrict the
president.

Judicial power - the power to decide cases and controversies - is vested in the Supreme Court
and inferior courts established by Congress. The judges must be appointed by the president with
the advice and consent of the Senate, hold office for life and receive compensations that may not
be diminished during their continuance in office.

Marbury v. Madison,3 is a landmark case in United States law. It formed the basis for the
exercise of judicial review in the United States under Article III of the Constitution. This case
resulted from a petition to the Supreme Court by William Marbury, who had been appointed by
President John Adams as Justice of the Peace in the District of Columbia but whose commission
was not subsequently delivered. Marbury petitioned the Supreme Court to force Secretary of
State James Madison to deliver the documents, but the court, with John Marshall as Chief
Justice, denied Marbury's petition, holding that the part of the statute upon which he based his
claim, the Judiciary Act of 1789, was unconstitutional.

Marbury v. Madison was the first time the Supreme Court declared something
"unconstitutional", and established the concept of judicial review in the U.S. (the idea that courts
may oversee and nullify the actions of another branch of government). The landmark decision
helped define the "checks and balances" of the American form of government.

The doctrine of separation finds its home in U.S. It forms the basis of the American
constitutional structure. Article I vests the legislative power in the Congress; Article II vests

3
Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803).

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executive power in the President and Article III vests judicial power in the Supreme Court. The
framers of the American constitution believed that the principle of separation of powers would
help to prevent the rise of tyrannical government by making it impossible for a single group of
persons to exercise too much power. Accordingly they intended that the balance of power should
be attained by checks and balances between separate organs of the government. This alternative
system existing with the separation doctrine prevents any organ to become supreme.

Despite of the express mention of this doctrine in the Constitution, U.S. incorporates certain
exceptions to the principle of separation with a view to introduce system of checks and balances.
For example, a bill passed by the Congress may be vetoed by the President in the exercise of his
legislative power. Also treaty making power is with the President but its not effective till
approved by the Senate. It was the exercise of executive power of the senate due to which U.S.
couldnt become a member to League of Nations. The Supreme Court has the power to declare
the acts passed by the congress as unconstitutional. There are other functions of an organ also
which are exercised by the other. India, too, followed U.S. in adoption of the checks and
balances which make sure that the individual organs doesnt behold the powers absolutely.

This means that functioning of one organ is checked by the other to an extent so that no organ
may misuse the power. Therefore, the constitution which gives a good mention of the doctrine in
its provisions also does not follow it in its rigidity and hence has opted for dilution of powers just
like India.

U.K.

Before we go to India, its important to know the constitutional setup of the country to which
India was a colony and ultimately owes the existence of the form of government it has. U.K.
follows a Parliamentary form of government where the Crown is the nominal head and the real
legislative functions are performed by the Parliament. The existence of a cabinet system refutes
the doctrine of separation of powers completely. It is the Cabinet which is the real head of the
executive, instead of the Crown. It initiates legislations, controls the legislature, it even holds the
power to dissolve the assembly. The resting of two powers in a single body, therefore denies the
fact that there is any kind of separation of powers in England.

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 SEPARATION OF POWERS & THE INDIAN
CONSTITUTION

The Constitutional history of India reveals that the framers of the Indian Constitution had no
sympathy with the doctrine. This is evident from its express rejection in spite of attempts being
made. It even sheds no light to the application of the doctrine during the British Regime. The
Constituent Assembly, while in the process of drafting the Constitution, had dwelt at length for
incorporating the doctrine and ultimately rejected the idea in toto. Dr. B.R. A. Ambedkar, who
was one among the members of the Constituent Assembly, while comparing the Parliamentary
and Presidential systems of India and America respectively, remarked as thus.4

Looking at it from the point of view of responsibility, a non-parliamentary executive, being

independent of Parliament, tends to be less responsible to the legislature while a parliamentary
system differs from a non-parliamentary system in as much as the former is more responsible
than the latter but they also differ as to time and agency for assessment of their responsibility.
Under the non-parliamentary system, such as the one exists in U.S.A. the assessment of the
responsibility of the executive is periodic. It takes place once in two years. It is done by the
electorate in England, where the Parliamentary system prevails; the assessment of responsibility
is both periodic and daily. The daily assessment is done by the members of the
Parliament through questions, resolutions, no confidence motions, adjournment motions and
debates on address. Periodic assessment is done by the electorate at the time of the election
which may take place every five years or earlier. The daily assessment of responsibility which is
not available under the American system is, it is felt, far more effective than the periodic
assessment and far more necessary in a country like India. The draft Constitution, in
recommending the parliamentary system of government, has preferred more responsibility than
stability.

The above view of Dr. Ambedkar thus substantiates that Indian Constitution does not make any
absolute or rigid separation of powers of the three organs owing to its pro-responsibility
approach rather than having stability at the centre stage. This has, however been further

4
CAD vol.7 at 956 cited in H.R.Khanna, Making of the Indian Constitution 69 (1957).

15
supplemented and reiterated by the Indian Supreme Court in Ram Jawaya Kapur v. State of
Punjab, the Court through Mukherjee J. held that.5

The Indian Constitution has indeed not recognized the doctrine of separation of powers in its
absolute rigidity, but the functions of different parts or branches of the government have been
sufficiently differentiated and consequently it can very well be said that our Constitution does
not contemplate assumption, by one organ or part of the state, of functions that essentially belong
to another.

A more refined and clarified view taken in Ram Jawayas case can be found in
Kartar Singh v. State of Punjab, where Ramaswamy J. stated.6

It is the basic postulate under the Indian Constitution that the legal sovereign power has been
distributed between the legislature to make the law, the executive to implement the law and the
judiciary to interpret the law within the limits set down by the Constitution.

The functional classification and sufficient demarcation, as is held by the Supreme Court, indeed
does not suggest the application of the doctrine in its absolute terms. Rather it just gives a slight
glimpse as to the character of the Indian Constitution which it shares with the pure doctrine
discussed above, that is, inter-alia the acceptance of the philosophy behind the doctrine
pertaining to rigors of concentration of power and the avoidance of tyranny, of having a rule of
law and not rule of men. The same can be substantiated through a detailed analysis of the
provisions of the Constitution which is the next course of action this chapter attempts
to take.

The Constitution of India has indeed adopted the British Parliamentary system, wherein the
political executive controls the Parliament. In addition, the Cabinet or the Council of Ministers
enjoys a majority in the legislatures and virtually controls both, the legislature as well as the
executive. Just like the British Cabinet, its Indian counterpart can be called as a hyphen which
joins a buckle which fastens the legislative part of the state to its executive part.

5
AIR 1955 SC 549
6
AIR 1967 SC 1643: (1967) 2 SCR 762.

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Under the Indian Constitution, the executive powers are vested with the President7 and
Governors for respective states.8 The President is, therefore, regarded as the Chief Executive of
Indian Union who exercises his powers as per the constitutional mandate on the aid and advice of
the council of ministers.9 The president is also empowered to promulgate ordinances in exercise
of his extensive legislative powers which extend to all matters that are within the legislative
competence of the Parliament.10 Such a power is co-extensive with the legislative power of the
Parliament. Apart from ordinance making, he is also vested with powers to frame rules and
regulations relating to the service matters. In the absence of Parliamentary enactments, these
rules and regulations hold the field and regulate the entire course of public service under the
Union and the States.11 Promulgation of emergency in emergent situations is yet another sphere
of legislative power which the President is closed with. While exercising the power after the
promulgation of emergency, he can make laws for a state after the dissolution of state legislature
following the declaration of emergency in a particular state, on failure of the
constitutional machinery.12

The President of India is a part of the legislature though he is not a member of any house of the
Parliament.13 No Bill for the formation of new states or alteration of boundaries etc. of the
existing states,14 or affecting taxation in which States are interested or affecting the principles
laid down for distributing money to the states or imposing a surcharge for the purposes of the
Union15 and no Money Bill or Bill involving expenditure from the consolidated fund of India16
can be introduced for legislation except on the recommendation of the President. Besides this, he
also has powers to grant pardons, reprieves respites or remissions of punishment or to suspend,
remit or commute; the sentence of any person convicted any offence which is of judicial nature.
He also performs similar judicial functions in deciding a dispute relating to the age of the judges
of the constitutional courts for the purpose of their retirement from their judicial office.

7
Art.53 (1) of the Constitution
8
Art. 154 (1) of the Constitution
9
Art.74 (1). Also see Rao v. Indira AIR 1971 SC 1002
10
Art. 123, See Cooper v. Union of India AIR 1970 SC 564
11
Art.309 of the Constitution of India
12
Art.356 of the Constitution of India
13
Art.79 of the Constitution of India
14
Art.3 of the Constitution of India.
15
Art.274 of the Constitution of India
16
Art.117 of the Constitution of India

17
In a similar manner, Parliament also exercises judicial functions. While performing judicial
functions, it can decide the question of breach of its privilege and if proved, can punish the
person concerned.17 While doing so, the Parliament is the sole judge and Courts cannot generally
question the decision of the Houses on this point. Moreover, in case of impeachment of the
President, one House of the Parliament acts as a prosecutor and the other House investigates the
leveled charges and decides whether they substantiate or not.

There is, however, a considerable institutional separation between the judiciary and other organs
of the government.18 The Constitution confers wide powers however; a certain amount of
executive control is vested in the higher judiciary with respect to subordinate judiciary. At the
same time, the power of appointment of high courts and Supreme Court judges including the
Chief Justice of India, vests partially with the executive, that is to say, the President of India who
in turn exercises this power in consultation with the Governors of the concerned states and the
Chief Justice of the concerned High Court in case of a high court judge and Chief justice of India
in case of a Supreme Court judge. Moreover, the judges of constitutional courts cannot be
removed except for proved misconduct or incapacity and unless an address supported by two-
thirds of the members and absolute majority of the total membership of the House is passed in
each House of the Parliament and presented to the President.

Apart from exercising routine judicial functions, the superior constitutional courts also performs
certain executive and administrative functions as well. High courts have supervisory powers over
all subordinate courts and tribunals19 and also the power to transfer cases. In addition, the High
Courts as well as the Supreme Court also have legislative powers by virtue of which they can
frame rules regulating their own procedure for the conduct and disposal of cases.20

The foregoing exercise establishes the proposition expounded by the Supreme Court in Ram
Jaways Case. The analysis clearly shows that the concept of separation of powers, so far as the
Indian Constitution is concerned, reveals and artistic blend and an adroit admixture of judicial,
legislative and executive functions. Separation sought to be achieved by Indian Constitution is
not in an absolute or literal sense. Despite being evident that the constitution nowhere expressly

17
Art.105 of the Constitution of India
18
Art.117 of the Constitution of India
19
Art.227 of the Constitution of India
20
Art. 145 & 225 of the Constitution of India.

18
bows in line to the concept, albeit it remains an essential framework of the constitutional scheme.
Agreeing on this premise, it has also been accorded the status of basic structure by the Supreme
Court.21 Therefore, it can axiomatically be said that Indian Constitution does not contemplate
separation as embodied in the pure doctrine, it rather perceives and accords to it in its central
sense, that is to say, not in its literal sense, rather in its purposive sense, i.e. non conferment of
unfettered powers in a single body of men and to motivate checks and balances.

Another point of concern which requires clarification is whether the three organs, though not
rigidly separate, can usurp their powers or are they required by the constitution to work only
within the respective area earmarked in a narrow-sense. To put it differently, whether the
constitution mandates encroachment by one organ into the domain of another on the pretext of
failure or inaction of the other organ is the next question that needs to be addressed in is context.

Though theoretically, this issue has been addressed by the Supreme Court, however, in has failed
to cater an effective basis in practice which is evident from the growing amount of judicial
encroachment in the domain of other organs. In Asif Hameed v. State of J & K, it has been held
that22

Although the doctrine of separation of powers has not been recognized under the constitution in
its absolute rigidity but the constitution makers have meticulously defined the functions of
various organs of the state. Legislative, Executive and Judiciary have to function within their
respective spheres demarcated under the constitution. No organ can usurp the functions assigned
to another. Legislative and executive organs, the two facets of the peoples will, have all the
powers including that of finance. Judiciary has no power over sword or the purse. Nonetheless it
has power to ensure that the aforesaid two main organs of the state function within the
constitutional limits. It is the sentinel of democracy.

The prime point of our concern here is whether the judicial organ of the State is conferred with a
constitutional mandate so as to overstep its limits while discharging its main functions. That is to
say whether the judiciary can interfere and encroach in the executive or legislative domain if
justice demands so, or it cannot do so simply by virtue of the fact that the concept of separation

21
Indira Nehru Gandhi v. Raj Narain (1975) SCC Supp.1.
22
AIR 1989 SC 1899.

19
of powers puts fetters on it. To answer these points, one needs to ascertain as to what status the
judiciary has been accorded in the Indian Constitution.

Judiciary under Indian Constitution has been given an independent status. It has been assigned
the role of an independent umpire to guard the constitution and thereby ensure that other
branches may not exceed their powers and function within the constitutional framework.
Commenting and clarifying the concept of independence of judiciary, Sir A.K. Aiyar, who was
one of the framers of the Constitution, had observed that.23

The doctrine of independence (of judiciary) is not to be raised to a level of a dogma so as to

enable the judiciary to function as a kind of super-legislature or super-executive. The judiciary is
there to interpret the constitution or to adjudicate upon the rights between the parties concerned

It can thus very aptly be said that creation of judicial organ in India was not at all meant to give
to it a supreme status as compared to the other co-ordinate organs. Rather, with powers and
functions sufficiently distinguished and demarcated, what is expected out of judiciary is to act as
a watchdog to oversee and prods to keep the other organs within the constitutional bounds. The
essence of the Constitution is that it produces a system which is the result of amalgamation of the
principle of separation of powers with the doctrine of parliamentary sovereignty in a manner to
give effect to both, yet without the rigidity of the two systems. The Parliamentary democracy is
cemented as the corner stone of constitutional edifice in preference to the Presidential system of
governance.

23
Cited in Glanville Austin, The Indian Constitution- Cornerstone of a Nation 174 (1966)

20
 SEPARATION OF POWERS AND JUDCIAL
PRONOUNCEMENTS IN INDIA

In India, we follow a separation of functions and not of powers. And hence, we dont abide by
the principle in its rigidity. An example of it can be seen in the exercise of functions by the
Cabinet ministers, who exercise both legislative and executive functions. Art.74 (1) wins them an
upper hand over the executive by making their aid and advice mandatory for the formal head.
The executive, thus, is derived from the legislature and is dependent on it, for its legitimacy, this
was the observation made by the Honble S.C. in Ram Jawaya v. Punjab.24

On the question that where the amending power of the Parliament does lies and whether Art.368
confers and unlimited amending power on Parliament, the S.C. in Keshavanand Bharti25 held
that amending power was now subject to the basic features of the constitution. And hence, any
amendment tapering these essential features will be struck down as unconstitutional. Beg. J.
added that separation of powers is a part of the basic structure of constitution. None of the three
separate organs of the republic can take over the functions assigned to the other. This scheme
cannot be changed even by resorting to Art.368 of the constitution. There are attempts made to
dilute the principle, to the level of usurpation of judicial power by the legislature.

In a subsequent case law, S.C. had occasion to apply the Keshavanand ruling regarding the non-
amend ability of the basic features of the Constitution and strict adherence to doctrine of
separation of powers can be seen. In Indira Nehru Gandhi v. Raj Narain,26 where the dispute
regarding P.M election was pending before the Supreme Court, it was held that adjudication of a
specific dispute is a judicial function which parliament, even under constitutional amending
power, cannot exercise. So, the main ground on which the amendment was held ultravires was
that when the constituent body declared that the election of P.M wont be void, it discharged a
judicial function which according to the principle of separation it shouldnt have done. The place
of this doctrine in Indian context was made a bit clearer after this judgment.

Though in India strict separation of powers like in American sense is not followed but, the
principle of checks and balances is being followed.

24
AIR 1955 SC 549
25
AIR 1973 SC 1461
26
AIR 1975 SC 2299

21
 CONCLUSION

Indian Constitution does not tilt in favor of pure doctrine of separation of powers. Having
rejected the structural separation, the Constitution has however adopted the principle in its broad
sense coupled with the objective of securing checks and balances within the system. In principle,
the doctrine bars the active jurisdiction of organs and in general contemplates no assumption by
one organ, of functions pertaining to another organ.

Power corrupts and absolute Power tends to corrupt absolutely. Conferment of power in a single
body leads to absolutism. But, even after distinguishing the functions, when an authority wields
public power, then providing absolute and sole discretion to the body in the matters regarding its
sphere of influence may also cause abuse of such power. Therefore, the doctrine of separation of
powers is a theoretical concept and is impracticable to follow it absolutely.

The status of modern state is a lot more different than what it used to be. It has evolved a great
deal from a minimal, non-interventionist state to an welfare state wherein it has multifarious
roles to play, like that of protector arbiter, controller, provider. This omnipresence of the state
has rendered its functions becoming diverse and problems, interdependent and any serious
attempt to define and separate those functions would cause inefficiency in government. Hence, a
distinction is made between essential and incidental powers of an organ. According to this
differentiation one organ cant claim the powers essentially belonging to other organ because
that would be a violation of the principle of separation of powers. But, it can claim the exercise
of the incidental functions of another organ. This distinction prevents encroachment of an organ
into the essential sphere of activity of the other.

It is the exercise of incidental powers only which has made executive grow everywhere in this
social welfare state. It has assumed a vital role but, it has not usurped any role from any other
wing. It just happened that the other two organs, namely, judiciary and legislature, became
unsuitable for undertaking the functions of this welfare state and as a consequence the functions
of the executive increased. As controller and provider, the judicial processes were very time
consuming and the legislature was overburdened with work. Therefore, it was in natural scheme
of things which made the administrators end up performing a variety of roles in the modern state
including those of legislature and judiciary too, to an extent.

22
Further, the check of the adjudicators over functionings of the other two has been regarded as an
essential feature of the basic structure theory. The judicial review power is a preventive
measure in a democratic country which prevents administrators and law-makers to exercise their
whims and caprices on the lay man and turn it into a despotic regime. There have been cases
where on the lay man and turn it into a despotic regime. There have been cases where the
judiciary has dictated the ambit of their power to the implementers and the mode to exercise it.
Not even the representatives of people are immune to the power of the courts. Two recent
Supreme Court judgments-on the cash-for-query case and on the Ninth Schedule-have once
again brought the powers and roles of the legislature and the judiciary into focus. In the case of
the former, the court upheld the Lok Sabhas decision to expel members of Parliament, who were
caught on camera taking bribes, but clearly rejected the contention that it cannot review
parliaments power to expel MPs and claimed for itself the role of final arbiter on decisions taken
by the legislature. The judgment on the Ninth Schedule has curtailed Parliaments power to keep
certain progressive laws outside judicial Review.

In the Second case, i.e., IR. Coelho v. State of Tamil Nadu,27 S.C. took the help of doctrine of
basic structure as propounded in Keshavanand Bharti case and said that Ninth Schedule is
violative of this doctrine and hence from now on the Ninth Schedule will be amenable to judicial
review and the Golden triangle comprising of Art.14, 19 and 21, will now be the criterion in
scrutiny of the Ninth Schedule.

In a democratic country goals are enshrined in the Constitution and the state machinery is then
setup accordingly. And here it can be seen that constitutional provisions are made as such to
support a parliamentary form of Government where the principle cant be followed rigidly. The
S.C. rulings also justify that the alternative system of checks and balances is the requirement, not
the strict doctrine. A constitutionalism, the philosophical concept of the constitution also insists
on limitations being placed upon governmental power to secure basic freedoms of the
individual. Hence, the conclusion drawn out of the study is that there is no strict
separation of powers but the functions of the different branches of the government have
been sufficiently differentiated.

27
2007 (1) SC 137

23
 BIBLIOGRAPHY

1. Bakshi, P.M. The Constitution of India. Universal Law Publishing Co. Pvt. Ltd.
10th Edition. 2010.
2. Dr. Pandey, J.N. Constitutional Law of India. Central Law Agency. Allahabad.
47th Edition. 2010.
3. Jain, M.P. Indian Constitutional Law. Lexis Nexis Butterworths Wadhwa
Nagpur. Haryana. 6th Edition (Reprinted). 2010.
4. Justice, Thakker, C.K. (Takwani) & Mrs. Thakker, M.C. Lectures on
Administrative Law. Eastern Book Company. Lucknow. 4th Edition (Reprinted).
2010.
5. Sathe, S.P. Administrative Law. Lexis Nexis Butterworths Wadhwa Nagpur.
Haryana. 7th Edition. (Fourth Reprint). 2009.

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