SEPARATION OF

POWERS
Checks and Balances: A Case Study

My Life: All
Rights
Submitted By:
Reserved!

SAMEEN
The meaning of this
title denotes to the
simple fact that each
15-38
human being is born
with his right to live
Submitted To:
his entire life till his
death meets him
Sir Taimoor
naturally. It could be
an accidental death
Khan
but no one ought to
be stolen of his right
to life by another no
matter what. Only
the individual
himself or God has
the right to that
human’s life.
Hence, law being the
protector of Human
Rights protects this
right to life as one of
the fundamental
rights and thus
approves of this
titled notion.
1

Contents
ABSTRACT..................................................................................................................3
INTRODUCTION.........................................................................................................3
THE CONCEPT ‘SEPARATION OF POWERS’........................................................1
PHILOSOPHICAL FOUNDATION OF SEPARATION OF POWERS.....................1
Aristotle.........................................................................................................................1
John Locke.....................................................................................................................2
Montesquieu..................................................................................................................2
SEPARATION OF POWERS

VIEWS OF MR. A.K BROHI ON SEPARATION OF POWER.................................3

ESSENTIAL ELEMENT OF DEMOCRACY..............................................................4
SEPARATION OF POWER IN USA...........................................................................4
Legislative Power......................................................................................................5
Executive Power........................................................................................................5
Judicial Power............................................................................................................6
SEPARATION OF POWER IN INDIA........................................................................7
SEPARATION OF POWER IN UK.............................................................................8
Duport Steels Ltd. v. Sirs (1980),..............................................................................9
Hinds v. The Queen...................................................................................................9
SEPARATION OF POWERS IN PAKISTAN.............................................................9
Similarities among The Act of 1935 and Constitution of Pakistan 1973................12
Separation of Power under Constitution of Pakistan 1973......................................12
Concept of Trichotomy..............................................................................................2
Judiciary and Legislature...........................................................................................2
Legislation cannot impinge judicial power of the judiciary......................................2
Clause (3): Separation of judiciary From Executive.................................................1
SOME LEADING CASES IN SEPARATION OF POWERS......................................1
FAUJI FOUNDATION V SHAMIM UR REHMAN...............................................1
 2

FEDERATION OF PAKISTAN V. UNITED SUGAR MILLS LTD......................2

SAHIB RAM JAWAYA KAPUR V. PUNJAB........................................................3
SINDH HIGH COURT BAR ASSOCIATION (SHCBA) V FEDERATION OF
PAKISTAN................................................................................................................4
NINETEENTH CONSTITUTIONAL AMENDMENT AND RESISTANCE OF
SUPREME COURT..................................................................................................5
DR. TAHIRUL QADRI’S CASE..............................................................................6
MEMO GATE SCANDAL.......................................................................................8
I.C. GOLAK NATH V. STATE OF PUNJAB,.........................................................8
MUKHERJEE, J. IN RAM JAWAYA V. STATE OF PUNJAB.............................9
SEPARATION OF POWERS

MORRISON V OLSON..........................................................................................10
KESAVANANDA BHARATI CASE.....................................................................10
CONCLUSION............................................................................................................10
3

SEPARATION OF
POWERS
Checks and Balances: A Case Study

ABSTRACT Constitution of the USA. They

The principle, “separation of powers” accepted its importance as the essential
SEPARATION OF POWERS

has the purpose to protect the citizens safeguard for preserving liberties and
of the state from rash, tyrannical and property. In fact, all contemporary
unrestraint powers of the rulers. democratic constitutions do provide
Democracies all over world consider for a separation of powers in one way
that tyranny and arbitrary rule of the or the other.
Government can be minimized by
implementing the separation of powers INTRODUCTION
in its proper context. Separation of Separation of powers involves the
power laid down a governmental separation of political power between
structure. In Pakistan, the concept the government’s three branches – the
Separation of Powers could not find its executive, the legislature and the
place accurately. Since the judiciary. In a system where there is a
establishment of Pakistan (1947), separation of powers, each branch is
executive branch managed to possess constrained from intervening in the
judicial and legislative powers with area of responsibility of another
themselves. This practice fashioned the branch. The doctrine of separation of
fragile political system and instable powers or checks and balances
democracy in Pakistan. The Universal between independent and co- equal
Declaration of Human Rights, as branches of government, is derived
from the work of the French political
adopted by the UN General Assembly
and social philosopher Baron de
on 10 December 1948, also accepted
Montesquieu. The phrase check and
the principle of separation of powers.
balance implies that there are
The real and big support to this theory
competing sovereigns. “Check” refers
came from the founding fathers of the
to the ability, right and responsibility
 4

of each power to monitor the activities responsibility and that such a

of the others, while “balance” refers to separation will ensure good and just
the ability of each entity to use its government”.2 This concept rests on
authority to limit the power of the democratic values that all branches of
other. In other words, the principle of government are bound by the rule of
separation of powers holds that in law and defined powers with
order to avoid a concentration of competencies.3
power in the hands of a minority in a
political system, the three principal
PHILOSOPHICAL
constituents of government – the
executive, the legislature and the FOUNDATION OF
judiciary should be separate and enjoy SEPARATION OF POWERS
SEPARATION OF POWERS

equal and well-defined powers and The separation of powers concept was
independence. first originated in ancient Greece and
became widespread in the Roman
Republic as part of the initial
THE CONCEPT Constitution of the Roman Republic.4
‘SEPARATION OF
Aristotle (384-322 BC) since ancient
POWERS’ times, Greek philosopher mentioned
Generally, Governments have three
that the powers of the government rest
broader powers: the judicial, the
with three branches. He discussed in
executive and the legislature. These
his work “Politics”, “that there are
powers are performed by three
three elements in each constitution in
different branches of government:
respect of which every serious
Executive, Legislature and Judiciary.
lawgiver must look for what is
When power of the government is
advantageous to it, if these are well
broadly divided into three spheres, and
arranged, the constitution is bound to
activities of the government are
be well arranged, and the differences
performed by these three branches
in constitutions are bound to
separately, it is called separation of
powers.1 “Separation of Power is the 2
Ben rosamond and others, Politics: An
concept that maintains that three Introduction (First edn, Routledge 1997) 290
powers/elements of government 3
Resende, 2011, p.5
4
All Answers ltd, 'Historical Development Of
(executive, legislature, and judiciary)
Separation Of Powers' (Lawteacher.net,
should be separated in role and January 2019)
<https://www.lawteacher.net/free-law-essays/c
1
Ben rosamond , John Turner and onstitutional-law/historical-development-of-
others, Politics: An Introduction (First separation-of-powers-constitutional-law-
edn, Routledge 1997) 532 essay.php?vref=1>
5

correspond to the differences between third is judicial power, which is

each of these three elements. These exercised by the separate body to
three are, first the deliberative, who interpret the laws and check the
discuss everything of common authority of the executive.7
importance, second the officials…and
Montesquieu’s theory of separation of
the third is judicial element.”5
powers may be clearly stated in these
John Locke (1632-1704), the modern words:
English political theorist, also
In every government there are three
categorized the power of government
kinds of power.8
into three branches: Legislative,
executive and federative. He stressed a) By virtue of the first, the prince
that “…it may be too great a or magistrate enacts temporary
SEPARATION OF POWERS

temptation to human frailty; apt to or perpetual laws, and amends

grasp at power for the same persons or abrogates those that have
who have the powers of making laws, been already enacted.
to have also in their hands the power to (Legislative Power) 9

execute them, whereby they may b) By virtue of the second, he

exempt themselves from obedience to makes peace or war, sends or
the laws they made, and suit the law,
receives embassies, establishes
both in its making and execution to
the public security, and
their own private advantages.” 6
provides against invasions.
Montesquieu formulated the modern (Executive Power)10
version of this theory in 1748,. He c) By virtue of the third, he
explained that in every government punishes criminals, or
there are three kinds of powers: the determines the disputes that
legislative, the executive and the arise between individuals. The
judicial. Laws are made under the latter we shall call the judiciary
legislature branch of the government; power, and the other, simply,
policies, both internal and external are
executed by the executive power. The
7
Barrie Axford, Gary K. Browning, Richard
5
Neil Parpworth, Constitutional & Huggins and Ben Rosamond, Politics: An
Administrative Law (Tenth edn, Oxford Introduction, 2nd edition (London: Routledge,
University Press 04 June 2018) 19 1997), 345-46.
6
Jeremy Waldron, 'Political Political Theory: 8
Lloyd, Marshall Davies (22 September
An Inaugural Lecture' [2013] 433-468(1) The 1998), Polybius and the Founding Fathers: the
journal of political separation of powers
philosophy <https://doi.org/10.1111/jopp.1200 9
ibid
7> accessed 29 January 2019 10
ibid
 6

the executive power of the resolutions, and of trying the causes of

state. (Judicial Power)11 individuals.”12 13

The following table shows the role and

function of the three powers of the VIEWS OF MR. A.K BROHI
government. ON SEPARATION OF
THREE POWERS
POWER
Mr. A.K Brohi also supported the
BRANCHES OF
separation of judiciary from legislature
THE
and executive under the theory of
GOVERNMENT
separation of powers. According to
Legislature Makes laws him the same person or body of
SEPARATION OF POWERS

persons cannot be allowed to act as

Executive Administers repository of powers of the legislature,
laws executive and judiciary. According to
Judiciary Interprets him, such system would always lead to
laws corruption and chaos. Mr. A.K stated
as under:
His theory can be best regarded from
Montesquieu relates the liberty of the two points of view:14
people with separation of powers. He
stated the importance of this theory in a. As laying emphasis upon the
these words: principle that the same person
or body of persons, should not
“When the legislative and executive be the repository of the powers
powers are united in the same person, of the legislature, executive and
or in the same body or Magistrate, judiciary or any two of them.
there can be no liberty; because b. As enjoying that any of the
apprehensions may arise, lest the same
three principal activities of
monarch or senate should enact 12
F. J. C. Hearnshaw, The social & political
tyrannical laws, to execute them in a
ideas of some great French thinkers of the age
tyrannical manner…there would be an of reason, G. G. Harrap & company ltd. (1930)
end of everything, were the same man 13
John Alvey Tthe Separation of Powers in
or the same body, whether of the Queensland,
<http://citeseerx.ist.psu.edu/viewdoc/
nobles or of the people, to exercise download?
these three powers, that of enacting doi=10.1.1.579.3738&rep=rep1&type=pdf>
laws, that of executing the public September, 2006.
14
Fundamental Law of Pakistan by Mr. A.K
11
Ibid Brohi page 70
7

Government, namely on what democracy means and how it

legislation, execution and should function. The general
adjudication, should each be perception about the applicability of
independent of the others and the doctrine is the presidential system.
there should be, as far as This is not necessary. It is the theory of
possible, absence of control or government, so it can be adopted by
interference by one over the any systems of government with
other. varying degree of changes and
alterations. There is no restriction of
only presidential system. Like
ESSENTIAL ELEMENT OF representative government, it is
DEMOCRACY adjustable in the prevailing legal
SEPARATION OF POWERS

In the modern perspective, this conventions, principles or practices of

doctrine is at the top of the seven the different constitutional systems.16
„essential elements‟ of democracy laid
down by the UN General Assembly in SEPARATION OF POWER
2004. Those are:15 IN USA
1. Separation of powers
2. Independence of judiciary The doctrine of Separation of Powers
forms the foundation on which the
3. A pluralistic system of political
whole structure of the Constitution is
parties and organizations
based. It has been accepted and strictly
4. Respect for the rule of law
adopted in U.S.A. Article I vests all
5. Accountability and
legislative powers in the Congress.
transparency
Article II vest all executive powers in
6. Free, independence and the President and Article III vests all
pluralistic media judicial powers in the Supreme
7. Respect for human and Court.17
political rights Jefferson quoted, “The concentration
of legislative, executive and judicial
This resolution was certified by 172
powers in the same hands in precisely
states. It therefore both represents and
the definition of despotic
consolidates an international consensus
Government.”
15
REPORT INTERNATIONAL
CONSENSUS: ESSENTIAL ELEMENTS OF 16
ibid
DEMOCRACY 17
"The Structure of the Government Must
< Furnish the Proper Checks and Balances
http://www.concernedhistorians.org/content_fi Between the Different Departments" The
les/file/TO/333.pdf > Federalist Papers No. 51
 8

On the basis of this theory, the power to legislate, to make laws and in
Supreme Courts was not given power addition to the enumerated powers it
to decide political questions so that has all other powers vested in the
there was not interference in the government by the Constitution.
exercise of power of the executive Where Congress does not make great
branch of government. Also overriding and sweeping delegations of its
power of judicial review is not given to authority, the Supreme Court has been
the Supreme Court. The President less rigid. One of the earliest cases
interferes with the exercise of powers involving the exact limits of non-
by the Congress through his veto delegation was Wayman v. Southard
power. He also exercises the law- (1825)20. Congress had delegated to the
making power in exercise of his treaty- courts the power to prescribe judicial
SEPARATION OF POWERS

making power. He also interferes in procedure; it was contended that

the functioning of the Supreme Court Congress had thereby
by appointing judges.18 unconstitutionally clothed the judiciary
with legislative powers.
Legislative Power
Executive Power
Executive power is vested, with
Congress has the sole power to exceptions and qualifications, in the
legislate for the United States. Under president by Article II, Section 1, of
the non-delegation doctrine, Congress the Constitution. By law the president
may not delegate its lawmaking becomes the Commander in Chief of
responsibilities to any other agency. In the Army and Navy, Militia of several
this vein, the Supreme Court held in states when called into service, has
the 1998 case Clinton v. City of New power to make treaties and
York19 that Congress could not appointments to office -- "...with the
delegate a "line-item veto" to the Advice and Consent of the Senate"--
President, by which he was receive Ambassadors and Public
empowered to selectively nullify Ministers, and "...take care that the
certain provisions of a bill before laws be faithfully executed" (Section
signing it. The Constitution Article I, 3.) 21By using these words, the
Section 8; says to give all the power to Constitution does not require the
Congress. Congress has the exclusive president to personally enforce the
law; rather, officers subordinate to the
18
https://www.whitehouse.gov/about-the-
white-house/the-legislative-branch/?
utm_source=link 20
Wayman v. Southard, 23 U.S. 1 (1825)
19
Clinton v. City of New York, 524 US 417 -
1998 - Supreme Court  21
N18
9

president may perform such duties. integral part of the constitutional

The Constitution empowers the design for the separation of powers.
president to ensure the faithful Further rulings clarified the case; even
execution of the laws made by both Houses acting together cannot
Congress. Congress may itself override Executive veto’s without a
terminate such appointments, by 2/3 majority. Legislation may always
impeachment, and restrict the prescribe regulations governing
president. The president's executive officers.
responsibility is to execute whatever
instructions he is given by the
Congress.22 Judicial Power
Judicial power — the power to decide
cases and controversies — is vested in
SEPARATION OF POWERS

Congress often writes legislation to the Supreme Court and inferior courts
restrain executive officials to the established by Congress. The judges
performance of their duties, as must be appointed by the president
authorized by the laws Congress with the advice and consent of the
passes. In INS v. Chadha (1983)23, the Senate, hold office for life and receive
Supreme Court decided (a) The compensations that may not be
prescription for legislative action in diminished during their continuance in
Article I, Section 1—requiring all office. If a court's judges do not have
legislative powers to be vested in a such attributes, the court may not
Congress consisting of a Senate and a exercise the judicial power of the
House of Representatives—and United States. Courts exercising the
Section 7—requiring every bill passed judicial power are called
by the House and Senate, before "constitutional courts." Congress may
becoming law, to be presented to the establish "legislative courts," which do
president, and, if he disapproves, to be not take the form of judicial agencies
repassed by two-thirds of the Senate or commissions, whose members do
and House—represents the Framers' not have the same security of tenure or
decision that the legislative power of compensation as the constitutional
the Federal Government be exercised court judges. Legislative courts may
in accord with a single, finely wrought not exercise the judicial power of the
and exhaustively considered United States. In Murray's Lessee v.
procedure. This procedure is an Hoboken Land & Improvement Co.
(1856)24, the Supreme Court held that a
22
ibid
23
INS v. Chadha, 462 US 919 24
Murray's Lessee v. Hoboken Land &
- 1983 - Supreme Court Improvement Co., 59 U.S. 272 (1856)
 10

legislative court may not decide "a suit that our Constitution does not
at the common law, or in equity, or contemplate assumption, by one organ
admiralty," as such a suit is inherently or part of the state, of functions that
judicial. Legislative courts may only essentially belong to another.27
adjudicate "public rights.
Under the Indian Constitution, the
executive powers are vested with the
SEPARATION OF POWER President28 296 and Governors for
IN INDIA respective states.29 297 The President
is, therefore, regarded as the Chief
The Constitution of India shows that Executive of Indian Union who
the doctrine of Separation of Powers is exercises his powers as per the
accepted in India. Under the Indian constitutional mandate on the aid and
SEPARATION OF POWERS

Constitution, executive powers are advice of the council of ministers.30

with the President, legislative powers 298 The president is also empowered
with Parliament and judicial powers to promulgate ordinances in exercise o
with Judiciary (Supreme Court, High his extensive legislative powers which
Courts and Subordinate Courts).25 extend to all matters that are within the
legislative competence of the
In India, the doctrine of separation of Parliament.31299 Such a power is co-
powers has not been accorded a extensive with the legislative power of
constitutional status. Apart from the the Parliament. Apart from ordinance
the directive principle laid down in making, he is also vested with powers
Article 50 which enjoins separation of to frame rules and regulations relating
judiciary from the executive, the to the service matters. In the absence
constitutional scheme does not of Parliamentary enactments, these
embody any formalistic and dogmatic rules and regulations hold the field and
division of powers.26 regulate the entire course of public
The Indian Constitution has indeed not service under the Union and the
recognized the doctrine of separation States.32300 Promulgation of
of powers in its absolute rigidity, but emergency in emergent situations is
the functions of different parts or yet another sphere of legislative power
branches of the government have been
27
sufficiently differentiated and 28
Art.53 (1) of the Constitution.
consequently it can very well be said 29
Art.154 (1) of the Constitution
30
Art.74 (1). Also, Rao v. Indira AIR 1971 SC
25
Takwani, C.K; Lectures on Administrative 1002.. 300
Law (Eastern Book Company 4th edition) 31
Art. 123.
26
ibid 32
Art.309 of the Constitution of India
11

which the President is closed with. of the superior courts can be removed
While exercising the power after the on an address from both Houses of
promulgation of emergency, he can Parliament.34
make laws for a state after the
The U.K. does have a kind of
dissolution of state legislature
separation of powers, but unlike
following the declaration of
United States it is informal.
emergency in a particular state, on
failure of the constitutional The U.K. is becoming increasingly
machinery. 301
33
concerned with the Separation of
powers, particularly because of Article
6 of the European Convention on
SEPARATION OF POWER
Human Rights which protects the
IN UK
SEPARATION OF POWERS

right to fair trial. The Constitutional

Motesquieu derived the concept of his Reforms Act, 2005 reforms the office
doctrine of separation of powers from of Lord Chancellor and the Law Lords
the British Constitution, as a matter of will stop being in the legislature.
fact at no point of time this doctrine Section 23 of the Act provides for
was accepted in its strict sense in establishment of Supreme Court of
England. On the contrary, in reality, United Kingdom. The Supreme Court
the theory of integration of powers has whose powers have been separated
been adopted in England. It is true that from the powers of Parliament has
the three powers are vested in three become functional since October,
organs and each has its own peculiar 2009. Section 61 of Constitutional
features, but it cannot be said that there Reforms Act, 2005 provides for
is no ‘sharing out’ of the powers of the Constitution of Judicial Appointments
government. Thus, the King, though an Commission, for appointments of
executive head is also an integral part Judges in the Supreme Court as well as
of the Legislature. Similarly, all his the court of appeal. Thus by and large
Ministers are also members of one or independence of Judiciary has been
the other Houses of the Parliament. ensured by the Constitutional Reforms
The Lord Chancellor is head of Act, 2005.35
judiciary, Chairman of the House of
Commons (Legislature), a member of On numerous occasions, senior judges
the executive and often a member of have expressed the opinion that the
the cabinet. The House of Commons 34
Upadhaya J.J.R, “Administrative Law”,
ultimately controls the Legislative. The Central Law Agency, Allahabad, 2006, p 40.
judiciary is independent but the judges 35
Parpworth Neil, “Constitutional &
Administrative Law”, Oxford University Press
33
Cooper v. Union of India AIR 1970 SC 564 United Kingdom, 2012
 12

U.K. Constitution is base on a “…. The United Kingdom has no

separation of powers. written Constitution, comparable with
that of Australia and the United States
Duport Steels Ltd. v. of America, yet in the sense that the
Sirs (1980),36 Lord Diplock stated legislative, the executive, the judicial
that: powers are vested in three separate
organs, the basic concept of
“At a time when more and more cases
separation of powers is recognized
involve the application of legislation
even in the unwritten Constitution of
which gives effect to policies that are
that country.”
the subject of bitter public and
parliamentary controversy, it cannot In another case Secretary of State v
be too strongly emphasized that the Rehman,40Lord Hoffman said that:
SEPARATION OF POWERS

British Constitution, though largely

unwritten, is firmly based in the “However broad the jurisdiction of a
separation of powers; Parliament Court or Tribunal, whether at first
makes the laws, the judiciary instance or on appeal, it is exercising
interprets them.”37 a judicial function and the exercise of
that function must recognize the
In thisLord Diplock, sitting in the constitutional boundaries between
House of Lords in ,re-iterated that judicial, executive and legislative
view. He said that power.” 41
“it cannot be too strongly emphasized
that the British Constitution, though SEPARATION OF POWERS
largely un-written, is firmly based on IN PAKISTAN
the separation of powers. Parliament Historically, Indian subcontinent was
makes the laws, the Judiciary ruled by Muslim from (712 AD) till
interprets them.” 38 war of independence (1857) from the
British. During this period, several
Hinds v. The Queen,39a Privy
dynasties of Muslims like, Turks,
Council case from Jamaica, Lord
Afghans, Lodhi etc, ruled over the
Diplock made the following significant
India. The first foundation of Sultanate
observations:
was laid down by the Qutub-ud-din
36
DUPORT STEELS LTD V SIRS: QBD Aibak in 1206 AD at Delhi. The
1980
37
Parpworth Neil, “Constitutional & Sultan of this Sultanate issued Farman
Administrative Law”, Oxford University Press (decrees) to rule the country. Sultan
United Kingdom, 2012
38
ibid 40
(2001) UKHL 47; (2002) 1 All ER 122.
39
(1977) AC 195). 41
(1980), All ER 529, 541
13

was the chief executive, chief judge They introduced the modern system of
and the sole legislator of the land. He administration and agricultural
concentrated all powers of the state, revenue, which still exists in both India
whether, judiciary, executive or and Pakistan. To run the affairs of the
legislature by himself. (Symonds, state, empire was divided into
1966, p.20)42 provinces and various departments.
Although there were heads of
Thus Sultans of Delhi were unrestraint
departments like, Khan-e-Saman
powerful in their personalities. Their
(imperial household), Dewans
whims and wishes were the laws of the
(imperial exchequer), Mir Bakhshi (the
land. Territory of the Sultan was
military pay department), Chief Qazi
divided into subas (provinces).
(judiciary), Sadrus Sudur (Religious
Provincial governors/subedars were
SEPARATION OF POWERS

Endowment) , but the empire was

appointed to govern the provinces. It
ruled by the decrees from the emperor
was the responsibilities of the
who concentrated all the executive,
governors to create lavish and glorious
judicial and legislative powers in
courts, give rewards to the obedient,
himself. There were no concepts of
and suppress the rebels and above all
written constitutions during the entire
maintaining the environment of fright
Muslim rule right from 1206 to 1857.
and fears in the minds and hearts of the
Affairs of the Government were run on
subjects. Seeking the consent of the
the principles of monarchy.44
people in the decision making process
was not the tradition under the The British came to India as
powerful Sultans.43 merchants. They gradually held sway
of the whole subcontinent. In 1858, the
Mughal Empire succeeded these
British formally broke up the Muslim
Turko-Afghan dynasties in 1526, when
rule. For governing the sub-continent,
Zahiruddin Babur defeated the last
the British parliament passed the
ruler of Lodhi dynasty. The Period
Government of India Acts. The famous
(1526-1707) is known as the power
acts were:
and glory of the Mughal emperors.
 The Government of India
42
The British and their Successors. By Council Act 1861,
RICHARD SYMONDS (London, Faber &
Faber, 1966). 264 pp. 36s. Race, 8(2), 193–  The Minto-Morley Reforms of
195. 1909
<https://doi.org/10.1177/03063968660080021  The Government of India Act
1>
43
Maluka, Zulfikar Khalid.  The myth of 1919
constitutionalism in Pakistan Oxford
University Press Karachi  1995 (83) 44
ibid
 14

 The Government of India Act judiciary from the

1935. executive in the public
service of the state.”
The 1935 Act drew from previous Acts
with some innovations. In this Act, the Same sentiments were manifested in
position of the Governor General the 1956 constitution of Pakistan. The
(Viceroy) was unique. As the state policy had its directive principles
representative of the British crown in that, “the state shall separates the
India, he enjoyed final political judiciary from the executive as soon as
authority and the widest discretionary possible and practicable.”46
powers and special responsibilities. In Pakistan, the concept separation of
The supreme command of the army, powers was signified and suggested
navy and air force was vested in him.
SEPARATION OF POWERS

right from the independence (1947).

The Governor General had Abdul Rashid, the then chief justice
extraordinary powers of legislation. He of federal court of Pakistan expressed
could however, seek the advice of a on 1949, that the independence of
council in all matters except defense, judiciary can only be achieved if it is
external affairs and the affairs which separate and independent from the
involved his special responsibilities. executive and legislature.47
Though he could seek ministerial
advice, he was not bound to act Similarities among The Act of
thereupon. 45 1935 and Constitution of
During freedom movement, the major
Pakistan 1973
It may not be a misstatement to state
political parties of the Indian politics
that Pakistan, in their Constitution
included the slogan of separation of
making process, were unable to come
judiciary from the executive. Later on,
out of the lasting spell f the
both countries (India and Pakistan)
Government of India Act 1935.
recognized the separation of judiciary
from the executive control. The The constitution article 90 provided
constitution of India incorporated in it that " the executive authority of the
the provisions related to the separation Federation shell vest in the president
of powers. The article 50 reads as, and Shall be exercised by him, either
directly or through officer sub ordinate
“The state shall take
to him, in accordance with the
steps to separate the
ibid
46
45
Hamid Khan, Constitutional and Political 47
Lawrence Ziring, Pakistan in the Twentieth
History of Pakistan (3rd edn, Oxford Century: A Political History (Karachi: Oxford
University Press 2018) 9-21 University Press, 1997), 72-73.
15

constitution. " If the language of this Separation of Power under

article is compared with section 7 of Constitution of Pakistan
the of act 1935 and article 53 of the 1973
Indian Constitution all these provision As the terms rule of law, due process
are almost identical article 1 of the of law (now mentioned
Constitution on the other hand refers to in 18  Amendment) have not been
th

the executive power. mentioned expressly in the

Similarly the legislative power of the Constitution in Pakistan, similarly term
Parliament article 141-143 extends to Separation of Powers has also not been
the Federal list and also the concurrent mentioned in the Constitution. But the
list. These provisions are also identical Constitution of Pakistan has derived
with the provisions in the Act of 1935 this theory from the different part of it.
SEPARATION OF POWERS

section 99 and Indian constitution Judiciary has been declared separate

article 245. Aagain the provision in the from the executive and legislature for
Act of 1935 section 202 19 and the ensuring its independence to protect
Indian Constitution articles 124 and the right and liberty of  people.
214 are similar Constitutional provisions related to
separation of power are:
There have been three constitutions
enacted in Pakistan: the 1956, 1962
and the 1973. The first two abrogated
while, the constitution of 1973 is
functioning in Pakistan with various
amendments. The constitution of 1973
is based on Westminster model. Under
this model of government, Prime
Minister is the head of Executive
branch, which necessarily comes from
the parliament and is answerable to it
unlike the US President in the World.
In this way, the elected parliament runs
the executive organ of the state.48

48
Ibid, 86
 16

BRANCHES PROVISIONS STATEMENTS

Article 41(1) “There shall be a president of Pakistan

who shall be the head of state and shall
represent the unity of the republic”.

Article 90(1) “Subject to the constitution, the

executive authority of the federation
shall be exercised in the name of the
president by the federal government,
SEPARATION OF POWERS

consisting of the prime minister and the

federal ministers who shall act through
the prime minister, who shall be the
chief executive of the federation.”

Article 48(1) “In the exercise of his functions, the

president shall act in accordance with
the advice of the cabinet or the prime
minister. Provided that (within fifteen
days) the president may require the
cabinet or, as the case may be, the
prime minister to reconsider such
advice, either generally or otherwise,
and the president shall (within ten
days) act in accordance with the advice
tendered after such reconsideration.”

Article 58(1) “The president shall dissolve the

national assembly if so advised by the
prime minister; and the national
assembly shall, unless sooner
dissolved, stand dissolved at the
expiration of forty eight hours after the
prime minister has so advised.”
17

President can also dissolve the national

Article 58(2)(a) assembly by using his discretion
powers as “a vote of no confidence
having been passed against the prime
minister, no other member of the
national assembly is likely to command
the confidence of the majority of the
members of the national assembly in
accordance with the provisions of the
constitution as ascertained in a session
of the national assembly summoned for
the purpose…”
SEPARATION OF POWERS

A situation has arisen in which the

Article 58(2)(b) government of the federation cannot be
carried on in accordance with the
provisions of the constitution and an
appeal to the electorate is necessary.
“the prime minister shall hold office
Article 91(5) during the pleasure of the president, but
the president shall not exercise his
powers under this clause unless he is
satisfied that the prime minister does
not command the confidence of the
majority of the member of the national
assembly, in which case he shall
summon the national assembly and
require the prime minister to obtain a
vote of confidence from the assembly.”

“There shall be a Majlis-e-Shoora

LEGISLATUR Article 50 (parliament) of Pakistan consisting of
E the president and the two houses to be
known as national assembly and the
senate.”
 18

“There shall be a supreme court of

JUDICIARY Article 175 Pakistan, a high court for each province
and a High Court for the Islamabad
Capital Territory and such other courts
as may be established by law.”
The judiciary shall be separated
Article 175(3) progressively from the executive.

The judiciary or judicial department is Judiciary and Legislature

an independent and equal coordinate On the other hand it is equally
branch of Government, and is that important to remember that it is not the
branch thereof which is intended to function of the judiciary to legislate or
SEPARATION OF POWERS

interpret, construe, and apply the law, to question the wisdom of the
or that department of Government legislature in making a particular law
which is charged with the declaration if it has made it completely without
of what the law is, and its construction, transgressing the limitation of the
so far as it is written law.49 (The State constitution. Again if a law has been
V. Zia-ur-Rehman, PLD 1973 SC49) competently and validly made the
judiciary cannot refuse to enforce it
Concept of Trichotomy even if the result of it be to nullify its
The power it is said, is inherent in
own decisions. The legislature also has
judiciary by reason of the system of
every right to change, amend or clarify
division of powers itself under which,
the law if the judiciary has found that
as chief Justice Marshal put it, “the
the language used by the legislature
legislation makes, the executive
conveys an intent different from that
executes, and the judiciary construes,
which was sought to be conveyed by
the law” Thus the determination of hat
it. The legislature which establishes a
the existing law is in relation to
particular court may also, if it so
something already done or happened is
desires, abolish it.51 (The State v. Zia-
the function of judiciary while
ur-Rehman, PLD 1973, SC 49)
redetermination of what the law shall
be for the regulation of all future cases
falling under its provisions is the
function of the Legislature. 50
49
The State V. Zia-ur-Rehman, PLD 1973
SC49 commentary Vol. 1 (802) 2005
50
Justice Syed Shabbar Rizvi, Constitutional 51
The State v. Zia-ur-Rehman, PLD 1973, SC
law of Pakistan Text, Case Law and analytical 49)
19

Legislation cannot impinge authority. [Altaf Hussain v. The

judicial power of the State, PLD 1985 Lahore 10]
judiciary In a recent case,53 Supreme Court of
While discussing the concept of Pakistan while speaking through the
Trichotomy of powers, the supreme then Chief Justice Nasir ul Mulk has,
court observed that the legislature in categorical manner, expressed that it
could not make such legislation, which has no power to judicially review  any
might appear as legislative judgment. constitutional amendment made by the
Such enactment would amount to Parliament. He went on to say that
legislative judgment impinging on Supreme Court lacks the jurisdiction to
judicial power of judiciary. The strike down any constitutional
Supreme Court observed as under: amendment, even if amendments are
SEPARATION OF POWERS

From the scheme of distinction of made to infringe the Fundamental

powers especially Article 175 of the Rights. In another case, Ghulam
Constitution it may be reiterated that Rasool v Govt of Pakistan,54 the then
the principle of Trichotomy powers i.e. Chief Justice Nasir ul Mulk, had
the Legislature, the Executive, and the overruled a case Khawaja
Judiciary, is enshrined in our Muhammad Asif v Federation of
constitution. If therefore, it is found Pakistan55, by saying that to make
that the impugned legislation is in the policies is the exclusive powers of
nature of legislative judgment Executive under Articles 90 and 91,
impinging on judicial power of so this Court does not have powers to
judiciary, it would prima facie be ultra intervene the domain of Executives.
vires of the Constitution. 52[2000 But, in my view, earlier judgment
SCMR 567: The province of Punjab decided by the then Chief Justice
V. National Industrial Cooperative Iftikhar Muhammad Chaudhry,
Credit Corporation etc.] Khawaja Asif v Federation of
Clause (3): Separation of Pakistan56 had just guided the
Executives for appointment of Heads
judiciary From Executive
of various corporations and regulatory
The legislature cannot be considered to
given such power to a person
53
designated or any other executive Hamid Khan, “Constitutional and Political
History of Pakistan”, Oxford University Press,
at page 906
54
Sharaf Faridi v Federation of Pakistan, PLD
2000 SCMR 567: The province of Punjab V.
52
1989 Karachi 404
National Industrial Cooperative Credit 55
2013 SCMR 1205.
Corporation etc.] 56
ibid
 20

authorities to observe meritocracy, he power is vested in the supreme

did not impose any restrictions on the court and such other courts as the
executive to appoint any specific Congress main established to decide
person. cases or, controversies at the
Congress possesses constitutional
SOME LEADING CASES IN authority to enlarge or diminish the
court appellate jurisdiction. This is
SEPARATION OF POWERS
not all. Judicial power is also
FAUJI FOUNDATION V
exercise by the legislative Court,
SHAMIM UR REHMAN57 united States tax court and the
Muhammad Haleem acting CJ United States Court of military
observed: appeal, this power from article 1,
SEPARATION OF POWERS

Section 3. Next there are

"….the absence of clear administrative Agencies which not
demarcation of judicial power as a only exercise judicial power but
constitutional safeguard in the also legislative and executive
realm of separation of powers and power. This is because the
the difficulty of protecting it from Congress by law can deligate these
encroachment by the legislature or functions to such Agencies there are
the executive, and the question does again numerous instances where
not seem to be resolved by the one branch of the government
application of this theory. perform the function belonging
Accordingly, in the case of every exclusively to the other two
enactment it will be an open branches it is now the accepted
question as to whether an enactment view of the American quotes that
is an exercise judicial power by the the separate powers are not
legislature where separate powers intended to operate with absolute
are constitutionalized".58 independence and what one find
"….in theory there is still the now is that there are numerous
constitutionalized principle of instances of encroachment of the
separation of powers, in practice it legislative about the judicial
has suffered a metamorphism so department. The present day friend
that it is now infected with is that Emphasis is more on the
imprecision and inconsistencies. proper balance between the co-
One find that while the judicial ordinate rather than on complete

57
PLD 1983 S.C. 457.
58
ibid
21

division of authority between the of the principal institutions for the

three branches"59 exercise of the sovereign powers of
the state in the appointed field. In
FEDERATION OF PAKISTAN actual practice in all modern
V. UNITED SUGAR MILLS governments, separation is only
LTD.60 functional to subserve the practical
necessity of an efficient and
In this case, the vires for clause 4-A of enlightened government by
Article 199 of the 1973 constitution providing for checks and balances
of Pakistan was challenged. The to avoid abuse of public power.
clause provided that an interim order Now here so far as I am aware,
made by High Court in its writ people is pushed to its logical
jurisdiction relating to "the separate
SEPARATION OF POWERS

conclusion so as to create watertight

property or assessment for collection compartment"61
of public revenues shall cease to have
effect on the expiration of a period of SAHIB RAM JAWAYA KAPUR
six months of following the day on V. PUNJAB.62
which it is made". The challenge was
made on the ground that it violated the In the Indian Constitution, therefore,
separation of power as the clause there is the same system of
amounted to an inroad in the judicial parliamentary executive as in England
power of the High Court. The Supreme and the Council of Ministers,
Court held that the vires of the earth consisting as it does of the members of
could not be thrown overboard as this the Legislature, is like the British
doctrine was not applicable to our cabinet. It is like a- hyphen or a buckle
constitution. In holding so Muhammad which joins the legislative part of the
Gul, J, spoke for the court and state to the executive part. The cabinet
observed: enjoying, as it does, a majority in the
legislature, virtually concentrate in
"It is also important to observe that itself the visual control of both
our constitution, like many other legislative and executive functions and
modern written constitutions, does as the ministers constituting the
not provide for rigid separation of cabinet presumably agree on
powers. Indeed there is no direct fundamentals and act on the principle
provision in that behalf except that of collective responsibility, important
the Constitution by various
provisions provide for the setting up
59
ibid 61
ibid
60
PLD 1977 S.C. 397. 62
AIR 1955 S.C. 549
 22

question of policy are all formulated with four judges took oath under the
by them. PCO and oath of office order 2007. On
the other hand, judges including chief
In the space, Supreme Court held that
justice who refused to take oath under
the impugned legislative ordinance
the Musharraf extra constitutional
could not be tested on the touchstone
steps were prevented from performing
of the principle of separation of
their duties. Most of the judges were
powers, but on the footing of the
sent to house arrest. Thus Abdul
competence of the Legislature to
Hameed Dogar became the chief
legislate on that subject. And as for the
justice of Pakistan. This new court
character of this Ordinance it did not
under the new chief justice validated
attempt to decide the question of the
the proclamation of emergency on the
guilt or innocence of any of the
SEPARATION OF POWERS

doctrine of law of necessity. In this

accused as that matter has been
way, Musharraf got the legal
decided by tribunals, and all that it did
protection for his 3rd November 2007
was to validate the sentences. It was
actions. He was also legally
therefore; put an exercise of the
empowered to amend the constitution.
judicial power.63
Court declared him qualified for next
SINDH HIGH COURT BAR term president. General elections were
ASSOCIATION (SHCBA) V held on February, 2008 and as a result,
FEDERATION OF PAKISTAN new civilian government was formed
President Musharraf imposed both at federal and provincial level.
emergency on 3rd November 2007. At Later on Musharraf resigned from the
the same time he issued „Provisional seat of president. Civilian leader –the
Constitutional Order (PCO) 2007 and co chairman of PPP, Asif Ali Zardari
oath of judges order 2007. It meant became the president and the matter of
that only those judges were allowed to restoring the judges switched over to
continue who would take oath under the civilian government. Ultimately
the aforementioned orders. Meanwhile, judges were restored in March 2009 to
Chief justice Chaudhry headed the the same status prior to the 3rd
seven member bench and issued November 2007 emergency. 64
restraint order that no judge would When Iftikhar Chaudhry resumed the
take oath under the PCO or any other office of chief justice of Pakistan, the
extra constitutional order. In contrary first major decision he took was the
to the order of the Supreme Court, reversal of Musharraf unconstitutional
Justice Abdul Hameed Dogar along measures, especially during the
63
ibid 64
PLD 1998 SC 1445, 1474)
23

emergency period. In the case of Sind parliament and set the precedent of
High Court Bar Association (SHCBA), separation of powers.
Court announced on 31 July 2009 that
Musharraf was usurper and all his NINETEENTH
actions of post 3rd November 2007 CONSTITUTIONAL
were invalid and illegal. He had AMENDMENT AND
apprehension that he might be RESISTANCE OF SUPREME
disqualified as a candidate of COURT
presidential election from the ruling of Another case relevant to the separation
eleven member bench of Supreme of powers is the reaction of the
Court. It was also held by the court judiciary on the enactment of the
that since the judges could not be eighteenth constitutional amendment.
SEPARATION OF POWERS

appointed without the consultation of The passing of 18th amendment in

the chief justice, therefore all the April 19th, 2010 and then 19th
appointment of the judges with amendment on the reaction of Supreme
consultation of de facto chief justice Court is viewed in the perspective of
(Abdul Hameed Dogar) were separation of powers case in Pakistan.
unconstitutional. Sixty one judges
In the eighteenth amendment, ninety
were restored. In this judgment, it was
eight articles were amended with the
ordered that new clause be included in
insertion of some new articles also.
the „code of conduct‟ so that judges
Among other applaudable
might be prohibited from taking oath
achievements; the prime achievement
under any unconstitutional method.
was the empowering of the provinces
The court further held that those
by abolishing the concurrent list
judges, who took oath under PCO,
(which had given the overlapping
violating the orders of the Supreme
powers to the federal legislature). But,
Court, would be trialed under article
it had curtailed the absolute power of
209 of the constitution. 65
chief justice in the appointment of the
However, those ordinances which were judges. Before the enactment of 18th
implemented during 03-11-2007 amendment it was the exclusive power
(proclamation of emergency) to 15-12- of the chief justice to appoint the
2007 (lifting of emergency) placed judges of the courts. Article 175 (A),
before the parliament to decide their introduced by this amendment,
validity. Thus, Supreme Court deprived of the chief justice from the
demonstrated the balance of powers by right of appointment. The powers of
putting the ball in the court of the chief justice were shared with the
executive and legislature also. Many
65
ibid
 24

judicial experts apprehended these party), filed a petition under article

changes as an assault on the 184(3) of the constitution on 7th
independence of the judiciary. February, 2013 in which he sought the
Considering this amendment as a reformation of the Election
threat to independence of judiciary, Commission of Pakistan (ECP). He
thus the court sent the matter back to challenged that “the appointment of
the parliament for reconsideration of the Chief Election Commissioner
the said article along with proposed (CEC) and selection of four members
suggestions. These recommendations of the ECP was not according to the
of the court were not contrary to the article 213 and 218 of the constitution.
basic scheme of the article 175. The And that's why these appointments are
major demands of the court were to void ab-initio.” Therefore, he claimed
SEPARATION OF POWERS

gain effective control over in the petition that the appointment of

appointment process by increasing the the CEC along with the members of
strength and power of the judicial the election commission be made
members. Parliament accepted this according to the article 213(2) (a) and
judicial review and resultantly, passed 218(2) (a) and (b) of the 1973
19th amendment in the constitution on constitution. (15 March, 2013, the
1st January, 2011. News International) 66
Before this, it was not the jurisdiction Judgment of the court
of the court to intervene in the
Chief Justice Iftikhar Chaudhary
parliament constitutional right of
headed the three member bench and
amendment, but by showing the
dismissed the petition on the ground
relaxation in this case, reflected the
that “Qadri could neither demonstrate
positive interaction between the
any violation of his fundamental rights
judiciary and the executive. Although
nor establish his locus standi to contest
many critics see this development as
the elections given that he was a dual
the overstepping in the jurisdiction of
national.” Court found in the concise
the parliament by the court, but it also
statement filed by the Qadri that he
set the precedent of balance of powers
holds the nationality of Canada also.
and institutional co existence in
According to the Canadian citizen‟s
Pakistan.
act 1985, a person has to show loyalty
DR. TAHIRUL QADRI’S CASE to the Canada. He has to take oath
The issue was that, Dr. Muhammad before the Canadian constitution,
Tahirul Qadri, the chairman of 66
DR. M. TAHIR-UL QADRI VS.
Pakistan Awami Tehreek (political FEDERATION OF PAKISTAN (PLD
2013SC 413)
25

“From this day, I pledge my loyalty to used with great care and
Canada and her majesty Elizabeth the circumspection and the judiciary has to
second, queen of Canada. I promise to extremely careful to see that behind
respect our country‟s rights and the beautiful veil of public interest an
freedoms, to uphold our democratic ugly private malice, vested interest…”
values, to faithfully observe our laws It was further held that, „it is to be
and fulfill my duties and obligations as used as an effective weapon in the
a Canadian citizen.” On the other hand armory of law for delivering social
the citizenship act of Pakistan 1951, justice to the citizens…it should not be
section 14(1)reads, “ if any person is used for suspicious products of
citizen of Pakistan, and is at the same mischief. It should be aimed at
time a citizen or a national of any other redressal of genuine public wrong or
SEPARATION OF POWERS

country renouncing his status as citizen public injury and not publicity oriented
or national thereof, cease to be a or founded on personal vendetta.” (15
citizen of Pakistan.” This disqualifies a March, 2013, the News International)
person from the membership of the
The appointment of the CEC and other
parliament. The article 63(1) reads as,
members of the ECP were
“A person shall be disqualified from
constitutionally made with the
being elected or chosen as…a member
notification on 16th July, 2012 and
of Majlis-e-Shoora (parliament), if,
16th June, 2011 respectively. These
under the section(c) of the same
appointments were not criticized by
article, “he ceases to be a citizen of
the other population of nearly 189 to
Pakistan, or acquires the citizenship of
120 million and the people‟s
a foreign state” (15 March, 2013, the
representatives in the parliament,
News International) 67
including the members of the
As for as the article 184(3) of the opposition party. Surprisingly, it was
public interest litigation case is highlighted by the person, who showed
concerned, it is pertinent to see his loyalty to the foreign country. 68
whether or not the instant case decided
Tahirul Qadri claimed the restructuring
by the court falls under the public
the entire electoral process when the
interest category. In this regards, the
next general elections were scheduled
interpretation of the Indian Supreme
to be held after the completion of five
Court is relevant to quote. It was held
years terms of the assembly. People of
in the Ashok Kumar Pandey v state of
Pakistan were ready to elect their
West Bengal that, “public interest
representative through election. Under
litigation is a weapon which has to be
67
ibid 68
ibid
 26

such critical circumstances, duty lies court cleared the situation and proved
on the court to realize the facts about the balance of powers among the state
the person approaching the court, as a institution. The instant issue was the
bona fide and without his personal or memorandum in which Mansoor Ijaz,
political motives or any other indirect a Pakistani businessman settled in
concerns in the guise of public interest. America, wrote an article in financial
It was widely believed that Qadri was Times. It was exposed in the article
supported and backed by the non that he was asked by Hussain Haqqani
political entity to affect the democratic (Pakistani ambassador in America) to
process by obtaining the legal cover convey the message of President Asif
from the court. However, court Ali Zardari. The message was a
dismissed the petition on the ground request from president Zardari to
SEPARATION OF POWERS

that under the instant case, there was Admiral Mike Mullen. Zardari
no matter of fundamental rights requested the Mullen to convince
violation. Thus court proved its General Kayani (commander of
impartiality and augmented its role Pakistan armed forces) not to topple
against the political elite and the down the PPP government in Pakistan.
military. (15 March, 2013, the News
Judgment of the Supreme Court
International)
Petitions were filed before the
MEMO GATE SCANDAL69 Supreme Court under article 184(3). It
Memo gate scandal was one of the
accepted a petition filed by Nawaz
most critical issues that shook the very
Sharif, the leader of Pakistan Muslim
edifice of the government. It was the
League (N) and recommended to
direct tussle between the government
appoint a three member judicial
and the armed forces of Pakistan. It
commission to probe into the memo
was alleged that on 10 May 2011,
gate scandal. According to the findings
Hussain Haqqani, the then ambassador
of the commission released on 12th
to America, wrote a memorandum to
June, 2012, “it has been
the chairman of the joint chiefs of staff
incontrovertibility established that the
of the US Armed Forces, Admiral
Memorandum was authentic and Mr.
Mike Mullen. This caused tense
Haqqani was the originator and
relation between army and the
architect of the Memorandum.” 70
government. The intervention of the
Thus the long term political deadlock
69
Details of memo gate can be find in case, between army and government was
Watan party and others v Federation of averted by the mediation of the court.
Pakistan and others
70
PLD 2004 SC 583
27

The complete blames was put on Mr. The executive can affect the
Haqqani and thus the military and the functioning of the judiciary by making
civil government were safely rescued appointments to the office of Chief
from the case. Once again the Justice and other judges. One can go
precedent was set by the court as on listing such examples yet the list
institutional balance in the democratic would not be exhaustive.
system of Pakistan.
INDIRA NEHRU GANDHI V.
I.C. GOLAK NATH V. STATE
RAJ NARAIN
OF PUNJAB, in it was observed:
“The Constitution brings into existence It was observed:
different constitutional entities,
“That in the Indian Constitution there
SEPARATION OF POWERS

namely, the Union, the States and the

is separation of powers in a broad
Union Territories. It creates three
sense only. A rigid separation of
major instruments of power, namely,
powers as under the American
the Legislature, the Executive and the
Constitution or under the Australian
Judiciary. It demarcates their
Constitution does not apply to India.
jurisdiction minutely and expects them
Chandrachud J. also observed that
to exercise their respective powers
the political usefulness of doctrine of
without overstepping their limits. They
Separation of Power is not widely
should function within the spheres
recognized. No constitution can
allotted to them.71
survive without a conscious
adherence to its fine check and
If we study the constitutional balance. The principle of Separation
provisions carefully, it is clear that the of Power is a principle of restraint
doctrine of Separation of Powers has which has in it the precept, innate in
not been accepted in India in its strict the prudence of self preservation, that
sense. In India, not only there is discretion is the better part of
functional overlapping but there is valour.”72
personnel overlapping also. The
Supreme Court has power to declare MUKHERJEE, J. IN RAM
void the laws passed by the legislature JAWAYA V. STATE OF PUNJAB
and the actions taken by the executive Thus doctrine of separation of powers
if they violate any provision of the is not fully accepted in the Indian
Constitution or the law passed by the Constitution. It can be said with the
legislature in case of executive actions.
71
1967 AIR 1643, 1967 SCR (2) 762 72
1975 AIR 865, 1975 SCR (3) 333
 28

observation of Mukherjee, J. in Ram authority of more enlightened

Jawaya v. State of Punjab: patrons of liberty” than the principle
of separation of powers. “Without a
“The Indian Constitution has not
secure structure of separated
indeed recognized the doctrine of
powers”, Justice Scalia went on to
separation of powers in its absolute
say, “our Bill of Rights would be
rigidity but the functions of the
worthless, as are the bills of rights of
different parts or branches of the
many nations of the world that have
Government have been sufficiently
adopted, or even improved upon, the
differentiated and consequently it can
mere words of ours”.
very well be said that our
Constitution does not contemplate KESAVANANDA
assumption, by one organ or part of BHARATI CASE
SEPARATION OF POWERS

the State, of functions that essentially The Kesavananda Bharati 75case is

belong to another.”73 most important in this context. The
main question was whether the
Thus referring to the above content it parliament had unrestricted amending
proves that Separation of Power is powers due to article 368 over the
practiced in India but not that rigidly. constitution and how much could
It is not embodied in the constitution actually be amended. To this the
though practiced. The three main judgment given by the supreme court
powers do cross their limit and held that the amending power of the
interfere in each other’s task whenever parliament was subject to the basic
necessary. structure of the Constitution, and any
amendments which tampered with the
MORRISON V OLSON 74
basic structure would be
unconstitutional  . In this judgment,
76
Justice Scalia, while writing his the separation of powers doctrine was
opinion to support the Separation of included in the basic structure of the
Powers Doctrine, said, constitution and thus any amendments
“The absolutely central guarantee of which gave control of one organ over
a just government.” He quoted another would be unconstitutional,
Federalist No.47, where James leaving the Executive, the Legislature
Madison had said that “no political and the Judiciary completely
truth is certainly of greater intrinsic independent. It must be kept in mind
value, or is stamped with the
75
Kesavananda Bharati Sripadagalvaru and
73
AIR 1955 SC 549, 1955 2 SCR 225 Ors. v. State of Kerala and Anr.
74
487 US 654, (1988). 76
(1973) 4 SCC 225
29

though that in India the separation of of Pakistan, as under the Westminster

powers doctrine is not followed model of government, executive is the
extremely rigidly. part of the parliament. The partial
separation of powers depends on the
independence of judiciary. In Pakistan,
CONCLUSION
the conviction of PM, Memo gate
Constitution provides the separate role
Scandal and the passing of the 19th
and functions of the three institutions.
amendment are the examples that the
Complete separation of powers is
three institutions performed their role
difficult to exist in the political system
within their constitutional jurisdictions
SEPARATION OF POWERS