Abstract

The present research project is an attempt to analyse 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. The author also draws 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 also recognized that
Separation of Powers is a part of the basic structure of the Indian Constitution.

Introduction

The edifice of any democratic government rests on three pillars – the executive, the
legislature and the judiciary. These three pillars constitute the three organs of the government
machinery. The powers and functions of these organs are defined in the constitution of India
(Constitution) that constitutes the supreme law of a democratic government. Under the
Constitution, the primary function of the legislature is to make law, that of the executive is to
execute law and that of the judiciary is to enforce the law. In the enforcement of law, the
constitution assigns three roles to the highest judiciary. Firstly, as an interpreter of the
constitution to solve any ambiguity in the language of any provision of the constitution.
Secondly, as the protector of fundamental rights which are guaranteed by the constitution to
its people. And thirdly, to resolve the disputes which have come by way of appeals from the
lower judiciary.

Under a federal constitution the judiciary also decides the disputes arising between the
federal authorities and the state authorities. In playing its assigned roles, the judiciary reviews
the actions of the other two organs – the legislature and the executive, as to whether they
have exceeded the limits set by the constitution or whether they have encroached the rights of
the people through arbitrary laws and arbitrary actions. This is where judicial activism comes
into play.

1
The judiciary is the protector of the constitution and, as such, it may have to strike down
executive, administrative and legislative acts of the centre and the states. For Rule of law to
prevail, judicial independence is of prime necessity. The independence of the judiciary is
normally assures through the Constitution but it may also be assured through legislations,
conventions and other suitable norms and practices.

This research paper deals with the doctrine of Separation of Power. It provides a basic
understanding about meaning of the separation of power and also its importance. This paper
extensively deals with the historical development of the doctrine of separation of power. This
paper further provides a comparative analysis of the applicability of the doctrine of separation
of power in USA, UK and India. It also provides a detailed analysis of the applicability and
relevance of doctrine of separation of power in Indian context by analysing the constitutional
provisions and various judicial pronouncement decided by the apex court of India related to
the doctrine of separation of powers. Further it entails the status of Indian judiciary and
various aspects of judicial activism. Then it deals with the applicability of doctrine of
separation of powers under the Indian federal structure which includes the distribution of
legislative powers and also provide for various extraordinary instances in which the
parliament can encroach within the limits of legislature of state in the law making power as
prescribed by Indian Constitution. It describes the centralised tendency of the Indian
Constitution. Further, it deals with the distribution of executive powers between the central
executive and state executive but state executive power is subjected to the executive power of
the centre in certain circumstances. Then, it provides for the mutual delegation of functions
between the central and state executives. It concludes with the idea of cooperative federalism
as a solution for smooth functioning of the Indian democracy.

Aim(s)

The aim of this research work is to analyse the applicability of the doctrine of Separation of
Powers in India with the help of legal provisions and judicial pronouncement decided by the
Apex Court of India.

Objective (s)

The objectives which is tried to achieve are:-

a. To understand the meaning and importance of the doctrine of separation of power.

2
 b. To find out the relevance of the Montesquieu’s theory of separation of power in
contemporary times.
c. To compare the applicability of the doctrine of separation of power in USA, UK
India.
d. To understand the applicability of the doctrine of separation of power in India with
the help of relevant case laws.

Scope and Limitations

The scope of this research work is mainly limited to the applicability of doctrine of separation
of power in USA, UK and India. However, the main focus is given to the provisions laid
down in Constitution of these countries and some of relevant landmark judicial decisions.

Review of Literature

D. D. Basu, INTRODUCTION TO THE CONSTITUTION OF INDIA, 14th edition.

2009, Lexis Nexis.

This classic work provides an interesting and lucid study of the fundamental principles of
Constitution in a logical sequence. The topic-wise treatment of the subject along with
references to academic writings and the judicial decisions makes the study of constitutional
law meaningful and comprehensible. The author has incorporated all recent developments in
the field of constitutional law since the publication of the last edition in 2005. Latest case law
has been incorporated, several amendments made in the Code and the important decisions of
the Supreme Court and the High Courts have all been considered and discussed at the
appropriate places in the book. The author has also drawn attention to some ticklish aspects
of the Constitution with a view to generating new thinking in the light of new developments
so that the constitutional law may grow in tune with the times. This book provide substantial
amount of literature on the relevant constitutional provisions (Arts. 50, 53, 121, 122 & 361
etc.) about the doctrine of separation of power in India.

H.M. Seervai, CONSTITUTIONAL LAW OF INDIA, 4th edition. 2006, Universal Law
Publishing

Constitutional law of India by H M Seervai is a marvellous classic work in the fields of

criminal law of outstanding merit. Unlike the traditional treatise in Constitutional law, the
unique feature of the book is that it explores the untouched arena of constitution law in

3
respect of the various constitutional provisions which ensures the separation of power in
India. The latest innovations through judicial and administrative techniques of creativity have
been well projected in the book wherein the judiciary has played an innovative and pivotal
role in evolving new concept of constitutional law. It also contains a detailed material relating
to various constitutional provisions relating to separation of power under Constitution of
India.

M P Jain, INDIAN CONSTITUTIONAL LAW, 7th edition. 2014, Lexis Nexis

M P Jain, Indian Constitutional Law is an authoritative, evergreen classic on Indian

Constitutional law. This book, presently in its seventh edition is a thematic presentation of the
complex and multi-dimensional subject of the Constitutional law in a lucid, comprehensive
and systematic manner. This book contains in-depth insights that will benefit students,
research scholars, lawyers, judges and policy makers and interested citizens who look for the
latest in constitutional jurisprudence. This book provides a clear cut understanding about the
relevant constitutional provisions and also judicial interpretations related to the applicability
of the doctrine of separation of power in India.

Research Questions

1. How far the doctrine of separation of powers is applicable within the arena of
constitutional governance in India?
2. To what extent the role of independent judiciary can be attributed in ensuring and
maintaining the separation of power in India?
3. Critically analyse the relevance of the theory of separation of power as developed by
Montesquieu in contemporary times?
4. Discuss the changing trends of separation of powers from strict to functional
separation of power in different democracy of the world?

Research Methodology

In this project, the researcher has adopted Doctrinal type of research. Doctrinal research is
essentially a library based study, which means that the materials needed by a researcher may
be available in libraries, archives and other data bases. Various types of books were used to
get adequate data essential for this project. The researcher also used computer laboratory to

4
get important data related to this topic. Several websites found to be very useful to better
understand this topic.

CHAPTER-2

Introduction to Separation of Power

“Power corrupts and absolute Power tends to corrupt absolutely”.

The prime role of the government is to protect the individual rights, but governments have
historically been the major violators of these rights. Thus, a number of measures have been
derived to reduce this likelihood. The concept of Separation of Power is one such concept.
The basic assumption behind this 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 way of removing
the amount of power in any group’s hands, making it more difficult to abuse.

The doctrine of separation of power claims that state power is not a single entity but rather a
composite of different governmental functions (i.e. legislative, executive, and judicial)
carried out by state bodies independently of each other. The legislature enacts laws; the
executive enforces laws; and the judiciary interprets laws. The idea of separation of functions
stems from the logical conclusion that if the law-makers should also be the administrators and
dispensers of law and justice, then the people at large will be left without a remedy in case
any injustice is done as there will be no superior authority.

The value of this doctrine lies in that it attempts to preserve liberty by avoiding the
concentration of powers in any one person or body of persons. As stated by Madison-

“The accumulation of all powers, legislature, 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.”
And for the prevention of this tyranny, the doctrine of separation of power holds its greatest
importance.
2.1 Meaning of Separation of Power
The doctrine of separation of powers provides the idea that the governmental functions must
be based on a tripartite division of legislature, executive and judiciary. The three organs
should be separate, distinct and sovereign in its own sphere so that one does not trespass the

5
territory of the other. It is generally accepted that there are three main categories of
governmental functions – (i) the legislative, (ii) the Executive, and (iii) the Judicial. At the
same time, there are three main organs of the Government in State i.e. legislature, executive
and 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
exercised by separate organs of the Government. Thus, the legislature cannot exercise
executive or judicial power; the executive can’t exercise legislative or judicial power of the
Government.1

As the concept of ‘Separation of Powers’ explained by Wade and Philips,2 it means three
different things:-

i. That the same persons should not form part of more than one of the three organs
of Government, e.g. the Ministers should not sit in Parliament;
ii. That one organ of the Government should not control or interfere with the
exercise of its function by another organ, e.g. the Judiciary should be independent
of the Executive or that Ministers should not be responsible to Parliament; and
iii. That one organ of the Government should not exercise the functions of another,
e.g. the Ministers should not have legislative powers.

2.2 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 strictly accepted by a large number of countries in the world. The
main object, as per Montesquieu - 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 this 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

1
C.K.Takwani, LECTURES ON ADMINISTRATIVE LAW, 4th ed. 2008, pp.31.

6
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”.

CHAPTER-3

Origin of Separation of Power

The theory of separation of powers may be traced back in the writings of classical and
medieval thinkers such as Aristotle (384-322 BC). For example, Aristotle proclaimed that:

“There are three elements in each constitution in respect of which every serious
lawgiver must look for what is advantageous to it; if these are well arranged, the
constitution is bound to be well arranged, and the difference in constitutions are
bound to correspond to the differences between each of these elements. The three are,
first, the deliberative, which discusses everything of common importance; second, the
officials; and third, the judicial element”3.

Further, Aristotle believed that any single form of government was unstable leading to a
permanent cycle of disasters. In the same vein, Cicero preferred powers to be vested in the
people and authority in the state. Apart from Aristotle and Cicero, other thinkers who rebelled
against concentrating powers in one absolute leader were John Locke and Jean Bodin. For
instance, Locke stressed that the executive and legislative powers should be separated for
sake of liberty. As liberty is likely to suffer when the same human being makes the law and
execute them.

Such thinking during the Age of Enlightenment in Europe were refined and reformulated as a
doctrine in the mid-18th Century by the famous French philosophers, Baron de Montesquieu
in his book, “De l’Esprit des Lois” (i.e. the Spirit of Laws), 1748.

3.1 Montesquieu’s Theory of Separation of Power

The traditional views are presented by Montesquieu who vigorously advocated for a “strict
or pure or total or complete or absolute” separation of powers and personnel between three
organs of the state i.e. the Executive, Legislature and Judiciary. Power being diffused

3
Robinson, THE DIVISION OF GOVERNMENTAL POWER IN ANCIENT GREECE, 18 Pol.Sci.Q.614
(1903).

7
between three separate bodies exercising separate functions with no overlaps in function or
personnel. Montesquieu’s Strict Doctrine (Tripartite System)

In every government there are three sorts of power i.e. legislature, executive and judiciary.
The executive, makes peace or war, send or receives embassies, establishes the public
security and provides against invasions. The legislature, prince and magistrate enact
temporary or perpetual laws and amend or abrogate those that have been already enacted. The
judiciary, punishes criminals, or determines the disputes that arise between individuals.

Montesquieu warned his countrymen about the danger of vesting all state powers in one
person or body of people as follows:

“When the legislative and executive powers are united in the same person, or in same
body of magistrates, there can be no liberty…..again, there is no liberty if the power
of judging is not separated from the legislative and executive. If it were joined with
the legislative, the life and the liberty of the subject would be exposed to arbitrary
control; for the judge would then be the legislator. If it were joined to the executive
power, the judge might behave with violence and oppression. There would be an end
to everything, if the same man, or the same body, whether of the nobles or the people,
were to exercise those three powers that of enacting laws, that of executing public
affairs, and that of trying crimes or individual causes”4.

He argued, if separate powers of government are placed in different hands, no individual or

group of people can monopolize political powers (i.e. differentiation of functions). Thus, he
was against absolute power residing in one person or body exercising executive, legislature
and judicial powers. Montesquieu based this model on the Constitution of Roman Republic
and the British constitutional system.
Through his doctrine Montesquieu tried to explain that the union of the executive and the
legislative power would lead to the despotism of the executive for it could get whatever laws
it wanted to have, whenever it wanted them. Similarly the union of the legislative power and
the judiciary would provide no defence for the individual against the state. The 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.

4
Montesquieu, The Spirit of Laws (Nugent), pp.152.

8
The Doctrine of Separation of powers includes the following distinct but overlapping
aspects:5

1) Institutional separation of powers: (a tripartite separation of powers) – the need to

have three major institutions or organs in a state i.e. Legislature, Executive and
Judiciary.
2) Functional separation of powers: state functions must be vested and exercised by
three separate institutions or organs i.e. law making, enforcement and interpretation.
3) Separation of personnel: (each organ with own personnel) – no person should be a
member of more than one organ.
4) Limitation of appointing powers: state organs should not appoint or elect members
for each other.

3.2 Modern (Contemporary) Approach

The doctrine of separation of powers has become an integral part of the governmental
structure. But, the practical application of the doctrine differs to a great extent. In theory, the
doctrine of separation of powers is supposed to have a threefold classification of functions
and corresponding organs. But because of the diverse and complex nature of a modern state,
where the process of a law making, administration and adjudication can’t be clearly
demarcated or assigned to separate institutions, the application of this doctrine in strict sense
is very difficult.

This approach somehow departs or otherwise tries to refine Montesquieu’s strict doctrine of
separation of powers. Essentially, this approach point out practical difficulties in the
application of Montesquieu’s strict doctrine and thus advocates for a ‘mixed government’ or
‘weak separation of powers’ with ‘checks and balances’ to prevent abuses. Therefore, this
concept insists that the primary functions of the state should be allocated clearly and that
there should be checks to ensure that no institution encroaches significantly upon the function
of the other.

Criticism of Montesquieu’s strict doctrine of Separation of Power

5
UPD Kesari, ADMINISTRATIVE LAW, 19th ed. 2012, pp. 19-25.

9
  A complete separation of the three organs may lead to constitutional deadlock
(disunity of powers). Thus, a complete separation of powers is neither possible nor
desirable.
 Partial separation of powers is required to achieve a mixed and balanced
constitutional structure.
 It would be impractical to expect each branch of government to raise its own finances.
 The theory is based on the assumption that all the three organs of the government are
equally important, but in reality it is not so. In most cases, the executive is more
powerful of the three branches of the government.

CHAPTER-4

Separation of Power in USA and UK

4.1 USA

The doctrine of Separation of Powers forms the foundation on which the whole structure of
the Constitution is based. It has been accepted and strictly adopted in USA. Article I; Section
1 vests all legislative powers in the Congress. Article II; Section 1 vest all executive powers
the President and Article III; Section 1 vests all judicial powers in the Supreme Court.

Jefferson quoted, “The concentration of legislative, executive and judicial powers in the same
hands in precisely the definition of despotic Government”.

On the basis of this theory, the Supreme Courts was not given power to decide political
questions so that there was not interference in the exercise of power of the executive branch
of government. Also overriding power of judicial review is not given to the Supreme Court.
The President interferes with the exercise of powers by the Congress through his veto power.
He also exercises the law-making power in exercise of his treaty-making power. He also
interferes in the functioning of the Supreme Court by appointing judges.

The judiciary interferes with the powers of the Congress and the President through the
exercise of its power of judicial review. It can be said that the Supreme Court has made more
amendments to the American Constitution than the Congress. To prevent one branch from
becoming supreme, protect the "opulent minority" from the majority, and to induce the
branches to cooperate, governance 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

10
and balances", the origin 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.

1. Legislative Power

Congress has the sole power to legislate for the United States. Under the non-delegation
doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. In
this context, the Supreme Court held in the 1998 case Clinton v. City of New York6, that
Congress could not delegate a "line-item veto" to the President, by which he was empowered
to selectively nullify certain provisions of a bill before signing it. The Constitution Article I,
Section 8, give all law making power to Congress. Congress has the exclusive power to
legislate, to make laws and in addition to the enumerated powers it has all other powers
vested in the government by the Constitution. Where Congress does not make great and
sweeping delegations of its authority, the Supreme Court has been less stringent. One of the
earliest cases involving the exact limits of non-delegation was Wayman v. Southard7, (1825).
It was held that Congress had delegated to the courts the power to prescribe judicial
procedure; it was contended that Congress had thereby unconstitutionally clothed the
judiciary with legislative powers.

2. Executive Power

Executive power is vested, with exceptions and qualifications, in the president by Article II,
Section 1, of the Constitution. By law the president becomes the Commander in Chief of the
Army and Navy, Militia of several states when called into service, has power to make treaties
and appointments to office -- "...with the Advice and Consent of the Senate"-- receive
Ambassadors and Public Ministers, and "...take care that the laws be faithfully executed"
(Section 3). By using these words, the Constitution does not require the president to
personally enforce the law; rather, officers subordinate to the president may perform such
duties. The Constitution empowers the president to ensure the faithful execution of the laws
made by Congress. Congress may itself terminate such appointments, by impeachment, and
restrict the president. The president's responsibility is to execute whatever instructions he is
given by the Congress. Congress often writes legislation to restrain executive officials to the

6
524 U.S. 417 (1998).
7
23 U.S. 1 (1825).

11
performance of their duties, as authorized by the laws Congress passes. In INS v. Chadha8,
(1983), the Supreme Court decided (a) The prescription for legislative action in Article I,
Section 1, requires all legislative powers to be vested in a Congress consisting of a Senate
and a House of Representatives and Section 7 requires every bill passed by the House and
Senate, before becoming law, to be presented to the president, and, if he disapproves, to be
repassed by two-thirds of the Senate and House. It represents the Framers' decision that the
legislative power of the Federal Government be exercised in accord with a single, finely
wrought and exhaustively considered procedure. This procedure is an integral part of the
constitutional design for the separation of powers. Further rulings clarified the case that even
both Houses acting together cannot override Executive veto‘s without a 2/3 majority.
Legislation may always prescribe regulations governing executive officers.

3. Judicial Power

Judicial power, i.e. the power to decide cases and controversies, is vested in the Supreme
Court and inferior courts established by Congress. The judges must be appointed by the
president with the advice and consent of the Senate, hold office for life and receive
compensations that may not be diminished during their continuance in office. If a court's
judges do not have such attributes, the court may not exercise the judicial power of the
United States. Courts exercising the judicial power are called "constitutional courts."
Congress may establish "legislative courts," which do not take the form of judicial agencies
or commissions, whose members do not have the same security of tenure or compensation as
the constitutional court judges. Legislative courts may not exercise the judicial power of the
United States.

In Murray's Lessee v. Hoboken Land & Improvement Co.9(1856), the Supreme Court held
that a legislative court may not decide "a suit at the common law, or in equity, or admiralty,"
as such a suit is inherently judicial. Legislative courts may only adjudicate "public rights”.
Even though of above all, Separation of Powers is not accepted in America in its strict sense,
only it has attracted the makers of most modern Constitution, especially during 19th Century.

Marbury v. Madison

8
462 U.S. 919 (1983).
9
59 U.S. 272 (1856).

12
Marbury v. Madison10, is a landmark case in United States law. It formed the basis for the
exercise of judicial review in the United States under Article III of the Constitution.

Fact& Held -This case resulted from a petition to the Supreme Court by William Marbury,
who had been appointed by President John Adams as Justice of the Peace in the District of
Columbia but whose commission was not subsequently delivered. Marbury petitioned the
Supreme Court to force Secretary of State James Madison to deliver the documents, but the
court, with John Marshall as Chief Justice, denied Marbury's petition, holding that the part of
the statute upon which he based his claim, the Judiciary Act of 1789, was unconstitutional.

Significance -Marbury v. Madison was the first time the Supreme Court declared something
"unconstitutional", and established the concept of judicial review in the U.S. (the idea that
courts may oversee and nullify the actions of another branch of government). The landmark
decision helped define the "checks and balances" of the American form of government.

Separation of powers has again become a current issue of some controversy concerning
debates about judicial independence and political efforts to increase the accountability of
judges for the quality of their work, avoiding conflicts of interest, and charges that some
judges allegedly disregard procedural rules, statutes, and higher court precedents.

It is said on one side of this debate that separation of powers means that powers are shared
among different branches; no one branch may act unilaterally on issues, but must obtain some
form of agreement across branches. That is, it is argued that "checks and balances" apply to
the Judicial branch as well as to the other branches.

On the other side of this debate that separation of powers means that the Judiciary is
independent and untouchable within the Judiciaries' sphere. In this view, separation of
powers means that the Judiciary alone holds all powers relative to the Judicial function, and
that the Legislative and Executive branches may not interfere in any aspect of the judicial
branch.

4.2 U.K.
Before we go to India, it‘s important to know the constitutional setup of the country to which
India was a colony and ultimately owes the existence of the form of government it has. U.K.
follows a Parliamentary form of government where the Crown is the nominal head and the

10
5 U.S. (1 Cranch) 137 (1803).

13
real legislative functions are performed by the Parliament. The existence of a cabinet system
refutes the doctrine of separation of powers completely. It is the Cabinet which is the real
head of the executive, instead of the Crown. It initiates legislations, controls the legislature, it
even holds the power to dissolve the assembly. The resting of two powers in a single body,
therefore denies the fact that there is any kind of separation of powers in England.

CHAPTER-5

Separation of Power & Indian Constitution

5.1 A Brief Overview

Indian state represents a contemporary approach in constitutionalising the doctrine of

separation of powers. Essentially, there is no strict separation of powers under constitution,
both in principle and practice.11

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 forces them
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 when acting in ambit of their own power, overlapping functions
tend to appear amongst these organs. The question which is important here is that what
should be the relation among these three organs of the state, i.e. whether there should be
complete separation of powers or there should be co-ordination among them.

In the words of Dr.Durga Das Basu,

“So far as the courts are concerned, the application of the doctrine (the theory of
separation of powers) may involve two propositions, namely:

a) That none of the three organs of Government, Legislative, Executive and Judicial,
can exercise any power which properly belongs to either of the other two;
b) That the legislature cannot delegate its powers”.

11
UpendraBaxi, DEVELOPMENT ININDIAN ADMINISTRATIVE LAW IN PUBLIC LAW IN INDIA, 4 th ed.
1982, pp. 136.

14
What is significant is the word “properly’ and therefore conceives of a broad division of
powers where the core function is one which is exclusively conferred on that particular organ
of the State, though there may be some overlap in regard to the fringe areas of the topics so
entrusted. The pronouncement on this aspect of law by the courts is that under the Indian
Constitution there is broad separation of powers.

5.2 Constituent Assembly Debates

The Constitutional history of India reveals that the framers of the Indian Constitution had no
sympathy with the doctrine. This is evident from its express rejection in spite of attempts
being made. Professor K. T. Shah wanted to move an amendment that suggested the insertion
of a new Article in the Constitutional to effect the incorporation of the doctrine. This new
article, that is, Art.40 (A) provided that “There shall be a complete separation of powers as
between the principal organs of the State viz. the legislature, the executive and the
judiciary”12. It even sheds no light to the application of the doctrine during the British
Regime. The Constituent Assembly, while in the process of drafting the Constitution, had
dwelt at length for incorporating the doctrine and ultimately rejected the idea in toto.

Dr. B.R. Ambedkar substantiates that Indian Constitution does not make any absolute or rigid
separation of powers of the three organs owing to its pro-responsibility approach rather than
having stability at the centre stage. This has, however been further supplemented and
reiterated by the Indian Supreme Court in Ram JawayaKapur v. State of Punjab, the Court
held that13:

“The Indian Constitution has indeed not recognized the doctrine of separation of
powers in its absolute rigidity, but the functions of 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”.

A more refined and clarified view taken in Ram Jawaya’s case can be found in Kartar Singh
v. State of Punjab, where Court stated14:

12
Constituent Assembly Debates, Vol.7, pp.958.
13
AIR 1955 SC 549.
14
AIR 1967 SC 1643: (1967) 2 SCR 762.

15
 “It is the basic postulate under the Indian Constitution that the legal sovereign power
has been distributed between the legislature to make the law, the executive to
implement the law and the judiciary to interpret the law within the limits set down by
the Constitution”.

5.3 Constitutional Position

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 the Government.

By looking into the various provisions of the Constitution, it is evident that the Constitution
intends that the powers of legislation shall be exercised exclusively by the legislatures.
Similarly, 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. Also, 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. Separation of Judiciary from the Executive. –The State shall take steps to
separate the judiciary from the executive in the public services of the state.

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. Courts not to inquire into proceedings of Parliament. – (1)the validity of
any proceedings in parliament shall not be called in question on the grounds of any
alleged irregularities of procedure.

Article 122 and 212 provides validity of proceedings in Parliament and the Legislatures can’t
be called into question in any Court. This ensures the separation and immunity of the
legislatures from the judicial intervention on the allegation of procedural irregularities.

16
 3. Article 121. Restriction on discussion in Parliament. –No discussion shall take place
in Parliament with respect to the conduct of any judge of the Supreme Court or of a
High Court in the discharge of his duties except upon a motion for presenting an
address to the President praying for the removal of the judge as hereinafter provided.

Judicial conduct of a judge of the Supreme Court and the High Court’s cannot be discussed in
the Parliament and the State Legislatures, according to Art. 121 and 211 of the Constitution.

4. Article 53. Executive Power of the Union. –(1) The Executive power of the Union
shall be vested in the President and shall be exercised by him either directly or
through officers subordinates to him in accordance with this Constitution.

Articles 53 and 154 respectively, provide that the executive power of the Union and the State
shall be vested with the President and the Governor of the State respectively.

5. Article 361 (1) - provides that the President or the Governor shall not be answerable
to any court for the exercise and performance of the powers and duties of his office15.
Further, Article 361 (2), (3) & (4)- provides that the President or the Governor enjoy
the immunity from Criminal and Civil liabilities during his term of office.
5.4 Functional Overlap
Executive in India, like any other Westminster system, is a subset of legislature and virtually
there is a fusion between them, thus generally no friction arises between them.16 Apart from
executive head, the President is also empowered to promulgate ordinances in exercise of his
extensive legislative powers which extend to all matters that are within the legislative
competence of the Parliament.17Such a power is co-extensive with the legislative power of
the Parliament. Apart from ordinance making, he is also vested with powers to frame rules
and regulations relating to the service matters. In the absence of Parliamentary enactments,
these rules and regulations hold the field and regulate the entire course of public service
under the Union and the States18. Promulgation of emergency in emergent situations is yet
another sphere of legislative power which the President is closed with. While exercising the
power after the promulgation of emergency, he can make laws for a state after the dissolution

15
Art. 361 of the Constitution of India.
16
Annual Survey of India, Indian Law Institute, 2007, pp.5.
17
Art. 123 of the Constitution of India.
18
Art. 309 of the Constitution of India

17
of state legislature following the declaration of emergency in a particular state, on failure of
the constitutional machinery19.
Like the British Crown, the President of India is a part of the legislature though he is not a
member of any house of the Parliament20. No Bill for the formation of new states or alteration
of boundaries etc. of the existing states,21 or affecting taxation in which States are interested
or affecting the principles laid down for distributing money to the states or imposing a
surcharge for the purposes of the Union22 and no Money Bill or Bill involving expenditure
from the consolidated fund of India23 can be introduced for legislation except on the
recommendation of the President. Besides this, he also has powers to grant pardons, reprieves
respites or remissions of punishment or to suspend, remit or commute; the sentence of any
person convicted any offence which is of judicial nature. He also performs similar judicial
functions in deciding a dispute relating to the age of the judges of the constitutional courts for
the purpose of their retirement from their judicial office.24
In a similar manner, Parliament also exercises judicial functions. While performing judicial
functions, it can decide the question of breach of its privilege and if proved, can punish the
person concerned.25While doing so, the Parliament is the sole judge and Courts cannot
generally question the decision of the Houses on this point. 308 Moreover, in case of
impeachment of the President, one House of the Parliament acts as a prosecutor and the other
House investigates the levelled charges and decides whether they substantiate or not.

There is, however, a considerable institutional separation between the judiciary and other
organs of the government.26 The Constitution confers wide powers however; a certain amount
of executive control is vested in the higher judiciary with respect to subordinate judiciary. At
the same time, the power of appointment of high courts and Supreme Court judges including
the Chief Justice of India, vests partially with the executive, that is to say, the President of
India who in turn exercises this power in consultation with the Governors of the concerned
states and the Chief Justice of the concerned High Court in case of a high court judge and
Chief justice of India in case of a Supreme Court judge. Moreover, the judges of
constitutional courts cannot be removed except for proved misconduct or incapacity and

19
Art. 356 of the Constitution of India.
20
Art. 79 of the Constitution of India.
21
Art. 3 of the Constitution of India.
22
Art.274 of the Constitution of India.
23
Art. 117 of the Constitution of India.
24
Arts. 124 (2A) and 217 (3) of the Constitution.
25
Art. 105 of the Constitution of India.
26
Art. 50 of the Constitution of India.

18
unless an address supported by two-thirds of the members and absolute majority of the total
membership of the House is passed in each House of the Parliament and presented to the
President.27Apart from exercising routine judicial functions, the superior constitutional courts
also performs certain executive and administrative functions as well. High courts have
supervisory powers over all subordinate courts and tribunals28 and also the power to transfer
cases. In addition, the High Courts as well as the Supreme Court also have legislative powers
by virtue of which they can frame rules regulating their own procedure for the conduct and
disposal of cases.29
Hence, it can be said that Indian Constitution does not contemplate separation as embodied in
the ‘pure doctrine’, it rather perceives and accords to it in its central sense, that is to say, not
in its literal sense, rather it its purposive sense, i.e. non conferment powers in a single body of
men and to motivate checks and balances. Therefore it has been accorded the status of basic
structure by the Supreme Court.30

5.5 Status of Judiciary and Power of Judicial Review

5.5.1 Independence of Judiciary

“Independence of Judiciary” is a principle adopted by most democratic nations, the meaning

of independence of the judiciary is still vague even after years of its existence. Our
constitution by way of the provisions just talks of the independence but nowhere is it defined
what actually constitutes this independence. The constitutional provisions which ensure the
independence of judiciary in India are:-

a. Separation of the Judiciary from the Executive: The Directive Principles of State
Policy in Art. 50 mandate that the State take steps to separate the judiciary from the
executive in the public services of the State and also contemplates a separate judicial
service free from executive control.
b. Constitution of the Supreme Court and the High Courts: Articles 124, 126, 127,
214, 216, 217 of the Constitution provide for the establishment of the Supreme Court
of India and the High Courts in various States, their composition, and theprocedure
for removal of judges. Subordinate courts fall within the control of the High Court of

27
Art. 124 (3) of the Constitution of India.
28
Art. 227 of the Constitution of India
29
Arts. 145 & 225 of the Constitution of India.
30
Indira Nehru Gandhi v. Raj Narain, (1975) SCC Supp.1.

19
 the State under the Art. 235, and the appointment of Judges to these courts are made
by the Governor of the State in consultation with the High Court.
c. Security of Tenure: The Judges of the Supreme Court and High Courts have been
given the security of the tenure. Once appointed, they continue to remain in office till
they reach the age of retirement- 65 years in the case of judges of Supreme Court
(Art. 124(2)) and 62 years in the case of judges of the High Courts (Art. 217(1)). A
member of the higher judiciary can be removed from service only through the process
of impeachment envisaged under Article 124 (4) of the Constitution on grounds of
proven misbehavior or incapacity.
d. Salaries and Allowances: The salaries and allowances of judges are a charge on the
Consolidated Fund of India in case of Supreme Court judges, and the Consolidated
Fund of the State in the case of High Court judges, thereby insulating the Judges from
any executive or legislative action to curtail their remuneration. Their emoluments
cannot be altered to their disadvantage (Art. 125(2)) except in the event of grave
financial emergency.31
e. Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers
and jurisdiction of the Supreme Court but cannot curtail them. In civil matters,
Parliament may change the pecuniary limit for appeals to the Supreme Court.
Parliament may enhance the appellate jurisdiction of the Supreme Court or confer
supplementary powers on the Supreme Court to enable it to work more effectively
(Art. 138). Framing of Rules has also been conferred upon the Supreme Court (Art.
145).
f. No discussion on conduct of Judge in State Legislature/Parliament: Art. 211
provides that there shall be no discussion in the legislature of the state with respect to
the conduct of any judge of the Supreme Court or of a High Court in the discharge of
his duties. A similar provision is made in Art. 121 for Parliament, with an exception
with respect to a motion for presenting an address to the President praying for the
removal of the judge. Therefore, the Constitution of India insulates the Supreme Court
and the High Court’s from political criticism, and thus ensures their independence
from political pressures and influence.32

31
Santosh Kumar Pandey, “Independence of Judiciary in India” 4 IJL (2018), pp. 95-97.
32
Divyanshu Bhandari, “Judicial Accountability and the Independence of the Indian Judiciary”, 2 IJLASS
(2014), pp. 147.

20
 g. Power to punish for contempt: Both the Supreme Court and the High Courts have
the power to punish any person for their contempt under Art. 129 and Art. 215,
respectively.

The principle of “Independence of the Judiciary” is based on the doctrine of “Separation of

Powers”. The doctrine talks about the independence of the judiciary from the interference of
the Executive and the Legislature. Moreover, as the judiciary is empowered to interpret the
laws and render judicial decisions; the independence of judges is an imperative component
for its appropriate working as judges may sometimes be subjected to improper influence,
inducement, pressures, threats or interference by litigants or any other criminal elements of
society.
The prime point of our concern here is whether the judiciary can interfere and encroach in the
executive or legislative domain if justice demands so, or it cannot do so simply by virtue of
the fact that the concept of separation of powers puts fetters on it.
In Asif Hameed v. State of J&K, Supreme Court held that33

“Legislative, Executive and Judiciary have to function within their respective spheres
demarcated under the constitution. No organ can usurp the functions assigned to
another. Judiciary has power to ensure that the aforesaid two main organs of the
state function within the constitutional limits. It is the sentinel of democracy”.

Judiciary under Indian Constitution has been given an independent status. It has been
assigned the role of an independent umpire to guard the constitution and thereby ensure that
other branches may not exceed their powers and function within the constitutional
framework. Commenting and clarifying the concept of independence of judiciary, Sir A.K.
Aiyar, who was one of the framers of the Constitution, had observed that34 ―

“The doctrine of independence (of judiciary) is not to be raised to a level of a dogma

so as to enable the judiciary to function as a kind of super-legislature or super-
executive. The judiciary is there to interpret the constitution or to adjudicate upon the
rights between the parties concerned”.

It can thus very aptly be said that creation of judicial organ in India was not at all meant to
give to it a supreme status as compared to the other co-ordinate organs. Rather, with powers
and functions sufficiently distinguished and demarcated, what is expected out of judiciary is

33
AIR 1989 SC 1899.
34
Granville Austin, THE INDIAN CONSTITUTION- CORNERSTONE OF A NATION, 1966, pp.174.

21
to act as a watchdog to oversee and prods to keep the other organs within the constitutional
bounds.

In Suman Gupta v. State of Jammu & Kashmir35, the respective state government reserved
certain seats in medical colleges for the students residing in the particular state on reciprocal
basis, this policy of state was challenged on the ground that it discriminate among the
students on the ground of place of birth.

The Supreme Court rejected the policy on the ground of discrimination but held that the
government must not apply the impugned policy from next academic year. Therefore, by
using the doctrine of prospective overruling in the above case, the Supreme Court maintained
the balance between judiciary and other organs of the government. It can also be maintained
by using the self-restrained by the judges.

In MadhuHolmagi v. Union of India36, wherein one Advocate filed a public interest litigation
challenging the ‘agreement 123’. Petitioner contended that Court must have to scrutinize the
all documents relating to the agreement 123 and must have to prevent the Indian government
from entering in to the nuclear deal.

Court dismissed the petition and also imposed a cost of Rs. 5000 on the petitioner stating that
it is an abuse of court proceedings. Because the question raised by the petitioner is a question
of policy decision, which is to be decided by the Parliament and not by judiciary.

The essence of the Constitution is that it produces a system which is the result of
amalgamation of the principle of separation of powers with the doctrine of parliamentary
sovereignty in a manner to give effect to both, yet without the rigidity of the two systems.

5.6 Separation of Powers under Indian Federal Structure.

5.6.1 Distribution of Legislative Powers

Article 246 of the Indian Constitution provides for three fold distribution of legislative
subjects between the Centre and State which are as follows37:

(1) Article 246(1) – The Parliament has exclusive powers to make laws with respect to
any of the matters enumerated in the Union List (List-I). This List has at present 100
subjects (originally 97 subjects) of national importance like, defence, banking etc.

35
(1983) 4 SCC 339.
36
1989 SCR (3) 774.
37
Art. 246 of the Constitution of India.

22
 (2) Article 246(2) – Both the Parliament and State legislature can make laws with respect
to any of the matter enumerated in the Concurrent List. This List has at present 52
subjects (originally 47) like criminal law and procedure, marriage and divorce etc.
(3) Article 246(3) – The State Legislature has “in normal circumstances” exclusive
powers to make laws with respect to any of the matters enumerated in the State List.
This has at present 61 subjects (originally 66 subjects) like public order, police, public
health etc.
(4) Article 246(4) – the Power to make laws with respect to residuary subjects (i.e. the
matters which are not enumerated in any of the three lists) is vested in the Parliament.
This residuary power of legislation includes the power to levy residuary taxes.

There are following circumstances which indicated the deviation from doctrine of strict
separation of powers.

5.6.1.1 Parliamentary Legislation in the State Field

Indian Constitution empowers the parliament to make laws on any matter enumerated in the
State List under the following five extra-ordinary circumstances:

(1) When Rajya Sabha Passes a Resolution

Article 249 provides that if the Council of States declares that it is in the national interest that
parliament should make laws on a matter in the State List, then Parliament can do so. Such a
resolution must be supported by two-third of the members present and voting. It will remain
in force for one year but it can be renewed any number of times but not exceeding one year at
a time. The laws cease to have effect on the expiration of six months after the resolution has
ceased to be in force. This provision does not restrict the power of a state legislature to make
laws on the same matter. But in case of inconsistency between a state law and a
parliamentary law, the latter is to prevail.38

2. During a National Emergency

Article 250 of the Indian Constitution provides that the Parliament acquires the power to
legislate with respect to matter in State List, while a proclamation of national emergency is in

38
Art. 249 of the Constitution of India.

23
operation. The laws become inoperative on the expiration of six months after the emergency
has ceased to operate.39

3. When States Make a Request

Article 252 provides that when the legislature of two or more states pass resolutions
requesting the Parliament to enact laws on a matter in the State List, then the Parliament can
make laws for regulating that matter40. Any other state may adopt it afterwards by passing a
resolution to that effect in its legislatures. In this case, concerned state legislatures ceases to
have the power to make a law with respect to that matter.41 For examples- Wild Life
(Protection) Act, 1972,Water (Prevention and Control of Pollution) Act, 1974.

4. To Implement the International Agreements

Article 253 of the Indian Constitution empowers the Parliament to make laws on any matter
in the State List for implementing the international treaties, agreements or conventions. This
provision enables the Central government to fulfil its international obligations and
commitments.42 For Examples - Geneva Convention Act, 1960, Anti-Hijacking Act, 1982.

5. During President Rule (Article 356)

When the President’s rule is imposed in a state, the Parliament becomes empowered to make
laws with respect to any matter in the state list in relation to that state. A law made so by the
Parliament continues to be operative even after the President’s rule. But, such a law can be
repealed or altered or re-enacted by the state legislature.43

5.6.1.2 Centre’s Control over State Legislation

Besides the Parliament’s power to legislate directly on the state subjects under the
exceptional situations, the Constitution empowers the Centre to exercise control over the
State’s legislative matters in the following ways:

1. The governor can reserve certain types of bills passed by the state legislature for the
consideration of the President. The President enjoys absolute veto over them44.
(Article 201)

39
Art. 250 of the Constitution of India.
40
Art. 252 of the Constitution of India.
41
Art. 252 of the Constitution of India.
42
Art. 253 of the Constitution of India.
43
Art. 356 of the Constitution of India.
44
Art. 201 of the Constitution of India.

24
 2. Bills on certain matters enumerated in the State List can be introduced in the state
legislature only with the previous sanction of the president. For example, the bill
imposing restrictions on the Freedom of trade and commerce.
3. The President can direct the states to reserve money bills and other bills passed by the
state legislatures for his consideration during a financial emergency.

From the above, it is clear that the Constitution has assigned the position of superiority to the
Centre in the legislative spheres.

In this context Sarkaria Commission on Centre-State Relations (1983-87) observed:

“the rule of federal democracy is a technique to avoid absurdity, resolve conflict and
ensure harmony between the Union and the State laws. If this principle of union
supremacy is excluded, it is not difficult to imagine its deleterious result. The rule of
federal supremacy, therefore, is indispensable for the successful functioning of the
federal system.”45

5.6.1.3 Centralised tendency of Indian Constitution

1. Law Making Power

Under Indian Constitution, the division of powers is in favour of the centre and highly
inequitable from the federal angle. Firstly, the Union List contains more subjects than State
List. Secondly, the more important subjects are included under Union List. Thirdly, the
Centre has overriding authority over the Concurrent List under Article 254. Finally, the
residuary powers have also been left with the Centre, while in the US, they are vested in the
states. Thus, the Constitution has made the Centre very strong.

2. Emergency Provisions

The Constitution stipulates three types of emergencies- national state and financial. During an
emergency, the Central government becomes all powerful and the states go into the total
control of the Centre. It converts the federal structure into a unitary one without a formal
amendment of the Constitution. This kind of transformation is not found in any other
federation.

3. All India Services

45
Report of the Commission on Centre-State Relations, Part-I (Government of India, 1988) pp. 28-29.

25
In the US, the Federal Government and the State Government have their separate public
services. In India also, the Centre and States have their separate civil services. But, in
addition, there are all-India services (IAS, IPS and IFS) which are common to both the Centre
and the States. The Members of these services are recruited and trained by the Centre which
also possesses ultimate control over them. Thus, these services violate the principle of
federalism under the Constitution.

4. Parliamentary authority over State List

Even in the limited sphere of authority allotted to them, the states do not have exclusively
control. The Parliament is empowered to legislate on any subject of the State List if Rajya
Sabha passes a resolution to that effect in the national interest. This means that the legislative
competence of the Parliament can be extended without amending the constitution. Notably,
this can be done when there is no emergency of an kind.

5. Appointment of Governor

The governor, who is head of the State, is appointed by the President. He holds office during
the pleasure of the President. He also acts as an agent of the Centre. Through him, Centre
exercises control over the states. The American Constitution, on the contrary, provided for an
elected head in the states. In this aspect, India adopted the Canadian system.

6. Veto over State Bills

The Governor is empowered to reserve the certain types of bills passed by the State
Legislature for the consideration of the President. The President can withhold his assent to
such bills not only in first instance but also in second instance. Thus, the President enjoys
absolute veto over state bills. But in US and Australia the States are autonomous within fields
and there is no provision for any such reservation.

On the Nature of Indian Constitution, Dr. B.R. Ambedkar made the following observation in
the Constituent Assembly:

“Yet the Constitution avoids the tight moulds of federalism and could be both unitary
as well as federal according to the requirements of time and circumstances”.46

While replying to the criticism of over centralisation in the Constitution, he stated,

46
Constituent Assembly Debates, Vol. VIII, P.33.

26
 “the basic principle of federalism is that the legislative and executive authority is
partitioned between the centre an states not by any law to be made by the Centre but
by the Constitution itself. The states are in no way dependent upon the Centre for
their legislative or executive authority. The states are co-equal in this matter. It is
difficult to see how much a Constitution can be called centralism. It is therefore,
wrong to say that the states have been placed under the centre. The Centre can’t by
its own will alter the boundary of this partition. Nor can the judiciary”.47

5.6.2 Distribution of Executive Powers

The executive power has been divided between the Centre and the States on the lines of the
distribution of legislative powers, except in few cases. Thus, the executive power of the
Centre extends to whole of India:

(i) To the matter on which the Parliament has exclusive power of legislation (i.e.
subjects enumerated in the Union List);
(ii) To the exercise of rights, authority and jurisdiction conferred on it by any treaty or
agreement.

Similarly, the executive power of a state extends to its territory in respect of matters on which
the state legislature has exclusive power of legislation (i.e. subjects enumerated in the State
List). In respect of matter of Concurrent List, the executive power rests with the states except
when a Constitutional provision or a parliamentary law specifically confers it on the Centre.
Therefore, a law on concurrent subject, though enacted by the parliament, is to be executed
by the States except when the Constitution or the Parliament has directed otherwise.

5.6.2.1 Restriction on Executive Power of the State

The Constitution has placed two restrictions on the executive power of the States in order to
give ample scope to Centre for exercising its executive power in an unrestricted manner.
Thus, the executive power of every state is to be exercised in such a way48-

(a) As to ensure compliance with the laws made by the Parliament and any existing law
which apply in the state; and
(b) As not to impede or prejudice the exercise of executive power of the Centre in the
state.

47
The Constitution and Constituent Assembly, Loksabha Secretariat, 1990, P.176.
48
M. Laxmikanth, INDIAN POLITY, 5TH ed. 2017, pp. 14.5.

27
In both the cases, the executive power of the Centre extends to giving of such directions to
the state as are necessary for the purpose. The sanction behind these directions of the Centre
is coercive in nature. Thus, Article 365 says that where any state has failed to comply with
(or to give effect to) any directions given by Centre, it will be lawful for the President to hold
that a situation has arisen in which the government of the state cannot be carried on in
accordance with the provisions of the Constitution. It means that, in such situation, the
President’s rule can be imposed in the state under Article 356.

5.6.3 Mutual Delegation of Functions

In order to resolve the conflict due to rigid distribution of executive powers, the Constitution
provides for inter-governmental delegation of executive functions in order to mitigate rigidity
and avoid a situation of deadlock.

According to Article 258, the President may, with the consent of the State government,
entrust to that government any of the executive functions of the Centre. Conversely, under
Article 258A, the governor of a state may, with the consent of the central government, entrust
to that government any of the executive functions of the State. This mutual delegation of
administrative functions may be conditional or unconditional. Such entrustment of the
executive functions of the Centre to a state can be done even without the consent of that state.
But in this case, delegation is by the Parliament and not by the President.

5.6.4 Cooperation between the Centre and States (Cooperative Federalism)

The Indian Constitution incorporates the following provisions to secure coordination and
cooperation between the centre and the states:

(1) The Parliament can provide for the adjudication of any dispute or complaint with
respect to use, distribution and control of waters of any inter-state river and river
valley49. (Article 262)
(2) The President can establish an Inter-State Council to investigate and discuss subject of
common interest between the centre and the states50. Such a council was set up in
1990. (Article 263)
(3) Full faith and credit is to be given throughout the territory of India to public acts,
records and judicial proceedings of the Centre and every state51. (Article 261)

49
Art. 262 of the Constitution of India.
50
Art. 263 of the Constitution of India.

28
 (4) The Parliament can appoint an appropriate authority to carry out the purpose of the
constitutional provisions relating to the inter-state freedom of trade, commerce and
intercourse. But no such authority has been appointed yet.

Because of incorporating the above provisions and centralised tendency of our constitution,
Granville Austin called the Indian federalism as a “Cooperative Federalism”. He said,

“though the Constitution of India has created a strong Central government, it has not
made the state governments weak and has not reduced them to the level of
administrative agencies for the execution of policies of the Central government. He
described the Indian federation as “a new kind of federation to meet India’s peculiar
needs.”

5.7 Separation of Powers and Judicial Pronouncements in India

1. Re Delhi Laws Act case52

In this case, the Supreme Court by majority of 5:2, court held that the theory of separation of
powers not part and parcel of our constitution, in exceptional circumstances is evident in the
provisions of the Constitution itself. As observed by the Kania, C.J.:-

“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. Does it not imply that unless it can be gathered
from other provisions of the constitution, other bodies (executive or judicial) are not
intended to discharge legislative functions?”

Significance-this judgement implied that all the three organs of the State are bound by and
subject to the provisions of the Constitution, which demarcates their respective powers,
jurisdictions, responsibilities and relationship with one another. Also, that it can be assumed
that none of the organs of the State, including the judiciary, would exceed its powers as laid
down in the constitution.

To the same effect is the observation of Justice Das in Ram Krishna Dalmia v Justice
Tendolkar53that the constitution does not express the existence of separation of powers, and it

51
Art. 261 of the Constitution of India.
52
AIR 1951 SC 747.
53
1959 SCR 229: see also, AIR 1964 SC 649.

29
is true that division of powers of the government into legislative, executive and judiciary is
implicit in the constitution but the doctrine does not form an essential basis of foundation-
stone of the constitutional framework as it does in U.S.A.

Again in Udai Ram Sharma v Union of India,54 the court categorically stated that the
doctrine has not been accepted by our constitution. The court expressed its opinion that the
American doctrine of separation of powers has no application in India.

2. Kesavananda Bharti Case55

Issue- To what extent the parliament has power to amend the Constitution under Article 368
of the Constitution.

Held: - Supreme Court held that the amending power was no subject to the basic features of
the Constitution. And hence, any amendment tapering these essential features will be struck
down as unconstitutional. Justice Beg added that separation of powers is a part of the basic
structure of 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 Art.368
of the constitution. There are attempts made to dilute the principle, to the level of usurpation
of judicial power by the legislature.

Significance:- As per this ruling, there was no longer any need for ambiguity as the doctrine
was expressly recognized as a part of the Indian Constitution, unalterable even by an Act of
parliament. Thus, the doctrine of separation of powers has been incorporated, in its essence,
into the Indian laws.

3. Indira Nehru Gandhi v. Raj Narain56

It was after this landmark case, the place of doctrine of separation of powers in India was
made clearer. Supreme Court observed that:

“Under Indian Constitution, there is a separation of powers in a broad sense only. A

rigid separation of powers as under the American Constitution or under the
Australian Constitution does not apply to India”.

54
AIR 1968 SC 1138.
55
AIR 1973 SC 1461.
56
AIR 1975 SC 2299.

30
Justice Chandrachud further observed that:

“The political usefulness of the doctrine of separation of powers is not widely

recognized. No constitution can survive without a conscious adherence to tis fine
checks and balance”.

Significance:- Though in India strict separation of powers like in American sense is not
followed but, the principle of ‘checks and balances’ a part of this ‘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.

4. I.C. Golaknath v. State of Punjab57

Supreme Court took the help of the doctrine of basic structure as propounded in Kesavananda
Bharti case and said that Ninth Schedule is violative of this doctrine and hence the Ninth
Schedule was made amenable to judicial review which also forms part of the basic structure
theory. It was observed:

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

Conclusion

The doctrine of separation of power in its true sense is very rigid and this is one of the reason
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 power is that there should be government of law
rather than having will and whims of the official. Also another important feature of the said
doctrine is that there should be independence of judiciary. The constitution provides for a
judiciary, which is independent. Independence of judiciary is important for the purpose of fair
justice. There should be no interference by the legislature or the executive, in the proceedings
of the judiciary so that it may take a judgment that seems reasonably fair. In case of
intervention, there may be an element of bias on the part of the judges in taking a fair
decision. It is difficult to suggest any other way to make the Indian courts more self reliant

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1967 SCR (2) 762.

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and keep them away from the influence of the other two organs. If the judiciary is not
independent, then it is the first step towards a tyrannical form of government. Hence the
Doctrine of Separation of Power does play 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.

The doctrine of separation of power has come a long way from its theoretical inception.
Today, the doctrine in its absolute form is only recognized in letters as it is entirely unfeasible
and impractical for usage in the operational practices of the government. In its omnipresent
role, the functions of the State have become diverse and its problems independent hence, any
serious attempt to define and separate the functions would only cause inefficiency in the
government.

The modern day interpretation of the doctrine does not recognize the division of Government
into three water-tight compartments but instead provides for crossing rights and duties in
order to establish a system of checks and balances. Hence, a system of checks and balances is
a practical necessity in order to achieve the desired ends of the doctrine of separation of
powers. Such a system is not dilatory to the doctrine but necessary in order to strengthen its
actual usage.

In conclusion, it is evident that governments in their actual operation do not opt for the strict
separation of powers because it is undesirable and impractical, however, implications of this
concept can be seen in almost all the countries in tis diluted form. The discrepancies between
the plan and practice, if any, are based on these very grounds that the ideal plan is impractical
for everyday use. India relies heavily upon the doctrine in order to regulate, check and control
the exercise of power by the three organs of the Government. Whether it is in theory or in
practical usage, the Doctrine of Separation of Powers is essential for the effective functioning
of a democracy.

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