Journal of Constitutional Law and Jurisprudence

Volume 3, Issue 1
www.stmjournals.com

Doctrine of Separation of Power and its Present

Significance in India
Chetan Upadhyay*
Student, Amity Law School, Amity University, Lucknow, Uttar Pradesh, India

Abstract
Power tends to corrupt and absolute power corrupts absolutely.
—Sir John Dalberg-Acton
The doctrine of separation of power can be said to be developed over the above observation,
though the concept is much older than the remark by Sir John Acton. History has time and
again shown that unlimited power in the hands of one person or group in most cases means
that others are suppressed, or their powers curtailed. The separation of powers in a
democracy done to prevent abuse of power and to safeguard freedom for all. This study traces
the origin of the concept of separation of powers to the times of Aristotle and Plato, how it
was in ancient India and its development in modern era. Then the study goes on to explain the
position of the doctrine in USA and UK. Separation of powers as implemented in India is
explained and a few Articles of the Constitution of India are mentioned which relate to
separation of power and the doctrine of check and balance. Further, the doctrine of check and
balance and separation of power as a part of basic structure is discussed along with a few
case laws and recent issues such as the RBI and CBI conflict with the government.

Keywords: Separation of power, checks and balance, basic structure of the constitution,
ancient India, development, USA, UK, government, issues, case laws

*Author for Correspondence E-mail: chetanupadhyayasjc@gmail.com

INTRODUCTION Executive is responsible for the enforcement

It is generally accepted that there are three of all such laws and Judiciary deals with cases
main categories of governmental functions: the arising from breach of law.
legislative functions, the executive functions
and the judicial functions [1]. Likewise, there Independence of judiciary from the executive
are three main organs of the government in a and legislature is one of the most important
State: utilities of the doctrine of separation of power.
1. The Legislature, In this regard, International Congress of Jurists
2. The Executive, and held in New Delhi in 1959 [2] stated:
3. The Judiciary.
An independent judiciary is an indispensable
According to the doctrine of separation of requisite of a free society under the rule of
powers, these three functions of the law. Such independence implies freedom from
government must, in a free democracy, always interference by the executive or legislative
be kept separate and exercised by three with the exercise of the judicial function but
different organs of the government which do does not mean that the judge is entitled to
not interfere in each other’s powers and act in an arbitrary manner. His duty is to
functions [1]. interpret the law and the fundamental
principles and assumptions that underlie it. It
The three organs of the Government, is implicit in the concept of independence
Executive, Legislature and the Judiciary set out in the present paragraph that
represent the people and their will in our provision should be made for the adequate
country. Legislature is the law-making body; remuneration of the judiciary and that a

JCLJ (2020) 20–26 © Law Journals 2020. All Rights Reserved Page 1
Journal of Constitutional Law and Jurisprudence
Volume 3, Issue 1

judge’s right to the remuneration settled for his tyrannical laws, to execute them in a
office should not during his term of office be tyrannical manner. Again, there is no liberty if
altered to his disadvantage. the judicial power be not separated from the
legislative and executive powers. Was it joined
ORIGIN AND DEVELOPMENT OF with the legislative power, the life and liberty
DOCTRINE OF SEPARATION OF of the subject would be exposed to arbitrary
POWER control, for the judge would then be the
The origin of the term ‘Separation of Power’ legislator? Was it joined with the executive
can be traced back to the times of Plato and power, the judge might behave with violence
Aristotle where Aristotle in his book Politics and oppression?
gave the term ‘Separation of Power’ and
sought to divide the government into three Miserable indeed would be the case, were the
parts: same man or same body, whether of the nobles
1. Deliberative (Known as Legislature in or of the people, to exercise those three powers,
modern times), that of enacting laws, that of executing the
2. Magisterial (Known as Executive in public resolutions, and that of judging the
modern times), and crimes or differences of individuals”.
3. Judicial (Known as Judiciary in modern
times). Separation of Power in Ancient India
The roots of separation of power are also
In modern times, in the 16th and 17th found in Vedas. Narad Smriti has the very
centuries, French philosopher John Bodin and principle of separation of power. In those days,
British politician Locke expressed their views Deewan was head of the executive wing.
on the theory of Separation of Powers [02]. Senapati maintained law and order and Kaji
John Locke in 1689 [3] revived the concept of was the judicial head. However, their positions
three branches of the government in his book were all subordinate to a king, who was the
Two Treatise of Government. He defined them supreme authority. King was the one who
as ‘legislative’, ‘executive’ and ‘federative’. made laws and can be compared to the present
He however did not consider them as co- form of legislature. Hence, in ancient times
equals. According to him, legislative branch also, one can find a separation of powers and
was supreme than the other two. The other two functions [4].
namely the executive and federative functions
were to be exercised by the monarch. His Now that we have got a good idea as to how
model corresponded with the dual form of the doctrine of separation of power has
government existing in England at that time, evolved over the years, we would now study
The Parliament and the Monarchy [4]. its implementation in the present scenario. To
understand the application of the doctrine of
Baron de Montesquieu was a French separation of power in India, we first have to
philosopher who for the first time formulated understand its implementation in the
the doctrine of separation of powers Constitution of USA and UK.
systematically, scientifically and clearly in his
book Esprit des Lois (The Spirit of Laws), Separation of Power in USA
published in the year 1748 [1]. Charles de The doctrine of separation finds its home in
Secondat along with Baron de Montesquieu in US. It forms the basis of the American
their book The Spirit of Laws [5] described constitutional structure [6]:
separation of power in the following words:  Article I, section 1 vests all legislative
power in the Congress,
“When the legislative and executive powers  Article II, Section 1 vests all executive
are united in the same person, or in the same power in the President of the United
body or magistrates, there can be no liberty, States, and
because apprehensions may arise, lest the  Article III, Section 1 vests all judicial
same monarch or senate should enact power in the Supreme Court.

JCLJ (2020) 20–26 © Law Journals 2020. All Rights Reserved Page 2
Doctrine of Separation of Power and its Present Significance Chetan Upadhyay

The doctrine of separation of power is thus superior courts can be removed on an address
explicitly mentioned in the Constitution of from both house of parliament. The House of
USA and implemented in a rigid sense. While Lords combines judicial and legislative
framing the America Constitution, the framers functions. Legislative and adjudicatory powers
of the Constitution believed that the principle are being increasingly delegated to the
of separation of powers would help to prevent executive [6].
the rise of any form of tyrannical government.
This would be possible by making it Separation of Power in India
impossible for a single group of persons to India has a parliamentary form of government
exercise too much power. They sought to system; hence the framers of the constitution
achieve such separation of power through the made an effort to keep the organs of the
principle of ‘checks and balance’. This government separated from each other. Yet, a
alternative system existing with the separation lot of overlapping and combination of powers
doctrine prevents any organ to become and functions has been given to each organ of
supreme [7]. the government.

Even though there is express mention of the Although in Indian Constitution, it is

doctrine of separation of power in the US mentioned that the executive power of the
constitution, it includes certain exceptions in Union and of a State is vested by the
the form of the principle of checks and Constitution in the President (Article 53 (1))
balances. For instance, a bill passed by the and the Governor (Article 154 (1))
congress may be vetoed by the president in the respectively, but there is no corresponding
exercise of his legislative power. Also, the provision vesting the legislative and judicial
power to make treaties is with the president powers in any particular organ. It has
but it is not effective until it is approved by the accordingly been held that there is no rigid
Senate. It was due to the exercise of executive separation of powers in India.
power of the senate that US was not able to
become a member to League of Nations. The Instead in India, a system of check and balance
Supreme Court has the power to declare the is followed where powers are overlapped so
acts passed by the congress as unconstitutional that each organ of the government keeps a
[07]. India, too, followed US in adoption of check on the other organs functioning and
the checks and balances which makes sure that balance is maintained in such manner that no
individual organs do not behold absolute particular organ can exercise arbitrary
power [7]. powers. We will further discuss the principle
of check and balance and the constitutional
Separation of Power in UK provisions which provide for the principle of
Before we go to India, it is important to know check and balance.
the constitutional setup of the country to which
India was a colony and from whose Constitutional Provisions in India Relating
constitution we have borrowed many concepts to Separation of Power and Principle of
[7]. England follows a parliamentary form of Check and Balance
government where the crown is the nominal The doctrine of separation of power has not
head and the real legislative functions are been implemented in a very strict sense in our
performed by the parliament. The king though country nor has it been given constitutional
an executive head, is also an integral part of status. A rather modern system of governance
the legislature and all his ministers are also approach is followed. In that regard, the
members of one or other of the houses of the various Articles in the Constitution of India
parliament. Furthermore, the Lord Chancellor which relate to the doctrine of separation of
is at the same time a member of the House of power and the principle of ‘Check and
Lords, a member of the government, and the Balance’ are as follows:
senior most member of the judiciary. The 1. Article 50: Separation of judiciary from
judiciary is independent, but judges of the executive.

JCLJ (2020) 20–26 © Law Journals 2020. All Rights Reserved Page 3
Journal of Constitutional Law and Jurisprudence
Volume 3, Issue 1

2. Article 53 (1). Ministers (Article 74: Council of

3. Article 61: Procedure for impeachment of Ministers to aid and advice President).
the President. 2. In certain situations, the President has the
4. Article 72: Power of President to grant capacity to exercise certain Judicial as
pardons, etc., and to suspend, remit or well as Legislative functions. For instance,
commute sentences in certain cases. the President can issue ordinance (Article
5. Article 74: Council of Ministers to aid 123: Power of President to promulgate
and advice President. Ordinances during recess of Parliament),
6. Article 79: Constitution of Parliament. or the President may grant pardon to a
7. Article 85: Sessions of Parliament, person (Article 72: Power of President to
prorogation and dissolution. grant pardons, etc., and to suspend, remit
8. Article 111: Assent to Bills. or commute sentences in certain cases).
9. Article 123: Power of President to 3. The judiciary too may perform Legislative
promulgate Ordinances during recess of and Executive functions such as making of
Parliament. its own rules of procedure (Article 145:
10. Article 124: Establishment and Rules of Court) or punishing for its
Constitution of Supreme Court. contempt (Article 129: Supreme Court to
11. Article 129: Supreme Court to be a Court be a Court of Record).
of Record. 4. The Legislature can perform judicial
12. Article 136: Special leave to appeal by the functions, for instance, in the process of
Supreme Court. impeachment of the President, one House
13. Article 137: Review of judgements or initiates the charge and the other House
orders by the Supreme Court. investigates the charge and determines
14. Article 141: Law declared by Supreme their truthfulness which is a judicial
Court to be binding on all courts. function (Article 61: Procedure for
15. Article 143: Power of President to consult impeachment of the President).
Supreme Court.
16. Article 145: Rules of Court, etc. Thus, all three organs, namely Legislature,
17. Article 154 (1). Executive and Judiciary act as a check and
balance to each other and work in
Principle of Check and Balance and Part of coordination to make our government
Basic Structure system work.
India does not incorporate the doctrine of
separation of power in its rigid sense. The doctrine of separation of power is a part of
Instead a principle of ‘check and balance’ is the basic structure of our constitution. The
followed in India, where every organ of the basic structure doctrine has developed through
government keeps a check on every other case laws in India. A few cases where the
organ and a balance is maintained in doctrine of separation of power was held to be
governance so that no single organ becomes a part of basic structure of the constitution are:
‘supreme’ as compared to the other two
organs. The principle of check and balance Kesavananda Bharati v. State of Kerala
can be seen in work through various powers of And Ors [8]
the three organs of the government: Supreme Court held that amending power was
1. The Legislative and Executive wings of now subject to the basic features of the
the government are closely connected with constitution. And hence, any amendment
each other. Executive is responsible to tampering these essential features will be
Legislature for its actions and derives struck down as unconstitutional. Justice Beg
power from the Legislature. The head of added that separation of powers is a part of the
the Executive is the President (Article 53 basic structure of the constitution. None of the
(1)), but the real power rests with the three separate organs of the republic can take
Prime Minister and his Cabinet of over the functions assigned to the other. This

JCLJ (2020) 20–26 © Law Journals 2020. All Rights Reserved Page 4
Doctrine of Separation of Power and its Present Significance Chetan Upadhyay

scheme cannot be changed even by resorting the Central Government. Ground of conflict
to Article 368 of the constitution. in both cases was the alleged misuse of power
by the central government. While
Indira Gandhi Nehru v. Raj Narain [9] highlighting the present significance of the
In this case, the issue before the Court was the doctrine of separation of power in India, it
Prime Minister’s election. The constituent becomes important to go through the conflicts
body had declared that the election of Prime of these two organizations against the Central
Minister was not void. The Supreme Court Government. In both institutions, the current
held that adjudication of a specific dispute is a BJP-led NDA government appointed leaders
judicial function which parliament, even under of its choice. Neither Alok Verma at CBI, nor
constitutional amending power, cannot Urjit Patel at RBI was the appointee of an
exercise. The constituent body had discharged earlier government that the current regime
a judicial function which according to the had to tolerate. Yet, in both institutions, the
principle of separation it should not have done leaders rapidly fell into disfavor with the
and was ultra vires of its power. Supreme government [12].
Court upheld the basic structure of the
constitution as well as the separation of power RBI Issue
doctrine through this case. The issue came into light during the hearing in
Allahabad High Court of a case by
Supreme Court Advocates-on-Records Independent Power Producers Association of
Association v. Union of India [10] India challenging the Reserve Bank of India’s
The Supreme Court held that separation of circular on resolution of stressed assets revised
powers is an essential feature and is a part of framework (commonly known as February
basic structure of the constitution. However, it 12th circular). The finance ministry sent three
is not as rigid as in the US. One of the different letters to the RBI in the past few
elements of separation of powers is the system
weeks on issues of [13]:
of “checks and balances”.
 Prompt Corrective Action (PCA) for
public sector banks.
Ram Jawaya Kapur v. State of Punjab [11]
 The governor's opinion on RBI's capital
Justice Mukherjee observed in this case, “The
reserves for providing liquidity; and
Indian Constitution has not indeed recognized
 Withdrawal of PCA for Public Sector
the doctrine of separation of powers in its
absolute rigidity but the functions of the Banks (PSB).
different parts or branches of the Government
have been sufficiently differentiated and The conflict escalated when the government
consequently it can very well be said that out used the ‘never used’ Section 7 of the RBI
constitution does not contemplate assumption, Act. This section had never been used in
by one organ or part of the state, of functions independent India till now. It was not used
that essentially belong to another”. even when the country was close to default in
the dark days of 1991, nor in the aftermath of
With the above discussion it is quite the 2008 crisis [14].
established that doctrine of separation of
power is a part of the basic structure of our The tussle with the RBI ended when Urjit
constitution and cannot be amended or Patel resigned as the governor. His 27-month
removed. Now, we would explore a bit about tenure was the shortest by any RBI chief since
two quite recent situations in governance 1992. Patel, however, had said he was
which somewhat relate to doctrine of resigning due to personal reasons [15].
separation of powers.
CBI Issue
Recent Issues: RBI and CBI Conflict The country’s premier investigation agency,
against Government the Central Bureau of Investigation, is facing
RBI and CBI are both organizations operating the biggest credibility crisis ever since it was
at national level, were recently in conflict with formed as a special police force in 1941. At

JCLJ (2020) 20–26 © Law Journals 2020. All Rights Reserved Page 5
Journal of Constitutional Law and Jurisprudence
Volume 3, Issue 1

the center of the controversy were two high sovereign democracies. The most important
ranking officials, Special Director Mr. Rakesh aspect of the doctrine of separation of power is
Asthana and Director Mr. Alok Verma [16]. independent of judiciary from legislature and
executive. “There is no liberty, if the judicial
In a first of sorts, the CBI had registered a first power be not separated from the legislative
information report against Mr. Asthana for and executive” [18].
allegedly accepting a Rs 3-crore bribe to settle
a case against meat exporter Moin Quereshi. The doctrine in its absolute and rigid sense
On his part, Mr. Asthana levelled bribery cannot be adopted as it is somewhat
allegations in more than a dozen cases against impractical. The value of the doctrine lies in
his boss (Mr. Alok Verma) [16]. the checks and balances that come along with
the doctrine and can be used to prevent the use
With the passage of time, the situation got of arbitrary power. Montesquieu’s great point
worse. Mr. Verma and his deputy were was that if the total power of the government
allowed to squabble, make allegations against is divided among autonomous organs, one will
each other [12]. act as a check upon the other and in the check,
liberty can survive [19].
Within hours, in a midnight 'coup', the
government, on the advice of the CVC, The recent issue of RBI and CBI are the
divested Mr. Verma of all his duties and sent most recent examples of our society which
him on forced leave. M Nageswara Rao was hint at misuse of concentrated power by the
made the interim CBI chief [17]. The government. They send a bad message
decision by the government to divest the across the nation and should have been
powers of Special Director Mr. Rakesh handled in a better manner than they were
Asthana and Director Mr. Alok Verma was managed. The way both heads of the
struck down by the Supreme Court as it did departments lost their posts, it portrays a
not follow the due process of law and the very bad image of the government.
principle of Natural Justice.
REFERENCES
Why Such Conflicts Send a Wrong Message 1. Takwani C, Thakker MC. Lectures on
and should be Avoided Administrative Law. Eastern Book
The occurrence of such recent events is really Company; 2018.
upsetting. A country is judged by the quality 2. Marsh NS. The Rule of Law in a Free
of its people and its institutions. The way Society. International Commission of
issues are handled by the government reflects Jurists; 1959. Retrieved from https://www.
on the management of law and order in the google.com/url?
country. It also highlights the kind of message sa=t&rct=j&q=&esrc=s&source=web&cd
the government sends and sets a precedent. =1&cad=rja&uact=8&ved=2ahUKEwi_qu
Mr. Patel’s reading and the management of the yk2KXhAhUSXisKHYpqBvMQFjAAegQ
economy may have been wrong, and Mr. IABAC&url=https%3A%2F
Verma may have been guilty of mismanaging %2Fwww.icj.org%2Fwp-content%2
the CBI and several investigations, but thanks Fuploads%2F1959%2F01%2FRule-of-
to the way both exits were mishandled, there law-in-a-free-society-conference-report-
will always be a degree of doubt with which 1959-eng.pd.
such claims are received. To lose one head of 3. Locke J. Two Treatise of Government.
an institution may be a misfortune; to lose two London: 1689. Retrieved from https:/
looks like carelessness [12]. /www.google.com/url?
sa=t&rct=j&q=&esrc=s&source=web&cd
CONCLUSION =4&cad=rja&uact=8&ved=2ahUKEwjCx
Doctrine of Separation of Power though never 430laXhAhXPfH0KHSMPCJIQFjADegQ
adopted in its full rigidness is nevertheless ICRAC&url=http%3A%2F
very important and an integral part of most %2Fwww.yorku.ca%2Fcomninel

JCLJ (2020) 20–26 © Law Journals 2020. All Rights Reserved Page 6
Doctrine of Separation of Power and its Present Significance Chetan Upadhyay

%2Fcourses%2F3025pdf Section 7 of the RBI Act. India Today; Nov

%2FLocke.pdf&usg=AOvVaw225xlC5k6 1, 2018. Retrieved from: https://www.
Mihp3wuTOps8j indiatoday.in/education-today/gk-current-
4. GK Today. Doctrine of Separation of affairs/story/central-government-invoke-
Powers: Meaning and History. GK Today; section-7-act-1934-history-and-
Sep 26, 2016. Retrieved from: https:// amendment-1380387-2018-11-01
www.gktoday.in/gk/doctrine-of-separation 14. Rangan MG. Government Invokes Never-
-of-powers-meaning-and-history/ Used Powers to Make Urjit Patel Fall in
5. Secondat CD, Montesquieu BD. The Spirit Line. The Economic Times; Oct 31, 2018.
of Laws. Batoche Books; 1748. Retrieved Retrieved from: https://economictimes.
from The Spirit of Laws: https://www. indiatimes.com/news/economy/policy/gov
google.com/url? ernment-invokes-never-used-powers-to-
sa=t&rct=j&q=&esrc=s&source=web&cd direct-rbi-governor/articleshow/66438
=3&cad=rja&uact=8&ved=2ahUKEwiQu 503.cms
KvqiqXhAhXJbX0KHcbEAZIQFjACegQ 15. Sharma SN. How RBI's Feb 12 Circular
IBBAC&url=https%3A%2F Changed the Way Banks Dealt with
%2Fsocialsciences.mcmaster.ca%2Fecon Stressed Assets. The Economic Times;
%2Fugcm%2F3ll3%2Fmontesquieu Feb 10, 2019. Retrieved from: https://
%2Fspiritoflaws.pdf&usg=AOvVaw0pS2
economictimes.indiatimes.com/industry/ba
9IiCEUJUcjmWJ3
nking/finance/banking/how-rbis-feb-12-
6. Bansal Y. Doctrine of Separation of
circular-changed-the-way-banks-dealt-
Power. Academike; Apr 4, 2015.
with-stressed-assets/articleshow/679201
Retrieved from: https://www.lawctopus.
com/academike/doctrine-of-separation-of- 50.cms
power/ 16. ET Now. CBI versus CBI: Modi
7. Chhibber A. Separation of Powers: Its Government in Damage Control Mode. ET
Scope and Changing Equations. Legal Markets; Oct 23, 2018. Retrieved from:
Service India; (n.d.). Retrieved from: https://economictimes.indiatimes.com/mar
http://www.legalserviceindia.com/article/l kets/stocks/news/cbi-versus-cbi-modi-
16-Separation-Of-Powers.html government-in-damage-control-mode/
8. Kesavananda Bharati vs State of Kerala articleshow/66326162.cms?from=mdr.
and Ors. WP (civil) 135 of 1970 (Supreme 17. Chatterjee D. Top Court Reinstates Alok
Court of India April 24, 1973). Verma as CBI Chief: 10 Facts about the
9. Indira Gandhi Nehru v. Raj Narain, Row. NDTV; Jan 8, 2019. Retrieved from:
Appeal (civil) 887 of 1975 (Supreme https://www.ndtv.com/india-news/cbi-vs-
Court of India November 7, 1975). cbi-supreme-court-reinstates-alok-verma-
10. Supreme Court Advocates-on-Records as-cbi-chief-10-facts-about-the-contro
Association v. Union of India, (2016) 5 versy-1974577
SCC 1 (supreme Court of India December 18. Friedmann W. Law in a Changing Society.
16, 2015). Columbia University Press; 1996.
11. Ram Jawaya Kapur v. State of Punjab. 19. Jaffe LL, Nathanson NL. Administrative
AIR 1955 SC 549, 1955 2 SCR 225 Law. Little, Brown and Co.; 1961.
(Supreme Court of India April 22, 1955).
12. Hindustan Times. Lessons from RBI and
CBI. Hindustan Times; Jan 14, 2019. Cite this Article
Retrieved from: https://www.hindustan Chetan Upadhyay. Doctrine of Separation
times.com/editorials/lessons-from-rbi-and- of Power and its Present Significance in
cbi/story-Cn8Eq9QHq2CMXUFcUfvX2I. India. Journal of Constitutional Law
html
13. India Today. The Conflict Arose When the
and Jurisprudence. 2020; 3(1): 20–26p.
Government Used the ‘Never Used’

JCLJ (2020) 20–26 © Law Journals 2020. All Rights Reserved Page 7