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Separation of Power in India

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Published: Oct 2, 2018

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Introduction, the doctrine of separation of powers in india and the us, separation of powers among the three bodies of government, judiciary powers, judiciary and legislature, executive and judiciary, legislature and executive, overlap of functions, indian cases on separation of power.

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Separation of Powers in the Indian Constitution - Relationship between Executive, Legislature and Judiciary

The three branches of the government are the executive, the legislature and the judiciary. Although the three have distinct functions to perform, their scope sometimes meets. In this article, you can read all about the relationship between the three arms of the government for the UPSC exam polity section. Separation of powers is a very important topic for the polity & governance segment of the UPSC syllabus. This is important for both the prelims and the mains exams. What do you mean by separation of powers? How is the concept of the separation of powers implemented? What does the Indian Constitution say about the separation of powers? Read this post to find out answers to all these questions.

Separation of Powers

In India, a separation of functions rather than of powers is followed. Unlike in the US, in India, the concept of separation of powers is not adhered to strictly. However, a system of checks and balances have been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature. 

Today, most constitutional systems do not have a strict separation of powers between the various organs in the classical sense because it is impractical. In the following sections, we will see the prevailing system in India, what the relationship between each organ is, and the constitutional provisions thereof.

Before proceeding with the relationships, let us examine in brief what the functions of each organ of the government are.

What is the Legislature?

The chief function of the legislature is to enact laws.

• It is the basis for the functioning of the other two organs, the executive and the judiciary.
• It is also sometimes accorded the first place among the three organs because until and unless laws are enacted, there can be no implementation and application of laws.

What is the Executive?

The executive is the organ that implements the laws enacted by the legislature and enforces the will of the state.

• It is the administrative head of the government.
• Ministers including the Prime/Chief Ministers and President/Governors form part of the executive.

What is the Judiciary?

The judiciary is that branch of the government that interprets the law, settles disputes and administers justice to all citizens. 

• The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.
• It comprises of the Supreme Court, the High Courts, District and other subordinate courts.

For more on the Indian Judiciary , click on the linked article.

What is ‘Separation of Powers’?

In the strictest sense, the doctrine of separation of powers is very rigid. 

Background of the concept

• This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he described the three agencies of the government as General Assembly, Public Officials and Judiciary.
• In the Ancient Roman Republic too, a similar concept was followed.
• In modern times, it was 18th-century French philosopher Montesquieu who made the doctrine a highly systematic and scientific one, in his book De l’esprit des lois (The Spirit of Laws).
• His work is based on an understanding of the English system which was showing a propensity towards a greater distinction between the three organs of government.
• The idea was developed further by John Locke.

Purpose of the Separation

The purpose of separation of powers is to prevent abuse of power by a single person or a group of individuals. It will guard the society against the arbitrary, irrational and tyrannical powers of the state, safeguard freedom for all and allocate each function to the suitable organs of the state for effective discharge of their respective duties.

Meaning of Separation of Powers

Separation of powers divides the mechanism of governance into three branches i.e. Legislature, Executive and the Judiciary.  Although different authors give different definitions, in general, we can frame three features of this doctrine.

• Each organ should have different persons in capacity, i.e., a person with a function in one organ should not be a part of another organ.
• One organ should not interfere in the functioning of the other organs.
• One organ should not exercise a function of another organ (they should stick to their mandate only).

Thus, these broad spheres are determined, but in a complex country like India there often arises conflict and transgression by one branch over the other.

Significance of the doctrine

Why do we need a separation of powers between the various organs of the State? Whenever there is a concentration of power in one centre/authority, there is bound to be greater chances of maladministration, corruption, nepotism and abuse of power. This principle ensures that autocracy does not creep into a democratic system. It protects citizens from arbitrary rule. Hence, the importance of the Separation of Powers doctrine can be summed up as follows:

• Keeps away autocracy
• Safeguards individual liberty
• Helps create an efficient administration
• Judiciary’s independence is maintained
• Prevents the legislature from enacting arbitrary or unconstitutional laws

Constitutional Status of Separation of Power in India

The doctrine of separation of powers is a part of the basic structure of the Constitution, although not specifically mentioned. The legislature cannot pass a law violating this principle. The functions of the three organs are specifically mentioned in the Constitution.

Let us take a look at some of the articles of the Constitution which suggest separation of powers.

Article 50: This article puts an obligation over the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable.

Article 123: The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions.

Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.

Article 361: The President and Governors enjoy immunity from court proceedings.

There is a system of checks and balances wherein the various organs impose checks on one another by certain provisions.

• The judiciary has the power of judicial review over the actions of the executive and the legislature.
• The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
• It can also declare unconstitutional executive actions as void.
• The legislature also reviews the functioning of the executive.
• Although the judiciary is independent, the judges are appointed by the executive.
• The legislature can also alter the basis of the judgment while adhering to the constitutional limitation.

Checks and balances ensure that no one organ becomes all-too powerful. The Constitution guarantees that the discretionary power bestowed on any one organ is within the democratic principle.

Judicial Pronouncements Upholding Separation of Powers Doctrine

Kesavananda Bharati Case (1973): In this case, the SC held that the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic features will be declared unconstitutional.

Swaran Singh Case (1998): In this case, the SC held the UP Governor’s pardon of a convict unconstitutional.

Other SC Judgements

• The Honourable Supreme Court in Ram Jawaya Kapoor V State of Punjab held that the Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution does not contemplate assumption by one organ or part of the state of functions that essentially belong to another.
• In Indira Nehru Gandhi V Raj Narain, Ray, CJ observed that in the Indian Constitution there is a separation of powers in a broad sense only. A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India. The Court further held that adjudication of a specific dispute is a judicial function that Parliament even acting under a constitutional amending power cannot exercise. Apart from difficulties inherent in the enforcement of the strict doctrine of separation of powers in the functioning of the modern government, there is also an inherent difficulty in defining, in workable terms, the division of powers into executive, legislative and judicial.
• In P Kannadasan V State of Tamil Nadu, it was held, “the Constitution has invested the Constitutional Courts with the power to invalidate laws made by Parliament and the state legislatures transgressing Constitutional limitations. Where an Act made by the legislature is invalidated by the Courts on the basis of legislative incompetence, the legislature cannot enact a law declaring that the judgement of the Court shall not operate; it cannot overrule or annul the decision of the Court. But this does not mean that the legislature which is competent to enact the law cannot re-enact the law. Similarly, it is open to the legislature to alter the basis of the judgement. The new law or the amended law can be challenged on other grounds but not on the ground that it seeks to ineffectuate or circumvent the decision of the court. This is what is meant by “checks and balances” inherent in a system of government incorporating separation of powers.

Constituent Assembly and Separation of Powers

There are chiefly two reasons why the Constituent Assembly did not insert the separation of powers doctrine explicitly in the Constitution.

• The founding fathers thought that it was too late to insert this principle as the Constitution was already drafted.
• Also, India adopted the British parliamentary form of government. So, they thought it was better to avoid adopting a complete separation of powers doctrine like the American model.

Relationship between Legislature and Judiciary

Even though the functions of the executive and the judiciary are well-defined in the Constitution, the system of checks and balances ensures that each one can impose checks on the other.

• The judiciary can strike down laws that it considers unconstitutional or arbitrary.
• The legislature, on its part, has protested against judicial activism  and tried to frame laws to circumvent certain judgements.
• Judicial activism is said to be against the principle of separation of powers.
• There have been instances where the courts have issued laws and policies through judgements. For example, the Vishakha Guidelines  where the SC issued guidelines on sexual harassment.
• In 2010, the SC directed the government to undertake the distribution of food grains.
• If the judiciary oversteps its mandate and crosses over into the territory of the legislature or the executive, it is called judicial overreach .

Judicial Supremacy and Parliamentary Sovereignty

To strike a balance between the judiciary and the legislature, the Indian constitution uses the following principles:

• The doctrine of Parliamentary Sovereignty has been adapted from the British Constitution.
• The doctrine of Judicial Supremacy has been adapted from the American Constitution.
• The power of judicial review of the Supreme Court of India is narrower in scope than the Supreme Court of the USA.
• The Constitution of India guarantees ‘established procedure by law’ in Article 21 instead of the ‘due process of law’ provided in the American Constitution.
• The Indian Constitution has opted for an amalgamation of Britain’s principle of parliamentary sovereignty and the judicial supremacy of the USA.
• The Supreme Court, on the one hand, can declare the parliamentary enactments as unconstitutional using the power of judicial review.
• The Parliament, on the other hand, can amend a large chunk of the Constitution using its constituent power.

Relationship between Legislature and Executive

The Constitution states that the executive branch of the State (Council of Ministers) shall be collectively responsible to the Legislature (Lok Sabha). This implies that the Parliament should supervise the work of the government and hold it accountable for its actions.

• In a parliamentary form of government, the executive is not separated from the legislature in that the members of the council of ministers are members of the legislature.
• The executive loses power when it loses the confidence of the legislature. The executive/council of ministers is dismissed if it loses the legislature’s confidence before its tenure is over. So, the legislature controls the executive through a vote of no-confidence.
• The head of government and head of state are different. The head of the government is the Prime Minister while the head of state is the President.
• The parliament makes laws in general broad terms and delegates the powers to the executive to formulate detailed policies and implement them.
• In a presidential form of government, the executive is not accountable to the legislature. One person is the head of both the State as well as the government. A minister need not be from the legislature.

Relationship between Executive and Judiciary

There are several provisions in the Constitution that make the judiciary independent. This is because, it is believed that for a democracy to remain efficient and effective, the judiciary must be independent. The judiciary is said to be the guardian of the Constitution. If the executive also assumes judicial powers, that sort of government tends to become oppressive.

However, there are some judicial functions which are performed by the executive as well. They are:

• The appointments of the judges are made by the executive.
• The President and the Governors also enjoy the power to pardon, reprieve, etc. These are direct judicial functions.
• Under the system of administrative adjudication, the executive agencies have the power to hear and decide cases involving particular fields of administrative activity.

Read more about the Supreme Court of India.

The judiciary also performs some executive functions. It can review the actions of the executive and declare them void if found unconstitutional.

Checks and Balances

The strict separation of powers that was envisaged in the classical sense is not practicable anymore, but the logic behind this doctrine is still valid. The logic behind this doctrine is of polarity rather than strict classification meaning thereby that the centre of authority must be dispersed to avoid absolutism. Hence, the doctrine can be better appreciated as a doctrine of checks and balances.

• In Indira Nehru Gandhi’s case, Chandrachud J. observed – No Constitution can survive without a conscious adherence to its fine checks and balances. Just as courts ought not to enter into problems intertwined in the political thicket, Parliament must also respect the preserve of the courts. The principle of separation of powers is a principle of restraint which “has in it the precept, inmate in the prudence of self-preservation; that discretion is the better part of valour”.
• The doctrine of separation of powers in today’s context of liberalization, privatization and globalization cannot be interpreted to mean either “separation of powers” or “checks and balance” or “principles of restraint”, but “community of powers” exercised in the spirit of cooperation by various organs of the state in the best interest of the people.

Judicial Overreach

The Supreme Court has been accused time and again of pronouncing judgements that are often termed as judicial legislation. This happens when in the guise of giving guidelines and creating principles, they assume the powers of the legislature, for instance, by laying down the basic structure doctrine, the Supreme Court has put limitations on the legislature’s power to make and amend laws.  The judiciary through the collegiums system has also been accused of infringing on powers of other branches. The essential function of the judiciary is to interpret the law rather than to be keen in the appointment of judges. After all, ours is a parliamentary form of democracy wherein parliamentarians are elected by the people and they have to face the people, they are filling the slogan of “We the People”; as compared to this, judges are enjoying fixed tenure. They are accountable to none as such and they should concentrate on justice delivery rather than the appointments.

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Separation of Powers in the Indian Constitution – Indian Polity:- Download PDF Here

UPSC Questions Related to Separation of Powers

What is the separation of powers in the constitution.

It is a doctrine in which the three organs of the government, the executive, the legislature and the judiciary have separate functions and powers, and one organ does not interfere in the functioning of the others.

What do you mean by checks and balances in the Indian Constitution?

It is a system by which no organ of the government abuses its own power. Checks and balances ensure that one organ does not become all too powerful.

Who introduced the separation of powers?

18th-century French political philosophers Charles-Louis de Secondat, and Baron de Montesquieu propounded the doctrine in a scientific and systematic manner, although the principle was used even in ancient times.

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15 Separation of Powers

Ruma Pal is a former judge of the Supreme Court of India.

• Published: 06 February 2017
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This chapter examines how the issue of separation of powers is treated in the Indian Constitution. More specifically, it considers whether the separation of powers is a principle in the constitutional law of India and if so, what sort of doctrine of separation of powers is embraced by the Indian Constitution. The chapter begins with an overview of the three models of separation of powers articulated in the Indian Constitution, along with the constitutional provisions showing the functional overlap between the executive, legislature, and judiciary. It then turns to a discussion of the legislative branch’s judicial powers under the Constitution, as well as its control of the judiciary; the executive’s administration, legislative, and judicial functions; and the courts’ judicial power and independence. Finally, it looks at the allocation of powers relating to governance to autonomous bodies such as the Election Commission and the Comptroller and Auditor-General.

I. Introduction

Lately the issue of separation of powers has become increasingly the subject matter of debate—whether it is the Government’s move to protect convicted Members of Parliament, or in the matter of appointment of Supreme Court judges, or indeed a difference of opinion within the judiciary itself. 1 Much of the turf war stems from a confusion as to the meaning of ‘power’ and, as Seervai put it, to the ‘mistaken belief that power is property’. Power in fact ‘is a means to an end, and it must be conferred on that authority which can best achieve that end’. 2 In other words, the separation is of functions and the classical theory of separation of powers is nothing more than a ‘doctrine of functional specialization’. 3 But no one who values political freedom can dispute Montesquieu’s idea that monopoly of powers, however defined, by any one of the different organs created and functioning under a Constitution, written or unwritten, leads to tyranny, 4 and that separation of powers of governance in some form is necessary with each of the separate authorities acting as a check and balance on the exercise of power of the others. The questions that then arise are: (a) whether the separation of powers is a principle in Indian constitutional law; and (b) if so, what sort of doctrine of separation of powers the Indian Constitution embraces.

Generally speaking the areas of governance have been classified into the executive or the administrative branch (including the enforcement of laws); the legislative or the enactment of laws; and the judicial or the resolution of disputes relating to the enactment, enforcement, and application of laws. Of the two models of separation commonly followed, one provides for a rigid separation of powers between these three authorities following Montesquieu’s dictum. An example of this is the American Constitution under which:

Separate departments … [are] created for the exercise of legislative, executive and judicial power, and care taken to keep the three as separate and distinct as possible, except so far as each is made a check upon the other to keep it within proper bounds, or to prevent hasty and improvident action. The executive is a check upon the legislature in the veto power … the legislature is a check upon both the other departments through its power to prescribe rules for the exercise of their authority, and through its power to impeach their officers; and the judiciary is a check upon the legislature by means of its authority to annul unconstitutional laws. 5

The second model is of a looser separation or the Westminster model, which is based on the principle of the supremacy of Parliament. This model, though unwritten, was followed by England prior to its joining the European Union, allowing Parliament ‘to change the law in any way it pleases. No statute can be attacked on the ground that it trespasses on a field reserved to another organ of the State.’ 6 The power of judicial review of legislative action was consequently limited to questioning delegated legislation to the extent that the delegation is excessive, beyond the scope of the statute seeking to delegate the power of legislation to the executive, or unreasonable. 7 A distinction was made between the legislative and executive wings ‘[b]ut behind this façade lay the “efficient secret” of the English Constitution’, 8 the close association of these two wings. The earlier concept of parliamentary sovereignty and the scope of judicial review of legislative action have undergone changes subsequent to the acceptance by Britain of the European Communities Act 1972. Now ‘under the terms of the 1972 Act it has always been clear that it [is] the duty of a United Kingdom Court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law’. 9 Executive and legislative powers, however, continue to be interlinked, and the British cabinet is a ‘hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part’. 10

The Indian Constitution provides a third model of separation of powers. While there is recognition of legislative, executive, and judicial bodies, it does not expressly vest the different kinds of power in the different organs of the State 11 (except the executive powers in the President and governors), 12 nor is there any exclusivity in the nature of functions to be performed by them. Unlike Westminster, Parliament in India being limited by a written constitution is not supreme and it does not possess the sovereign character of the British Parliament. 13 In India the Constitution is supreme and legislation contrary to constitutional provisions is void. Despite the Supreme Court’s observations to the contrary, 14 separation of powers under the Constitution between the three organs of the State is not equal and the executive has been given dominant powers. The constitutional allocation of powers must be seen in the background of the Constituent Assembly debates where the discussion on separation of powers was limited to separation of the executive from the judiciary because, in a parliamentary democracy as sought to be set up by the framers of the constitution, those who form the majority in the legislative bodies necessarily govern the country. As Acharya Kripalani stated during the early years of the Lok Sabha:

Let there be no camouflage. Legislature practically means the executive. It is absurd to say that the Legislature is a free body of persons. Today the Executive is the legislature but the legislature may not be the Executive. The executive is the legislature in a party system democracy. In a centralized democracy there is no difference. 15

Like the Westminster model, there is no real ‘separation’ as such between the executive and legislative authorities under our Constitution. But it has gone further in providing for a functional overlap between the legislative, executive, and judicial wings of government, 16 so that there is in fact no strict separation of powers with each of these organs empowered to carry out functions which would generally be considered within the purview of the other. For example, since the Constitution provides wide powers of judicial review of administrative, legislative, and judicial action, the judiciary is often called upon to discharge what may be termed as quasi-legislative or executive actions. Again, executive functions have been distributed to authorities that are required to function independently of all three organs of governance such as the Election Commission and the Comptroller and Auditor General, 17 and legislative functions have been granted to independent statutory bodies. The present chapter is limited to expounding this lack of separation and the functional overlap in the Indian constitutional context. The issue of separation of powers has received a somewhat erratic interpretation by courts in India. 18 This chapter therefore begins with the constitutional provisions showing the functional overlap before considering the judicial approach.

II. The Legislature

As stated earlier, unlike England, the Indian Constitution, by virtue of being written, has firmly rejected the theory of parliamentary sovereignty. However, subject to abiding by constitutional limitations enforced through judicial review, the powers of Parliament and State legislatures to enact laws are plenary. Parliament has the right to legislate on the constitution, organisation, jurisdiction, and powers of the Supreme Court and High Courts. 19 State legislatures have a similar power with regard to the District and Subordinate Judiciary, 20 as well as the power to determine the jurisdiction of all courts within its territory. 21 Parliament can also determine the number of judges to be appointed in the Supreme Court, 22 and has the power to remove judges of the Supreme and High Courts by impeachment. 23 Terms and conditions of service, including salaries of judges, are also subject to legislative control. 24

1. Judicial Powers

Legislatures exercise judicial powers under the Constitution. Examples include the case of impeachment of judges 25 and contempt of legislatures. 26 Further, the Speakers/Chairmen, while exercising powers and discharging functions under the Tenth Schedule to the Constitution, act as a tribunal. 27 Legislatures can also change the basis on which a decision is given by a court and thus in effect nullify the impact of a judicial decision. Such retrospective validation of a law declared by a court to be invalid is usually resorted to after a tax is declared as illegally collected under an ineffective or an invalid law. 28 However, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively:

The most important condition, of course, is that the Legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. 29 29 Shri Prithvi Cotton Mills Ltd v Broach Borough Municipality (1969) 2 SCC 283 [4].

Also, no legislature can set aside an individual decision inter partes and affect their rights and liabilities alone. ‘Such an act on the part of the legislature’ has been held by the Supreme Court to amount to ‘exercising the judicial power by the State and to function as an appellate court or tribunal, which is against the concept of separation of power’. 30

2. Legislative Control of the Judiciary

To counter early successful legal challenges to land reform measure and to limit the power of judicial review, the Constitution was amended by the Constitution (First Amendment) Act 1951. Article 31B, which was added to the Constitution, along with the Ninth Schedule, provides that none of the Acts and Regulations specified in the Ninth Schedule can be challenged on the grounds that they are inconsistent with or abridge the rights conferred by Part III, notwithstanding any judgment or decree of any court or tribunal to the contrary. This allows statutes in violation of fundamental rights and held to be void by a court to continue in force by the simple expedient of being included in the Ninth Schedule by way of a constitutional amendment. 31

Another important example of the legislature holding powers traditionally reserved for the judiciary came by way of the Forty-second Amendment, enacted in 1976. The Amendment introduced Articles 323A and 323B, which authorise Parliament and the State legislatures, respectively, to create tribunals to which the power of adjudication of disputes on various subjects can be transferred while excluding the jurisdiction of the courts in respect of those subjects. Both Articles also made it possible to totally exclude the powers of judicial review under Articles 32 and 226 and vest such powers in tribunals legislatively. Finally, the power of impeachment of judges is reserved to Parliament, although it ultimately depends on parliamentary majorities to determine the outcome of the procedure. 32

III. The Executive

Theoretically, under a strict separation of powers the executive should only carry out administrative functions including the implementation of laws and maintenance of law and order. However, the ‘functional overlap’ prevailing under the Indian Constitution allows the executive to perform, in addition to administration, key legislative and judicial functions.

1. Legislative Powers

While Article 245 empowers Parliament and State legislatures to make laws for the whole of the territory of India and of a State, respectively, the executive has the primary responsibility for the formulation of governmental policy and its transmission into law. Bills originate with the executive and with a majority in Parliament or the State legislatures, it follows that the executive predominates in the legislative process. 33 Additionally, Article 245 does not provide or prohibit legislation by the executive. In fact, the powers of the executive at the Centre on matters in respect of which Parliament has the power to make laws are, under Article 73, coextensive with Parliament. The power is exercised in the name of the President, who is to act on the advice of his ministers. A similar power is given under Article 162 to the Governor, coextensive with the State legislature. Executive orders under either of these Articles have an equal efficacy as an Act of the Parliament or State legislature, as the case may be. 34 Executive legislation consequently covers a broad spectrum and is extensively used. The executive exercises such power when there is no legislation covering the field or as a delegate of the legislative bodies. 35

As far as delegated legislation is concerned, there are mainly two checks in this country on the power of the legislature to delegate. There can be no delegation which amounts to ‘abdication and self-effacement’ by the concerned legislative body. 36 Judicial determination of the line beyond which the legislative power cannot be delegated has wavered, but rarely have the courts struck down an executive order on the ground that there exists excessive delegation. 37 In order to make the power valid, courts have generally construed the power, where possible, in such manner that it does not suffer from the vice of delegation of excessive legislative authority. 38 The position has been further complicated by the judicially evolved doctrine of ‘conditional legislation’. Thus, the decision of the executive for extension of laws to areas not covered by a law ‘with such restrictions and modifications as it thinks fit’ by notification in the Official Gazette has been termed to be conditional legislation and not delegated legislation and held to be valid. 39 Other instances of the exercise of delegated legislative power by the executive include the imposition of tax, 40 extending the coverage of statutes, 41 fixing the maximum price for drugs, 42 deciding when a statute, including a constitutional amendment, will become enforceable, 43 banning the import or export of essential commodities—for example, control orders made under the Essential Supplies (Temporary Powers) Act 1946 regulating sale of iron and steel 44 —or the export and movement of rice and of rice and paddy products, 45 to name a few. As the Supreme Court once noted, ‘with the proliferation of delegated legislation, there is a tendency for the line between legislation and administration to vanish into an illusion’. 46

The Constitution also expressly recognises the legislative powers of the executive in Chapter III of Part V the heading of which is ‘Legislative Powers of the President’. Clause (2) of Article 123 in that chapter provides that an ordinance promulgated under Article 123 ‘shall have the same force and effect as an Act of Parliament’. Similarly Chapter IV’s heading refers to ‘The Legislative Powers of the Governor’ and Article 213 has granted power to the Governor to promulgate ordinances when the Legislative Assembly is not in session. There is no limit on the subjects on which such ordinances may not be issued, nor is the prior approval of the concerned legislature required. 47 Governance by ordinance has been often resorted to by the executive as a means of bypassing the normal process of legislation. 48 The executive, through the President, also determines whether a State law will prevail in case of inconsistency between laws made by Parliament and laws made by the legislature of a State. 49

But perhaps the most egregious form of legislative power granted under the Constitution to the executive are those listed under emergency provisions. This is the subject of a separate chapter in this Handbook, and I will restrict myself for the present purposes to what is commonly termed as President’s Rule declared under Article 356. Article 356 provides that when the President on receipt of a report from the Governor of the State or otherwise is satisfied that the government of that State cannot be carried on in accordance with the provisions of the Constitution, she may by Proclamation not only dissolve the State Assembly by assuming all the functions of the government of that State, but may also declare that the powers of the legislature of the State shall be exercisable by or under the authority of Parliament. 50 When a declaration is made to this effect by the President, it shall be competent for Parliament to direct that the legislative power of the State legislature shall be exercised by the President himself or by any other authority to whom such power may be delegated by the President under Article 357(1). 51 Laws so made by Parliament or the President continue even after the Proclamation under Article 356 has ceased to operate until it is altered, repealed, or amended by a competent legislature or authority. 52 In making the report to the President the Governor acts according to his discretion. 53

Given the wide powers of the executive, a leading commentator has remarked that parliamentary supremacy, in the context of the practical working of the parliamentary system, is:

[O]nly a ‘myth’ or ‘fiction’ which ‘actually boils down to supremacy of the executive government of the day’ and ‘[w]hen a government shouts from the housetop to uphold ‘sovereignty of Parliament’, what, in effect, it is seeking is to have complete, uncontrolled, freedom of action itself to do what it likes as it knows the majority in Parliament would always support it. 54

2. Judicial Powers

The executive exercises judicial powers under several provisions. For instance, it has the ability (in the name of the President) to decide whether a Member of a House of Parliament has become disqualified to continue as such. 55 It has the right to advise the President/Governor, advice he is bound to accept, to grant pardon to or modify the punishment of a convicted person. 56 Article 311 allows the executive to hold an inquiry into charges against any person holding a civil post under the Union or the State and to award punishment. Besides, several statutes—for example, laws dealing with licensing, levy of taxes, or imposition of duties—give the administrative authority the power to decide rights affecting a claimant or competing claims. 57 The executive also staffs administrative tribunals set up under Article 323A as well as other tribunals set up under Article 323B to discharge functions earlier carried on by courts. 58

3. Executive Control of the Judiciary

Under the Constitution, it is ostensibly left to the President to decide the number of judges to be appointed to the High Courts, 59 as well as to decide finally on who is to be appointed as a judge, whether of the Supreme Court or the High Courts. 60 Regulations also empower the executive to control the appointment and service conditions of the District Judiciary. 61 Further, the executive has the power to prosecute judges for offences under the Prevention of Corruption Act 1947. 62

IV. The Judiciary

1. judicial power and independence.

As a check on the seemingly unbridled power of the other two organs, the Supreme Court and the High Courts have been given wide powers of judicial review by the Constitution to test whether legislative or executive action is contrary to the provisions of the Constitution. 63 Part III of the Constitution, which contains the fundamental rights, also contains a prohibition on all authorities within the territory of India from making any law which takes away or abridges rights conferred by Part III. Any law in contravention of this is void to the extent of such contravention. 64 The right to move the Supreme Court to enforce all rights in Part III is contained in Part III and is itself also a fundamental right. Another constitutional limitation of the power of legislation arises out of the delineation of legislative powers between Parliament and the State legislatures. 65 As the Supreme Court once observed, ‘In this regard, the courts in India possess a power not known to the English Courts … The range of judicial review recognized in the superior judiciary of India is perhaps the widest and the most extensive known to the world of law.’ 66

However, the position of the judiciary was, until 1993, seen as being subject to extensive legislative and executive control and as constitutionally weak. It is also clear from the earlier discussion that the only effective constitutional balance to executive dominance with parliamentary or legislative majorities can and has been the judiciary. The two-fold consequence of this has been, first, an assault on the functioning of the judiciary by the executive–legislative, 67 and, secondly, an assertion of judicial independence by the judiciary—the former being destructive of, and the latter being indispensable to, the separation of powers. Independence was asserted by the judiciary functionally (used in the sense of freedom from legislative and executive interference) and administratively (used in the sense of jurisdictional and organisational independence of the judicial set-up). Perhaps the earliest case of assertion of functional independence came in 1965, with a serious conflict between a High Court and a State legislature when the Supreme Court said that legislatures could not interfere in any manner with the discharge of functions by the judiciary and ‘that provisions of the Constitution … are intended to safeguard the independence of the Judicature in this country’. 68

Administrative independence of the judiciary was under threat from the executive because it had the final say in the appointment, 69 transfer, 70 and promotion of a judge 71 after consultation with the Chief Justice and such judges of the Supreme Court or High Courts as the President thinks necessary. 72 In 1993, the Supreme Court secured the independence of the judiciary from executive control or interference by judicially prescribing procedural norms for transfer and appointment of judges by a collegium of senior judges together with the Chief Justice of the High Court or Supreme Court, as the case may be. 73 ‘From being a mere consultant, the Chief Justice of India and the Supreme Court collegium now have the final word.’ 74 As far as the District Judiciary is concerned, administrative separation of the judiciary from the executive was secured by interpreting Article 233(1) and striking down Rules framed by the Governor which allowed the Governor to appoint persons outside the judicial service as District Judges. One of the reasons for holding that the Rules framed were unconstitutional was the concept of an independent judiciary under the doctrine of separation of powers. 75 This was followed by a series of judgments by which the administrative functioning of the judicial system at all levels of the judiciary was ensured. 76 In recent years, judicial independence has been heavily debated in the context of tribunals and their composition, a topic covered by a different chapter in this Handbook.

2. Judicial Control of the Legislature

‘Control’ by the judiciary of the other organs follows from the existence of a written constitution and the judicial review, interpretation, and application of constitutional provisions. Courts have not taken kindly to statutory provisions limiting the jurisdiction of courts to decide disputes and a provision that seeks to exclude the jurisdiction of courts is strictly construed. This principle is equally applicable to constitutional provisions. Thus, in Kihoto Hollohan v Zachillhu , 77 the Supreme Court construed Paragraph 6(1) of the Tenth Schedule to the Constitution, which seeks to impart finality to the decision of the Speakers/Chairmen as to whether a member of a House has become subject to disqualification on the ground of defection, to mean that the finality ‘[did] not detract from or abrogate judicial review of the decision under Articles 136, 226, and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides , non-compliance with Rules of Natural Justice and perversity, are concerned’. 78

Decisions that have set aside legislation (both Central and State) on the ground of a lack of jurisdiction are legion. The Supreme Court’s control has not been restricted to the law-making powers of legislatures and has extended to judicial overview of actions within the legislative bodies. The recent decision, Raja Ram Pal v Speaker, Lok Sabha , is illustrative of this:

[W]henever Parliament, or for that matter any State Legislature, claims any power or privilege in terms of the provisions contained in Article 105(3), or Article 194(3), as the case may be, it is the Court which has the authority and the jurisdiction to examine, on grievance being brought before it, to find out if the particular power or privilege that has been claimed or asserted by the legislature is one that was contemplated by the said constitutional provisions. 79 79 Raja Ram Pal (n 68 ) [62].

Constitutional concepts judicially developed by a process of interpretive evolution have also circumscribed legislative powers. On 24 April 1973, the Supreme Court held in Kesavananda Bharati that the power to amend the Constitution under Article 368 did not extend to amending the ‘basic structure’ of the Constitution, though it was not unanimous in defining what the ‘basic structure’ was. 80 The theory of the basic structure applies only to constitutional amendments and not to ordinary legislation. 81 In 1981, Waman Rao v Union of India held that amendments to the Constitution made on or after 24 April 1973, by which time the Ninth Schedule was amended from time to time by inclusion of various statutes, were open to challenge on the ground that they damage the basic or essential features of the Constitution. 82 The key question whether the basic structure test would include judicial review of the Ninth Schedule laws on the touchstone of fundamental rights was considered exhaustively by a recent nine-judge decision of the Supreme Court. 83 The issue was answered in the affirmative. 84

A second concept that has served this role is ‘due process of law’, introduced into Articles 14 and 21. As an important commentator remarks with regard to due process, ‘The judiciary in India has thereby acquired vast power to supervise and invalidate any union or state action … perceived by the Court to be “arbitrary” or “unreasonable”.’ 85 While Article 21 has been stretched to cover every possible situation relating to human existence, Article 14 has been more restrictively applied to strike down legislation. Neither has the Court ‘at any time set aside economic and business regulations by recourse to substantive due process’, nor has ‘primary legislation been invalidated merely on the ground of arbitrariness or unreasonableness’. 86

Decisions/Directions have also been given by Courts in the recent past affecting prospective and sitting members of legislatures. The following decision will serve by way of illustration. In 2002, the Supreme Court held in Union of India v Association for Democratic Reforms that voters had a right to know who they were electing. 87 The outcome of this decision was that detailed information relating to a candidate as prescribed by the Supreme Court must be given to every voter. More recently, the Supreme Court was called upon to consider when a Member of Parliament or the State Assembly would be disqualified from continuing as such under Articles 102 and 191, respectively. 88 The Court held that the disqualification would take effect immediately upon conviction but cease to operate from the date of order of stay of conviction passed by the appellate court under Section 389 of the Code of Criminal Procedure 1973 or the High Court under Section 482 of the Code. 89 In an attempt to overturn this decision, the Government sought to pass a Representation of the People (Second Amendment and Validation) Bill 2013 and an ordinance. Neither attempt was, however, proceeded with. 90

Finally, where there is a legislative vacuum, on occasion binding directives have also been issued under Article 142 until appropriate legislation has been made, 91 although courts have generally been reluctant to use this power. 92 The directives, when given, have rarely been overturned by legislation to the contrary. On the other hand, judicial directions have often been incorporated in subsequent statutes, 93 unless they otherwise affected executive powers. 94

3. Judicial Control of the Executive

In exercise of the powers of judicial review, the judiciary has given directions to the executive to implement constitutional, statutory, or policy measures but has generally been reluctant to interfere in matters of policy. 95 Occasionally it has set up committees to monitor and oversee the implementation of such directions. 96

V. Autonomous Bodies

Fortifying the definition of ‘power’ in the phrase ‘separation of powers’ as a division along functional lines, and contrary to the traditional concept of such separation being amongst only three organs of governance, the Indian Constitution has provided for the allocation of powers relating to governance to authorities who are required to be independent of the legislatures and the executive.

1. The Election Commission

While under the Government of India Act 1935, the conduct of elections was vested in an executive authority, under the Constitution of India, an autonomous constitutional authority was created under Article 324 for the superintendence, direction, and conduct of elections. This body is called the Election Commission, and is ‘totally independent and impartial, and is free from any interference of the executive’. 97 Parliament is empowered to make law as regards matters relating to conduct of election of either Parliament or State legislatures, without affecting the plenary powers of the Election Commission under Article 324. 98 There is also a ‘blanket ban on litigative interference during the process of the election, clamped down by Article 329(b) of the Constitution’. 99 The Election Commission is, for the purposes of discharging its functions, invested with executive, quasi-judicial, and legislative powers. 100 Article 243K has vested similar powers in the State Election Commissioner in respect of Panchayat elections. 101 These plenary powers include the power of postponing an election if the circumstances warrant. 102 However, in practical terms the independent action of the Election Commission is frequently thwarted by the executive. Although Clause (6) of Article 324 mandates that the President or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission, such requests are often sought to be obstructed by governments both in the Centre and States, leading to a deadlock. The judiciary has generally upheld the plenary powers of the Election Commission in the resultant litigation.

2. Comptroller and Auditor General

Described ‘as the most important officer in the Constitution of India’ with duties ‘far more important than the duties even of the judiciary’ by BR Ambedkar, 103 the Comptroller and Auditor General (CAG) is required:

[T]o audit all receipts which are payable into the Consolidated Fund of India and of each State and of each Union Territory having a Legislative Assembly and to satisfy himself that the rules and procedures in that behalf are designed to secure an effective check on the assessment, collection and proper allocation of revenue and are being duly observed and to make for this purpose such examination of the accounts as he thinks fit and report thereon. 104 104 Comptroller and Auditor-General’s (Duties, Powers and Conditions of Service) Act 1971, s 16.

However, the CAG is not required to examine expenditures even before they are deployed. So when political parties in their manifestos promised various free gifts to the electorate if they were voted into power, the Supreme Court held that the CAG had no role to play at that juncture. 105 The powers of auditing the receipts and expenditure of the Union and the States are subject to the CAG’s independent authority, although the office has not been given the same independence as the judiciary. For one, there is no constitutionally prescribed criterion for selection of a candidate for appointment as CAG who is appointed by the President on the ‘recommendation’ of the Prime Minister. Secondly, the Supreme Court has the exclusive powers to appoint its officers and servants, 106 while the CAG heads the Indian Audit and Accounts Department but does not have such powers. 107 The conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the CAG are prescribed by rules made by the President after consultation with the CAG. 108 Finally, the independence of the CAG is seriously impaired, as the CAG is not assured of tenure unlike the judiciary where the age of retirement is provided for in the Constitution. 109

The CAG also has no power to take action on its own report. All that is constitutionally required is the placing of the report before Parliament 110 or the State Assembly, 111 as the case may be. It is therefore possible for the executive commanding a majority to disregard the CAG’s objections to unjustified expenditure. Recently, however, on the basis of the adverse report of the CAG, the Supreme Court in exercise of its powers of judicial review directed investigation into grant of unified access service licence with 2G spectrum and ultimately set it aside.

Executive functions have also been constitutionally farmed out to other autonomous bodies, more as facilitating executive functioning rather than as independent centres. For instance, the Union Public Service Commission acts in an advisory capacity as to service matters of central civil servants, including recruitment and disciplinary matters. 112 While the President is, by Article 320 of the Constitution, required to consult the Public Service Commission (except in certain cases), the President is not bound by the advice of the Commission. 113 Similarly, provision has also been made by Article 280 for the appointment by the President of a Finance Commission to make recommendations to the President as to the distribution amongst the Union and the States of the net proceeds of taxes and duties and as to the principles which should govern the grants-in-aid of the revenue of the States out of the Consolidated Fund of India. 114 Courts have rarely interfered with such recommendations. 115

VI. Conclusion

Despite such overlap, until today a broad ‘constitutional organization of legal powers’ 116 continues to be generally maintained by the legislature, executive, and judiciary with the recognition of the need for checks and balances to ensure that the constitutional objectives as delineated in the Directive Principles are achieved. However, Montesquieu’s theory of an equal Trinitarian separation of powers has been expressly rejected by the Constitution, most importantly by conceding the powers of judicial review over legislative and executive action. 117 There has been a discernible move towards the creation of more autonomous bodies both legislatively (such as the National Judicial Appointments Commission Bill 2014) and judicially (such as directions for setting up of a State Security Commission, a Police Establishment Board, and Police Complaints Authorities) 118 towards ensuring checks on the exercise of power. As Ackerman observes, ‘A better understanding of the separation of powers would recognize that [autonomous] agencies … deserve special recognition as a distinct part of the system of checks and balances.’ 119

The advantages of a written constitution with its prescription of the objectives, the ambit of functions, and fetters on the exercise of such functions by different authorities for attaining these objectives cannot be overemphasised in a country like ours. However, although the Indian model of distribution of functions is still at the evolutionary stage, if we are to remain true to the Constitution in the evolutionary process, the judiciary as an independent interpreter of the Constitution must remain the keystone.

State of Uttar Pradesh v Jeet S Bisht (2007) 6 SCC 586.

HM Seervai , The Position of the Judiciary under the Constitution of India (Sir Chimanlal Setalvad Lectures) (University of Bombay 1970) .

Bruce Ackerman , ‘The New Separation of Powers’ (2000) 113(3) Harvard Law Review 633, 688 .

Re Delhi Laws Act 1912 AIR 1951 SC 332 [64], citing Montesquieu , The Spirit of Laws , trans Thoma Nugent and JV Prichard , vol 1 (G Bell & Sons 1914) 162–63 :

When the legislative and the executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty; because apprehensions may rise, 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 the executive.

Thomas Cooley , A Treatise on the Constitutional Limitations (Da Capo Press 1972) 35 .

George Paton , A Textbook of Jurisprudence (4th edn, Oxford University Press 2004) 332 .

Kruse v Johnson [1898] 2 QB 91 (HCJ).

Jeffrey Jowell and Dawn Oliver , The Changing Constitution (7th edn, Oxford University Press 2011) 191 .

R v Secretary of State for Transport [1991] 1 AC 603, 658–59 (Bridge LJ). See also Jowell and Oliver (n 8 ) 115 .

Re Delhi Laws Act 1912 (n 4 ) [285].

Re Delhi Laws Act 1912 (n 4 ) [285]: ‘the Indian Constitution does not expressly vest the different sets of powers in the different organs of the State.’

Constitution of India 1950, arts 53 and 154.

Re Delhi Laws Act 1912 (n 4 ) [133].

Jeet S Bisht (n 1 ) [49].

Parliamentary Debates , vol 3 (Lok Sabha Secretariat 1955) 4990, 1955 .

Seervai (n 2 ) 81 : ‘I may say at once that our Constitution is not based on the separation of powers.’

Bruce Ackerman has called such separation of powers ‘constrained parliamentarism’ and has lauded it ‘as the most promising framework for future development of the separation of powers’. Ackerman (n 3 ) 640 .

In 1951 the Supreme Court said: ‘It does not admit of any serious dispute that the doctrine of separation of powers has, strictly speaking, no place in the system of government that India has at the present day under her own Constitution or which she had during the British rule’ ( Re Delhi Laws Act 1912 (n 4 ) [285]). In 2011 the Supreme Court said: ‘There is distinct and rigid separation of powers under the Indian Constitution’ ( State of Uttar Pradesh v Sanjay Kumar (2012) 8 SCC 537 [16]).

Constitution of India 1950, sch 7, List 1, Entries 77–79.

Constitution of India 1950, sch 7, List 2, Entries 3, 65; List 3, Entries 11-A, 14, and 46.

Jamshed N Guzdar v State of Maharashtra (2005) 2 SCC 591 [39]; Nahar Industrial Enterprises Ltd v Hong Kong and Shanghai Banking Corporation (2009) 8 SCC 646 [115].

Constitution of India 1950, art 124.

Constitution of India 1950, arts 124(4), 124(5), and 218.

Constitution of India 1950, arts 125 and 221; The Supreme Court Judges (Salaries and Conditions of Service) Act 1958; The High Court Judges (Salaries and Conditions of Service) Act 1954.

Constitution of India 1950, arts 124(5) and 217.

Constitution of India 1950, art 194(3). See also Special Reference No 1 of 1964 AIR 1965 SC 745 [133].

Kihoto Hollohan v Zachillhu (1992) Supp (2) SCC 651 [111].

The recent resolution of a tax dispute in favour of the Vodafone Group by the Supreme Court in Vodafone International Holdings BV v Union of India (2012) 6 SCC 613 and the subsequent retrospective change of the law by Parliament is an example of this.

State Bank’s Staff Union (Madras Circle) v Union of India (2005) 7 SCC 584 [31].

There are at present 284 Statutes included in the Ninth Schedule.

When Ramaswamy J of the Supreme Court was sought to be impeached in 1993, the Congress Party, which commanded a majority in Parliament, abstained from voting, thus defeating the motion of impeachment. This after three senior judges appointed by the Ninth Lok Sabha had found him guilty of misconduct on eleven counts and ‘misbehaviour’ was ‘proved’ within the meaning of art 124(4).

Ram Jawaya Kapur v State of Punjab AIR 1955 SC 549 [14]: ‘The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions.’

Indra Sawhney v Union of India (1992) Supp (3) SCC 217 [526]. The earlier understanding of the scope of art 162 in GJ Fernandez v State of Mysore AIR 1967 SC 1753 [12] was that:

Article 162 does not confer any power on the State Government to frame rules and it only indicates the scope of the executive power of the State. Of course, under such executive power, the State can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor.

Ram Jawaya Kapur (n 33 ) [7]: ‘the language of Article 172 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies Article 73 of the Constitution.’

Re Delhi Laws Act 1912 (n 4 ) [93].

‘Guidelines’ justifying delegated legislation have been found by courts even from the preamble of a statute. See Pannalal Binjraj v Union of India AIR 1957 SC 397 [25]: ‘No rules or directions having been laid down in regard to the exercise of that power in particular cases, the appropriate authority has to determine what are the proper cases in which such power should be exercised having regard to the object of the Act and the ends to be achieved.’

Ajoy Kumar Banerjee v Union of India (1984) 3 SCC 127 [27].

Re Delhi Laws Act 1912 (n 4 ) [93]. It has been later held by the Supreme Court that the distinction between the two is without a difference and that conditional legislation is delegated legislation: Lachmi Narain v Union of India (1976) 2 SCC 953 [49].

Banarsi Das Bhanot v State of Madhya Pradesh AIR 1958 SC 909; Narinder Chand Hem Raj v Lt Governor, Union Territory, Himachal Pradesh (1971) 2 SCC 747; cf Bimal Chandra Banerjee v State of Madhya Pradesh (1970) 2 SCC 467.

Edward Mills Co Ltd v State of Ajmer AIR 1955 SC 25: The Minimum Wages Act 1948 (although the statute did not provide for any criterion to do so).

Union of India v Cynamide India Ltd (1987) 2 SCC 720.

AK Roy v Union of India (1982) 1 SCC 271 [45].

Union of India v Bhanamal Gulzarimal Ltd AIR 1960 SC 475.

Chinta Lingam v Govt of India (1970) 3 SCC 768 [3].

Cynamide India Ltd (n 42 ) [7].

T Venkata Reddy v State of Andhra Pradesh (1985) 3 SCC 198 [9].

This was noted by the Supreme Court in AK Roy (n 43 ) [8]:

In India, that power [of the executive to issue ordinances] has a historical origin and the executive, at all times, has resorted to it freely as and when it considered it necessary to do so. One of the larger States in India has manifested its addiction to that power by making an overgenerous use of it—so generous indeed, that ordinances which lapsed by efflux of time were renewed successively by a chain of kindred creatures, one after another. And, the ordinances embrace everything under the sun, from Prince to pauper and crimes to contracts. The Union Government too, so we are informed, passed about 200 ordinances between 1960 and 1980, out of which 19 were passed in 1980.

Between 2000 and 2011 the Union government promulgated 75 ordinances. See List of Ordinances issued by Government of India (Legislative I Section, Legislative Department, Ministry of Law and Justice 2012) < lawmin.nic.in/ld/folder1/listord.doc >, accessed October 2015.

Constitution of India 1950, art 254.

Constitution of India 1950, art 356(1)(b).

Ram Prasad v State of Punjab AIR 1966 SC 1607.

Constitution of India 1950, art 357(2).

Since a practice has developed of the Centre appointing a person with a political background as a governor, the discretion has on occasion been used for political reasons ( SR Bommai v Union of India (1994) 3 SCC 1) and occasionally governors and the State executive have come into conflict ( State of Gujarat v RA Mehta (2013) 3 SCC 1).

MP Jain , Indian Constitutional Law (5th edn, Wadhwa & Co 2003) 1635 .

Constitution of India 1950, art 103.

Constitution of India 1950, arts 72 and 161.

East India Commercial Co Ltd v Collector of Customs AIR 1962 SC 1893.

This is discussed in greater detail below.

Constitution of India 1950, art 216.

Constitution of India 1950, arts 124(2) and 217(1).

Constitution of India 1950, art 233.

K Veeraswami v Union of India (1991) 3 SCC 655 [61].

Constitution of India 1950, arts 32 and 226.

Constitution of India 1950, arts 12 and 13(2).

Constitution of India 1950, arts 245 and 246.

Union of India v Raghubir Singh (1989) 2 SCC 754 [7].

The discharge of judicial functions by the executive when India was under British administration of the Constitution perhaps historically accounts for the persistent efforts of the political executive to curb the judiciary.

Special Reference No 1 of 1964 (n 26 ) [67]. The power of courts to judicially review parliamentary privileges and powers has been reiterated subsequently in Kihoto Hollohan (n 27 ); Raja Ram Pal v Speaker, Lok Sabha (2007) 3 SCC 184; Amarinder Singh v Punjab Vidhan Sabha (2010) 6 SCC 113.

Constitution of India 1950, art 124(2) in the case of Supreme Court judges and art 217 in the case of High Court judges.

Constitution of India 1950, art 222.

As the Chief Justice of a State High Court or as the Chief Justice of India.

See Justice Ruma Pal , ‘An Independent Judiciary: Fifth Tarkunde Memorial Lecture’ (New Delhi, 10 November 2011) :

Post the decision in Kesavananda Bharati limiting the power of constitutional amendment, the majority, all senior judges, were superseded and the dissenter was rewarded with the high office of the Chief Justice of India. The superseded judges resigned in protest. In 1975 Emergency was declared. Judicial review for infringement of fundamental rights including the right to life and liberty were severely curtailed allowing the Executive virtually unbridled power to deprive citizens to detain citizens with impunity. Several High Courts held that the Governments could not. In retaliation in 1976, 16 High Court judges were transferred by the Executive to other High Courts. The majority in the Supreme Court disagreed with the High Courts and upheld the Government’s powers. There was one dissenter—Justice H.R. Khanna. The Executive again ‘punished’ him by superseding him for appointment as the Chief Justice of India although he was then the senior-most judge in the Supreme Court and would have in the normal course been so appointed. Justice Khanna resigned. Small wonder then that after this, a battered judiciary (after an initial regrettable hiccup in the form of the decision in S.P. Gupta’s case (1981 Supp SCC 87)) picked itself up and with all the interpretative tools at its command—termed by many as an unacceptable feat of judicial activism—by a composite judgment in several public interest litigations virtually wrested the powers of appointment, confirmation and transfer of judges from the Executive.

See also Union of India v Sankalchand Himatlal Sheth (1977) 4 SCC 193 [41].

Supreme Court Advocates-on-Record Association v Union of India (1993) 4 SCC 441; Special Reference No 1 of 1998 (1998) 7 SCC 739.

Excerpted from Justice Ruma Pal (n 72 ). Recently, the Ninety-ninth Amendment to the Constitution—which sought to replace the collegium system of appointments—was struck by the Supreme Court for violating judicial independence. See Supreme Court Advocates-on-Record Association v Union of India 2015 SCC OnLine SC 964; BN Srikrishna, ‘Judicial Independence’ (chapter 20, this volume).

Chandra Mohan v State of Uttar Pradesh AIR 1966 SC 1987 [18].

See eg, All-India Judges’ Association v Union of India (1992) 1 SCC 119 [63]. The directions included steps to bring about uniformity in designation of officers both in the civil and the criminal side; raising retirement age of judicial officers to 60 years; providing a working library at the residence of every judicial officer; providing sumptuary allowance and residential accommodation to every judicial officer; providing every District Judge and Chief Judicial Magistrate a State vehicle, judicial officers in sets of five to have a pool vehicle; and setting up an In-service Institute at the Central and State or Union territory level.

Kihoto Hollohan (n 27 ); see also Amarinder Singh (n 68 ).

Kihoto Hollohan (n 27 ) [111].

Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.

Indira Nehru Gandhi v Raj Narain (1975) Supp SCC 1.

(1981) 2 SCC 362.

IR Coelho v State of Tamil Nadu (2007) 2 SCC 1.

IR Coelho (n 83 ) [116]. The Court said ‘every addition to the Ninth Schedule triggers Article 32 as part of the basic structure and is consequently subject to the review of the fundamental rights as they stand in Part III’.

TR Andhyarujina , ‘The Evolution of Due Process of Law by the Supreme Court’ in BN Kirpal and others (eds) Supreme but Not Infallible: Essays in Honour of the Supreme Court of India (Oxford University Press 2004) 193 .

TR Andhyarujina (n 85 ) 210 .

(2002) 5 SCC 294. The information was to be given on affidavit by each candidate seeking election to Parliament or a State legislature as a necessary part of his/her nomination paper. This needed amendment of the Representation of the People Act 1951. Parliament amended the law under which the candidate was not required to disclose (a) the cases in which he was acquitted or discharged of criminal offence(s); (b) his assets and liabilities; or (c) his educational qualification as directed by the Supreme Court. In People’s Union for Civil Liberties (PUCL) v Union of India (2003) 4 SCC 399 [9] the Court said ‘the legislature in this country has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the courts’. The amendment was accordingly held to be ‘illegal, null and void’.

Lily Thomas v Union of India (2013) 7 SCC 653. Representation of the People Act 1951, s 8(4) provided that persons convicted of specified offences would not be disqualified from continuing as Members of Parliament or the State legislatures, in the case of a person who files an appeal or a revision in respect of the conviction or the sentence within three months until the appeal or revision is disposed of by the court. Sub-section (4) of s 8 of the Act was accordingly held to be unconstitutional and struck down.

Lily Thomas (n 88 ) [34]–[35]. However, the Court made it clear that sitting Members of Parliament and the State legislature who had been convicted for any of the specified offences mentioned in Section 8 of the Act and who had filed appeals or revisions which were pending would not be affected by the judgment: Lily Thomas (n 88 ) [348].

See eg, Re Measures for Prevention of Fatal Accidents of Small Children due to Their Falling into Abandoned Borewells and Tubewells (2010) 15 SCC 224; Gainda Ram v MCD (2010) 10 SCC 715; Kalyaneshwari v Union of India (2011) 3 SCC 287; Lafarge Umiam Mining (P) Ltd v Union of India (2011) 7 SCC 338; Delhi Jal Board v National Campaign for Dignity & Rights of Sewerage & Allied Workers (2011) 8 SCC 568; University of Kerala v Council of Principals of Colleges, Kerala (2011) 14 SCC 357; Dayaram v Sudhir Batham (2012) 1 SCC 333; Inspector General of Police v S Samuthiram (2013) 1 SCC 598. The justification for this is outside the scope of the present discourse. Suffice it to say that the directions have been given in matters as diverse as the myriad social and economic problems faced by the country. See Justice Ruma Pal , ‘Judicial Oversight or Over-reach: The Role of the Judiciary in Contemporary India’ (2008) 7 SCC J 9 ; Justice Ruma Pal, ‘The Court as a Social Auditor: Tenth Dr. Amitabha Chowdury Memorial Lecture’ (Gauhati, December 2013).

P Ramachandra Rao v State of Karnataka (2002) 4 SCC 578 [27].

Eg, directions given in Vishaka v State of Rajasthan (1997) 6 SCC 241 incorporated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.

BALCO Employees’ Union v Union of India (2002) 2 SCC 333; Special Reference No 1 of 2012 (2012) 10 SCC 1.

See eg, TN Godavarman Thirumulpad v Union of India (1997) 2 SCC 267; Ram Jethmalani v Union of India (2011) 8 SCC 1.

Special Reference No 1 of 2012 (n 95 ) [27].

Special Reference No 1 of 2012 (n 95 ) [126] (Pasayat J).

Mohinder Singh Gill v Chief Election Commissioner (1978) 1 SCC 405 [9].

Mohinder Singh Gill (n 99 ) [45]. See also Indian National Congress (I) v Institute of Social Welfare (2002) 5 SCC 685 [25]. These plenary powers include the power of postponing an election if the circumstances so warrant ( Election Commission of India v State of Tamil Nadu (1995) Supp (3) SCC 379). However, in practical terms the independent action of the Election Commission is frequently thwarted by the executive. Although clause (6) of art 324 mandates that the President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission, such requests are often sought to be obstructed by governments both in the Centre and States, leading to a deadlock. The judiciary has generally upheld the plenary powers of the Election Commission in the resultant litigation.

See West Bengal State Election Commission v State of West Bengal (2013) 3 Cal LT 110.

Election Commission of India (n 100 ).

Constituent Assembly Debates , vol 8 (Lok Sabha Secretariat 1986), 30 May 1949 .

S Subramaniam Balaji v State of Tamil Nadu (2013) 9 SCC 659.

Constitution of India 1950, art 146.

Constitution of India 1950, art 148(5).

See eg, Constitution of India 1950, arts 124(2), 217(1), and 149 read with Comptroller and Auditor General’s (Duties, Powers and Conditions of Service) Act 1971, s 16. The Indian Audit and Accounts Department is under its control. On the basis of the CAG’s report as laid before the Parliament or State Legislature, it is open to the executive to take such action as may be required. Recently the adverse report of the CAG the Supreme Court in exercise of its powers of judicial review directed investigation into grant of unified access service licence with 2G spectrum and ultimately set it aside ( Centre for Public Interest Litigation v Union of India (2012) 3 SCC 1).

Constitution of India 1950, art 151(1).

Constitution of India 1950, art 151(2).

Constitution of India 1950, art 320(3).

AN D’Silva v Union of India AIR 1962 SC 1130.

Special Reference No 1 of 1962 AIR 1963 SC 1760.

All India Judges’ Association v Union of India (2002) 4 SCC 247 [20]; Brij Mohan Lal v Union of India (2007) 15 SCC 614; Brij Mohan Lal v Union of India (2012) 6 SCC 502.

George H Sabine , A History of Political Theory (4th edn, Oxford University Press 1973) 514 .

Unfortunately not consistently by the judiciary.

Prakash Singh (n 94 ).

Ackerman (n 3 ) 718 .

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The doctrine of Separation of powers

Topic covered: Parliament and State Legislatures – structure, functioning, conduct of business, powers & privileges and issues arising out of these.

The doctrine of Separation of powers:

Law Minister Ravi Shankar Prasad recently told the Lok Sabha that just as independence of the judiciary is a part of the basic structure of the Constitution, the principle of separation of powers is also a part of that basic structure. He asserted that governance and lawmaking should be left to the elected members of the legislature.

• He also urged the judiciary to exercise its discretion in accepting public interest litigations.

What’s the issue?

There has been a “rush to file PILs on almost every issue” nowadays.

What is the doctrine of Separation of Power?

It refers to the model of governance where the executive, legislative and judicial powers are not concentrated in one body but instead divided into different branches.

• It is not explicitly mentioned in the constitution.

Articles in the Constitution facilitating Separation of Powers are as follows:

• Article 50: State shall take steps to separate the judiciary from the executive. This is for the purpose of ensuring the independence of the judiciary.
• Article 122 and 212: Validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court. Also, Legislators enjoy certain privileges with regard to speech and anything said in the Parliament cannot be used against them.
• Judicial conduct of a Judge of the Supreme Court and the High Court cannot be discussed in the Parliament and the State Legislature, according to Article 121 and 211 of the Constitution.
• Articles 53 and 154 respectively, provide that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.
• Article 361: The President or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office.

InstaLinks:

Prelims Link:

• What is a PIL?
• Who can file?
• Powers of Supreme Court vs High Court wrt to PILs.
• Articles in the Constitution facilitating Separation of Powers are as follows.

Mains Link:

What is the doctrine of Separation of Power? Discuss how it is followed under the Indian Constitution.

Sources: the Hindu.

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Separation of powers in India

Three organs of government.

• It is the basis for the functioning of the other two organs, the executive and the judiciary.
• It is also sometimes accorded the first place among the three organs because until and unless laws are enacted, there can be no implementation and application of laws.  
• It is the administrative head of the government.
• Ministers including the Prime/Chief Ministers and President/Governors form part of the executive.  
• The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.
• It comprises of the Supreme Court, the High Courts, District and other subordinate courts.
• This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he described the three agencies of the government as General Assembly, Public Officials and Judiciary.
• In the Ancient Roman Republic too, a similar concept was followed.
• In modern times, it was 18th-century French philosopher Montesquieu who made the doctrine a highly systematic and scientific one, in his book De l'esprit des lois (The Spirit of Laws).
• His work is based on an understanding of the English system which was showing a propensity towards a greater distinction between the three organs of government.
• The idea was developed further by John Locke.  
• Purpose of the Separation: It is to prevent abuse of power by a single person or a group of individuals. It will guard the society against the arbitrary, irrational and tyrannical powers of the state, safeguard freedom for all and allocate each function to the suitable organs of the state for effective discharge of their respective duties.

Meaning Of Separation Of Powers

• Each organ should have different persons in capacity, i.e., a person with a function in one organ should not be a part of another organ.
• One organ should not interfere in the functioning of the other organs.
• One organ should not exercise a function of another organ (they should stick to their mandate only).

Significance Of The Doctrine

• Keeps away autocracy
• Safeguards individual liberty
• Helps create an efficient administration
• Judiciary's independence is maintained
• Prevents the legislature from enacting arbitrary or unconstitutional laws

Constitutional Status Of Separation Of Powers In India

• Legislature- Parliament ( Lok Sabha and Rajya Sabha), State legislative bodies
• Executive- At the central level- President, At the state level- Governor
• Judiciary- Supreme Court, High Court and all other subordinate courts  
• Some of Articles of the constitution: Article 50: This article puts an obligation over the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable. Articles 53 and 154: It provide that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability. Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment. Article 123: The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions. Article 361: The President and Governors enjoy immunity from court proceedings., they shall not be answerable to any court for the exercise and performance of the powers and duties of his office.
• The judiciary has the power of judicial review over the actions of the executive and the legislature
• The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
• It can also declare unconstitutional executive actions as void.
• The legislature also reviews the functioning of the executive.
• Although the judiciary is independent, the judges are appointed by the executive.
• The legislature can also alter the basis of the judgment while adhering to the constitutional limitation.
• The legislature besides exercising law-making powers exercises judicial powers in cases of breach of its privilege, impeachment of the President and the removal of the judges
• The executive may further affect the functioning of the judiciary by making appointments to the office of Chief Justice and other judges.
• Legislature exercising judicial powers in the case of amending a law declared ultra vires by the Court and revalidating it.
• While discharging the function of disqualifying its members and impeachment of the judges, the legislature discharges the functions of the judiciary.
• Legislature can impose punishment for exceeding freedom of speech in the Parliament; this comes under the powers and privileges of the parliament. But while exercising such power it is always necessary that it should be in conformity with due process.
• The heads of each governmental ministry is a member of the legislature, thus making the executive an integral part of the legislature.
• The council of ministers on whose advice the President and the Governor acts are elected members of the legislature
• Legislative power that is being vested with the legislature in certain circumstances can be exercised by the executive. If the President or the Governor, when the legislature or is not in session and is satisfied that circumstances exist that necessitate immediate action may promulgate ordinance which has the same force of the Act made by the Parliament or the State legislature.
• The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre and in the States respectively, the authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution. The executive also exercises law making power under delegated legislation.
• The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial functions. Administrative tribunals which are a part of the executive also discharge judicial functions.
• Higher administrative tribunals should always have a member of the judiciary. The higher judiciary is conferred with the power of supervising the functioning of subordinate courts. It also acts as a legislature while making laws regulating its conduct and rules regarding disposal of cases.
• Kesavananda Bharati v State of Kerala (1973): In this case, the SC held that the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic features will be declared unconstitutional.  
• Swaran Singh Case (1998): In this case, the SC held the UP Governor�s pardon of a convict unconstitutional.  
• Ram Jawaya Kapoor V State of Punjab(1955): In this case it was held that the Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution does not contemplate assumption by one organ or part of the state of functions that essentially belong to another.  
• Indira Nehru Gandhi v. Raj Narain (1975): Where the dispute regarding Prime Minister's 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 ultra vires was that when the constituent body declared that the election of Prime Minister wouldn't be void, it discharged a judicial function that according to the principle of separation it shouldn't have done. The place of this doctrine in the Indian context was made a bit clearer after this judgment.
• https://byjus.com/free-ias-prep/separation-power-indian-constitution/
• https://www.cusb.ac.in/images/cusb-files/2020/el/law/w2/The_Separation_of_Powers2_iv_sem.pdf
• https://www.civilsdaily.com/doctrine-of-separation-of-powers-in-india/
• https://www.lawctopus.com/academike/doctrine-of-separation-of-power/
• http://www.legalserviceindia.com/legal/article-35-doctrine-of-separation-of-powers.html
• http://www.legalserviceindia.com/legal/article-3136-separation-of-power-and-indian-constitution.html

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Separation of Powers in India: A Safeguard Against Arbitrary Government Actions | Sociology UPSC | Triumph IAS

Table of Contents

Separation of Powers in India

(relevant for polity section of general   studies paper prelims/mains).

Separation of Powers

The notion of the separation of powers was initially introduced by the French philosopher Montesquieu in his work, “The Spirit of the Laws,” which was published in 1748. He contended that the authority of the government should be distributed across three branches: the legislative, executive, and judicial. This concept was envisioned to thwart any single branch from accruing excessive power and to guarantee the government’s answerability to the populace.

• The Constitution of India , which took effect in 1950, delineates the framework for the separation of powers in India under Article 50. It distributes government authority across three branches: the legislative, executive, and judicial. Here’s how they function:
• Legislative Branch: This branch is responsible for crafting laws.
• Executive Branch: Its role is to execute laws and policies.
• Judicial Branch: This branch interprets laws and resolves disputes.
• The constitutional provisions supporting this separation are as follows:
• Article 121: This article emphasizes the separation between the legislature and the judiciary. It prohibits discussions in the legislature regarding the conduct of judges in the discharge of their duties. This ensures that the legislature doesn’t interfere with the judiciary’s work, allowing it to function independently.
• Article 74: Article 74 outlines the separation of powers between the executive and the legislature. It establishes a Council of Ministers led by the Prime Minister to aid and advise the President, who must act in accordance with this advice when exercising their functions. In practice, this means that the executive, headed by the Prime Minister, implements government laws and policies, while the legislature, consisting of the President, elected parliamentarians, and the Council of Ministers, formulates these laws.
• However, it’s important to note that the separation of powers in India is not absolute. There is some degree of overlap and interdependence among the branches:
• The executive branch can suggest new laws to the legislative branch.
• The judicial branch can review the actions of the executive and legislative branches to ensure they align with the Constitution.
• Despite the separation of powers, one drawback of the Indian government system is the interconnectedness between the legislature and the executive.

The doctrine of separation of powers reduces the possibility of arbitrary actions by the government:

• Ensures Checks and Balances: The separation of powers establishes a system of checks and balances in which each branch of government possesses the authority to restrain the actions of the others. For instance, the judiciary has the capacity to scrutinize and invalidate unconstitutional laws, thereby preventing the legislature from enacting arbitrary legislation.
• Promotes Accountability: Every branch of government is answerable to distinct entities or institutions. The executive is accountable to the legislature, the legislature is accountable to the electorate, and the judiciary is accountable to the Constitution. This arrangement guarantees that each branch remains answerable for its conduct and deters arbitrary government actions.
• Preserves Judicial Independence: The autonomy of the judiciary assumes a critical role in preventing arbitrary governmental actions. It serves as a check on the activities of the other governmental branches, ensuring that the government adheres to the confines of the Constitution.
• Kesavananda Bharati v. Union of India (1973): In this landmark case, the Supreme Court ruled that Parliament’s authority to amend the Constitution is not unrestricted and cannot be employed to dismantle its fundamental structure. This judgment established the doctrine of the Constitution’s fundamental structure, limiting the government’s ability to modify the Constitution and prevent arbitrary actions.
• R. Bommai v. Union of India (1994): In this case, the Supreme Court determined that the President’s authority to dismiss a state government is not unbounded and can only be exercised based on information provided by the Governor. This ruling introduced the Governor’s report principle, which confines the government’s ability to dismiss a state government and safeguards against arbitrary actions.

The separation of powers creates a system of checks and balances, where each branch of government has the power to limit the actions of the other branches, and ensures that each branch is held accountable for its actions. The examples given above illustrate the importance of the doctrine of separation of powers in reducing the possibility of arbitrary actions by the government in India.

Sample Question for UPSC Sociology Optional Paper:

1. question: how does the constitution of india establish the framework for the separation of powers.

The Constitution of India, under Article 50, delineates the separation of powers by distributing authority across the legislative, executive, and judicial branches.

2. Question: What is the significance of Article 121 in ensuring the independence of the judiciary?

Article 121 emphasizes the separation between the legislature and the judiciary by prohibiting discussions in the legislature regarding the conduct of judges, ensuring the judiciary’s independence.

3. Question: Is the separation of powers in India absolute?

No, the separation of powers in India is not absolute. There is a degree of overlap and interdependence among the branches.

4. Question: How does the doctrine of separation of powers ensure checks and balances within the Indian government system?

The doctrine establishes a system where each branch has the authority to restrain the actions of the others, promoting accountability and deterring arbitrary actions.

5. Question: What impact did the Kesavananda Bharati case have on the doctrine of separation of powers in India?

The Kesavananda Bharati case established the doctrine of the Constitution’s fundamental structure, limiting the government’s ability to amend the Constitution and thereby preventing arbitrary actions.

To master these intricacies and fare well in the Sociology Optional Syllabus , aspiring sociologists might benefit from guidance by the Best Sociology Optional Teacher and participation in the Best Sociology Optional Coaching . These avenues provide comprehensive assistance, ensuring a solid understanding of sociology’s diverse methodologies and techniques.

Separation of Powers, Indian Constitution, Article 50, Article 121, Article 74, Legislative Branch, Executive Branch, Judicial Branch, Checks and Balances, Kesavananda Bharati, S. R. Bommai, Accountability, Arbitrary Actions, Separation of Powers, Indian Constitution, Article 50, Article 121, Article 74, Legislative Branch, Executive Branch, Judicial Branch, Checks and Balances, Kesavananda Bharati, S. R. Bommai, Accountability, Arbitrary Actions

Choose T he Best Sociology Optional Teacher for IAS Preparation?

At the beginning of the journey for Civil Services Examination preparation, many students face a pivotal decision – selecting their optional subject. Questions such as “ which optional subject is the best? ” and “ which optional subject is the most scoring? ” frequently come to mind. Choosing the right optional subject, like choosing the best sociology optional teacher , is a subjective yet vital step that requires a thoughtful decision based on facts. A misstep in this crucial decision can indeed prove disastrous.

Ever since the exam pattern was revamped in 2013, the UPSC has eliminated the need for a second optional subject. Now, candidates have to choose only one optional subject for the UPSC Mains , which has two papers of 250 marks each. One of the compelling choices for many has been the sociology optional. However, it’s strongly advised to decide on your optional subject for mains well ahead of time to get sufficient time to complete the syllabus. After all, most students score similarly in General Studies Papers; it’s the score in the optional subject & essay that contributes significantly to the final selection.

“ A sound strategy does not rely solely on the popular Opinion of toppers or famous YouTubers cum teachers. ”

It requires understanding one’s ability, interest, and the relevance of the subject, not just for the exam but also for life in general. Hence, when selecting the best sociology teacher, one must consider the usefulness of sociology optional coaching in General Studies, Essay, and Personality Test.

The choice of the optional subject should be based on objective criteria, such as the nature, scope, and size of the syllabus, uniformity and stability in the question pattern, relevance of the syllabic content in daily life in society, and the availability of study material and guidance. For example, choosing the best sociology optional coaching can ensure access to top-quality study materials and experienced teachers. Always remember, the approach of the UPSC optional subject differs from your academic studies of subjects. Therefore, before settling for sociology optional , you need to analyze the syllabus, previous years’ pattern, subject requirements (be it ideal, visionary, numerical, conceptual theoretical), and your comfort level with the subject.

This decision marks a critical point in your UPSC – CSE journey , potentially determining your success in a career in IAS/Civil Services. Therefore, it’s crucial to choose wisely, whether it’s the optional subject or the best sociology optional teacher . Always base your decision on accurate facts, and never let your emotional biases guide your choices. After all, the search for the best sociology optional coaching is about finding the perfect fit for your unique academic needs and aspirations.

To master these intricacies and fare well in the Sociology Optional Syllabus , aspiring sociologists might benefit from guidance by the Best Sociology Optional Teacher and participation in the Best Sociology Optional Coaching . These avenues provide comprehensive assistance, ensuring a solid understanding of sociology’s diverse methodologies and techniques. Sociology, Social theory, Best Sociology Optional Teacher, Best Sociology Optional Coaching, Sociology Optional Syllabus. Best Sociology Optional Teacher, Sociology Syllabus, Sociology Optional, Sociology Optional Coaching, Best Sociology Optional Coaching, Best Sociology Teacher, Sociology Course, Sociology Teacher, Sociology Foundation, Sociology Foundation Course, Sociology Optional UPSC, Sociology for IAS,

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Separation of Powers: A Comparative Analysis of the Doctrine India, United States of America and England

By Yashmita

Editors Note:   The doctrine of separation of powers is essentially what fortifies the three pillars of democracy. Without such a demarcation, the point of such offices and such pillars is redundant, and the nation might as well be a dictatorial state, with all three pillars working in collusion. This paper compares the doctrine of separation of powers in India, the U.S.A. and England, and the reiteration of this demarcation in the three nations by the judiciary. 

INTRODUCTION

The doctrine of Separation of Powers emphasizes the mutual exclusiveness of the three organs of government, viz., legislature, executive and judiciary. The main underlying idea is that each of these organs should exercise only one type of function. There should not be concentration of all the functions in one organ otherwise it will pose a threat to personal freedom, for; in that case, it could act in an arbitrary manner. It could enact a tyrannical law, execute it in a despotic manner and interpret it in an arbitrary manner without any external control. The purpose underlying separation doctrine is to diffuse governmental authority so as to prevent absolutism and guard against tyrannical and arbitrary powers of the state, and to allocate each function to the institution best suited to discharge it. The rationale underlying the doctrine that been that if all power is concentrated in one and the same organ, there would rise the danger of state absolutism endangering the freedom of the people. However, it needs to be appreciated that in considering this doctrine, we have moved from the discipline of law to that of political theory. The separation of powers is a doctrine not a legal principle. [i]

There is an old adage containing a lot of truth that “power corrupts and absolute power corrupts absolutely” . To evolve effective control mechanism, man had been looking for devices to contain the forces of tyranny and authoritarianism. “Separation of Powers” was conceived to be one such device.

  It may not be possible to state precisely the origins of the doctrine of separation of powers. However, if we look to the writings of the Greek philosopher Aristotle , it is possible to discern a rudimentary separation of powers doctrine. Thus in his Politics, Aristotle remarked that:

There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these three elements. The three are, first the deliberative, which discusses everything of common importance; second, the officials . . .; and third, the judicial element.

The English political theorist, John Locke (1632-1704), also envisaged a threefold classification of powers. Writing in The Second Treatise of Government (1689), Locke drew a distinction between three types of power: legislative, executive and federative. . In Locke’s analysis, the legislative power was supreme and although the executive and federative powers were distinct, the one concerned with the execution of domestic law within the state and the other with a state’s security and external relations, he nevertheless took the view that ‘they are always almost united’ in the hands of the same persons. Absent from his classification is any mention of a separate judicial power. Moreover, the proper exercise of these powers is achieved not through separation but on the basis of trust i.e., that a community has entrusted political power to a government. Thus, Locke’s analysis does not, strictly speaking, amount to the exposition of a doctrine of the separation of powers. [ii]

The doctrine saw its full expansion in the hands of Charles Louis de Secondat, otherwise known as Baron de Montesquieu (1689-1755). He felt that the history of despotic Tudors and absolutist Stuarts, showed that freedom was not secured, if the executive and the legislative powers were held in the same hands. He deduced his ideas of separation of powers from his observations and ideas of the relations between the Stuart King and the Parliament. He thought that Parliament would never be arbitrary, and the denial of legislative power to the King alone could make the rule by extemporary decrees impossible. Montesquieu having experienced the tyrannies in the monarchical France, must have watched the conditions on the other side of the Channel with envy. In the second half of the 17 th century, he would not fail to notice that the Englishmen stood under the warm sunshine of the Magna Carta. Having lost his legislative and tax powers to the Parliament, the English King was left with no prerogative. Parliament made the laws. His Majesty’s Government was, even though the cabinet system was not yet developed, administering the laws passed by Parliament. By the end of the century the judges, like the Great Coke, could not be dismissed by the King at his will, because the Act of Settlement gave them tenure during good behavior as distinguished from tenure during the pleasure of His Majesty. Montesquieu concluded that the secret of the Englishmen’s liberty was the separation and functional independence of the three departments of the Government from one another. [iii]

In his book, De L’Esprit des Lois ( The Spirit of the Laws) 1748, Montesquieu stated:

When legislative power is united with executive power in a single person or in a single body of the magistrates, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will executive them tyrannically. Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor. All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals. [iv]

SEPARATION OF POWERS IN INDIA

In India, the doctrine of Separation of Powers has not been accorded a constitutional status. Apart from the directive principle laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers. [v]

As a general provision, Parliament is entrusted to make the law for the union. Executive is entrusted with duty of implementation of law and judiciary is also considered to be independent under the constitutional scheme in India. However, there are many exceptions which negate the application of this doctrine. [vi]

Constitutional Provisions

Under Article 53 the executive powers of the union are vested with the President and under Article 154 the Governor is vested with execution powers but they do exercise their powers with the aid and advice of the council of ministers at the Centre (Article 74) and at the State, as the case may be. Both President and Governor exercise the power of ordinance making under the constitution thus performing legislative functions. President makes laws for a State, after the dissolution of the State Legislature, following the imposition of the President’s Rule (Article 356). President has the power to disqualify any member of the house under Article 103. The judges of the Supreme Court are appointed by the President, while the parliament has the power to impeach the judges. The President has the power to decide a disputed question of the age of a judge of Supreme Court or any High Court for purpose of set restrain from the judicial service.

The Union Council of Ministers is responsible to the Lok Sabha (Article 75). This house has the powers to start impeachment proceedings against the President (Article 61) and the judges of the Supreme Court. The members of Council of Ministers will be members of either house of Parliament under Article 75(5) which means there is overlapping of personnel also. [vii]

The judicial function of Parliament is too substantial in certain respects. It can consider the question of breach of any known parliamentary privilege; and in a case where the charge is established have power to punish for their contempt.

The High Courts in certain marginal spheres perform such functions which are administrative rather than judicial. Their power of supervision over other subordinate courts under Article 227 is more of the administrative nature than judicial. When under Article 228 they have power to make transfer of cases, they exercise administrative control over the State district courts as well. The legislative power of the High Courts and the Supreme Court includes their power to frame rules which is fairly wide.

The Executive in India is authorized to legislate in the name of delegated legislation. In the name of administrative adjudication of the right of individual citizens, the administrative agencies, which are statutory tribunals and domestic tribunals have been constituted and perform judicial function. [viii]

Judicial Opinion of the Doctrine of Separation of Powers

There have been several landmark judgements that have changed the face of the doctrine of separation of powers in India. These are discussed in this section.

The only validity of the doctrine of separation of powers is in the sense that one organ should not assume the essential functions of the other. This was the view of Supreme Court in Ram Jawaya Kapur v. State of Punjab [AIR 1955 SC 549], it was held that the

“…Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the 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 .” [ix]

Since after the Kesavananda Bharti v. State of Kerala [AIR 1973 SC 1461], and the judicial articulation of the doctrine of basic structure and essential features of the Constitution therein, the separation of powers is spoken as a structural basis of the constitutional framework and cannot be destroyed by any amendment. [x]

The doctrine puts less and less emphasis on organizational pattern, and seeks to effect increasingly functional division. In re Delhi Laws Act case [AIR 1951 SC 332], Hon’ble Kania, CJ., observed that.

“Although in the Constitution of India. . . . . . there is no express separation of power, it is clear that a legislature is created by the Constitution and detailed provisions are made for making that legislature pass laws. Is it then too much to say that under the Constitution the duty to make laws, the duty to exercise its own wisdom, judgment and patriotism in making law is primarily cast on Legislature? Does it not imply that unless it can be gathered from other provisions of the Constitution, other bodies executive or judicial are not intended to discharge legislative functions?” [xi]

Therefore, the functions of different organs are clearly earmarked so that one organ does not usurp the functions of another. In Indira Nehru Gandhi v. Raj Narain [AIR 1975 SC 2299], Ray CJ., also observed that in the Indian Constitution there is separation of powers in broad sense only. Beg, J., has observed that basic structure also embodies the separation of powers doctrine and none of the pillars of the Indian Republic can take over the other functions, even under Article 368. Chandrachud, J., reiterated this view and held that this doctrine is useful as a means of checks and balances in a political setup. For examples the judiciary should shy away from the politics of the Parliament and the latter should revere the opinion of the Courts. [xii]

On a casual glance at the provisions of the Constitution of India, one may be inclined to say that the doctrine of broad division of the power of state has been accepted under the Constitution of India. In Golaknath v. State of Punjab [AIR 1967 SC 1643], Subba Rao, CJ ., observed:

“The Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them.”

In Bandhuva Mukti Morcha v. Union of India [AIR 1984 SC 802], Pathak J ., said:

“The Constitution envisages a broad division of the power of state between the legislature, the executive and the judiciary. Although the division is not precisely demarcated, there is general acknowledgment of its limits. The limits can be gathered from the written text of the Constitution, from conventions and constitutional practice, and from an entire array of judicial decisions.” [xiii]

Essential functions were defined in Mallikarjuna v. State of Andhra Pradesh [AIR 1990 SC 1251], when the Andhra Pradesh Administrative Tribunal directed the State Government “to evolve proper and rational method of determination of seniority among the veterinary surgeons in the matters of promotions to next higher rank of Assistant Director of Veterinary Surgeons”. The Supreme Court quashed the aforesaid direction and observed that the power under Article 309 of the Constitution to frame rules is the legislative power which has to be exercised by the President or the Governor of the State as the case may be. The High Court or Administrative Tribunals cannot issue a mandate to the State Government to legislate on any matter. In this way the principle of restraint prevents any organ of the State from becoming superior to another or others in action.

Similarly, in Supreme Court Employees’ Welfare Association v. Union of India [AIR 1990 SC 334], it was held that no court can issue a direction to a legislature to enact a particular law neither it can direct an executive authority to enact a law which it has been empowered to do under the delegated legislative authority. [xiv]

SEPARATION OF POWERS IN USA

If the Rule of Law as enunciated by Dicey affected the growth of Administrative Law in Britain; the doctrine of ‘Separation of Powers’ had an intimate impact on the development of Administrative Law in the U.S.A. As Davis points out “probably the principal doctrinal barrier to the development of the Administrative process has been the theory of separation of powers” . The truth is that while the doctrine of separation has affected the character of the American Administrative Law, the doctrine itself has been affected by the newly emerging trend in favour of Administrative Law. [xv]

The doctrine of separation forms the basis of American constitutional structure. Articles I, II and II delegate and separate powers and also exemplify the concept of separation of powers. Art. I vests legislative power in the Congress; Art. II vests executive power in the President and Art. III vests judicial power in the Supreme Court. [xvi] The ideal of separation, both functional and personnel is yet unrealized but nearest approximation is reached in the State Constitution of Massachusetts in the U.S. It is said therein, that-

… The legislative department shall never exercise the executive or judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative or executive powers, or either of them; to the end it may be a government of law and not of men. [xvii]

Presidential Form of Government

The form of government, characterized as presidential, is based on the theory of separation between the executive and the legislature. The President is both the head of the state as well as its chief executive. He appoints and dismisses other executive officers and thus controls the policies and actions of government departments. The persons in charge of the various departments, designated as the Secretaries of State, hold office at his pleasure, are responsible to him and are more like his personal advisors. The President is not bound to accept the advice of a Secretary and the ultimate decision rests with the President. Neither the President nor any member of the executive is a member of the Congress and a separation is maintained between the legislative and executive organs. This system of government is fundamentally different from the parliamentary system prevailing in India. [xviii]

In U.S.A., the President is not in theory responsible to the Congress unlike India where the cabinet is collectively responsible to the Parliament. The President has a fixed tenure of office and does not depend on majority support in the Congress. Before the expiry of his term, he can be removed only by the extremely cumbersome process of impeachment. Nor can the President dissolve the Congress whereas in India, Prime Minister has the power to seek dissolution of the Parliament. The executive therefore is not in a position to provide effective leadership to the legislature and it is not always that the Congress accepts the programme and the policy proposed by the executive. The independence of the Supreme Court is constitutionally guaranteed. [xix]

Principle of Checks and Balances

The U.S. Constitution however incorporates some exceptions to the doctrine of separation with a view to introduce the system of checks and balances. For instance, a bill passed by the Congress may be vetoed by the President and, to this extent the President may be said to be exercising a legislative function. Again, appointment of certain high officials is subject to the approval of the Senate. Also, treaties made by the President are not effective until approved by the Senate; to this extent, therefore, the Senate may be deemed to be exercising executive functions. The Congress continuously probes into executive functioning through its various committees, and also has the power to tax and sanction money for governmental operations. The Supreme Court has the power to declare the Acts passed by the Congress unconstitutional. But the judges of the Supreme Court are appointed by the President with the consent of the Senate. This exercise of some part of the function of one type by an organ of the other type is justified on the basis of the theory of checks and balances. It means that the functioning of one organ is checked in some measure by the other organ so that no organ mat run amok with its powers and misuse the same. [xx] Thus, in the case of Panama Refining Company v. Ryan [(1935)293 U.S. 388(400)], commenting on the practicality of the doctrine J. Cardozo said:

“The doctrine of “separation of powers” is not a doctrinaire concept to be made use of with pedantic rigor. There must be sensible approximation, there must be elasticity of adjustment in response the practical necessities of government which cannot foresee today the development of tomorrow in their nearly infinite variety.” [xxi]

Administrative Growth and Separation of Powers

Administrative law and separation doctrine are somewhat incompatible, for modern administrative process envisages mingling of various types of functions at the administrative level. Had the doctrine of separation been applied strictly in the U.S.A., the growth of administrative process would have been extremely difficult and modern government might have become impossible. For practical reasons therefore the doctrine of separation has to be diluted somewhat to accommodate the growth of administrative process. [xxii]

Delegated Legislation

The American Administrative Law has certain distinctive features which are a product of separation doctrine. A significant breach of the doctrine occurred when the courts concede the legislative power could be conferred on administrative authorities, and thus, the system of delegated legislation came in vogue. But, in a bid to reconcile the separation doctrine, the courts laid down that Congress cannot confer an unlimited legislative power on an administrative authority, that the Congress must not give up its position of primary legislator and that the Congress should therefore lay down the policy which the delegate is to follow, while making the rules. [xxiii] J. Mukherjee in re Delhi Laws Act [Supra] case observed:

“The position in America is that despite the theory that legislature would not delegate its power to the executive a host of rules and regulations are passed by non-legislative bodies, which have been judicially recognized as valid. [xxiv] ”

SEPARATION OF POWERS IN ENGLAND

Maitland traces the doctrine of Separation of Powers in England to the reign of King Edward I (1239-1307). He observes that all the three elements were present in the form of Parliament, King’s Council and Courts of Law.

Viscount Henry St. John Boling Broke (1678-1751) in his book “Remarks on the History of England” advanced the idea of separation of powers. He laid emphasis on balance of powers within the constitution because an imbalance would destroy it. He asserts that for protection of liberty and security in a state, equilibrium is needed between the Crown, the Parliament and the people.

Although Motesquieu derived the concept of his doctrine of separation of powers from the British Constitution, as a matter of fact at no point of time this doctrine was accepted in its strict sense in England. On the contrary, in reality, the theory of integration of powers has been adopted in England. It is true that the three powers are vested in three organs and each has its own peculiar features, but it cannot be said that there is no ‘sharing out’ of the powers of the government. Thus, the King, though an executive head is also an integral part of the Legislature. Similarly, all his Ministers are also members of one or the other Houses of the Parliament. The Lord Chancellor is head of judiciary, Chairman of the House of Commons (Legislature), a member of the executive and often a member of the cabinet. The House of Commons ultimately controls the Legislative. The judiciary is independent but the judges of the superior courts can be removed on an address from both Houses of Parliament. [xxv]

In England, S.O.P has historical relevance only. Daniel Ullman says, “England is not the classic home of the separation of powers. Each power there has taken on a character of its own, while at the same time preserving the features of the others.” The position has been summed up by the Donoughmore Committee in the following words:-

“ In the British Constitution there is no such thing as the absolute separation of legislative, executive and judicial powers. In practice it is inevitable that they overlap. In such Constitutions as those of France and the United States of America, attempts to keep them rigidly apart have been made, but have proved unsuccessful. The distinction is nonetheless real and… important. One of the main problems of modern democratic State is how to preserve the distinction whilst avoiding too rigid an insistence on it, in the wide border land where it is convenient to entrust minor legislative and judicial functions to executive authorities.” [xxvi]

The U.K. does have a kind of separation of powers, but unlike United States it is informal. Black Stones theory of ‘Mixed Government’ with checks and balances is more relevant to the U.K. Separation of powers is not an absolute or predominant feature of the U.K. Constitution. The three branches are not formally separated and continue to have significant overlap.

The U.K. is becoming increasingly concerned with the Separation of powers, particularly because of Article 6 of the European Convention on Human Rights which protects the right to fair trial. The Constitutional Reforms Act, 2005 reforms the office of Lord Chancellor and the Law Lords will stop being in the legislature. Section 23 of the Act provides for establishment of Supreme Court of United Kingdom. The Supreme Court whose powers have been separated from the powers of Parliament has become functional since October, 2009. Section 61 of Constitutional Reforms Act, 2005 provides for Constitution of Judicial Appointments Commission, for appointments of Judges in the Supreme Court as well as the court of appeal. Thus by and large independence of Judiciary has been ensured by the Constitutional Reforms Act, 2005. [xxvii]

On numerous occasions, senior judges have expressed the opinion that the U.K. Constitution is base on a separation of powers. Thus in Duport Steels Ltd. v. Sirs (1980), Lord Diplock stated that:

“At a time when more and more cases involve the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasized that the British Constitution, though largely unwritten, is firmly based in the separation of powers; Parliament makes the laws, the judiciary interprets them.” [xxviii]

The modern interpretation of the doctrine of separation of powers is not a mere theoretical philosopher’s conception. It is a practical work-a-day principle. The division of Government into three branches does not imply, as its critics would have us think, three water-tight compartments. The machinery and procedure of legislative impeachment of executive officers and judges, executive veto over legislation and appointment of judges and judicial review of legislation and executive action are essential features of any sound constitutional system. It is said that instead of applying the doctrine in a strict sense of the functional machinery and procedures of the Government, the doctrine should be deemed to require a system of checks and balances among the three departments of the Government while opposing the concentration of governmental powers in any of the three departments.

  Edited By Drishti Das

[i]  Commentary: Jain M.P & S.N Jain, “Principles of Administrative Law”, Wadhwa & Company Nagpur, 2007, pp 31,32.

[ii]   Parpworth Neil, “Constitutional & Administrative Law”, Oxford University Press United Kingdom, 2012, pp 18,19.

[iii]   Jain Kagzi M.C., “The Indian Administrative Law”, University Law Publishing Co. Pvt. Ltd., 2002, pp 15,16.

[iv]   Supranote 2, pp 19,20.

[v]   Massey I.P, “Administrative Law”, Eastern Book Company, Lucknow, 2012, p 40.

[vi] Kumar Devinder, “Administrative Law”, Allahabad Law Agency, Faridabad, 2007, p 19.

[vii]   Id, p 20.

[viii] Supra note 3, p 19.

[ix] Supra note 5, p 40.

[x] Supra note 3, p 20.

11 Jain M.P & S.

N Jain, “Principles of Administrative Law”, Wadhwa & Company, Nagpur, 2007, p 26.

[xii] Kesari U.P.D, “Lectures on Administrative Law”, Central Law Publications, Allahabad, 2005, pp 23,24.

[xiii] Upadhaya J.J.R, “Administrative Law”, Central Law Agency, Allahabad, 2006, p 40.

[xiv] Ibid, p 42.

[xv] Supra note 1, p 31.

[xvi] Ibid , p 32.

[xvii] Supra note 3, p 16.

[xviii] Supra note 1, p 32.

[xix] Ibid.

[xx] Ibid , p 32,33.

[xxi] Supra note 13, p 39.

[xxii] Supra note 1, p 33.

[xxiii] Ibid.

[xxiv] Supra note 13, p 39.

[xxv] Ibid.

[xxvi] Supra note 3, p 16.

[xxvii] Supra note 11, p 25.

[xxviii] Supra note 2, pp 26,27.

2 thoughts on “Separation of Powers: A Comparative Analysis of the Doctrine India, United States of America and England”

It is totally copied from two main books. Jain and Messay!!!!

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Separation of Power and it’s Application in India

• Administrative Law Subject-wise Law Notes
• May 2, 2021

Introduction

Why does any concept comes into existence ? One of the reasons being the flaws in the existing system. Same is the case with the Theory of Separation of Powers. As we already know, Monarchy existed in many nations as the most preferred form of the government for a very long time but due to arbitrariness and abuse of power. Head of the state had all the powers who were not answerable to anyone. The entire control mechanism of the state being in single hands, it was quite difficult to protect the rights of the citizens. Therefore, to eliminate such dominance of power and to prevent suppression of the citizens by those leading the state, theory of separation of powers was brought into existence.

How the Doctrine of Separation of Power Came into Existence?

Aristotle originated the principle of separation of powers. Aristotle first mentioned the idea of the mixed government or hybrid form of the government in his book ‘The Politics’ which he wrote on various constitutional forms that existed in the Ancient Greece.

John Locke developed the principles on which theory of separation of powers is based upon. In his work ‘ Two Treatise of Government’ where he defined three branches of government as ‘legislative’, ‘executive’ and ‘federative’ which he considered as unequal, legislative branch being the supreme one. His model corresponded with the dual form of the government.

Montesquieu , finally, profounded the theory of separation of powers. Charles-Louis de Secondat, Baron de La Brède et de Montesquieu was an 18th century French social and political philosopher. The term ‘trias politica’ or ‘separation of powers’ was coined by Montesquieu who articulated this principle scientifically, accurately and systemically in his famous book, ‘ The Spirit of the Laws’ . Under his model, the political mechanism of the state is divided into Legislative, Executive and Judiciary. He asserted, for the most effective liberty, these three powers must be separate and should act independently. Montesquieu envisioned the principle of three branches of the government keeping the following conditions in mind :

• The same person should not form a part of more than one of the three organs of the government.

• One organ of the government should not interfere with any other organ of the government.

• One organ of the government should not exercise the functions assigned to any other organ.

Meaning of Separation of Powers

As is evident from the name itself, theory of three branches of the government divides the entire governance mechanism into three different organs to reduce the arbitrariness by the people running the state. The division is also necessary as it is impossible for any one organ to perform all the roles and responsibilities systematically and appropriately. Under this theory, the state is divided into the three branches – Legislative, Executive and Judiciary as given by Montesquieu. Each organ has it’s own independent working, separate set of rules and guidelines to follow and has no power to interfere with the working of the another organ.

Connection of Separation of Powers to the U.S. Constitution

The doctrine of separation of power in India has been adopted from the Constitution of United States. This doctrine finds its home in the U.S. where the doctrine is being adopted in the strict sense. The makers of the American Constitution believed the adoption of this principle is necessary so as to prevent the rise of tyrannical government. Three departments have been established under the Constitution of USA to ensure adequate division of powers which are as follows :

• Article I, section 1 vests all legislative power in the Congress,

• Article II, section 1 vests all executive power in the President of the United States, and

• Article III, section 1 vests all judicial power in the Supreme Court.

Marbury v. Madison is arguably the most important case in United States Supreme Court history specially, when it comes to the development of the doctrine of separation of powers in U.S. This case established the system of judicial review in the U.S. under Article III of the Constitution. Until this case, it was unclear which branch of government had the final say in what is, and is not, a constitutional law.

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 filed a petition in 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. The landmark decision has helped in defining the “checks and balances” of the US government back then.

Principle of Check and Balances

System of Check and Balances is the natural extension of theory of separation of powers. The intention behind a system of separated powers is to prevent the concentration of power by providing for checks and balances. The second and the third conditions envisioned by Montesquieu, as mentioned earlier, depict the same concept of checks and balances. The concept says that each organ of the government has the power to check the functioning of the another organ whenever any organ unduly performs the roles allotted to it or tries to intervene in the functioning of any other organ and can prevent it from doing so. Said in simpler words, basically, each branch has power to limit or check the other two branches, which creates a balance between the three separate branches of the state.

  Application of Separation of Powers in India

 Looking at the provisions of the Constitution of India, it is evident that the Doctrine of separation and power has been accepted in India but unlike U.S., India has accepted it in rigid sense instead of strict sense. Meaning to say, in India, there is a proper distinction between three organs and their functions. In India, not only there is functional overlapping but there is personnel overlapping also.

There is a Excellent system of checks and balances as provided in the constitution over each pillar of our democracy to curb the illegal and arbitrary exercise of powers.

The basic principle under the Indian Constitution is that the legal sovereign power has been distributed between three organs of the governance as follows:

• Legislative – The role of this organ of the government is to frame laws and regulations for citizens and other organs to follow which expresses the ‘the will of the state’. Legislature is given is the first place among the three organs because until and unless the law is framed the functioning, implementing and applying of the law cannot be exercised. Therefore, the role of legislature of the basis of the working of the other two organs, thereby, depicting the interdependence of the organs.

In India, legislature organ comprises of two bodies : (a) Parliament which includes Raj Sabha and Lok Sabha, which lays down the laws at the central level for the nation and (b) State Legislative bodies which frames the laws at the state level, each for it’s own state.

• Executive – The main function of the executive is to implement, carry out and enforce the will of the State. The executive is the administrative head and the impetus of the government. It is called as the mainspring of the government because if the executive crack-up, it might lead to the collapse of the government.

In Indian executive mechanism, (a) President is the head of the executive at the central level whereas, (b) Governor is the head of the executive at the state level. Moreover, Indian executive also includes head of the minister, advisors, departmental head and his ministers.

• Judiciary – Laws framed by legislative are to be applied by the Judiciary taking into consideration principles like Natural Justice, Liberty and Fairness. Moreover, Judiciary also ensures that the laid rules and regulations are being enforced in a proper manner.

Indian judiciary system comprises of (a) Supreme Court as the apex court of the country, (b) High Courts as the highest most courts their respective states and (c) Subordinate courts at various levels in the district as per the needs of the governance.

Articles associated with Separation of Powers

Articles which have expressly adopted the doctrine of separation of power in the Constitution of India have been talked of below :

• Article 52 to 78 : Chapter I of the Part V of the Indian Constitution talks about the executive organ of the government at the union level. These articles lay down all the necessary rules and regulations to be followed by the President, Vice-President, Council of Ministers, the Attorney-General for India and whereabouts of the conduct of the government business.

• Article 79 to 123 : Chapter II of the Part V of the Constitution states the laws that are to be followed by the Parliament at the legislative level like who can be the officers of the Parliament, conduct of Parliamentary business, disqualifications of the members, powers, privileges and immunities to the members, legislative procedure to be followed and so on that are to abided by at the central level.

• Article 124 to 147 : Chapter IV of the Part V of the Constitution discusses the guidelines that are to be followed by the Judiciary at the union level like establishment and constitution of the Court, appointment of judges, their qualifications and disqualifications, other civil and judicial authorities and alike.

• Article 153 to 167 : Chapter II of the Part VI of the Constitution tells about the executive organ of the government at the state level. Laws have been laid down that are to be followed by the Governor, Council of Ministers, Advocate-General for the State and about the conduct of the government business.

• Article 168 to 213 : Chapter III of the Part VI of the Constitution talks about the Legislative organ of the government at the state level. These articles include regulations regarding constitution of the State Legislative, appointment, qualifications, disqualifications, powers, privileges, immunities to the officers of the State Legislature, legislative procedures to be followed.

• Article 214 to 237 : Chapter V and VI of the Part VI of the Constitution lays down laws regarding the Judiciary at the state level. These articles talk about the constitution of the High Courts and the Subordinate Courts in the state, appointment of the judges, powers, authorities and so on.

Judicial Pronouncement Involving Separation of Powers

Application of the Doctrine of Separation of Power has been discussed in ‘n’ number of cases. Some of the landmark Judicial Pronouncement given in the Indian cases have been discussed below :

• The first judgement that involved the Doctrine of separation of power was in the case of Ram Jawaya v State of Punjab . The court observed that the Doctrine of separation of power is accepted in India neither fully nor in strict sense. Observing this, Justice Mukherjee said :

“ The Indian constitution has not indeed recognized the doctrine of separation of powering its absolute rigidity but the functions of the 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”.

• In the case of I.C. Golakhnath v.  State of Punjab, the Constitution brings in actuality the distinct constitutional entities i.e. namely, the Union territories, Union and State. It also has three major instruments namely, judiciary, executive and legislature. The Court observed:

“ The Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them.”

• In the landmark case of Keshvananda Bharti v Union of India , the. Court has the views that the amending power is subjected to the basic features of the constitution. Therefore, any kind of alteration to the basic structure was prohibited and would be considered unconstitutional. Justice Beg observed that the separation of powers is the part of the basic structure of the Constitution and thereby confirming the relation to the Doctrine.

• The issue of whether the legislature can undertake judicial functions was addressed in the case of  Indira Nehru Gandhi v. Raj Narain ,  where it was held that two important conditions need to be fulfilled by legislature when they are performing judicial functions. Firstly, the power should be expressly provided to the parliament and second, the due process of law during discharging the function must be upheld.

The Modern State has transformed from Police State to Welfare State. Earlier the State functions were confined to defense, administration of justice or maintenance of law and order. With the gradual change in time, state undertook the responsibility to provide social security and social welfare for the common man, regulate industry, trade etc with a view to protecting as well as promoting public interest. Thus, with such a workload it is not possible for the State to stick to the doctrine of Separation of powers. Theory of Separation of power cannot be practically possible in reality.

It is rightly said by Madison that, “ The accumulation of all powers, legislative, executive and judicial, in the same hands of one, a few or many, and whether hereditary, self appointed or elective, may justly be pronounced the very definition of tyranny”.

From this it can be concluded that the doctrine of separation of powers in the strict sense is undesirable and impracticable and therefore till now it has not been fully accepted in any of the country. In theory under the Constitution of United States of America the doctrine of separation of power has been strictly adopted but there also gradually the Supreme Court is relaxing the policy. In India also on casual viewing of the Constitution it can be said that India has adopted the doctrine of separation of power but in reality it is not so. The three organs in some or the other way perform the task of other. For e.g. the legislature delegate some powers to executive, thus executive the function of the legislature, in the same way the Parliament other than making laws also have judicial power which it can exercise when its contempt take places.

For more articles on Administrative Law, Click Here.

For law notes, Click Here.

Author Details: Shree Gupta (University of Lucknow)

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