AKOLA LAW COLLAGE, AKOLA

(College Code 243)

SANT GADG BABA AMRAVATI UNIVERSITY, AMRAVATI

DESERTATION
ON
LEGAL ANALYSIS ON THE DOCTRINE OF SEPRATION OF
POWERS IN THE LIGHT OF CONSTITUTION AND
ADMINISTRATIVE LAW WITH THE HELP OF JUDICIAL
DECISION'.
Submitted with respect in partial fulfillment of the requirement for Master
of Laws (LL.M.)
Submitted by
Ms. Rashmi Rajaram Choudhary
Researcher
LL.M. IV Semester
(Constitutional and Administrative Law)

Under the guidance of

Prof. Ratna G. Chandak
Guide

Academic Year 2016-17

Introduction:
Now a day, the system of any nation have to adopt the required
steps through the various statutory, legal, constitution or otherwise
provisions for the ultimate protection and adequate governance of the
whole system along-with their equal and common welfare. Perhaps with
the same object the Indian system has also adopted the concept of
separation of power, though not expressly in the supreme law of land but
it is there impliedly. The ultimate purpose of this is to serve the
community with equality and satisfaction towards their welfare.
The term separation of powers simply stands for a kind of
governmental system, wherein all the public powers are satisfactorily
divided amongst different competent organs thereof. So that, every
individual would be given an assurance as to the protection against any
kind of discriminatory or tyrannous action from the side of any public
authority. Separation of powers essentially implies the absence of
concentration of powers in few hands and simultaneously it gives a
complete independent and responsible kind of system. Hence, in order to
reduce the danger of misuse of political power, it is suggested to set-up
several political institutions which would complement and control each
other in a system of checks and balances, simultaneously it would resist
political absolutism and make path for smooth growth of democracy.

Prof. Locke is said to be the profounder of the concept of

separation of powers. But it has been properly developed by
Montesquieu, who described the division of political powers among the
legislature, executive and judiciary. This model is based on the
Constitution of the Roman Republic and the British constitutional system.
Montesquieu the view that the Roman Republic had powers separated so
that no one could usurp absolute power. Now a day constitutions with a
high degree of separation of powers are found worldwide. The UK
system is distinguished by a particular entwining of powers. New
Zealand's constitution is also based on the principle of separation of
powers. India has also adopted this notion but with a different approach.

The term separation of powers, often used interchangeably

with the trias politica principle and is a model for the governance of a
state. The model was first developed in the Roman Republic as part of
the un-codified constitution of the Roman republic. Under this model,
the state is divided into branches, each with separate and independent
powers and areas of responsibilities, so that no branch has more power
than the other branches. At the same time no organ would interfere into
the powers and area so allotted to that other. And such arrangement
would ipso-facto make an organ which is totally independent and
exclusively responsible for all of its actions and functioning.

The notion of separation of powers is also a part and partial of

rule of law and principles of natural justice. As the central objects of all
these elements is the protection of each and every member of society
against unjustified abuse of powers so entrusted with the organs of
government. At the same time it also ensures the equal growth and
development all by establishing effective and smooth democracy pattern.
The doctrine of separation of power in its true sense is very rigid and this
is one of the reasons of why it is not accepted by a large number of
countries in the world. The main object as per Montesquieu in the
Doctrine of separation of power is that there should be government of law
rather than having volition and whims of the official. Also another most
important feature of the above said doctrine is that there should be
independence of judiciary i.e. it should be free from the other organs of
the state and if it is so then justice would be delivered properly. The
judiciary is the scale through which one can measure the actual
development of the state if the judiciary is not independent then it is the
first step towards a tyrannical form of government i.e. power is
concentrated in a single hand and if it is so then there is a cent percent
chance of misuse of power. Hence, the Doctrine of separation of power
do plays a vital role in the creation of a fair government and also fair and
proper justice is dispensed by the judiciary as there is independence of
judiciary.

So far as Indian position is concerned, except a single

provision clearly requiring the separation of judiciary from the executive
organ of the nation, though our Constitution has not expressly and
constitutionally adopted the doctrine of separation of powers like that
American constitution, yet in number of cases the judiciary of India itself
have confirmed that, the rule of separation of power have been impliedly
adopted in the our Constitution. As through various constitutional
provisions different functions, powers, duties and obligations and
compositions of all three organs of government i.e. legislatures, executive
& judiciary have been prescribed in detail.

Dr. B.R. Ambedkar, one of the important architects of Indian

Constitution, disagreeing with the argument of Prof. K.T. Shah,
advocated thus: There is no dispute whatsoever that the executive should
be separated from the judiciary. With regard to the separation of the
executive from the legislature, it is true that such a separation does exist
in the Constitution of United States; but many Americans themselves
were quite dissatisfied with the rigid separation embodied in the
American Constitution between the executive and legislature. There is not
slightest doubt in my mind and in the minds of many students of Political
Science, that the work of Parliament is so complicated, so vast that unless
and until the members of the Legislature receive direct guidance and
initiative from the members of the Executive, sitting in Parliament, it
would be very difficult for Members of Parliament to carry on the work
of the Legislature. I personally therefore, do not think that there is any
very great loss that is likely to occur if we do not adopt the American
method of separating the Executive from the Legislature. This
observation by the father of our constitution clears the position of the said
doctrine in our nation.

Our Constitution has provided various provisions dealing with

all three organs separately i.e. regarding legislatures having the complete
powers of making law, rule and regulation for the smooth and effective
governance of whole of the nation. It also provides that the executive
organ of the nation would be exclusively empowered for constitutionally
and effectively enforcing the laws, rules and regulations to be so framed
by the legislature of the nation. And last but not the least the judicial
organs of system will be entrusted with the constitutional obligation of
properly, impartially and effectively interpret the existing laws and
statutes and thereby give the legal and statutory rights of individuals a
reality. The shortly discussed constitutional status, so prevailing in India
is exclusively so drafted with the ultimate object to enable each and every
organ of nation to perform their functions adequately, properly and
without an interruption of the other organ, while doing so.
Simultaneously the respective organ will be completely responsible and
accountable for their functioning.
 Truly speaking, the working and the functional system of India
is really unique one, as it is comprising of an administrative organ of
system which has the crucial burden of the fair administration of plenty of
laws and policies of government and for which this organ is impliedly
having the huge level of discretionary power, which have also established
the possibility of misuse of the same and a government organ, consisting
the multiple parties sometimes which are to be with intention of
functioning without considering its constitutional, ethical, moral, public
& social duties. And most essentially the supreme law of land i.e. the
Constitution of India, that have provided for regulating the welfare and
development of people which are belonging to different religion, regions
and following their own languages and customs. Hence under such
crucial conditions the nations should have to adopt a complete impartial,
responsible and accountable government for its people. Under such
crucial circumstances notion like separation of powers, rule of law and
principles of natural justice would certainly help to establish a complete
impartial and accountable government, which is the first and most
essential expectation of any democratic nation like ours.

But the reality it is not all that simple, as just we discussed

above. The practical position is quite different and of the nature that
creates reasonable doubts as to the adoptability, existence and success of
the concept of separation of powers in India. It is so, because amongst
these all elements of system the Judiciary of our nation is having been
subjected to the most crucial and burdensome duty i.e. to preserve the
supremacy of Constitution. And for effectively discharging such crucial
duties the judiciary has been constitutionally empowered to testify and
check the properness along with their legitimacy/constitutionality of
different laws and actions taken by the other organs of the government
i.e. of legislatures and executives.

Even the constitution has itself provided some provisions

which are apparently intend in contravention to the doctrine of separation
of powers. As, where the president is the constitutional executive head of
the state, he has to exercise his powers subject to consent and co-
ordination of his ministers members of house with prime minister,
simultaneously he is also having the law making powers and even certain
crucial judicial powers, which are the power of legislatives and judiciary
respectively. At the same time legislatures, besides having their law
making powers, have executive as well as judicial powers through which
its intervention into two other organs of nation would not be unexpected.
Even the legislators and executive head can jointly encroach over the
field of judiciary by making appointments, transfer and impeachment of
judges even that of Supreme Court.

Nowadays, legal debates include one common issue i.e. as to

an excessive use of constitutional powers by the judiciary of our nation,
through its self evoked doctrines like doctrine of basic structure theory,
rule of law and public welfare and interest etc. Initially such judicial
powers were available only against the legislature but now even the
executive are under the purview of these judicial powers of Judicial
review. Even some times it is also alleged that the judiciary us seemed to
cross its boundaries while giving judgments upon the matters which are
apparently falling within the fields of other government organs i.e. the
parliament and executives, though the Supreme Court itself has held that
'separation of power' is the basis structure of the Constitution. But
apparently it seems that judiciary itself violates both i.e. doctrine of
separation of powers and constitutional provisions Art 50 of the
Constitution of India.

At the same time the present era is an era of welfare oriented

laws. Wherein administrative law is the bye product of intensive form of
government throughout the world and India is not an exception to it.
Consequently the concept of delegation of power is not only emerged but
also developed spontaneously. And the concept of delegation of power is
simply the opposite to the rule of separation of powers, as through the
delegations of powers all basis functions are being discharged by a single
body and authority i.e. also legally. Hence under such conditions the
significance and practicability of the separation of powers is really in
doubts as in the present situation the interference of each and every organ
of nation into one another assigned field is an integral part of the system.
That's why we are not having the rule of separation of powers in strict
sense in India.
But one fact may be that the doctrine of separation of powers
has been widely misunderstood to mean a staunch separation between
administrative, legislative and judicial functions. Because in modern
times, this assumption does not stands good, where the interrelationship
between various organs of the State is vast and varied. These functions
cannot operate independent of each other. They are just like spokes in a
wheel, play their own independent role yet indispensable role in the
governance process. Effective governance requires that all the above
mentioned organs to function towards the constitutional goal of ensuring
that each citizen enjoys the fundamental rights available to him.
Whenever this constitutional goal is not espoused, partly
espoused or infringed with arbitrariness from the side of either organ of
the nation the whole system will collapse. Under such condition any rule,
doctrine or natural principle will be fruitless. If the organs of the nation
will try to establish their own supremacy rather than working as trustee of
people of nation, the system will suffer un-repairable losses in future.
The organs should work for the people of nation by preserving the
supremacy of constitution only.
Besides all the above discussion regarding the doctrine, one
more aspect is needed to be connected and gone through essentially, and
that is the constitutional mandates and separation of powers. It is a
settled law that every supreme law of nation does expressly provide
certain mandatory and crucial provisions to be essentially followed by all
the concerned public authority, without failure. Following the same
tradition, our constitution being the modern one, has also provided some
expressed provisions demarcating constitutional mandates for the organs
of the nation. For instance the provision entrusted executive powers
exclusively over the president is automatically a mandate for judiciary
and legislature as not to perform any kind of executive function that
belongs to the executives. In the same way there for certain
constitutional mandates for each and every organs of our system.
Such mandates ultimately aims for freedom to one organ by
imposing respective restrictions over the two other organs of the system.
Simultaneously it makes the respective organ to be self accountable for
their allotted field. Interesting thing is that the same seems to be the very
nature and object of our centre point i.e. separation of powers. Hence
both i.e. separation of power and constitutional mandates seem to be two
sides of a same coin. As under the separation of powers also, each and
every organ has to discharge their constitutional, moral and public duties
within their assigned realm without making any disturbance or
interference in to the working and functioning of other organs of the
nation. And one is fully sovereign and accountable for the success or
otherwise failure of once own. It would not be wrong say here that
separation of power helps to maintain and preserve the constitutional
mandates.
However, the problem arises when the interpretation and
practical approach and adoptability of the doctrine of separation of
powers changes. As if it changed it would definitely affect of defeat the
observation of constitutional mandates by the concerned organ of the
system. As if separation of power is not application in its true sense, it
simply means that the organs would not be restricted within their
respective allocated fields consequently the every possibility of
interference into one another cannot be denied etc. And now it is often
said that the doctrine of separation of power is being adopted in the form
of doctrine of check and balance only rather than its strict spirit. This
certainly put a question mark over the practical position of the
constitutional provisions in our nation. If these are not being observed by
the concerned organ, the supremacy of supreme law of land would be just
a dream on paper. This situation needs to be gone through by proper
discussion.
Hence, the present changed situation requires change into the
relations of organs of nation, which may demand a changed interpretation
of the basic rules like separation of powers and rule of law. And for that
purpose a study of organs of governments, their mutual way of relation
and effects thereof over the society along along-with the position of
constitutional mandates with the practicable suggestions and
recommendations are the need of time, hence present research would be a
sincere attempt towards the same.
Statement of Problem
The doctrine of separation of power is said to be impliedly
adopted in our constitution, but it has also laid down certain provisions
through which the intermingling of all three organs of government is the
direct result. But without understanding the ultimate intention of our
great constitution framers behind such provisions, the organs sometimes
try to give supremacy to themselves rather than the constitution.
Consequently they may misunderstand the expressly provided provisions,
and may interpret them towards their own benefits only, rather than for
people at large. The fight between judiciary and legislature is not new
one in our nation. Both alleges others discriminatory actions or excessive
use of constitutional powers. Judiciary seems to make dominance over
the other two organs as it is the only interpretation authority of the nation.
But in all such secondary aspects the primary goal and object of whole of
constitution seems to be neglected, i.e. welfare and protection of common
people. For which the concept of separation of powers is seems to be
adopted impliedly in our nation.
But now the concept of separation of powers is also
misunderstood by organs themselves which defeats its ultimate object. It
directly and indirectly effects the growth, development and protection of
people at large, by creating imbalances into the working of the organs of
a single government. Even the basic elements such as rule of law,
Constitutional mandates, and principles of natural justice would also be
affected negatively due to such pessimistic approach from the side of
organs of government. Even the constitutional mandates may be affected
by the non observance of the doctrine of separation of power. Hence it is
essentially needed to study the position of these organs in the light of
concept of separation of powers. Hence, through present social research
work, the researcher has made an attempt to find out the reality of present
problem regarding separation of powers.
Rationale of Study
The ultimate aim and object of doctrine of separation of
powers is the protection of common people from the discriminatory and
malafide action from the side of any governmental authority, so that, the
supremacy of law would be preserved exclusively rather than supremacy
of any human being as leader of any organ of government. And then and
then only the growth and development of society and nation would be
possible. Hence present topic is indeed and directly connected with the
socio legal aspects and importance of the individual's life, and there is no
need to specially discuss the importance of present topic. That's why a
study is needed to study the present position of such crucial element in
today modern India.
Objective of Study
1) To study and understand the concept & various relevant aspects of
doctrine of separation of powers.
2) To study the legal and constitutional status and existing relevant
provisions of doctrine of separation of powers.
3) To study the judicial approach towards the doctrine of separation
of powers in India.
4) To know the connection between the constitutional mandates and
separation of powers and whether the mandates are constant or
subject to way of changing approach towards the doctrine of
separation of power.
5) To make a comparative study of doctrine of separation of powers
and critically analysis its Indian Position.
6) To strive to reveal the constitutional mandates and its relation with
the present doctrine.
 7) To critically study the impacts of doctrine of separation of powers
and relevant problem if any.
8) To suggest and recommend the possible suggestions for the
reformation of adoptability and effective utilization of doctrine of
separation of powers.
9) To contribute towards the academic field over the issue. So that
new changed different aspects of the present study would come
into debate and may be further studied with changed approach.
Last but not the least the possible reformations may be made by the
concerned authority on the basis of the conclusion of the present
research work.
Scope & Limitations of Study
The real and practical scope of present topic of study cannot be
confined within exact limitations as the separation of powers directly and
indirectly affect the working of all the organs of the government, which
can defeat the ultimate objects of our constitution i.e. the welfare and
development of people at large. However from the academic point of
view the researcher would restrict the scope of present research work by
studying the origin, concept, significance and scope of central point of
this work i.e. separation of powers. Simultaneously the legal and
constitutional status of the concept will be thoroughly studied. The
crucial judicial decisions interpreting the concept time to time will also be
studied as through judicial observations the notion implies deferent
meaning role and impacts. And at the same time for doing the complete
justice with the present research work a comparative study will also be
made regarding the scope, adoptability and impact of the concept in
various relevant nations like America, USA Germany etc. while doing
so the relevant comments, debates and articles will also be referred as per
the need of research.
Hypothesis
Considering the nature, scope and significance of concept of
separation of powers researcher have taken-out following relevant
hypothesis of the present work.
1) Doctrine of separation of power aims for absolute protection and
welfare of people at large. This concept is direct connected with
the other relevant crucial aspects like rule of law, democracy and
principles of natural justice.
2) Though, Indian Constitution provides relevant provisions for
applying the concept of separation of power in reality, still the
existing provisions are not adequate to adopt the notion in strict
sense.
3) The constitutional mandate and doctrine of separation of powers
are interconnected and both are inter dependent over each other.
4) Judiciary plays crucial role for both adoptability as well as non-
adoptability and even for the changing approach of doctrine of
separation of powers by interpreting the same while dealing case
laws before it.
5) No doubt, even other nations have also adopted the rule/doctrine of
separation of power but the form in which it is adopted in India is
more appreciable and practical oriented.
6) In India there is both functional as well as personnel overlapping
which is directly against to the basis requirement of doctrine of
separation of power.
7) At present scenario it is almost impossible to adopt the doctrine of
separation of power in strict sense in any of the modern welfare
oriented state.
 8) The doctrine of separation of power is the need of all the time, of
all the nations but it should be so adopted and utilized with
required variable contents time to time.
Review of Literature
While selecting the present socio-legal researchable topic, the
available books, journal and other material dealing and discussing
regarding the working of the organs of government in the light of doctrine
of separation of powers. Even to understand the real practical position a
comparative study over the issue is also referred. And after the whole
observation the researcher decided to study the concept to reveal the
reality as to government pattern of India and role of separation of powers.
Research Design
Research design refers to the entire process of planning and
carrying out research study. It is a framework within which research shall
be carried out and it would serve as guidelines for the collection, analysis
and assessment of data.
Research Methodology
The concept of research methodology is widely recognized a
method followed during the period of research work.There are two types
of methodology
1. Doctrinal / Non Empirical method
2. Non Doctrinal / Empirical method
Doctrinal Research
Doctrinal research asks what the law is on a particular issue. It
is concerned with analysis of the legal doctrinal and how it has been
developed and applied. This type of research is also known as pure
theoretical research. It consists of either a simple research directed at
finding a specific statement of the law or a more complex and in depth
analysis of legal reasoning.
Considering object and nature of subject, the researcher has
adopted only doctrinal research method. This research is the doctrinal
research, various acts, legal provisions judicial judgment, legal debate
International Conventions will be studied.
Sources of Data Collection
A. Primary data
B. Secondary data,
The researcher is using secondary source of data.
The data collection will be mostly confined to the material and references
of the published literature and thus pertain to library of persons of
eminence and their suggestion reports of the commission, Court Cases,
Journals, books articles, web-site etc.
Time Schedule
Tentative 90 days
Possible Contribution of Study:
On the fair and effective completion of the present research
work the outcome would certainly lay down new ideas for the
reformation in the working pattern of our government. Where in all three
organs would have the idea regarding the significance of doctrine of
separation of powers and its impacts over the people at large. The
research will definitely lay new dimensions and aspects of the concept of
Separation of powers. Simultaneously the conclusions and
recommendations would establish new approach of study for the
upcoming researcher over the present issue of separation of powers.
Conceptual Of Frame Work:
The basis aspects of the research work i.e. statement of
problems, significance of study, scope and limitations of the work and
hypothesis etc, along with the introduction of the topic would be
explained in chapter no. one. The origin, meaning, scope, history and
concept of separation of powers which is the centre point of the issue is to
be dealt with in chapter second.

Chapter third will contain the position of Separation of Powers

in India and under Indian Constitution. A comparative study of concept
of Separation of Power existing in other countries i.e. America, U.K. etc.
along with the Indian position would be studied in fourth chapter. It will
reveal the reality regarding the doctrine of Separation of Power at least on
paper.

In the fifth chapter the crucial issues of separation of powers

and Indian Judiciary and interpretation of the doctrine of separation of
powers in the light of judicial review, rule of law and basis structure
theory, will be dealt over. At the same time the judicial approach and
judicial interpretation of various aspects of separation of powers will be
considered through the judicial verdicts i.e. judicial judgments, because
without this the work will remain unjustified and not complete in real
sense.
In chapter no. six on the basis of overall data so expected to be
collected and analysis in chapter no. one to fifth, critical appraisal of
doctrine of separation of power in India will be done. At last but not the
least in chapter no. seven will include valuable conclusions,
recommendation & suggestions that are expected to be noteworthy for the
reformation of the working position of all organs of government.
 CHAPTER II
ORIGIN, MEANING, SCOPE, CONCEPT AND
IMPACTS OF DOCTRINE OF
SEPARATION OF POWERS
Introduction
To become truly great, one has to stand with people, not above them
The separation of powers is a model for the governance of both
democratic and federative states. The model was first developed in
ancient Greece and came into widespread use by the Roman Republic as
part of the un-codified Constitution of the Roman Republic. The term
separation of powers, often imprecisely is used interchangeably with the
trias politica principle. Under this model, the state is divided into
branches, each with separate and independent powers and areas of
responsibilities, so that no branch has more power than the other
branches. The normal division of branches is into a legislature, an
executive and a judiciary these are the general organs of the every
modern state.

In order to reduce the danger of misuse of political power, it is

generally suggested to set-up several political institutions which should
complement and control each other in a system of checks and balance,
simultaneously it would resist political absolutism and make path for
smooth growth of democracy. So that, there would be an assurance as to
the protection of the rights and the well-being of ordinary people.
Montesquieu described division of political power among a legislature, an
executive and a judiciary. He based this model on the Constitution of the
Roman Republic and the British constitutional system. Montesquieu took
the view that the Roman Republic had powers separated so that no one
could usurp absolute power.

Nowadays, Constitutions with a high degree of separation of

powers are found all worldwide. The UK system is distinguished by a
particular of powers. New Zealand's constitution is also based on the
principle of separation of powers. India follows a parliamentary system
of government, which offers a clear separation of powers. The judiciary
branch is fairly independent of the other two branches. The Executive
powers are vested with the President and Prime Minister, who are assisted
by the cabinet secretary and other ministers. And the law making powers
are entrusted with parliament, which is consisting of two houses. All
three branches have checks and balances over each other to maintain
the balance.

The Concept and Nature of Separation of Powers :

The concept of separation of powers, as used in western
constitutionalism, assumes that there are three distinct groups of
institutions, similarly described. In other words, this is the principle of
dividing government power among different parts of the government so
that no one part gets too much power. This concept can be traced back to
the philosopher Montesquieu and Locke who proposed a division of
political power in any country between an executive, a legislature and a
judiciary. Their proposal was that each branch has separate powers and
areas of responsibility. Despite this separation and autonomy, each
branch may also be able to place limits on the power exerted by other
branches. The powers and functions of each are separate and carried out
by separate people. No single agency is able to exercise complete
authority, each being interdependent on the other. Separation of powers
means that people in one of these three arms should not control the other
two arms. However in Zimbabwe is an important exception where the
Prime Minister and ministers who work in both the executive as well as
in the legislature. This scenario of overlapping membership is what is
referred to as fusion of powers and it is quite healthy as it helps in
accountability issues. It becomes relatively easier for the legislature to
ensure accountability from the executive since members of the executive
(cabinet) are also members of the legislature.
There are a number of difficulties with the concept regarding
which, it was observed that it must be dismissed as infected with so
much imprecision and inconsistency that it may be counted, little more
than a jumbled portmanteau of arguments for policies, which ought to be
supported or rejected on other grounds. These difficulties may be
categorized in the following way.

First, every constitutional system that purports to be based on

a separation of powers in fact provides, deliberately, for a system of
checks and balances under which each institution impinges upon another
and in turn is impinged upon. There is an open question, as to whether
this qualifies a system of separation of powers or completes it 'by giving
each department the necessary constitutional means to resist
encroachment by the others'. The answer must depend in part on the
actual checks and balances in each case.

Secondly, there is some disagreement about what is separated

in pursuant to the doctrine. The two principle options are, a separation of
institutions and an overlapping membership as separation on functions,
empowering each institution to exercise the function for which it is
designed and by extension, no other function. However, in reality these
are not mutually exclusive options. Any systems of separation of powers
much involve at least a measure of both.

This revolves leads to the third area of uncertainty regarding

the degree of separation that such a doctrine requires. Complete
separation is impossible. However, there must be a point at which partial
separation is not worthy of the name. Here vital questions arise as to
where should the lines be drawn? And how should the lines that are
drawn to be enforced?
Meaning and Basic of Separation of Power :
Realizing the fact of the crucial role of the government to
protect individual rights and overall growth and development of the
society at large, and at the same time acknowledging that governments
have historically been the major violators of these rights, a number of
measures have been derived to reduce this likelihood. The concept of
Separation of Powers is that when a single person or group has a large
amount of power, they can become dangerous to citizens. It is a method
of removing the amount of power in any group's hands, making it more
difficult to abuse.

It is generally accepted that there are three main categories of

governmental functions i.e.
a) Legislative
b) Executive and
c) Judicial.

Likewise, there are three main organs of the Government in a

State i.e.
a) Legislature,
b) Executive and
c) Judiciary.

According to the theory of separation of powers, in a free

democracy, these three powers and functions of the Government must,
always be kept separate and be exercised by three separate organs of the
Government. Thus, legislature cannot exercise legislative or judicial
power, the Executive cannot exercise legislative or judicial and the
Judiciary cannot exercise legislative or executive power of the
Government.

Doctrine of Separation of powers :

Though the doctrine of Separation of Power is traceable to
Aristotle but the writings of Locke and Montesquieu gave it a base on
which modern attempts to distinguish between legislative, executive and
judicial power is grounded.

Opinion of Locke as the doctrine : He distinguished between

what he called.
i) Discontinuous legislative power,
ii) Continuous executive power,
iii) Federative power.

Within 'discontinuous legislative power' he included the

general rule making power, called into action from time to time and not
continuously. 'Continuous executive power' included all those powers
which we now as executive and judicial. By 'federative power' he meant
the power of conducting foreign affairs.

Opinion Montesquieu as to the doctrine : He was a

French scholar, he found that concentration of power in one person or a
group of person results in tyranny. And therefore for decentralization of
power to check arbitrariness, he felt the need for vesting the
governmental power in three different organs, the legislature, the
executive, and the judiciary. The principle implies that each organ should
be independent of the other and that no organ should perform functions
that belong to the other.

Montesquieu views regarding the Doctrine of Separation of

powers.There would be an end of everything, were the same man or
same body, whether of the nobles or of the people, to exercise those three
powers, that of enacting laws, that of executing the public resolutions,
and of trying the causes of individuals. Consequently be suggested three
recommendations towards the implementation of doctrine viz-

1. Person forming the part of either organ of government should

not form part of more than one organ i.e. the same person should not be
engaged in the working of more than on governmental organ.

2. The one organ should not perform the function assigned to

other organ or should not make any direct or indirect interfere in the
working of other organ.

3. And last but not the least one organ should not be allowed to
perform the functions essentially allocated to the other organ of the
system.

Here the concept of the doctrine is quite clear from the above
two opinions of expert jurist who have given deferent way of
interpretation to the concept of separation of powers.

Purposes and Objects of the Doctrine :

There are two important purposes of present doctrine. One is
to prevent the abuse of public power through the concentration of power.
As The accumulation of all powers, legislative, executive and judiciary,
in the same hands, whether of one, a few, or many and whether
hereditary, self-appointed or elective, may justly be pronounced the very
definition of tyranny.

The other is to enhance the efficiency of government. In its

original form this rationale was used to justify the institution of a strong
presidency in the United States, but now it is turned to more general
purposes. It might be argued that separation of powers recognizes that
each of the branches is peculiarly well equipped to exercise the particular
functions assigned to it. Alternatively, it might be argued that the
collective effect of a particular configuration of separated powers is a
form of government with attributes best suited to the needs of a particular
side.

Both of the two purposes traditionally assigned to a separation

of powers, were originally formulated by reference to the separation of
legislative and executive power, indeed this was also the genesis of the
theory in the writings of Montesquieu and Locke. Both purposes could
be adapted to the separation of the judicial branch. However, as a
generalization, the doctrine of separation of powers has not been well
developed in relation to the judiciary.

Three Branches and their Functions :

The doctrine implies the allocation of public powers amongst
three organs of the government. Each of these branches government has
separate functions and is, to some extent at least, separate from each
other. But each one is also linked with the other two, having some
powers over the others, just as the other branches have some power over
it. No one branch controls all the power in a democratic system. The
objective of separation of powers is to develop mechanisms to prevent
power being overly concentrated in one arm of government. The three
organs being usually prevailing around whole of the worlds different
nation are Legislature, Executive and the Judiciary. Their general powers
can be classifies as -

1. The Legislature : The general powers and functions of this

authority are -

* This is the part of the government that enacts the laws, rules
and regulations by making discussion and voting on the same.
* It has the power to write and to enact taxes.
* It is the ultimate authority dealing with the monetary resources
of money.
* It sets the budget and other policies regulating the mutual
relations of the different levels of government and
departments thereof, etc.

2. The Executive : This authority is entrusted with the functions

of following nature -
* The powers and obligations to put the laws, rules and
regulations into operation.
* It has the power to appoint judges, diplomats, cabinet, and
department heads for the smooth and effective working of the
organs and departments of the system.
* Through the endorsing mechanism like police, it has powers
of arrest, detainment, and search etc for protecting the rights of general
public at large.
* Through the Attorney-General, it prosecutes crimes.
* It has operational command of government services and
contracts.
* It has the sole power to wage war,
* It has the responsibility for negotiating treaties and collects
taxes, etc.

3. The Judiciary : The judiciary being the crucial aspect of the system is
having following powers and obligations:-

It has the sole power to interpret the laws, rules and regulations
and to apply it to particular disputes.
It has the power to determine the disposition of prisoners.
Usually, the judiciary is fully independent and impartial so as to
enable it to serve for the true justice and to maintain supremacy of
law and order exclusively rather than that of any group or
institution.
This is the only branch with the power to compel testimony and
the production of documents etc. The powers and functions of each
are separate and carried out by separate people. No single agency is
able to exercise complete authority, each being interdependent on
the other. Powers are divided in such a manner that it should
prevent absolutism (as in monarchies or dictatorships where all
branches are concentrated in a single authority) or corruption
arising from the opportunities that unchecked power offers. The
doctrine can be extended to enable the three branches to act as
checks and balances on each other. Each branch's independence
helps to keep the others far from exceeding their power, thus
ensures the rule of law and protection of individual rights. In this
 way the classifications of the powers amongst the organs and their
basic functions and powers are clear from the above discussion.

Origin, History and Development of Doctrine :

The doctrine of separation of powers has emerged in several
forms at different periods. Its origin is traceable to Plato and Aristotle.
In the 16th and 17th centuries, French philosopher John Bodin and British
politician Locke expressed their views about the theory of separation of
powers. But it was Montesquieu who for the first time formulated this
doctrine systematically, scientifically and clearly in his book 'Esprit des
Lois' (The Spirit of the Laws), published in the year 1748.

Sometimes, it is argued that the term separation of powers or

trial politica was coined by Charles-Louis de Second at, baron de La
Brede et de Montesquieu, an 18th century French social and political
philosopher through his publication, Spirit of the Laws, over the political
theory and jurisprudence. Under his model, the political authority of the
state is divided into legislative, executive and judicial powers. He
asserted that to most effectively promote liberty, these three powers must
separate and should work independently. Therefore the concept of
separation of powers refers to the division of government responsibilities
into distinct branches, to limit any one branch from exercising the core
functions of another. The object is to prevent the concentration of powers
in few hands or single organ and to facilities for checks and balances.

Bipartite systems :
In the sixteenth century, John Calvin favoured a system of
government that divided political power between democracy and
aristocracy (mixed government). Calvin appreciated the advantages of
democracy where in people are free to elect its own government and
magistrate. In order to further reduce the danger of misuse of political
power, he suggested setting up several political institutions which should
complement and control each other in a system of checks and balances.
In this way, Calvin and his followers resisted political absolutism and
furthered the growth of democracy. Calvin's aim was to protect the rights
and the well-being of ordinary people. In 1620, a group of English
separatist Congregationalists and Anglicans, who later became known as
Pilgrim Fathers, founded Plymouth Colony in North America. Enjoying
self-rule, they established a bipartite democratic system of government.
The freemen elected the general court, which functioned as legislative
and judiciary and which is turn elected a governor, who together with his
seven assistants served as executive power.

Massachusetts Bay Colony (founded 1628), Rhode Island

(1636), Connecticut (1636), New Jersey, and Pennsylvania had similar
constitutions. They all separated political powers. Except for Plymouth
Colony and Massachusetts Bay Colony, these English outposts added
religious freedom to their democratic systems, which was an important
step towards the development of human rights. Books like William
Bradford's History of Plymoth Plantation were widely circulated in
England. So the form of government in the colonies was well known in
the mother country, also to philosopher John Locke. He from a study of
the English constitutional system, deduced that political power was to be
divided into the legislative, which should be distributed among several
bodies, for example, the House of Lords and the House of Commons, on
the one hand and the executive and federative, responsible for the
protection of the country and prerogative of the monarch, on the other
hand. England had no written constitution. In this way the biepatile
system was existing in deferent nations at that time.

Montesquieu's tripartite system :

The term is attributed to French enlightenment political
philosopher Baron de Montesquieu. Montesquieu described division of
political power among a legislature, an executive, and a judiciary. He
based this model on the Constitution of the Roman Republic and the
British constitutional system. Montesquieu took the view that the Roman
Republic had powers separated so that no one could usurp complete
power. In the British constitutional system, Montesquieu perceived a
separation of powers among the monarch, Parliament, and the courts of
law. Subsequent writers have noted that this was misleading, because the
United Kingdom had a very closely connected legislature and executive,
with further links to the judiciary (though combined with judicial
independent).

Montesquieu did specify that the independence of the

judiciary has to be real, and not apparent merely. The judiciary was
generally seen as the most important of powers, independent and
unchecked, and also considered it dangerous. He stated that the
traditional characterizations of the separation of powers are that, the
legislative branch is responsible for enacting the laws of the state and
appropriating the money, necessary to operate the government, the
executive branch is responsible for implementing and administering the
public policy enacted and funded by the legislative branch and the
judicial branch is responsible for interpreting the constitution and laws
and applying their interpretations to controversies brought before it. In
this way Montesquieu created a unique way towards the adoption of
decentralized system with complete control and accountability.

The montesquieu's Theory of separation of powers :

The functions of the government are vast and varied. It is
necessary to entrust these functions to specific organs, so that the
responsibility for performing these functions may be effectively fixed.
The division of governmental power under any constitutions may be of
two kinds i.e. the functional division such as legislative, executive and
judicial and the territorial division of federalism. Thus structurally
considered government consists of three branches having for their
functions i.e. (i) legislation or law making (ii) their execution or
administration and (iii) interpretation of these laws. The three branches
to which these functions belong are known as the Legislature, the
Executive and the Judiciary respectively.

Political liberty in a state is possible when restraints are

imposed on the exercise of these powers. The functions of the
government should be differentiated and assigned to separate organs to
limit each section to its own sphere of action. So that, these organs can
independently interacts between themselves for the smooth and effective
workings thereof. This is what is known as the theory of separation of
powers. Montesquieu, the celebrated French Scholar asserted that
concentrated power is dangerous and leads to despotism of government.
As a check against this danger, he suggested to separate the functions of
executive, legislature and the judiciary so that one may operate as a
balance against the other.
 However, Montesquieu was not the first scholar to develop the
theory of separations of powers. Its origin can be traced back to
Aristotle, the father of political science, of course he did not discuss the
issue in great details. He only analyzed the functions of the three
branches of government, the legislature, executive and the judiciary
without suggesting their separation. Besides, many other philosophers at
a later stage from thirteenth century onwards gave some attention to the
theory of separation of powers. Jean Bodiri one of the earliest thinkers of
the modern period sees the importance of separating the executive and
judicial powers.

But actually it acquired greater significance in eighteenth

century. John Locke was one of the eighteenth century philosophers to
pay greater attention to the problems of concentration of governmental
power. He argued that the executive and legislative powers should be
separate for the sake of liberty. Liberty suffers when the same human
being makes the law and executed them.

The Theory :
Montesquieu, the noted political philosopher of France is
regarded as the chief architect of the principles of separation of powers.
He in his book The Spirit of Laws published in 1748 gave the classic
exposition of the idea of separation of powers. During his days the
Bouborne monarchy in France had established despotism and the people
enjoyed no freedom. The monarch was the chief law giver, executor and
the adjudicator. Montesquieu, a great advocate of human dignity,
developed the theory of separation of powers as a weapon to uphold the
liberty of the people. He believed that the application of this theory
would prevent the overgrowth of a particular organ which spells danger
for political liberty. According to him every man entrusted with some
power is bound to misuse it. According to him -

1. When the executive and the legislative powers are given to

the same person there can be no liberty, because, it is apprehended that,
the same person may enact oppressive laws to execute them whimsically.

2. Again there is no liberty, if the judicial power is not

separated from the legislature and executive.

3. If the judicial and legislative powers are exercised jointly

the life and liberty of the subjects could be exposed to arbitrary control,
for the judge could then be the legislator.

4. If it joined to the executive power the judges might behave

with violence and oppression.

5. If the same person or body of person exercises these three

powers that of enacting laws, executing them and of trying the cases of
individuals, he maintained, that could spell the doom of the whole system
of governance.

In simple words Montesquieu's view is that concentration of

legislative, executive and judicial functions either in one single person or
a body of persons results in abuse of authority and such an organization
becomes tyrannical. He argued that the three organs of government
should be so organized that each should be entrusted to different persons
and each should perform distinct functions within the sphere of power
assigned to it.
 Disadvantages of doctrine :
Besides the benefits and advantages of the doctrine experts
have discussed its few disadvantages also -

1. Government is an organic unity. The various parts are closely

interwoven. Therefore absolute separation of powers is both impossible
and undesirable. In every modern government the executive has some
kind of law making power to fill the gaps in the structure.

2. Finer observes that rule making is no more or less than

secondary legislation. The legislature in almost every country has to
perform some judicial function by way of trying of impeachments.

3. Maclver feels that this theory of separation of powers leads to

isolation and disharmony. The various branches of the government tend
to exhibit a sense of understanding and cooperation to achieve its end
when they work together. But when they are separated to carry on
exclusive work of their branch they become arrogant and refuse to work
with other branches of government.

4. This gives rise to lot of administrative complications. Every

branch suffers from the vice of exclusiveness leading to loss of
cooperation and harmony producing inefficiency of the government.

5. The theory of separation of powers which upholds the system

of checks and balances for the sake of equality of powers is based on
wrong assumptions. It is not possible to accept the view that all organs of
government mutually check each other.
6. The theory also makes the mistakes in assuming that all the
three branches of government are equally powerful. But precisely this is
not the case. With the growth of positive states the legislature has been
reduced to a subordinate position paving way for the executive
supremacy which largely restricts and regulates the former.
7. Finally, the relationship between public liberty and separation
of powers is not very significant. Liberty of the individuals largely
depends on the psyche of the people, their outlook, the existing
institutions, traditions, customs and political consciousness. The people
of Great Britain are not less free than that of U.S.A. because there is less
separation of powers in the former.

However, the theory of separation of powers is not altogether

without any significance. The complexity of modern society and the
accepted concepts of a welfare a state demand more and more action and
service on the part of the government. The crux of the problem of
modern government is to find a synthesis combining the answer to two
needs, the need for the welfare of the state and the need for freedom for
the people.

Advantages :
The experts have supported the concept of separation of
powers by putting following points in their support -

i) Separation of powers according to Montesquieu is the best

guarantee of the liberty of people.

ii) Separation of power promotes efficiency in the administration.

Iii) The overburdens of the welfare oriented government can be
bitterly and effectively distributed amongst the competent and sufficient
independent organs of system.

iv) Accountability of the authority can be easily ascertained and

determined.
v) The required degree of transparency would be the nature
consequence of the doctrine. Etc.

It is generally accepted that there are three main categories of

governmental functions (i) Legislative, (ii) Executive, and (iii) Judicial.
Similarly, there are three main organs of the Government in a State (i)
Legislature, (ii) Executive, and (iii) Judiciary. According to the theory of
separation of powers, these three powers and functions of the government
must, in a free democracy, always be kept separate and be exercised by
three separate organs of the Government. It means that one person or
body of person should not exercise all three types of powers of
government. The legislature should exercise legislative functions and
powers and should not administer or enforce it. The executive should not
control the legislature nor should it take over the functions of the
judiciary.

Importance of the Doctrine of Separation of power :

It is universally accepted that, for a political system to be stable
and progressive, the holders of power need to be balanced off gains each
other. The principle of separation of powers deals with the mutual
relations among the three organs of the government namely legislature,
executive and judiciary. This doctrine tries to bring exclusiveness in the
functioning of the three organs and hence a strict demarcation of power is
the aim, sought to be achieved by this principle. This doctrine signifies
the fact that one person or body of persons should not exercise all the
three powers of the government.

The concentration of power in one person or a group of persons

would results in tyranny. Therefore, for decentralization of power, to
check arbitrariness is the need for vesting the governmental power in
three different organs. There would be an end of everything, were the
same man or same body, whether of the nobles or of the people to
exercise those three powers, that of enacting laws, executing the public
resolutions and of trying the causes of individuals. The principle implies
that each organ should be independent of the other and that no organ
should perform functions that belong to the other.

In this regards, the opinion of Montesquieu is really

appreciable which implies that, the union of the executive and the
legislative power would lead to the despotism of the executive i.e. in such
condition, it could get whatever laws one wanted to have, whenever so
wanted. Similarly the union of the legislative power and the judiciary
would provide no defense for the individual against the state. The
ultimate importance of the doctrine lies in the fact that it seeks to preserve
the human liberty by avoiding concentration of powers in one person or
body of persons.

Separation of Powers, Rule of law, Administrative Law and

Responsible Government :
One can say that all the terms i.e. administrative law,
separation of powers, rule of law and a responsible government are
independent and separate notions. But the deep study of reality will
prove the fact that each of these concepts implies and or depends on each
other. Starting from rule of law, it requires the supremacy of laws, rules
and regulations rather than the dominance of man or men or groups their
off. Following the spirit of rule of law, the changing form of government
from the police state to welfare state is sufficiently evident from the past
history. And the administrative law is the bye product of the intensive
form of government, which is under an obligations to perform a number
of welfare and equal socio development oriented functions for the public
at large. Because of which the modern government of all democratic
nations are overburdened. Consequently, the powers of government have
been naturally enhanced with the increased duties and obligations. And
to control the misuse of such enhanced public powers by the concerned
authorities the system of check and balanced essentially requires to be
adopted. Concept of separation of powers might be adopted to fulfill
above requirement, the ultimate object of which is to -

1. To avoid every possibility of misuse of public powers by the

trustees of public at large i.e. the every organ of the government.

2. To focus on every important aspect of society separately i.e.

making of effective law, effective and fruitful implementation of made
rules and regulations and amicably solving the legal disputes amongst the
individuals etc.

3. To make the ultimate and real development of the every

section of system, by insuring protection, peace and protection along with
the existence of principles of natural justice, rule of law and democracy.
4. And last but not the least to make every public authority,
publically accountable and responsible of each and every decision taken
by them, to establish fully accountable form of government.

In this way, all the concepts are interconnected with each other
and are implying each other. At present, the notion behind every law
made is the rule of law, which was put forward by an English Jurist A.V.
Dicey in 1885 and refers to the idea that the legal system seeks to treat
everyone equally and administer justice impartially without prejudice.
Dicey has stated that the rule of law compromises of three elements by
which the rule of law can be defined. It has an independent judiciary, it
allows individuals to be subject to a fair trial and thirdly individuals have
the right to reasonable access of the courts.

The increasing complexities of present diverse societies, have

led parliaments to develop various types of laws and regulations of the
basis of the establishment of these intricate notions of rule of law,
separation of powers and responsible government in order to maintain
social order and harmony between police, citizens and the government.

Scope of Doctrine of Separation of Powers :

The concept of separation of powers is necessary in any system
of government whether it is
A. Presidential form of Government,
B. Constitutional form of government, or
C. Parliamentary form of system or any other modern
form of government.
 This is for a number of reasons. The aim is to prevent any
undue concentration of power through checks and balances, which in turn
helps guarantee the rights and freedoms of ordinary citizens. Power is
divided is such a way as to prevent absolutism (as in monarchies or
dictatorships where all branches are concentrated in a single authority) or
to prevent corruption arising from the opportunities that unchecked power
offers. The doctrine can be extended to enable the three branches to act
as checks and balances on each other. Each branch's independence helps
keep the others from exceeding their power, thus ensuring the rule of law
and protecting individual rights. All three branches make equal
contribution for the smooth working and functioning of the system by
deliberately making the required number of laws and of needed from (by
legislatures), by effectively implementing the made laws and statues (by
executives) and by ensuring the justice in reality through an independent
and competence judiciary. In this way the consequences and results of
this doctrine can be seen in the day to day working of the people as they
are being governed by the public authorities who are following the
doctrine of separation of powers.

Separation of Powers and Accountability,

Transparency and Integrity :
Separation of powers between executive and legislative bodies
helps the system in two distinct ways. First, it can elicit information held
by the appointed officials and not otherwise available to the members of
public. Second, by playing one body against the other and by aligning
the interest of the weaker body with their own, the public can induce the
two bodies to discipline each other. Separation of power only works to
the advantage of public at large, if it is appropriately designed, however it
can be detrimental if it creates a 'common pool' problem. The presence of
a clearly demarcated separation of powers in any given constitution
promotes accountability as the constitution will be very clear on the
expectations by the citizens on each of the three branches. Ultimately,
this can promote transparency and integrity in both the ruled in amongst
the public at large and rules i.e. the authorities having public authorities
and public obligations.

Separation of powers and Checks and

Balances :
Checks and balances are the concept by which different parts
and organs of the government keep an eye on the other parts, and prevent
them from getting too far out of line. Checks refers to the ability, right
and responsibility of each power to monitor the activities of the other, and
balance refers to the ability of each entity to use its authority to limit
the powers of the others, whether in general scope or in particular cases.
In this regard, keeping each independent entity within its prescribed
powers can be a delicate process. Public support, tradition and a well-
balanced tactical position do help maintain such systems. The
independence of the executive and legislative branches is partly
maintained by the fact that they are separately elected and are held
directly accountable to the public. There are also judicial prohibitions
against certain types of interference in each others' affirms. Judicial
independence is also maintained with voluntary retirement and a high
threshold for removal by the legislature. Modern day politics may now
be seen as a form of check and balance. The opposition has the ability to
scrutinize the work of the government thus ensuring a further safeguard
against any abuse of power by the executive.
 To prevent one branch from becoming supreme, protect the
opulent minority form the majority, and to induce the branches to
cooperate, government systems that employ a separation of powers need
a way to balance each of the branches. Typically this was accomplished
through a system of checks and balance, the organ of which like
separation of powers itself, is specifically credited to Montesquieu.
Checks and balances allow for a system based regulation that allows one
branch to limit another, such as the power of Congress to alter the
composition and jurisdiction of the federal courts. In implies

1. Role of Legislature as follows -

* Passes bills; has broad taxing and spending power; regulates
inter-state commerce; controls the federal budget; has power to borrow
money on the credit of the United States (may be vetoed by President, but
vetoes may be overridden with a two-thirds vote of both houses)
* Has sole power to declare war, as well as to raise, support, and
regulate the military.
* Oversees, investigates, and makes the rules for the government
and its officers.
* Defines by law the jurisdiction of the federal judiciary in cases
not specified by the Constitution.
* Ratification of treaties signed by the President and gives advice
and consent to presidential appointments to the federal judiciary, federal
executive departments, and other posts.
* Has sole power of impeachment and trial of impeachments;
can remove federal executive and judicial officers from office for high
crime and misdemeanors.
2. Role of Executives as follows -
* Is the commander-in-chief of the armed forces,
* Executes the instructions of Congress.
* May veto bills passed by Congress (but the veto may be
overridden by a two-thirds majority of both houses)
* Executes the spending authorized by Congress.
* Declares states of emergency and publishes regulations
and executive order.
* Makes executive agreements (does not require ratification) and
signs treaties
* Makes appointments to the federal judiciary, federal executive
departments, and other posts with the advice and consent of the. Has
power to make temporary appointment during the recess of the
houses.
* Has the power to grant reprieves and pardons for offences.

3. Role of Judiciary as to -
* Determines which laws government intended to apply to any
given case,
* Exercises judicial review, reviewing the constitutionality of
laws,
* Determines how government meant the law to apply to
disputes,
* Determines how a law acts to determine the disposition of
prisoners,
* Determines how a law acts to compel testimony and the
production of evidence.
* Determines how laws should be interpreted to assure uniform
policies in a top-down fashion via the appeals process, but gives
discretion in individual cases to low-level judges. The amount of
discretion depends upon the standard of review, determined by the
type of case in question.
* Federal judges serve for life.

Doctrine of separation of powers and practical reality :

The nature, scope and requirements of the doctrine of
separation of power is quite clear from the above discussion, whoever its
applicability and adoptability in the present era should also be studies.
The status of modern state is a lot more different, that what it used to be.
It has evolved a great deal from a minimal, non-interventionist state to an
welfare state, wherein it has multifarious roles to play, like that of a
protector, arbiter, controller, provider etc. This omnipresence of the state
has rendered its functions becoming diverse and problems,
interdependent and in such condition any serious attempt to define and
separate those functions would cause inefficiency in government. Hence,
a distinction is made between 'essential' and 'incidental' powers of an
organ. According to this differentiation one organ can't claim the powers
essentially belonging to other organ because that would be a violation of
the principle of separation of powers. But, it can claim the exercise of the
incidental functions of another organ. This distinction prevents
encroachment of an organ into the essential sphere of activity of the
other.

It is the exercise of incidental powers only, which has made

executive grow everywhere in this social welfare state. It has assumed a
vital role but, it has not usurped any role from any other wing. It just
happened that the other two organs i.e. judiciary and legislature, became
unsuitable for undertaking the functions of this welfare state and as a
consequence, the functions of the executive increased. As controller and
protector, the judicial processes were very time consuming and the
legislature was overburdened with work. Therefore, it was in natural
scheme of things which made the administrators end up performing a
variety of roles in the modern state, to some certain extent, including
those of legislature and judiciary too. This is basically in-consistence of
the doctrine of separation of powers and its spirits.

Further, the check of the adjudicators over functioning of the

other two has been regarded as an 'essential' feature of the basic structure
theory. The judicial review power is a preventive measure in a
democratic country which prevents administrators and law-makers to
exercise their whims and caprices on the lay man and turn it into a
despotic regime. There have been cases where the judiciary has dictated
the ambit of their power to the implementers and the mode to exercise it.
It resulted in to a kind of dominance of judiciary over the two other
organs of the system, again which is violate of the present concept.
However in-spite of the fact that, generally the notion of
separation of powers is the key to the smooth governance of country, the
practical reality is that, no democratic system can exists with an absolute
separation of powers or an absolute lack of separation of powers.
Governmental powers and responsibilities intentionally and
spontaneously overlap, they are too complex and interrelated so that they
have to be neatly compartmentalized. As a result, there is an inherent
measure of competition and conflict among the branches of government.

Although, Montesquieu separated governmental functions and

separated governmental powers, there is no clear one-to-one
correspondence between the two because he did not insist on an absolute
separation. Thus, although the executive is a separate branch, it properly
interferes in a legislative function. This blending or overlapping of
functions is in part necessitated by Montesquieu's intention that
separation checks the excesses of one or the other branch. No doubt,
excesses may come from all or almost all sides of the deferent organs of
the government. When legislative deliberation ceases to be that and come
to be something more a trespass upon the proper functions of another
branch i.e. a transgression of constitutional separation then there will be
the threat to liberty.

The question which assumes significance here is that

* What should be the relation among these three organs of the
state ?
* Whether there should be complete separation of powers or
there should be co-ordination among them ?
* Whether the criteria for regulating the mutual relationship
amongst the organs of system should be affixed or flexible
and changeable from time to time.
An analysis of these three organs and the relations between
them needed to be done with the experience in different countries along
with India which will give a clear idea about this doctrine and its
importance in different Constitutions. Today all the systems might not be
opting for the strict separation of powers because that is undesirable and
impracticable but implications of this concept can be seen in almost all
the countries in its diluted form.
Conclusion :
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, and 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 does not seem to 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 or 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. The doctrine
of separation of power is not accepted in any country till now due to
many critical issues involved in it. However, before making any confirm
statement about the doctrine and for having clear understanding regarding
the scope, practical reality and adoptability of present doctrine in our
nation, the study is being made in the up-coming chapter of present work.
 CHAPTER III

SEPARATIOIN OF POWERS

AND

INDIAN CONSTITUTION

A STUDY
Introduction :
It is true that a society in which the observance of the law is
not assured, nor the separation of powers defined, has no constitution at
all. One of the basic constitutional principles of modern liberal
democracies is the separation of powers. Since the writings of Locke and
Montesquieu, separation of the legislative, executive and judicial powers
is deemed essential to avoid usurpation and tyranny by the holder of these
powers. Even though all democracies have separation of power, the
balance of powers varies between the executive, the legislature, the
judiciary and the citizens.

However, the practicability and scope of the said principle

depend upon the various need and format setup of the concerned system
of a nation. In India, there are three distinct activities in the government
through which the will of the people are expressed. The legislative organ
of the state makes laws, the executive brings them in to force and the
judiciary applies them to the specific cases arising out of the breach of
law. Each organ while performing its activities tends to interfere in the
sphere of working of another functionary because, a strict demarcation of
functions is not possible in their dealings with the general public. Thus,
even then acting in ambit of their own power, overlapping functions tend
to appear amongst these organs.

* It is well-known that the doctrine of separation of powers is an

inseparable part of the evolution of democracy itself. The French
philosopher Montesquieu drew the attention of political theorists to the
dangers inherent in the concentration of Legislative, Executive and the
judicial powers, in one authority and stressed on the necessity of the
concept of checks and balances in constitutional governance. His
writings considerably influenced the views and thoughts of the framers of
many modern constitutions including that of our nation, which lays that
no democracy indeed contemplates conferment of absolute power in any
single authority.

Separation of powers with the system of checks and balances is

one of the most characteristic features of our constitutional scheme. As
has been observed by the Hon'ble Chief Justice Balakrishan, 'the
Constitution lays down the structure and defines the limits and
demarcates the role and function of every organ of the State including the
judiciary and establishes norms for their inter relationships, checks and
balance.'

Our institutions of governance have been intentionally founded

on the principle of separation of powers as a bulwark against tyranny of
any or more organs of the State and the Constitution does not give any
unfettered power to any organ and all the three principal organs are
expected to work in harmony 'in a joint and participatory role instead of
an exclusive primacy of any one in the process', quoted by former Chief
Justice J.S. Verma. He has further observed that the basis constituent
principle of the Indian polity is that no single public functionary will have
absolute power, which is anathema in a democracy.

The obvious consideration before the Constituent Assembly

was to preserve and protect the freedom and democratic right of the
people and the supremacy of the popular will in our system of
governance. The centrality of the will of the people finds its best
expression in the Preamble of the Constitution itself. The words, 'We, the
People of India' and 'do hereby Adopt, Enact and Give to ourselves this
Constitution' recognize the sovereignty of the people and their primacy in
our constitutional system and convey its eternal message. It is in exercise
of this sovereign power that we, the People, have given unto ourselves the
Constitution making India a Sovereign, Socialist, Secular and Democratic
Republic. And, through the provisions of the Constitution, Indian
constitution has enumerated the powers and responsibilities of the organs
of the State to be the facilitators of national weal, leaving hardly and
scope for doubt or confusion in the mutual relationship. Hence the
preamble of our supreme law of land itself lays the path for the adoption
of the present doctrine it is also simultaneously supported by relevant
codified constitutional provisions.

* Experts' observations regarding the position of doctrine in

India :-
For understanding the exact position of doctrine in India, the
experts have been giving their valuable views over its Indian format, few
of such observations are as follows -

1. According to the Chief Justice Verma,

'The sovereign will of the people finds expression through their
chosen representatives in the Parliament. The real political executive is
the Council of Ministers, which also controls the Lok Sabha, where lies
the real legislative power. Parliament exercises political and financial
control over the Executive and there are inherent checks and balances to
keep every organ within the limits of constitutional power. The grey
areas are meant to be covered by healthy conventions developed on the
basis of mutual respect keeping in view the common purpose to be served
by the exercise of that power'.
2. In the words of Pandit Jawaharlal Nehru, while speaking in the
Constituent Assembly:
'No Supreme Court and no Judiciary can stand in judgment
over the soveregin will of Parliament, representing the will of the entire
community. If we go wrong here and there, it can point it out, but in the
ultimate analysis, where the future of the community is concerned, no
Judiciary can come in the way ultimately the fact remains that the
Legislature must be supreme and must not be interfered with by the Court
of law in measures of social reforms'.

3. The observations of the Justice S.R. Das, who later adorned

the office of the Chief Justice of India observed, in the famous case of
A.K. Gopalan v. State of Madras (1950 SCR 88) made it very clear.

Although our Constitution has imposed some limitations... It has left our
Parliament and the State Legislature supreme in their respective
legislative fields. In the main, subject to limitations...... Our Constitutions
has preferred the supremacy of the Legislature to that of the Judiciary....
and the Court has no authority to question the wisdom or policy of the
law duly made by the appropriate Legislature.... and this is a basis fact
which the Court must not overlook'.

4. Similarly, commenting on the nature of separation of powers

delineated by our Constitution, one of our most eminent Judges, the
Hon'ble Chief Justice B.K. Mukherjea, in the Supreme Court, in
Ram Away Kapur v. State of Punjab (AIR 1955 SC 549), observed
that -
 'Our Constitution does not contemplate assumption, by one
organ or part of the State, of functions that essentially belong to another.'

However it is being noticed that the lines demarcating the

jurisdiction of the different organs of the State are getting blurred, as a
section of the Judiciary seems to be of the view that it has authority by
way of what is described as 'judicial activism' to exercise powers, which
are earmarked by the Constitution for the Legislative or the Executive
Branches. One may point out that the Hon'ble Supreme Court has itself
construed that the concept of Separation of Powers is a 'basic feature' of
the Constitution. That being so, necessarily, each organ of the State has
separate areas of functioning, into which no other organ can enter or
intervene, unless permitted by the Constitution itself, and if it does so, it
will be contrary to one of the 'basis features' of our Constitution and that
includes the Judiciary also.

* Constitutional Status of Separation of Power in India:-

On a casual glance at the provisions of the Constitution of
India, one may be inclined to say that the doctrine of separation of powers
is accepted in India. Under the Indian Constitution, executive powers are
with the president, legislative powers with parliament and judicial powers
with judiciary i.e. Supreme Court, High Courts and subordinate Courts.

The President's function and powers are enumerated in the

Constitution itself, Parliament is competent to make any law subject to
the provisions of the Constitution and there is no other limitation on it
legislative power. The Judiciary is independent in its field and there can
be no interference with its judicial functions either by the executive or the
legislature. The Supreme Court and High Courts are given the power of
judicial review and they can declare and law passed by the parliament or
the legislature of any state, as unconstitutional if the law is against the
basic spirit and principles of the constitution. Taking into account these
factors, some jurists are of the opinion that the doctrine of separation of
powers has been accepted in the Indian Constitution.

* Constitutional provisions and three organs of the nation :-

Our constitution has sufficiently laid the provisions that
establish and maintain the supremacy of each organ of system in their
respective assigned field. These are -
1. Legislatures
2. Executive
3. Judiciary

The constitutional status of each of it is as follows -

1. Legislative Organ / Parliament:-

The important function of the Parliament is the making of the
laws. The legislative procedure is initiated in the form of a bill. The bill
may be either ordinary bill or money bill or financial bill. An ordinary
Bill means the Bill other than the Money Bill. Thus Bill may originate in
either House of the Parliament. The Bill must be passed by both the
Houses of the Parliament and then only it can be sent for Presidents
assent. It becomes a law when it is assented by the President. No bill
can become a law without the assent of the President.

Article 111 says that when a bill has been passed by both the
Houses, it is sent to the President for his assent, the President may either,
a) give his assent to the Bill, or b) he may withhold his assent, or c) he
may return the bill (not the Money Bill) to the House for reconsideration
with or without amendments. When a Bill is so returned the Houses shall
reconsider in the light of then President massage. But if it is again passed
by the Houses with or without amendments and presented to the President
for assent, the President shall not withhold his assent. It shows the
supremacy of parliament in law making process.

Besides the above powers, the Parliament is having a most

crucial constitutional power under the title of power of amending the
supreme law of land (Art. 368). Through it the Parliament can add,
repeal, amend or modify the provisional workings of the originally
adopted Constitution. Its journey till now, proves that by virtue of
amendment making powers the parliament has maintained its supremacy
its realm. Even it can compel the judiciary of nation to follow its i.e.
parliaments own will, by making and approving such amendments into
the constitution.

* The Parliamentary Privilege :-

In India, the Parliamentary Privileges are not codified. Articles
105 and 194 provide for privileges for the members of the Parliament and
State Legislatures respectively.

Parliamentary privilege means, some of the peculiar rights

enjoyed by each House collectively as a constituent part of the Parliament
and by the members of each House individually, without which they
could not discharge their functions and which exceed those possessed by
other bodies or individuals. Their basic privileges are as under -
1) Freedom of the speech : The Constitution expressly
guarantees freedom of speech in Parliament. The discussion in the
Parliament must be free, frank and fearless. This gives absolute
immunity from courts for anything said within the four walls of the
House during the course of proceedings of the House or its Committees.
Freedom of speech under Ar. 105 is much more wider and extensive than
that under Ar. 19.
2) Right regarding publication of its Proceedings : No person
is to be liable to any proceedings in any court in respect of publication of
any report, paper, votes or proceedings by or under the authority of a
House. This protection does not extend to publication made by a private
person without the authority of a House. This will not apply to the
publication of any report of a secret sitting of a House.

3) Freedom from Arrest:- A member of Parliament cannot be

arrested or subject to imprisonment on a civil proceeding within a period
of 40 days before and 40 days after the session of Parliament. If a
member is arrested within that period he should be released so that he
might be free to attend Parliament. This privilege is available against the
civil arrest and does not extend to arrest or imprisonment on a criminal
charge or for the contempt of court or to Preventive Detention.

4) Right to exclude strangers from its proceedings and hold

secret sessions :- This right has been used by the House of Parliament in
England to go into secret sessions to discuss some important matters.
The House of Parliament in India enjoys a similar power.

5) Right to prohibit to publication of its Reports and

proceedings :- In England, the House of Commons has the right to
prohibit the publication of its report, debates or other proceedings. In
India, the house of Parliament has definitely the power to prohibit the
publication of proceedings. The publication of omitted portion of speech
constituted a breach of the privilege of the House.

6) Right to regulate internal proceedings : The house has an

exclusive right to regulate its own internal proceedings and to adjudicate
upon such matters. The courts will not interfere with what takes place
inside the House.

7) Right to hold inquires and summons witness :- The

parliament has the power to hold inquires, summons the records and
witnesses while conducting its internal proceedings.

8) Right to punish Members or Outsiders for contempt : The

House of Commons has power to punish a person whether member or
stranger for its 'contempt' or for 'breach of privilege'. This power is truly
described as the, 'Keystone of Parliament Privilege'. This power is
used by the House to enforce its privileges. The House is the sole judge
for itself and any court has no jurisdiction for this. Even the House can
issue a general or unspeaking warrant to arrest a person held guilt of
committing contempt of the House and no court can go into its validity.
A member may be suspended or expelled from the House, or may be
sentenced to jail.

The above discussed parliamentary powers but naturally ensure

required freedom and independent that ultimately establish the full
dominance of the parliament regarding the law making function of the
nation.
2. Executive Organ :-
In India, the Constitution establishes a Parliamentary form of
the Government. The essence of this type of government is that the head
of the State is constitutional head and the real executive powers are
vested in the Council of Ministers. The Constitutional head is the
President and the Prime Minister is the head of the Council of Ministers.
There shall be a President of India. He is the head of the State (Article
52). The executive power of the Union shall be vested in the President.
These executive powers shall be exercised by him in accordance with the
Constitution either directly or through officers subordinate to him (Article
53). The officers subordinate to him includes a minister also. The
President shall hold office for a term of five years from the date of which
he enters upon his office. Even after the expiry of his term he shall
continue to hold office until his successor enters upon his office. He is
also eligible for re-elections. He may be elected for any number of terms.
The President in India may resign his office before the expiry of his
normal term of five years by writing to the Vice President (Art.56).

The President is the Constitutional head of the State. As the

constitutional head he has to perform many functions so he has may
powers. These powers establish the supremacy of the President in the
executive field, followings are some of the important powers given to the
President by the Constitution

1. Executive Power :- The executive power of the Union of

India is vested in him. He is the Head of the Indian Republic.
All executive functions are executed in the name of President. He
has power to appoint 1) the Prime Minister and on his
advice other Ministers of the Union (Art. 74), 2) the Judges of the
Supreme Court, and the High Courts (Art. 124), 3) the Governors of the
State (Art. 155), 4) the Attorney General (Art. 76), 5) the Comptroller
and Auditor General (Art. 148), 6) the Chairman and members of
the Public Service Commission, the members of the Finance Commission
etc.

2. Power to remove the officers :- The above mentioned

officials hold their office during the pleasure of the
President. This means that he has the power to remove
them from their post.

3. Military Powers : The President is the Supreme

Commander of the Defense Forces of the Country. He has
powers to declare war and peace.

4. Diplomatic Powers :- The President is the Head of the

State. So he sends and receives Ambassadors, and other
diplomatic representatives. All treaties and international
agreements are negotiated and concluded in the name of the
President.

5. Pardoning Power : (Article 72) The President has power to

grant pardons, reprieves, respites or remissions of punishment or to
suspend, remit or commute the sentence of any person convicted. This
conviction may be under any offence 1) by Court martial; 2) an offence
against any law relating to a matter to which the executive power of
the Union extends; or 3) in all cases in which the sentence is one of
death.
6. Emergency Powers : Part XVIII of the Constitution gives the
President with enormous emergency powers. The emergencies
envisaged under the Constitution are of three kinds : (1) emergency
arising out of war, external aggression or armed rebellion, (2)
emergency due to failure of Constitutional Machinery in the State, and (3)
financial emergency. The ancillary emergency powers of the President
are
i) The President may, during the period of emergency suspend
the right to move the Courts for the enforcement of fundamental rights.
ii) In the case of emergency arising out of failure of Constitutional
Machinery in the State the President may assume any of the powers
vested in the Governor.
Iii) Under the proclamation of financial emergency the Union
Government may give such financial direction to the State as it deems
fit. The President may direct the reduction of salaries of any class of
State officials, the judges of the Supreme Court and the High Court. He
may require all State Money Bills to be reserved for consideration of
the President.

In this way the above discussed crucial powers of the president

undoubted fully establish the supremacy of the president in the field of
executive functions of the nation.

3. Judicial organ / The constitution and position of

Supreme Court :-
In order to maintain the supremacy of the Constitution, there
must be an independent and impartial authority to decide disputes
between the Centre and the State or the States inter se. Under our
Constitution, the Supreme Court has to play a role of an arbitrator. It is
the final interpreter and guardian of the Constitution. The Supreme Court
is also the guardian of the Fundamental Rights of the people. At present
the Supreme Court of India consists of a Chief Justice and twenty nine
other Judges.

The Supreme Court is the Apex Court of our country. The

Jurisdiction of the Supreme Court includes Original Jurisdiction,
Appellant jurisdiction and Advisory Jurisdiction. The S.C. has original
Jurisdiction to enforce the Fundamental Rights through Art. 32 where in
any individual can directly approach the S.C. It empowers to issue
direction or different writs viz. writ of habeas corpus, mandamus,
prohibition, quo warranto etc. Art. 131 lays the original jurisdiction to
settle the disputes between the Government of India and one or more
States, between the Government of India and State or States on one side
and one or more other States on the other and between two or more
States.

The Supreme Court is the highest Court of Appeal in the

Country. The Appellate Jurisdiction of the Supreme Court can be divided
into four main categories i.e. appeal in Constitutional matters, Appeal in
Civil Cases (Art. 133), Appeal in Criminal Cases (Art. 134) and appeal
by special leave (Article 136).

The Apex Court is also having an advisory jurisdiction (Article

143) i.e. If at any time it appears to the President that a) a question of
law or fact has arisen or is likely to arise, and b) the question is of such a
nature and of such public importance that it is expedient to obtain the
opinion of the Supreme Court upon it, he may refer the question for the
Advisory opinion of the Court.

* The Indian Constitution has established Independent

Judiciary :-
Only an impartial and independent judiciary can protect the
rights of the individual and provide equal justice without fear or favour.
It is very necessary that the Supreme Court should be allowed to perform
its functions in an atmosphere of independence and be free from all kinds
of political pressures. The Constitution has made several provisions to
ensure independence of judiciary. There are as follows -

1) Security of Tenure (Art. 124) :- The Judges of the Supreme

Court have security of tenure. He holds office until he attains the
age of 65 yrs. His term of office is fully secures. They can not be
remov3ed from office except by impeachment motion with a majority
of not less than 2/3 of the members of the House present and voting.
Which is practically all most not possible? In March 1990, such
impeachment motion was made against Justice V. Ramaswamy, the then
Judge, Supreme Court. But it was defeated since there was no two third
majority in the House.
2) Salary of judges fixed, not subject to vote of Legislature
(Art 125) :- The salaries and allowances of the Judges of the
Supreme Court are fixed by the Constitution and charged on the
Consolidated Funds of India. During the term of their office, their
salaries and allowances cannot be altered except in grave financial
emergency.
3) Jurisdiction and powers of the Supreme Court (Art. 138) :-
Parliament has power to i) change pecuniary limit for appeals to the
Supreme Court in Civil cases, ii) enhance the appellate Jurisdiction of
the Supreme Court, iii) confer supplementary power, iv) confer power to
issue directions, order or writs including all the prerogative writs for any
purpose other than those mentioned in Article 32. However, the
Parliament can exceed the jurisdiction of the Supreme Court, but
cannot curtail the jurisdiction and power of the Supreme Court.
4) No discussion on the conduct of judges in Legislature
proceedings (Art. 121) :- The Members of the House are privileges
to discuss any matter. However, any discussion can not take place House
with respect to the conduct of a Judge of the Supreme Court in discharge
of his duties.
5) Contempt of Court (Arts. 129 and 215) :- The Supreme Court
and the High Courts have the power to punish any person for its
contempt. This is must for maintaining the impartiality and independence
of the Judiciary.
6) Separation of judiciary from executive :- Art. 50 direct the State
to take steps to separate the judiciary from the executive in the public
services of the State. It emphasizes the need of securing the Judiciary
from the interference by the executive.
7) Appointment of the Judges of the Supreme Court by the
Executive with the consultation of the Legal Experts :- The
appointment of the Judges of the Supreme Court to appear and plead
in any Court or before any authority within the territory of India. It is
must to maintain the dignity and integrity of the judges of Apex Court
and that of the High Courts.
 Thus, the position of the Supreme Court is very strong and its
independence is adequately guaranteed as to ensure its complete
sovereignty in the field of administration of justice where the interference
from the side of other organs seems to be practically difficult.

* Constitutional provisions putting a question mark over the

adoptability of the doctrine of separation of powers in India :-
We have gone through the constitutional provisions supporting
the present doctrine in our nation. However one must study the
provisions that seem to be contrary to doctrine of separation of powers.
Some of these are as follows :-
1. Regarding the appointment and removal of the
President (Art. 54 & 64) :- The President shall be elected by the
members of legislatures i.e. an electoral college consisting of,
a) The elected members of both Houses of Parliament and
b) The elected members of the Legislative Assemblies of the
States.
He may be removed from his office for the violation of the
constitution by the process of impeachment.

Procedure for impeachment of the President : Article 61 of

the Constitution lays down the procedure for the impeachment of the
President. The President can be removed from his office by a process of
impeachment for the 'violation of the Constitution'. The impeachment
charges against him may be initiated by either House of Parliament. The
charge must come in the form of a proposal contained in a resolution. It
must be signed by not less than 1/4 of the total number of members of the
House and moved after giving at least 14 days advance notice. Such
resolution must be passed by a majority of not less than 2/3 of the total
membership of the House. Then the charge is investigated by the other
House. The President has right to appear and to be represented at such
investigation. If the other House after investigation passes a resolution by
2/3 majority declaring that the charge is proved, such resolution shall
have the effect of removing the President from his office from the date on
which the resolution is so passed.

Here the active role of members of legislatures in appointment

and removal of the President is crystal clear from the above discussed
constitutional provisions, wherein the possibility of defection of
separation of powers cannot denied.
2. Regarding the control over the powers of President :-
Though the President is having number of constitutional powers
regarding executive field, but the powers are not absolute one they are
subject to the ratification or regulations by the members of legislatures
as -
i. The President has to exercise his executive powers on the advice
of the Council of Ministers.
ii. The President's military powers are subjected to be regulated by
law'. The Parliament is empowered to regulate or control the exercise of
the military powers by the President.
iii. The treaties and agreements made by the President regarding the
foreign relations are subject to ratification by Parliament.
iv. The ordinances made by the President must be laid before both
Houses of Parliament and shall cease to operate at the expiry of six weeks
from the date of re-assembly of the Parliament, unless both Houses before
the expiration of six weeks have passed a resolution to disapprove it.
3. Legislative Powers of President :- The President of India is a
component part of the Union Parliament. He possesses extensive
legislative powers. 1) He has power to summon and prorogue the
Parliament and he can dissolve the Lok Sabha (Art. 85). 2) At the
commencement of each session the President addresses either House of
Parliament or a joint session of a Parliament. In his address to joint
sessions of Parliament he outlines the general policy and programmed of
the Government. 3) Every Bill passed by both Houses of Parliament is to
be send to the President for his assent (Art. 107). 4) A bill for the
recognition of a new State or alteration of State Boundaries can only be
introduced in either House of the Parliament after his recommendation
(Art. 3). 5) He nominates 12 members of the Rajya Sabha from among
persons having special knowlege or practical experience of Literature,
Science, Art and Social Services (Art. 80). 6) He is authorised by the
Constitution to nominate two Anglo-Indians to the Lok Sabha (Art. 331).
7) The President has to lay before the Parliament the Annual Finance
Budge, the report of Auditor-General, the recommendations of the
Finance Commission, Report of the Union Public Service Commission.

4. Ordinance-Making Power of the President (Art.123) :- The

most important legislative power of the President is his ordinance-making
power. If at any time, when both Houses of the Parliament are not in
session and the President is satisfied that circumstances exist which
render it necessary for him to take immediate action, he may issued such
ordinance. The President may withdraw such an ordinance at any time.
An ordinance under Art. 123 is a law. It has the same force and effect as
an Act of Parliament. The President on his own 'satisfaction' exercises
this Ordinance-making power. The validity of an Ordinance cannot be
tested on any grounds.
5. Parliament may by law control the number of judges in the Supreme
Court and High Court.
6. Direction by the Center to the States : Article 256 : The executive
power of the state shall be so exercised as to ensure compliance with the
laws made by Parliament and the executive power of the Union shall also
extend to the giving of such directions to a state as it may deem essential
for the purpose. Parliament is also empowered to use State machinery for
the enforcement of union laws and for this purpose may confer power or
impose duties upon the State or its officers or authorities thereof in
respect of these matters.

7. Amendment making Power of the Parliament Art. 368 :-

Though the amending powers are entrusted with a view to cope up the
upcoming future requirements. But 24th and 42nd amendments are the
evident that the parliament strives to interfere into the realm of Supreme
Court by putting excess limitations over the judicial powers. And when
the judiciary pronounces that the amendment to the constitution is not a
law and consequently would not come under the purview of the Art. 13
i.e. judicial reviews, it ultimately supports the intervention of parliament
into the field of judiciary itself.

8. Power of Judicial review :- Article 13 provides for the 'judicial

review' of all legislations in India, past as well as future. This power has
been conferred on the High Courts and the Supreme Court of India
(Article 226, Article 32). By virtue of it judiciary can declare a law
unconstitutional if it is inconsistent with any of the provisions of part III
of the Constitution. Thus judicial review is the interposition of judicial
restraint on the legislature as well as the executive organs of the
Government.

Even in the absence of the provision for judicial review, the

courts would have been able to invalidate a law which contravened any
Constitutional provision. Such power of judicial review follows from the
very nature of Constitutional law. In Kesavanand Bharti's case it has
been held that Judicial review is the 'basis features' of the Indian
Constitution and, therefore, it cannot be damaged or destroyed by
amending the Constitution under Article 368 of the Constitution.

Here one can sum the point as that, the Constitution of India
embraces the idea of separation of powers in an implied manner. Despite,
there being no express provision recognizing the doctrine of separation of
powers in its absolute form, the Constitution does make the provisions for
a reasonable separation of functions and powers between the three organs
of Government. Because by looking into the various provisions of the
Constitution, it is evident that the Constitution intends that -
1. The powers of legislation shall be exercised exclusively by the
legislature.
2. The judicial powers can be said to vest with the judiciary. The
judiciary is independent in its field and there can be no interference with
its judicial functions either by the Executive or by the Legislature.
3. The executive powers of the Union and the State are vested in the
President and the governor respectively.
The constitution of India lays down a functional separation of
the organs of the state in the following manner:
1. Article 50 lays down that State shall take steps to separate the
judiciary from the executive. This is for the purpose of ensuring the
independence of judiciary.
2. Article 122 and 212 provides validity of proceedings in Parliament
and the Legislatures cannot be called into question in any Court. This
ensures the separation and immunity of the legislatures from judicial
intervention on the allegation of procedural irregularity.
3. According to Article 121 and 211 of the Constitution, Judicial
conduct of a judge of the Supreme Court and the High Courts' cannot be
discussed in the parliament and the State Legislature.
4. 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.
5. The Legislature besides exercising law making powers exercises
judicial powers in cases of
i) Breach of its privilege,
ii) Impeachment of the President,
iii) The removal of the judges and
iv) While discharging the function of disqualifying its members and it
can impose punishment for exceeding freedom of speech in the
Parliament.
6. 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 virus by the Court and revalidating it.
* 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.
* Through Article 118 and Article 208 the Constitution permits 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.
All this show that Indian Constitution does not opt for the strict
separation of powers because it is undesirable and impracticable but
implications of this concept can be seen in India in its diluted form.
Besides the functional overlapping, the Indian system also lacks the
separation of personnel amongst the three departments. Applying the
doctrines of constitutional limitation and trust in the Indian scenario, a
system is created where none of the organs can usurp the functions or
powers which are assigned to another organ by express or necessary
provision, neither can they divest themselves of essential functions which
belong to them as under the Constitution.

Judicial opinion over the doctrine of separation of power in

Indian perspective:-
Besides the relevant constitutional provisions dealing with the
present doctrine the judicial observation of the same is must to be
considered to have an idea about the existing form of concept of
separation of powe r. Some of the judicial observations are as follows:-
In I.C. Golak nath v. State of Punjab, it was observed that-
1. The Constitution brings into existence different constitutional entities,
namely the Union, The States and Judiciary.
2. It creates three major instruments of power, namely the Legislature,
the Executive and the Judiciary.
3. 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. Hence the concept of
separation of power has been constitutionally adopted in our nation.
However, at the same time there are some opposite and adverse
observations also, putting a question mark over the existence of the
doctrine. As , if we study the constitutional provisions carefully, it is clear
that the doctrine of separation of powers has not been accepted in India in
its strict sense. In India, not only there is functional overlapping but there
is personnel overlapping also. The Supreme Court has power to declare
void the laws passed by the legislature and the action taken by the
executive if they violate any provision of the Constitution or the law
passed by the legislature in case of executive actions. The executive can
affect the functioning of the judiciary by making appointments to the
office of Chief Justice and Judges. One can go on listing such examples
yet the list would not be exhaustive.
In Indira Nehru Gandhi v. Raj Narain, it was observed,
That in the Indian Constitution there is separation of powers in a broad
snse only. A right separation of powers as under th American
Constitution or under the Australian Constitution does not apply to India.
Chandrachud J. Also observed that the political usefulness of doctrine of
separation of power is not widely recognized. No constitution can survive
without a conscious adherence to its fine check and balance. The
principle of separation of power is a principle of restraint which has in
its it the precept, innate in the prudence of self preservation, that
discretion is the better part of valour.
On that same footing justice Mukherjee in Ram Jawaya v. State of
Punjab observed that
The Indian Constitution has not indeed recognized the doctrine of
separation of powers in its absolute rigidly 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.
On the question that, where the amending power of the parliament
does lie and whether Art. 368 confers an unlimited amending power on
the parliament, the Supreme Court, in Kesavananda Bharati held that
amending power is now subject to the basic features of the constitution.
Hence, any amendment tampering these essential features will be stuck
down as unconstitutional.
These, Justice Beg added that separation of power is a part of the
basic structure of the Constitution and observed that 'none of these
separate organs of the republic can take over the function assigned to
other. This scheme can not be changed even by resorting to Art.368 of the
constitution.'
In a subsequent case, Supreme Court had an occasion to apply the
Kesavananda ruling regarding the non amendability of the basic feature
of the constitution and a strict adherence to doctrine of separation of
power. Where the dispute regarding P.M.election was pending before the
court, it was held that adjudication of a specific dispute is a judicial
function which parliament, vein having the constitutional amending
power, cannot exercise. The main ground on which the amendment was
held ultravires was that when the constitution body declared that the
election of P.M. won't be void, it discharged a judicial function which
according to the principle of separation it shouldn't have done. The
position of this doctrine in Indian context was made a bit clearer after the
said judgment.

From the above judicial observations it is crystal clear that, though in

India, strict separation of power like in American sense is not followed
but, the principle of 'checks and balances' a part of this doctrine is surely
prevalent in our nation. Therefore, none of the three organs can usurps the
essential function of the organs, which constitute a part of 'basic structure'
doctrine so much so that, not even by amending the constitution and if
any such amendment is made, the judiciary will strike it down as
unconstitutional.
The Constitution does not contemplate a Super-organ nor confers
an overriding authority on any organ. No organ has any power to
superintend over the exercise of powers and function of another, unless
the Constitution strictly so mandates. It is obvious that all organs of the
State should act only according to the constitutional mandate and should
not be astute to find any undisclosed source of power or authority to
expand its own jurisdiction, which will give rise to avoidable conflicts
and affect the harmonious functioning of the different organs of the State.
Intervening in the debate in the Constituent Assembly, many learned
members had expressed the view that the doctrine of judicial
independence was not to enable the judiciary to function as a kind of a
'super Legislature' or a 'super Executive'.
Thus referring to the above content it proves that separation of power
is practiced in India but not that rigidly. It is not embodied in the
constitution though practiced. The three main powers do cross their limit
and interfere in each other's task whenever necessary. In India, we follow
a separation of function and not of powers. Hence, we don't abide by the
principle in its rigidity. An instance of it can be seen in the exercise of
functions by cabinet ministers, who exercise both legislative and
executive function. Art. 74 (1) confers upon them an upper hand over the
executive by making their aid and advice mandatory for the formal head.
Thus the executive is derived from the legislature and of its legitimacy is
dependent on it.
The executive and the legislature in the Indian Constitution:-

The Indian Constitution provides that the members of the

executive may be elected or selected in different ways. The President is
indirectly elected by Central and the State legislatures, while the
Governor of State is appointed by the President. The Prime Minister and
Council of Ministers are members of the legislature who are appointed to
their office by the President, provided they enjoy the support of the
majority of the members of the legislature. The Chief Minister and the
Council of Ministers of the States are appointed by the Governor on the
same principle. The lower level staff in the lower levels of the executive
at the State and the Centre is selected by a public recruitment process.
Despite the dual membership of a section of the higher executive in the
legislature, there is no need to conclude that the separation of powers
principle does not apply to the relationship between the executive and the
legislature.

It is necessary to look at the instances where the principle should

be applied with greater forces, these are-

The Constitution provides that the election of any member of the

legislature can be challenged on the grounds that they enjoy 'an office of
profit' under the government. The rationale for such a disqualification
has been articulated by the courts in a rather confused fashion. While the
court has acknowledged that the disqualification may be justified as an
instance of the principle of separation of powers requiring the
composition of institutions of government independently, it has also
suggested that the rule may seek to prevent a conflict of interest between
members of the legislature and executive and the abuse of state
machinery in the election process. A Joint Parliamentary Committee has
gone into the scope and the extent of this disqualification and is likely to
submit a report soon, which will form the basis for future legislation.
Hence, it is an favorable moment to consider the basis for the office of
profit disqualification in a principled fashion. While the Constitution does
not expressly proclaim that there should be a complete separation of
powers between the composition of the executive and legislature at all
levels, one should recognize the need to keep the exception to the
principle limited by ensuring that the distinctive membership and
functioning of these two wings of government are kept separate as far As
possible. It is critical for future legislation and the court to insist that the
exception to the disqualification set out in the provision to Article 105(2),
which allows Parliament to exempt some offices of profit from the effect
of the disqualification, to include only those offices which are ministerial
in character.
The second instance, where it is critical to maintain the separation of
powers between the executive and the legislature, is where the legislators
exercise executive powers. The influence of legislators on executive
functioning is provided for in the constitutional arrangements through the
support and scrutiny functions entrusted to the legislature. However, the
legislators rarely exercise these powers to keep the executive in check
and are keen to exercise executive power at any available opportunity,
these include the power to head executive binds and agencies of various
descriptions, the capacity to participate in executive committees which
award contracts or select beneficiaries of various welfare schemes. The
most deliberate violation of the principle of separation of powers is the
grant of an annual fund to legislators to carry out activities of their choice
in their constituency. The local area funds granted to legislators
transforms them into executive agents carving out zones of influence in
their constituencies. With every passing year, these funds grow in size
and though the legislators execute the scheme through the existing
executive machinery, they have emerged as a parallel executive agency
through which the patronage may be dispersed.
These is an urgent need to stress this aspect of the separation of
power as the effort to keep the legislators from making executive
decisions may be critical to the success of the constitutional project in
India. The distinction between these two institutional functions is all the
more critical in a developing country, where widespread corruption
impedes the translation of the normative commitments of the
Constitution, to create a socially and economically just society.
The third instance of the separation of powers between the executive and
legislature has received considerable attention at an earlier part of our
constitutional history The constitution provides that the President
ordinarily acts on the aid and advice of the council of Ministers. The
extent to which the President is bound to act in this fashion and the
application of the British constitutional conventions to guide
constitutional interpretation has been a source of much controversy.

Doctrine of separation of powers and practical reality in India:

The debate about the doctrine of separation of powers and exactly what it
involves in regard to Indian governance is as old as the Constitution
itself. Apart from the directive principles laid down in Part -IV of the
Constitution which provides for separation of judiciary from the
executive, the constitutional scheme does not provide any formalistic
division of powers. It appeared in various judgments handed down by
Supreme Court after the Constitution was adopted. It is through these
judicial pronouncements, passed from time to time, that the scope and
degree of applicability of the doctrine can be determined.
In the re Delhi Laws Act case It was for the first time observed by the
Supreme Court that except where the constitutional has vested power in a
body the principle that one organ should not perform functions which
essentially belong to others is followed in Indi. By majority of 5:2 the
Court held that the theory of separation of powers though not part and
parcel of our Constitution in exceptional circumstances is relevant in the
provisions of the Constitution itself.
As observed by Kania C.J. Although in the constitution of Indi
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. 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 function?
In essence, the judgment implied that all the three organs of the State
i.e. the legislature, the judiciary and executive are bound by and subject
to the provisions of the Constitution, which demarcates their respective
powers.
In Kesavananda Bharti case ,it was argued that Parliment was
''supreme and represented the sovereign will of the people. The judiciary
has no right to question whether it was constitutional or not. However the
Court did not allow this argument and found that the doctrineof
separation of power was a part of the ''basic structure of our
Constitution.
 C H A P T E R IV

SEPRATION OF POWER A COMPARATIVE STUDY OF

CONCEPT OF
Doctrine of separation of power and administrative law
Even though the principle of separation of powers mainly draws a line
between legislative, executive and judicial function of government.
Administrative law runs to some extent contrary to this principle.
Delegation of legislative powers by the legislature is clearly against the
principle of separation of powers.
The separation of powers is based on the principle of tries politics, which
means separation between three independent power in nation.
Administrative law concern with powers and procedures of administrative
agencies, including especially judicial review of administrative action. It
does not include the enormous mass of substantive law produced by the
agencies.
Separation of power In India:
The doctrine of separation of power has not been accorded a constitution
status. Apart from the directive principle laid down in Article 50 of the
constitution which sets out separation of judiciary from the executive
function the constitutional schemes do not embody any dogmatic division
of powers. In constitution, the executive powers are vested with the
President, the legislative powers with the Parliament and the judicial
powers with the judiciary the Supreme Court, the High Courts and
subordinate courts. The President holds his office for a fixed period. His
function and powers are enumerated in the Constitutional itself.
Parliament of India is competent to make any law, subject to the
provisions of the constitution and it can also amend the law prospectively
or even retrospectively but it cannot declare a judgment delivered by a
competent court void or of no effect.
The judiciary is independent in its field and there can be no interference
with its judicial function either by executive or the legislature. The
Supreme Court and High Court are given the power of judicial review
and they can declare any law passed by Parliament or Legislature as ultra
vires or unconstitutional. Taking into these facts, the judiciary has from
time to time upheld the principle of separation of power and
accommodated the flexibility of its function.
In Kartar Singh v. State of Punjab ,it was held that Indian
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 governments have been sufficiently differentiated.
In Delhi Development Authority v. M/s UEE Electricals Engg.Pvt. Ltd.
The Supreme Court made the observation that One can conveniently
classify under three heads the grounds on which administrative action is
subject to control by judicial review, the second irrationality and the
third procedural impropriety.
Separation of Power In USA
If the rule of law as enunciated by Dicey affected the growth of
Administrative Law in Britain, the Doctrine of Separation of Power had
an intimate impact on the development of Administrative Law in the
USA. As Davis points out probably the principal doctrinal barrier to the
development of the Administrative process has been the theory of
separation of power. 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.
The doctrine of separation from the basis of American Constitutional
structure Article I,II and III delegate and separate power 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. The ideal of separation,
both functional 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 power never exercise
the legislative or executive power or either of them to the end it may be a
government of law and not of men. Also overriding power of judicial
review is not given to the Supreme Court.
Separation of power in England:-
Separation of power does not exist in England. The King though an
executive head, is also an integral part of the legislature and all his
ministers are also members of one or other of the House of Parliament.
Furthermore, the Lord Chancellor is at the same time a member of the
House of Lords, a members of the government and the senior most
member of the judiciary. Therefore, in England the concept of
parliamentary executive is clear negation of the first formulation of
Montesquieu that the same person should not form part of more than one
of the organs of the government.
Separation of power in Australia:-
The doctrine of the separation of powers in Australia divides the
institutions of government into three branches: legislative, executive and
judicial. The legislature makes the law, the executive put the laws into
operation and the judiciary interprets the laws. The doctrine of the
separation of powers is often assumed to be one of the cornerstones of
fair government.
Conclusion:-
The modern state has transformed from Police state to Welfare State.
Earlier the state functions were confined to defense, administrative 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, and 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. India has adopted the doctrine of separation
of power but in reality it is not so. The three organ in some or the other
way performs the task of other. The legislature delegate same power 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 place, Hence it would not be wrong
to say that the doctrine of separation of power is not accepted in any
country till now.
 CHAPTER V

Constitutional Mandates And Separation of Powers

Mandates regarding law making power of Legislature and
power of Executive:-

It is the well settled mandate of our constitution that the legislature are
the authorized origin from where the law, rule and regulation must flow
and same must be authority executed by the executives executively. Even
the doctrine of separation power requires same. However, this mandate
has also been substantially changed or defeated due to the most active
role of judiciary of our nation. There are many instance of legislation
coming from the bench rather from the houses of Parliament, even the
judiciary performs the functions assigned to executive, few important
examples of the are discussed here-
1. Upload FIRs in Police Websites [Youth Bar Association of India
vs.Union of India] The Supreme Court directed that the copies of the
FIRs, unless the offence is sensitive in nature, like sexual offences,
offences pretending to insurgency, terrorism and of that category,
offences under POCSO Act and such other offences, should be uploaded
on the police website, and if there is no such website, on the official
website of the State Government, within twenty-four hours of the
registration of the First Information Report so that the accused or any
person connected with the same can download the FIR and file
appropriate application before the Court as per law for redressed of his
grievances. The Bench clarified that in case there are connectivity
problems due to geographical location or there is some other
unavoidable difficulty, the time can be extended up to forty-eight hours.
The said 48 hours can be extended maximum up to 72 hours and it is only
relatable to connectivity problems due to geographical location or there
is some other unavoidable difficulty, the time can be extended up to forty-
eight hours. The said 48 hours can be extended maximum up to 72 hours
and it is only relatable to connectivity problems due to geographical
location.
2. DV Act; Relief Possible Against Minors, Women [ Hiral P Harsora
and ors Vs. Kusum Narottamdas Harsora]Supreme Court struck down
the words adult male before the word person in Section 2(q) of
Domestic Violence Act holding that these words discriminate between
persons similarly situated, and is contrary to the object sought to be
achieved by the Domestic Violence Act.
3. Persons in Govt/Judicial service need not resign to participate in
District Judge Selection Process [ Vijay Kumar Mishra and Anr Vs
High court of Judicature at Patna To and Ors] The Apex Court held
that Article 233(2) of the Constitution of India only prohibits the
appointment of a person as District Judge, who is already in the service
of the Union or the State, but not the selection of such a person. The
Court set aside the Patna High Court judgment which had required the
aspirant to resign his membership of the subordinate judicial service if he
aspires to become a District Judge.
4.No liquor shops near National Highways [State of Tamil Nadu vs. K.
Balu] Supreme Court ordered closure of all liquor shops along National
and state highways stressing on the need to improve road safety and curb
menace of drunken driving. A bench head by Chief Justice T S Thakur
also ruled that there should not be any liquor shops within 500 meters of
such highways and they should also be not visible from such roads.
5.National anthem must in Theatres [Shyam Narayan Chouski vs. Union
of India] The Supreme Court made it mandatory for all cinema theatres
to play the national anthem before a movie begins during which the
national flag is to be shown on the screen. A bench of Justice Dipak
Misra and Justice Amitava Roy also said that everyone present in cinema
hall should rise up and pay in respect to the anthem when it is played.
Most of times this the judiciary which is mostly alleged to have attempted
to change the constitutional mandates through its activist role, however
we should not forgate that whenever the society needs extra ordinary
remedy or against the two other organs of nation, it directly resort to
judiciary just strives to give the complete justice to society by favorably
interpreting the supreme law of law that may give different shape to the
mandate.
 C H A P T E R VI
Separation Of Power and Indian Judiciary
A
Interpretation of The Doctrine Of Separation Of Powers
B
Judicial Review, Rule of Law And Basic Structure Theory
Of Power
(A)INTERPRETATION OF THE DOCTRINE OF SEPERATION
OF POWERS
According to a strict interpretation of the separation of powers, none of
the three branches may exercise the power of the other, nor should any
person be a member of any two of the branches. Instead, the independent
action of the separate institutions should create a system of checks and
balances between them.
In Ram Away vs. State of Punjab a constitution Bench of
Supreme Court observed, The Indian Constitution has not indeed
recognized the doctrine of separation of powers in its absolute rigidity
but the function of the different parts of 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 function that essentially belong to another.
Ram Krishna Dalmia v. Justice Tendolkar In the absence of specific
provision for separation of powers in our Constitution, such as there is
under the American Constitution, some such division of powers
legislative, executive and judicial is nevertheless implicit in our
Constitution.
Udai Ram Sharma v. Union of India The American doctrine of well
defined sepration of legislative and judicial power has no application to
India.

B) Judicial Review , Rule of law and Basic structure theory vs

separation of power
Equilty, rule of law, judicial review and separation of power from parts of
basic structure of the constitution. Each of these concepts is intimately
connected. These can be no rule of law, if there is no equality before the
law. These would be meaningless if the violation was not subject to the
judicial review. All these would be redundant if the legislative, executive
and judiciary power are vested in one organ. Therefore, the duty to decide
whether the limits have been transgressed has been placed on the
judiciary. Realizing that it is necessary to secure the enforcement of the
Fundamental Rights, power for such enforcement has been vested by the
Constitution in the Supreme Court and the High Courts. Judicial Review
is an essential feature of the constitution. It gives practical content to the
objectives of the constitution embodied in Part III and other parts of the
Constitution. It may be noted that the mere fact that equality which is part
of the basic structure can be excluded for a limited purpose, to protect
certain kinds of laws does not prevent it from being of the basic structure.
Rule of law is requiring the governance of the nation exclusively
through the law rather than by the community or group of human beings.
The judiciary has all the time emphasized to maintain the good balance
between all these terms.
 C H A P T ER VII

CRITICAL APPRAISAL& LEGAL ASSESSMENT OF

DOCTRINE OF SEPERATION OF POWER IN INDIA
Introduction
The legislature, the judiciary and the Executive are the three pillars of a
stable government. The aim of the doctrine of separation of power is to
bring exclusiveness in the functioning of three organs. In this principle
each organ should be able to perform its function independent of other
organs.
On the other hand, the Government cannot escape from its prime duty
i.e. rendering services for the welfare of the citizens, showing that is over
burdened with day to day functioning. The functions of modern state
unlike the police states of old are not confined to mere collection of taxes
or maintenance of laws and protection of the realm from external or
internal enemies. A modern State is certainly expected to engage in all
activities necessary for the promotion of the social and economic welfare
of the community.
Hence, virtually absolute separation of powers is not possible in any
form of Government. In view of the variety of situation, the legislature
can not fore-see or anticipate all the circumstance to which a legislative
measure should be extended and applied. Therefore, legislature is
empowered to delegate some of its functions to administrative authority.
But one thing is notable that legislature can not delegate its essential
legislative power. If the present doctrine would be adopted in its strict
sense than the judiciary would be restricted only up to the delivery of
judgments dealing with the rights of individuals by just interpreting the
laws enacted by the legislature. However judiciary would be not able to
check whether the law so enacted is constitutional, reasonable, just, fair
or not.
 CHAPTER VIII

CONCLUSION, MAJOR FINDINGS, RECOMMEDATION & SUGGESTION

COCLUSION:-
In India in the case of Indira Nehru Gandhi vs Raj Narain Justice
Chandrachud also observed that the political usefulness of the doctrine of
separation of power is now widely recognized. No constitutional can
survive without a conscious adherence to its fine check and balance. The
principle of separation of power is a principle of restrain which has in it
the percept, innate in the prudence of self preservation that discretion is
the better part of velour.
At the present scenario the researcher thinks that it is very much essential
to enforce the theory of check and balance among the three organs of the
state. The confrontation between the legislature and judiciary does not
good for the well for the democracy and it is the time which shows us
need proper checks and balance to run a good government.
No doubt in strict sense the principle of separation powers cannot be
applied in any modern Government either may be U.K. U.S.A,France,
India or Australia. But it does not mean that the principle has no
relevance new days. Government is an organic unity. It cannot be divided
into water tight compartments. If there is a complete separation of
powers, the government cannot run smoothly and effectively. Smooth
running of government is possible only by co-operation and mutual
adjustment of all the three organs of the government.
MAJOR FINDINGS:-
Though Indian Constitution provides relevant provisions for applying the
concept of separation of power in reality still the existing provisions are
not adequate to adopt the in strict sense. As the present era is of welfare
oriented government rather than just that of police nature.
As on the basis of discussion made in the chapter no V It is crystal clear
that the constitutional mandate and doctrine of separation of powers are
interconnected as both having common centric point and ultimate goal i.e.
welfare of society by preserving the supremacy law of land. But it is not
correct to say that both are inter dependent over each other.
RECOMMEDATION &SUGGESTIONS:-
All the organs should realize their constitutional, public, ethical and
moral obligation towards the nation. All three organs should enhance the
sense of maximum co-ordination and co-operation amongst each other,
while discharging their duties and exercising their powers. All the organs
should justify their each & every action, with the help of some strongly
accepted constitutional or otherwise provisions and while doing so they
must ensure the people of the nation that, their actions would not defeat
the supremacy of our constitution.
The people should also realize their responsibilities in obligations
towards the system, and being so it should support to all these three
organs while regulating the system, at all the times. The organs should
strive to respect and preserve the constitutional expressly enumerated
under supreme law of land. If possible all the organ should establish an
internal mechanism for dealing with the issues that are assumed to have
an interfere into assigned field of other organs.
ANNEXURE
Table of Cases
1. A.K. Roy v. Union of India, AIR 1982 SC 710
2. Ashok v. Union of India, AIR (1997) 5 SCC 10
3. Airs Hammed vs. State of Jammu and Kashmir, AIR 1989 SC
4. Bal Ram Bali vs. Union of India, JT 2007 (10) SC 509
5. Banshee Mufti Mocha vs. Union of India & Ors. 1992 AIR 38
6. Biharilal v. Ramcharan, (S), AIR 1962 MP 245
7. Chandra Mohan v. State of U.P., (1967-I-LLJ-412)
8. Divisional Manager, Aravali Golf vs Chander Hass & Anr. JT
2008 (3) SC 221
9. Harinagae Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala,
1961 AIR 1669
10. I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643
11. Indira Nehru Gandhi v. Raj Narain, 1975 SC 1643
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15. S.C. Chandra and Ors. vs. State of Jharkhand and Ors. JT 2007
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16. Kesavananda Bharati Sripadgalvaru v. State of Kerala, (1973) 4
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20. MC Mehta v. Union of India, AIR (1997) 3 SCC 715
21. MC Mehta v. Union of India, AIR 1998 SC 186
22. Minerva Mills Ltd. And Ors. v. Union of India, (UOI) and Ors.
(1980) 3 SCC 625
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24. Municipal Council, Ratlam v. Vardichand, AIR 1980 SC 1622
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26. P. Ramchandran Rao vs. State of Karnataka, AIR 2002 4 SCC
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27. P.V. Narsimha Rao v. State, 1998
28. Ram Krishna Dalmia v. Justice Tendolkar AIR 1958 SC 538
29. Re Delhi Laws Act (1912), AIR 1951 SC 332
30. S C Advocates on Record Association vs Union of India, 1994 AIR
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31. S.P. Gupta vs. Union of India, AIR 1982 SC 149
32, Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299
33. SR Kapoor v Union of India, AIR (1996) 6 SCC 530
34. SR Kapoor v Union of India, AIR 1990 SC 752
35. Sri Ram v. State of Bombay, AIR 1959 SC 459, 473, 474,
36. State of Rajastahan v. Union of India, (1978) 1 SCR 1
37. State of West Bengal and Ors. V The Committee for Protection of
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38. Supreme Court Employees Welfare Associatioin vs. Union of
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39. Suresh Seth vs. Commissioner, Indore Municipal Corporation &
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40 Udai Ram Sharma v. Union of India, AIR 1968 SC 1138 at
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41. Union of India vs. Deoki Nandan Agarwal AIR 1992 SC 96
42. Vishaka vs. State of Rajasthan 1 AIR 1997 SC 3011
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