Doctrine of Separation of Power

18th Century
Montesquieu- concentration of power in one person or a group of persons resulted in
tyranny. He felt that the governmental power should be vested in separate organs.
The doctrine emphasizes the mutual exclusiveness of the three organs of the government,
viz., legislature, executive and the judiciary.
Thus the same person should not form part of the more than one of the three organs of the
government. One organ of government should not exercise the function assigned to any
other organ.
Thus Theory of separation of powers envisages;
(i) personnel separation;
(ii) non-interference in the working of one organ by another; and
(iii) non-usurpation of powers of one organ by another organ.
• No separation of powers in the strict sense of term exists in England,
USA, and India, though in USA a rigid separation of powers is provided
for the Constitution.
• In India, the doctrine exists in structure , rather than function.
• Exceptions to the Doctrine
• The Judiciary- the Supreme Court has power to declare void the laws
passed by Parliament and the actions taken by executive if they violate
any provision of the Constitution(Judicial Review). Judicial legislation
or law- making by the judges(precedents) is a very common feature.
Thus here judiciary encroaches into the sphere of legislature. The High
Courts have administrative control over courts subordinate thereto.
• The Executive-
the President, the head of executive, exercises the law- making power in
the shape of ordinances. The President’s or Governor’s assent is required
for all legislations. The President also possesses the judicial powers, as he
can grant pardon etc. The delegated or executive legislation is a very
common feature today.
The Legislature-
In India, the executive is part of the legislature. The council of Ministers
(executive) is selected from the legislature and is responsible to
legislature. The legislature exercises judicial powers in cases of breach of
its privileges, impeachment of President of President and the removal of
judges.
• Judicial Precedents
• Ram Jawaya Kapoor v. State of Punjab-
• Indira Gandhi v. Raj Narain
• Asif Hameed v State of J.& K- All the three organs should function
within their own spheres under the Constitution. No organ can usurp
the functions assigned to another.
 Ram Sahib Ram Jawaya Kapur V. State of Punjab
(AIR 1955 SC 549)

• Mukherjea, C.J.- A.73/162

• Facts
• In pursuance of its policy of nationalizing text books used in schools in
State, Punjab government issued an executive order acquiring the copyright
in selected books from authors and undertaking itself printing, publishing
and sale of books. Private publishing houses thus ousted from text-book
business.

• This order was challenged on the ground that executive power of state
did not extend to undertaking trading activities without a legislative
sanction.
• “A.73- Extent of the executive power of the Union
(1) Subject to the provisions of this constitution, the executive power of
the union shall extend-
(a)- to the matters with respect to which Parliament has power to make
laws…..”
• A/162- Extent of the executive power of the State
• Subject to the provisions of this constitution, the executive power of a
State shall extend to the matters with respect to which the legislature
of the state has power to make laws……..”
• Observation and Decision-
• the court observed, “ Ordinarily, the executive power connotes the residue
of governmental functions that remain after legislative and judicial
functions are taken away.”
• Neither of these articles (A.73/162) contains ay definition as to what the
executive function is and what activities would come within its scope.
• It is no where said that in order to enable the executive to function there
must be a law already in existence and that the powers of the executive are
limited merely to the carrying out of these laws.
• Limits on the executive can be seen to the form of the executive set up
under the constitution of India, which is modelled on the British
Parliamentary system where the executive is deemed to have the primary
responsibility for the formulation of governmental policy and its
transmission into law though the condition precedent to the exercise of this
responsibility is its retaining the confidence of legislative branch of the state.
• The executive function comprises both the determination of the policy as
well as carrying it into execution. This evidently includes the initiation of
legislation, the maintenance, the promotion of social and economic
welfare, the direction of foreign policy, in fact the carrying on or
supervision of the general administration of the state.

• In Motilal v. U.P. Government (AIR 1951 SC 257) whether state

government has power under the Constitution to carry on the trade or
business of running a bus service in the absence of legislation in this
regard? The Court observed that the executive power must mean more
than merely executing the laws, and thus it includes determination of
policy…….and thus carrying on of general administration of State.
• The court observed that the executive power is not confined to
matters on which legislation had been passed. It executive formulates
a policy to start a trade or business, it is not always necessary to have
legislation sanction, unless it requires expenditure of funds (in the
present case, as provision for funds in Appropriation Act was already
made, so there was no need of a specific legislation).

• Decision-
The petitioners have no fundamental right(under A. 19(1)(g)) in the
present case which can be said to have been infringed by the action of
the government. They had no right to insist on any of their books being
accepted as text books.
 ASIF HAMEED v STATE OF J.& K
(AIR 1989 SC 1899)
FACTS-
The selection to the MBBS/BDS course for the session 1988-89 in the two
government medical colleges of J&K has been set aside by J& K. High court
on the ground that the selection was not held in accordance with the
directions of the said court given in an earlier case Jyotshana Sharma v
State of J.& K. In that case, the high court directed the state government
to entrust the selection process of two medical colleges to a statutory
independent body which was to be free from executive influence. No such
body was constituted.
• Issue
• Whether the High Court has the competence to issue directions to the
state governments to constitute ‘statutory Body’ for selection to
medical colleges and whether the selection made by any other authority
is invalid on that ground alone.
• Observation
• The courts cannot usurp the functions assigned to the executive and the
legislature under the Constitution and it cannot even indirectly require
the executive to introduce a particular legislation or the legislature to
pass it or assume to itself a supervisory role over the law – making
activities of the executive and the legislature.
• Decision-
• The decision of the J & K High Court is, thus, set aside.
 Indira Gandhi v Raj Narain
AIR 1975 SC 2299

• The SC invalidated Article 329-A (4) inserted in the Constitution by 39th

Amendment, 1975 to immunize the election dispute to the office to the Prime
Minister from any kind of judicial review.

• Ray, C.J held that since the validation of the Prime minister’s election was not
by applying any law, therefore it offends the rule of law.

• Beg, J., Jurisdiction of Supreme Court to try a case on merits cannot be taken
away without injury to the basic postulates of the Rule of Law and of justice
within a politically democratic constitutional scheme.
• When Parliament sough to obliterate a judicial decision in which
election of the Prime Minister to the Parliament had been set aside by
passing a Constitutional amendment, the Supreme Court held that it
was not a Constitutional amendment at all since a judicial decision
could not be overturned by legislative process. In this case, held that
the doctrine of separation of powers is a part of the ‘basic structure’
of the Constitution.
 Conclusion
• In administrative process we often see a combination of all the three
functions in a single agency, i.e in an administrative authority but
administrative law makes distinction in the method of exercise of such
functions. Barring the ordinance making power and other rule making powers
of the President and Governors, the executive cannot perform essential
legislative function.

• Similarly, the legislature does not perform essentially executive or judicial

functions, and the judiciary does not enact a statute. Although the executive
authorities perform judicial functions, they are called quasi-judicial and
ultimately the exercise of such function by the executive is subject to the
control of the ordinary courts.