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(Project Report)

Submitted to

Dr. Avinash Samal

Faculty Member in Political Science


Rupali Vinod Ramteke

B. A. LL. B. (Hons.) Student
Semester – I, Section – C, Roll No. 136

Hidayatullah National Law University

Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)


I, Rupali Ramteke, hereby declare that, the project work entitled, “Doctrine of Separation of
Powers” submitted to H.N.L.U, Raipur is record of an original work done by me under the
able guidance of Dr. Avinash Samal, Faculty Member, H.N.L.U., Raipur.


Roll No. 136



Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard
work and honesty. This research venture has been made possible due to the generous co-
operation of various persons. To list them all is not practicable, even to repay them in words
is beyond the domain of my lexicon.
May I observe the protocol to show my deep gratitude to the venerated Faculty-in-charge
Mr. Avinash Samal, for his kind gesture in allotting me such a wonderful and elucidating
research topic.






1. Introduction 5
1.1 The Doctrine of Separation of Powers: A Contextual Outline
1.1.1 Definition
1.1.2 Importance

1.2 Objectives
1.3 Scope of the study
1.4 Methodology of the study

2. Essence of Democracy 10

2.1 Meaning of Separation of powers

2.1.1 The Legislature
2.1.2 The Judiciary
2.1.3 The Executive

3. Separation of Powers 15
4. Judicial view on the Doctrine of Separation of Powers 17
5. Conclusion 18
6. References 19


"Power tends to corrupt, and absolute power corrupts absolutely."

- John Acton



1.1.1 Definition-

The separation of powers, also known as trias politica, was coined by Charles-
Louis de Secondat. The Doctrine of Separation of Power is the forerunner to
all the constitutions of the world which came into existence since the days of the
“Magna Carta”.

The doctrine of the separation of powers divides the institutions of government

into three branches: legislative, executive and judicial: the legislature makes the
laws; the executive put the laws into operation; and the judiciary interprets the
laws. The powers and functions of each are separate and carried out by separate
personnel. No single agency is able to exercise complete authority, each being
interdependent on the other. Power thus divided 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 keep the
others from exceeding their power, thus ensuring the rule of law and protecting
individual rights

1.1.2 Importance-

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 will 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

The judiciary is the scale through which one can measure the actual
development of the state if the judiciary is not independent then it is the first
step towards a tyrannical form of government i.e. power is concentrated in a
single hand and if it is so then there is a cent percent chance of misuse of power.
Hence the Doctrine of separation of power do plays a vital role in the creation
of a fair government and also fair and proper justice is dispensed by the
judiciary as there is independence of judiciary. Also the importance of the
above said doctrine can be traced back to as early as 1789 where the Constituent
Assembly of France in 1789 was of the view that “there would be nothing like a
Constitution in the country where the doctrine of separation of power is not

Also in 1787 the American constitution inserted the provision pertaining to the
Doctrine of separation of power at the time of drafting of the constitution in
1787. Further in the Indian constitution also there provisions pertaining to the
doctrine of separation of power.

The framers of the Indian Constitution did not recognize the doctrine of
separation of powers in a rigid sense. Unlike the American Constitution, this
doctrine has not been strictly applied in the Indian Constitution. It cannot be
explicitly seen but can be witnessed through the differentiation made in the
discharge of functions by the different branches of the government in the
Constitution. This doctrine is not completely alien to our Constitution. As we
retrospect, relevant classic jurisprudence like Ram Jawaya v. State of Punjab
[A.I.R. 1955 S.C. 549] clearly elucidates this principle. Chief Justice Mukherjea
in the instant case said:

“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. The executive indeed can exercise the powers of
departmental or subordinate legislation when such powers are delegated to it by
the legislature. It can also, when so empowered, exercise judicial functions in a
limited way”.

Thus, it can be inferred from the above that these organs of the government are
allowed to exercise their functions but within certain limits. These limits are
silver lined constitutionally and the same also guarantees limitable

The Constitution of India has been founded upon the fundamental principle of
Rule of law. It must be remembered that the quality of excellence of governance
is evaluated on the touchstone of efficacy and the strength of Judicial


Set in the above perspective or background, the broad objective of the study
is to:

 Analyze the scheme of Separation of Powers as envisaged under the

Indian Constitution.
 To go in depth about the Separation of Powers in India.
 To study Judicial view of separation of powers.


The present Project is an attempt to analyze the scheme of Separation of

Powers as envisaged under the Indian Constitution and the difficulties faced
by the three wings of the government in practice while implementing the
provisions of the Constitution in letter and spirit. It also aims to draw a
comparative analysis with the American Constitution scheme of Separation
of Powers. Throughout the course of the project, various foreign and Indian
cases have been discussed wherein the Courts have recognized that there is
no clear straightjacket formula to determine separation of powers. Given the
complexity of the democracies all over the world, overlap in jurisdiction is
bound to arise. However, each wing of the government must keep an
internal check to ensure they do not end up violating the rights of the
people. The Hon’ble Supreme Court of India has recognized that Separation
of Powers is a part of the basic structure of the Indian Constitution. It is in

this context, that the author felt the need to examine the ‘Constitutional Plan
and Practice with respect to Separation of Powers in India’.


Given a study of this kind, a descriptive analytical method has been followed
to carry out the study in historical method.


The theory of Doctrine of Separation of Power was first propounded by

Montesquieu in as early as in 1747 published in his book namely ‘Espirit
des Louis’ (The spirit of the laws). Montesquieu found that if the power is
concentrated in a single person’s hand or a group of people then it results in a
tyrannical form of government. To avoid this situation with a view to
checking the arbitrariness of the government he suggested that power of
governance there should be clear cut division of power between the three
organs of the state, i.e. Executive, Legislative and the Judiciary.

This made Montesquieu propound the above said theory and according to this
it was held that each organ of the state should be confined to its own spheres
i.e. there should not be any overlapping of jurisdictions of the organs of the
state. Montesquieu studied the English constitution for two years and after
that he came to the conclusion that the stability of the English Constitution is
because of its adherence of the separation of power. Montesquieu had clearly
misconstrued the statement pertaining to the British constitution and later on
he was criticized and in a very sarcastic manner its criticism was made and it
was stated that-

“Montesquieu saw the foggy England sitting in the sunny wine yard of Paris
and he completely misconstrued the statement”.

Further Montesquieu explained the doctrine in its own word they are;

“When the legislative and executive powers are united in the same
person, or in the same body or magistrates, there can be no liberty. Again,

there is no liberty if the judicial power is not separates from the legislative
and executive powers. Where it joined with the legislative power, the life and
liberty of the subject would be exposed to arbitrary control; for the Judge
would then be the legislator. Where it joined with the executive power, the
Judge might behave with violence and oppression. There would be an end of
everything was the same man or the same body to exercise these three

After the end of the War of Independence in America by 1787 the founding
fathers of the American constitution drafted the constitution of America and in
that itself they inserted the Doctrine of separation of power and by this America
became the first nation to implement the Doctrine of separation of power
throughout the world.

The Constituent Assembly of France in 1789 was of the view that “there would
be nothing like a Constitution in the country where the doctrine of separation of
power is not accepted”.

In France, where the doctrine was preached with great force by Montesquieu, it
was held by the more moderate parties in the French Revolution3. However the
Jacobins, Napoleon I and Napoleon III discarded the above theory for they
believed in the concentration of power. But it again found its place in the
French Constitution of 1871. Later Rousseau also supported the said theory
propounded by Montesquieu. England follows the parliamentary form of
government where the crown is only a titular head. The mere existence of the
cabinet system negates the doctrine of separation of power in England as the
executive represented by the cabinet remains in power at the sweet will of the
parliament. In India under the Indian constitution there is an express provision
under article 50 of the constitution which clearly states that the state should take
necessary steps to separate judiciary from the executive i.e. independence of
judiciary should be maintained.

Checks and Balances:


The doctrine of separations of powers may be traced back to an earlier theory

known as the theory of mixed government from which it has been evolved. That
theory is of great antiquity and was adurnbrated in the writings of Polybius, a
great historian who was captured by the Romans in 167 BC and kept in Rome
as a Political hostage for 17 years in his history of Rome Polybius explained the
reasons for the exceptional stability of Roman Government which enabled
Rome to establish a worldwide empire. He advanced the theory that the powers
of Rome stemmed from her mixed government. Unmixed systems of
government that is the three primary forms of government namely, Monarchy,
Aristocracy and Democracy – were considered by Polybius as inherently
unstable and liable to rapid degeneration. The Roman constitutions counteracted
that instability and tendency to degeneration by a happy mixture of principles
drawn from all the three primary forms of government. The consuls, the senate
and the popular Assemblies exemplified the monarchical, the aristocratic and
the democratic principles respectively. The powers of Government were
distributed between them in such a way that each checked and was checked by
the others so that an equipoise or equilibrium was achieved which imparted a
remarkable stability to the constitutional structure. It is from the wok of
Polybius that political theorist in the 17th Century evolved that theory of
separation of powers and the closely related theory of Checks and Balances.


The doctrine of separation of powers is an inseparable part of the evolution of

democracy. Democracy dictates a system in which every citizen can, without
fear of retribution, breathe, express himself, and pursue his or her interests. It
enables him to live a life of his choice to the extent he does not encroach upon
the rights of the other people. It is in this context that it can be presupposed that
a system of balances and counter balances exists among the three organs of the
government to ensure a strong nurtured democratic system. The Legislature, the
Judiciary and the Executive are the pillars of democracy. No democracy indeed
contemplates conferment of absolute power in any single authority.

Therefore the system of checks and balances is one of the most salient features
of our constitutional scheme. The three organs can practically not be segregated
into three watertight compartments due to their interdependence on each other
to ensure efficacious governance. They have to work in accordance and in
consonance to achieve a meaningful sustenance and purposeful progress of
citizens. Though, minimum encroachment is always desirable. As has been
observed by the Hon’ble Chief Justice Balakrishnan, “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 balances.” Thus, all the three organs are
expected to work in harmony instead of giving primacy to only one of the
organs. Bestowing absolute power is anathema to democracy. The very
objective of the historical freedom struggle was to protect and promote the
democratic rights of the people.

The conscience of our Constitution speaks through its Preamble and the
dynamics of its goal is spelt-out, in its various provisions. The will of the people
finds its best expression in the very words as inscribed in the Preamble “We the
People of India” and “do hereby Adopt, Enact and Give ourselves this
Constitution”. Thus, it is the people who are sovereign and they exercise this
sovereign power in choosing their representatives to the Parliament.


A complete and absolute separation of power is practically and theoretically not

possible. Though, it is always possible to give a broad meaning to this doctrine.
The basic concept of the separation of powers would mean:

a. That the same persons should not form part of more than one of the three
organs of government.

b. That one organ of government should not control or interfere with the work
of another.

c. That one organ of government should not exercise the functions of another.

Such a clear demarcation is always desirable to keep the democratic

system of a nation intact. If legislative and executive powers are vested in the
same person, there would be no liberty. The same follows if judiciary was
distinct from the legislature and executive. If all powers are vested in the same
body it will lead to arbitrariness. Giving legislative power to judiciary would
amount to biasness and executive power would lead to despotism and tyranny.
As of today, the Parliament exercises political and financial control over the
Executive, and there are inherent checks and balances to keep each organ within
the limits of Constitutional power. There is no relationship in this world which
is perfect and is prone to certain tensions and strains. But, the way out to this
issue is through the development of healthy conventions. There should be
mutual respect for each other keeping in mind the purpose of their exercise of
these powers. Ultimately the aim is to achieve a ‘welfare state’; therefore a
healthy coordination among the three can work wonders.

2.1.1 The Legislature-

The Legislature has been accorded high-esteem in the Indian Constitution. It is

primarily concerned with enactment of general rules of law that are germane to
all aspects of the conduct of its citizens and institutions. The Parliament is the
Union Legislature of India comprising two bodies namely Lok Sabha and the
Rajya Sabha. It enacts laws, impose taxes, authorizes borrowing, and prepares
and implements the budget, has sole power to declare war, can start
investigations, especially against the executive branch, appoints the heads of the
executive branch and sometimes appoints judges as well as it has the power to
ratify treaties. As it anchors for the will of the people by ensuring a true and
intact democracy, it can be said that it cannot be done all by the Legislature
itself. It is an imminent threat to democracy if an absolute power is given to the
nation’s purse holder.

By making the executive accountable to the popular house, the Constitution

ensures a proper mechanism of checks and balances to the doctrine of
separation of powers. The entire system has other facets which can help achieve
the same. Therefore, this brings into question the role of the other two pillars:
the judiciary and the Executive.

2.1.2 The Judiciary-

The framers of our Constitution drafted it so meticulously that it provides

for an independent and impartial Judiciary as the interpreter of the Constitution
and as custodian of the rights of the citizens through the process of judicial
review. This mandates the judiciary to interpret the laws but not to make them.
They are not to lay down the general norms of behaviour for the government.
The higher judiciary in India, especially the honourable Supreme Court, the
most powerful judiciary in the world, has become an epicentre of controversy
over its role in entertaining and deciding public-interest-petitions. In deciding
these petitions, the judiciary issues many directions to the Government which
includes framing of legislation in many areas.

The role of the judiciary should only be limited to scrutinizing the

constitutionality of the legislation and not directing the government to enact
legislation. The scope of judicial review does not extend beyond enquiring
whether an impugned legislation or an executive action falls within the
competence of the Legislature or of the executive authority or is consistent with
the Fundamental Rights guaranteed by the Constitution or with its other
mandatory provisions. The three organs have to exercise their functions
keeping in mind certain constitutionally assigned encroachments. However
according to Chief Justice Subba Rao in Golak Nath v. State of Punjab [A.I.R.
1967 S.C. 1643]:

“It [the Constitution] 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. …..No authority created
under the Constitution is supreme; the Constitution is supreme and all the
authorities function under the supreme law of the land.”

Therefore if any of the three organs tries to expand its jurisdiction it would
follow an unavoidable conflict and affect the harmonious efficacy of the
tripartite system of government. No organ has to superintend over the exercise
of powers and functions of another, unless the Constitution strictly so mandates.
Nonetheless, the interpretation by the judiciary of the laws and regulations adds
flesh and blood to the basic structure of the Constitution. The Honorable
Supreme Court has itself construed that the concept of Separation of powers is a
“basic feature” of the Constitution. So if one encroaches the territory of the

other it would be a clear violation of the basic structure of the Constitution and
judiciary is not an exception to the same.

The entire debate of limitation of each organ’s power has gone through a
drastic change in the past two decades. Justice Pathak in Bandhua Mukti
Morcha v. Union of India [1984 3 S.C.C. 161] said:

“It is a common place that while the Legislature enacts the law the Executive
implements it and the Court interpret it and, in doing so, adjudicates on the
validity of executive action and, under our Constitution, even judges the validity
of the legislation itself. And yet it is well recognized that in a certain sphere the
Legislature is possessed of judicial power, the executive possesses a measure of
both legislative and judicial functions, and the Court, in its duty of interpreting
the law, accomplishes in its perfect action in a marginal degree of legislative
exercise. Nonetheless a fine and delicate balance is envisaged under our
Constitution between these primary institutions of the State”.

It can be clearly inferred from the above that one may exercise the other one’s
function up to a limited extent but the issue that predates the Indian scenario is
whether this system is working in a well-balanced manner.

2.1.3 Executive-

The Executive can veto laws, can command of the military, makes decrees
or declarations (for example, declaring a state of emergency) and promulgate
lawful regulations and executive orders, can refuse to spend money allocated for
certain purposes, can appoints judges, and has the power to grant pardons to
convicted criminals. Like the other two pillars of democracy, the Executive is
equally expected to be free of intrusions from the other two. It is always said
that Executive is independent of the two but the incongruity persists. It is
completely eroded in actual practice. The reason is that each time the executive
is questioned for its actions by the judiciary and the Legislature. This dilutes the
independence of the Executive to the maximum. It’s not that the question of
answerability pops up only in the case of executive. The judiciary and
legislature are equally answerable but in their cases, a built-in system from
within would be available for discharging those functions. This is the real state
of affairs, which exists in practice.

Though the Indian Constitution allocates executive powers to the President and
Governors (Article 53 (1) and Article 154 (1), they are empowered with certain
legislative powers (Articles 123, 213 and 356) and certain judicial powers
(Articles 103 and 192). Similarly the legislature exercises certain judicial
functions (Articles 105 and 194) and judiciary exercises few legislative and
executive functions (Articles 145, 146, 227 and 229). However the judiciary is
made separate from the executive in the public services of the State (Article 50).
In Bihar, the scheme of the separation of the judiciary from the executive was
introduced on an experimental basis but later on it was extended throughout the
State. In some states, complete separation of judiciary from executive has been
achieved through legislation. In seven states, complete separation of judiciary
from executive has been effected through executive orders.


It is often understood that in our country the debate about the separation of
powers dates as long back as the Constitution itself. It was extensively debated
in the Constituent Assembly. It was not given constitutional status in our
Constitution finally but it does clearly seem that the constitution of India has
been made keeping the separation of powers doctrine in mind, but nowhere is
this explicitly stated or embraced by the constitution itself. Since ours is a
parliamentary system (insert def on parl sys of gov here)of governance, though
an effort has been made by the framers of the constitution to keep the organs of
the government separated from each other, but a lot of overlapping and
combination of powers has been given to each organ.

The legislative and executive wings are closely connected with each other due
to this; the executive is responsible to the legislature for its actions and derives
its powers from the legistlature. The head of the executive is the president, but a
closer look shows that he is only a nominal head and the real power rests with
the Prime Minister and his Cabinet of ministers as in Article 74(1). In certain
situations the President has the capacity to exercise judicial and legislative
functions. For example, while issuing ordinances Art? The judiciary too
performs administrative and legislative functions. The parliament too may
perform judicial functions, for example if a president is to be impeached both
houses of Parliament are to take an active participatory role. Thus all three
organs act as a check and balance to each other and work in coordination and
cooperation to make our parliamentary system of governance work. India being

an extremely large and diverse country needs a system like this where all organs
are responsible to each other as well as coordinated to each other, otherwise
making governance possible becomes a very rigid and difficult task.

It is important to note that the separation of powers is still an important guiding

principle of the constitution. Most noteworthy is our judicial system which is
completely independant from the executive and the legislature. According to
Article 137, the High Courts and Supreme Courts have the power of judicial
review which empowers them to declare any law passed by the parliament
unconstitutional if it so decides. As in regard to the judges, they are extremely
well protected by the Constituition, their conduct is not open to discussion in the
Parliament and their appointment can only be made by the President in
consultation with the Chief Justice of India and the judges of the Supreme court.

Here a discussion on judicial activism is apt, the debate about judicial activism
contemplates judges assuming legislative or executive functions and there is
much concern among the protagonists of the activism debate about judges
taking over and intruding upon the functions of the legislature and executive. A
reference to Montesquieu’s passage in his book Separation of Powers may be
made, “Again there is no liberty, if the power of judgment be not separated from
the legislative and executive powers. Were it joined with the legislative the life
and liberty of the subject would be exposed to arbitrary control; for the judge
would be then the legislator. Were it joined to the executive power, the judge
might behave with all the violence of an oppressor. Miserable indeed would be
the case, where the same man, or the same body, whether of the nobles or of the
people, to exercise those three powers, of enacting laws, that of executing the
public resolutions and that of judging the crimes or differences of individuals.”
Montesquieu’s concern raised in the passage extends to the combination of
powers exercised by all three organs, and though there is severe debate
regarding judges intruding over the functions of the legislative and the
executive, it must be kept in mind that the other two organs must also them
maintain a safe distance from the workings of the judiciary.

It can be understood thus that there is a difference when there are ‘essential’
powers of one of the organs of the government and the ‘incidental’ powers of
the organs. Hence, though one organ cannot usurp the ‘essential’ powers of an
organ, it can exercise its powers on the ‘incidental’ powers for smooth
cooperative running of the nation. This distinction clearly demarcates the the
amount of power one organ can wield over the activities of another. For
example, though the judiciary has the right to judicial activism to check
legislatures which may be unconstitutional, it cannot usurp powers such as
making laws themselves.

But it is clear that the Separation of Powers doctrine has not been implemented
in its strictest format in our country nor been given Constitutional status but a
diluted and modern approach is followed to aid and guide our parliamentary
system of governance.



As clearly mentioned about the separation of power there were times where the
judiciary has faced tough challenges in maintaining and preserving the Doctrine
of separation of power and it has in the process of preservation of the above said
Doctrine has delivered landmark judgments which clearly talks about the
independence of judiciary as well as the success of judiciary in India for the last
six decades.
The first major judgment by the judiciary in relation to Doctrine of separation of
power was in Ram Jawaya v state of Punjab [AIR 1955 SC 549]. The court in
the above case was of the opinion that the Doctrine of separation of power was
not fully accepted in India. Further the view of Mukherjea J adds weight to the
argument that the above said doctrine is not fully accepted in India. He states
“The Indian constitution has not indeed recognize the doctrine of
separation of powering its absolute rigidity but the functions of the different
parts or branches of the government have been sufficiently differentiated and
consequently it can very well be said that our constitution does not contemplate
assumption, by one organ or part of the state, of functions that essentially
belong to another”.
Later in I.C.Golak Nath v State of Punjab, Subha Rao [AIR 1967 SC 1643],
C.J opined that:
“The constitution brings into existence different constitutional entitles,
namely the union, the state and the union territories. It creates three major
instruments of power, namely the Legislature, the Executive and the Judiciary.
It demarcates their jurisdiction minutely and expects them to exercise their
respective powers without overstepping there limits. They should function with
the spheres allotted to them”

The above opinion of the court clearly states the change in the courts view
pertaining to the opinion in the case of Ram Jawaya v state of Punjab related to
the doctrine of separation of power.


Broadly speaking the doctrine of the separation of powers is a valuable doctrine.

In the American constitution there is a system of checks and balances and the
power vested in one organ cannot be exercised or encroached upon by the other.
At no point of time was the doctrine accepted in its strict sense in England. In
the British ministry there exists a union of persons but separation of organs.
Thus we find several branches of government headed by the same persons. The
doctrine of separation of powers is not accepted fully in the constitution of India
and one may agree with the observation of Mukherjee,J. in Ram Jawaya v state
of Punjab “The Indian constitution has not indeed recognize the doctrine of
separation of powering its absolute rigidity but the functions of the different
parts or branches of the government have been sufficiently differentiated and
consequently it can very well be said that our constitution does not contemplate
assumption, by one organ or part of the state, of functions that essentially
belong to another”.