SUBMITTED TO: SUBMITTED BY:

Ms. NANCY SHARMA GUNNEET KAUR

UILS, PU, CHD 126/10, 4th semester

0

Acknowledgement

I have taken efforts in this project. However, it would not have been possible without the kind

support and help of my teacher Ms Nancy Sharma. I would like to extend my sincere thanks to

her. And I would also like to express my special gratitude and thanks to my parents and my

friends.

Gunneet Kaur

1

Table of Cases

I.C.Golak Nath v State of Punjab, AIR 1967 SC 1643, p.10

Indira Gandhi Nehru v. Raj Narain, AIR 1975 SC 2299, p.11

I.R. Coelho vs. State of Tamil Nadu, AIR 2007 SC 8617, p.11

Kesavananda Bharati v State of Kerela, AIR 1973 SC 1461, p.11

Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549, p.10

Re Delhi Laws Act case, AIR 1951 SC 332, p.9

2

Index

TOPIC PAGE NO.

1. Introduction 4

2. Historical background 5

3. Separation Of Powers Under Indian Constitution 7

4. Separation of Powers and

Judicial Pronouncements in India  10

5. Importance of the Doctrine 13

6. Criticism 14

7. Conclusion 16

8. Bibliography 17

3

Introduction

“To become truly great, one has to stand with people, not above them.”

Charles de Montesquieu

Understanding that a government's role is to protect individual rights, but 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 one such

measure.1 There are three distinct activities in every government through which the will of the

people are expressed. These are the legislative, executive and judicial functions of the

government. Corresponding to these three activities are three organs of the government, namely

the legislature, the executive and the judiciary. The legislative organ of the state makes laws, the

executive enforces them and the judiciary applies them to the specific cases arising out of the

breach of law. 2 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. 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.3

But 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 when acting in ambit of their own power, overlapping

functions tend to appear amongst these organs.

The premise behind the Separation of Powers is that when a single person or group has a large

amount of power, they can become dangerous to citizens. The Separation of Power is a method

1 http://legalservicesindia.com/article/article/separation-of-power-in-india-usa-483-1.html2 http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html3 Basu, D.D., ‘Administrative Law’, Kamal Law House, Kolkata, Sixth Edition, 2004

4

of removing the amount of power in any group's hands, making it more difficult to abuse.

5

Historical Background

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 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 1748.4

Montesquieu’s Doctrine

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.

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.

4 http://legalservicesindia.com/article/article/separation-of-power-in-india-usa-483-1.html

6

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 Revolution.

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. 5

5 http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf

7

Separation of Powers under Indian Constitution

On a casual glance at the provisions of the Constitution of India, one may be inclined to say that

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 (Supreme Court, High Courts and Subordinate Courts).

Functional overlapping: 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 by the Legislature. The Supreme Court and High Courts are given the power of

judicial review and they can declare any law passed by the Parliament or the Legislature

unconstitutional.6

No rigid separation of powers: In Indian constitution, there is express mention that the executive

power of the Union and of a State is vested by the constitution in the President and the Governor,

respectively, by articles 53(1) and 154(1), but there is no corresponding provision vesting the

legislative and judicial powers in any particular organ. It has accordingly been held that there is

no rigid separation of powers. 

Although prima facie it appears that our constitution has based itself upon doctrine of separation

of powers. Judiciary is independent in its field and there can be no interference with its judicial

functions either by the executive or the legislature.

Constitution restricts the discussion of the conduct of any judge in the Parliament. The High

Courts and the Supreme Court has been given the power of judicial review and they can declare

any law passed by parliament as unconstitutional. The judges of the S.C. are appointed by the

6 Massey, I.P., ‘Administrative Law’, Eastern book Company, Lucknow, Sixth Edition, 2005

8

President in consultation with the CJI and judges of the S.C. The S.C. has power to make Rules

for efficient conduction of business.

It is noteworthy that Article 50 of the constitution puts an obligation over state to take steps to

separate the judiciary from the executive. But, since it is a Directive Principle of State Policy,

therefore it’s unenforceable.

In a similar fashion certain constitutional provisions also provide for Powers, Privileges

and Immunities to the MPs, Immunity from judicial scrutiny into the proceedings of the house ,

etc. Such provisions are thereby making legislature independent, in a way. The Constitution

provides for conferment of executive power on the President. His powers and functions are

enumerated in the constitution itself. The President and the Governor enjoy immunity from civil

and criminal liabilities. 

But, if studied carefully, it is clear that doctrine of separation of powers has not been

accepted in India in its strict sense. The executive is a part of the legislature. It is responsible to

the legislature for its actions and also it derives its authority from legislature.

Parliamentary executive: In India, since it is a parliamentary form of government,

therefore it is based upon intimate contact and close co-ordination among the legislative and

executive wings. However, the executive power vests in the President but, in reality he is only a

formal head and that, the Real head is the Prime minister along with his Council of Ministers.

The reading of Article 74(1) makes it clear that the executive head has to act in accordance with

the aid and advice given by the cabinet.

Generally the legislature is the repository of the legislative power but, under some

specified circumstances President is also empowered to exercise legislative functions.

Like while issuing an ordinance, framing rules and regulations relating to Public service matters,

formulating law while proclamation of emergency is in force. These were some instances of the

executive head becoming the repository of legislative functioning. President performs judicial

functions also under article 103 (1) and article 217(3). 

On the other side, in certain matters Parliament exercises judicial functions too. It can decide the

question of breach of its privilege, and in case of impeaching the President; both the houses take

active participation and decide the charges

9

Judiciary, in India, too can be seen exercising administrative functions when it supervises

all the subordinate courts below. It has legislative power also which is reflected in formulation of

rules regulating their own procedure for the conduct and disposal of cases

So, it’s quite evident from the constitutional provisions themselves that India, being a

parliamentary democracy, does not follow an absolute separation and is, rather based upon

fusion of powers, where a close co-ordination amongst the principal organs is unavoidable and

the constitutional scheme itself mentions it.

The doctrine has, thus, not been awarded a Constitutional status. Thus, every organ of

the government is required to perform all the three types of functions. Also, each organ is, in

some form or the other, dependant on the other organ which checks and balances it. The reason

for the interdependence can be accorded to the parliamentary form of governance followed in our

country. But, this doesn’t mean that this doctrine is not followed in India at all.

Except where the constitution has vested power in a body, the principle that one organ should not

perform functions which essentially belong to others is followed. This observation was made by

the Supreme Court in the re Delhi Laws Act case7, wherein, it was held by a majority of 5:2,

that, the theory of separation of powers is not part and parcel of our Constitution. But, it was also

held that except for exceptional circumstances like in Article 123 and 357, it is evident that

constitution intends that the powers of legislation shall be exercised exclusively by the

Legislature. As Kania, C.J., observed-Although in the constitution of India there is no express

separation of powers, it is clear that a legislature is created by the constitution and detailed

provisions are made for making that legislature pass laws. In essence they imported the modern

doctrine of separation of powers. 8

7 · AIR 1951 SC 3328 http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html

10

Separation of Powers and

Judicial Pronouncements in India

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.

In India, we follow a separation of functions and not of powers. And hence, we don’t abide by

the principle in its rigidity. An example of it can be seen in the exercise of functions by the

Cabinet ministers, who exercise both legislative and executive functions. Article 74(1) wins them

an upper hand over the executive by making their aid and advice mandatory for the formal head.

The executive, thus, is derived from the legislature and is dependent on it, for its legitimacy. This

was the observation made by the Hon’ble S.C. in Ram Jawaya Kapoor v. State of Punjab9.

Later in I.C.Golak Nath v State of Punjab10 Subha Rao, 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.

9 AIR 1955 SC 54910 AIR 1967 SC 1643

11

On the question that where the amending power of the Parliament does lies and whether Article

368 confers an unlimited amending power on Parliament, the S.C. in Kesavananda Bharati v

State of Kerela11 held that amending power was now subject to the basic features of the

constitution. And hence, any amendment tampering these essential features will be struck down

as unconstitutional. Beg, J. added that separation of powers is a part of the basic structure of the

constitution. None of the three separate organs of the republic can take over the functions

assigned to the other. This scheme cannot be changed even by resorting to Article 368 of the

constitution. There are attempts made to dilute the principle, to the level of usurpation of judicial

power by the legislature.

Then in Indira Gandhi Nehru v. Raj Narain12, where the dispute regarding P.M.

election was pending before the Supreme Court, opined that adjudication of a specific dispute is

a judicial function which parliament, even under constitutional amending power, cannot exercise

i.e. the parliament does not have the jurisdiction to perform a function which the other organ is

responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions of

the three organs of the state. So, the main ground on which the amendment was held ultravires

was that when the constituent 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. 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 it the precept, innate in the prudence of self preservation, that discretion is the better part of

valor. The place of this doctrine in Indian context was made a bit clearer after this judgment.

Also in I.R. Coelho vs. State of Tamil Nadu,13 S.C. took the opinion opined by the

Supreme court in Kesavananda Bharati case pertaining to the doctrine of basic structure and held

that the Ninth Schedule is violative of the above said doctrine and hence from now on the Ninth

Schedule will be amenable to judicial review which also forms part of the basic structure theory.

11 AIR 1973 SC 146112 AIR 1975 SC 229913 AIR 2007 SC 8617

12

Though in India strict separation of powers is not followed but, the principle of ‘checks and

balances’, a part of this doctrine is. Therefore, none of the three organs can usurps the essential

functions 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 court will strike it

down as unconstitutional.

13

Importance of the Doctrine

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 willed 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.

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 accepted”. 14

14 http://www.airwebworld.com/articles/index.php?article=1512

14

Criticism

The legislature, the Judiciary and the Executive are the three pillars of a stable government. The

aim of the doctrine of the Separation of Powers is to “bring exclusiveness in the functioning of

the three organs. In principle each organ should be able to perform its function independent of

the other organs and no organ should perform functions that belong to the other. Chaos would

prevail if the same man or the same body were to exercise the three powers. “The accumulation

of all powers, legislative, executive and judicial 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.”

Adherence to it not possible in welfare state: As we know the legislature can only legislate and

the executive can only punish anyone who commits a breach of privilege; neither of these two

can assume the powers of the other. So this theory cannot be accepted in its entirety because

separation of powers can only be relative and not absolute. According to Justice Frankfurter

“Enforcement of a rigid conception of separation of powers would make modern government

impossible.” 15

Division of function: The assumption behind the doctrine of separation of powers is that the

three functions of the government are divisible from each other. The fact however is that it is not

so in reality. There is overlapping with each other.

Organic separation: The theory is criticized on the ground that the government is an organic

unity and absolute demarcation of powers is impossible. It is neither practicable nor desirable to

divide it into three water-tight compartments. The distinction must be drawn between essential

and incidental powers and that one organ of government cannot usurp upon the essential

functions belonging to another organ

Practical difficulties in its acceptance: in practice it has not been found possible to concentrate

power of one kind in one organ only. The legislature does not act merely as law making body,

but also act as an overseer of the executive, the administrative organ has legislative function. The

judiciary has not only judicial functions but also has some rule making powers.16

15 http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf16 Upadhya, JJR, ‘Administrative Law’, Central Law Agency, 7th ed, 2006

15

Thus separation of powers is not only practically impossible but theoretically absurd too.

Although Montesquieu’s doctrine aims to secure the liberty and freedom of the individual yet it

is impossible to achieve the same through the mechanical division of functions and powers. Rule

of Law accompanied by eternal vigilance are the mainstay of freedom and liberty.

Some have argued that while functions may be demarcated powers should always remain

supreme. But it is impossible to perform functions without the necessary powers. At one point of

time this theory held great value against the despotism of a king and later of a parliament. Such

despotism does not exist today. The modern day governments require protection against the

domination of parliament and of civil servants. The separation of powers is too mechanical in

nature to be of any avail against these types of domination.

What is required is not separation of powers but ‘co-ordination’ or ‘articulation’ of powers.

Although this doctrine of separation of powers ensures a certain degree of efficiency it can even

give rise to jealousy, suspicion and internal friction. In the words of Finer, “the theory of

separation of powers throws government into alternative conditions of coma and convulsion.”

16

Conclusion

“Power corrupts and absolute Power tends to corrupt absolutely”

-Lord Acton 

Conferment of power in a single body leads to absolutism. But, even after distinguishing the

functions, when an authority wields public power, then providing absolute and sole discretion to

the body in the matters regarding its sphere of influence may also cause abuse of such power.

Therefore, the doctrine of separation of powers is a theoretical concept and is impracticable to

follow it absolutely

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. So the framers of the Indian

constitution did not incorporate a strict doctrine of separation of powers but envisaged a system

of ‘checks and balances,.

17

BibliographyBOOKS:

Basu, D.D., ‘Administrative Law’, Kamal Law House, Kolkata, Sixth Edition, 2004

Massey, I.P., ‘Administrative Law’, Eastern book Company, Lucknow, Sixth Edition, 2005

Upadhya, JJR, ‘Administrative Law’, Central Law Agency, 7th ed, 2006

WEBSITES:

http://legalservicesindia.com/article/article/separation-of-power-in-india-usa-483-1.html

http://www.airwebworld.com/articles/index.php?article=1512

http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf

18