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The Doctrine of Separation of Powers in Indian

Perspective
Kusum 1

1
Research Scholar, Department of Political Science, Singhania University, Jhunjhunu, Rajasthan.

ABSTRACT:

The doctrine of Separation of Powers emphasizes the mutual exclusiveness of the three organs of government,
viz., legislature, executive and judiciary. The main underlying idea is that each of these organs should exercise
only one type of function. ‘Separation of Powers’ is a fundamental principle whereby powers and
responsibilities are divided among the legislative branch, executive branch, and judicial branch. The officials
of each branch are selected by different procedures and serve different terms of office; each branch may choose
to block action of the other branches through the system of checks and balances. The framers of the
Constitution designed this system to ensure that no one branch would accumulate too much power and that
issues of public policy and welfare would be given comprehensive consideration before any action was taken.
The main objective of introducing there principles were to prevent the concentration of power and provide for
check and balances. The present Article is an attempt to analyse the Doctrine of Separation of Powers as
envisaged under the Indian Constitution and its context in the three wings of the government while in practice.

Key Words: Doctrine of Separation of Power, Role of Judiciary, Independence of Judiciary, Check and
Balance system

Introduction
The doctrine of Separation of Powers was originally started in the writings of Montesquieu in the spirit of the
Laws where Montesquieu refers to the division of govt. responsibilities into three separate branches of
government to make sure that none of the branch intrudes into the domain of another. The doctrine of
Separation of Powers is of ancient origin, its history is traceable to Aristotle in his book “Politics” that
mentioned the three branches of the government, the deliberative, the ministerial, and the judicial. True
objective of introducing there principles were to prevent the concentration of power and provide for check and
balances. American Constitution, Australian constitution is very rigid as compared to Indian constitution and
it does not apply to India or even England. Separation of Powers is practiced in India but not that rigidly. The

1
Research Scholar, Department of Political Science, Singhania University, Jhunjhunu, Rajasthan
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three main areas of government in some or the other way perform the task of other. The concept of Separation
of Powers is a measure to protect individual’s rights, acknowledging the fact that governments have historically
been the major violators of such rights. The hypothesis behind the Separation of Powers is that when a single
person or group has a large amount of power, they can become treacherous to citizens. The Separation of Power
is a method of removing the abuse of power.

Doctrine of Separation of Power

The modern doctrine of separation of powers was a leading tenant in the political philosophy of the 18th
century. it was Montesquieu French jurist who for the first time gave separation of powers a systematic and
scientific formulation in his book the spirit of the loss where he visualise three structural classification of
powers into legislative executive and judicial and emphasized that none of the three organs of the state
legislature executive and Judiciary should interfere with the exercise of the functions of the Other organ.

Concept Separation of power in Ancient India:

The Separation of power is known as it has been found by the Montesquieu and Locke but the roots are found
in the Vedas. If we study the Smritis which are ancient source of law i.e. Dharma, we find such type of
separation. In Narad Smriti we trace the very principle of separation of power. At that time Deewan was head
of the Executive wing of any legacy, Senapati did a job to maintain law and order and Kaji was the judicial
head. At the same time we have to bear in mind that they all are subordinate to the King and King was the
supreme authority who makes the law and therefore he was similar to present form of legislature. In short,
what comes out is that in ancient time also there was a separation of power in one province or legacy. After
all, King is known as the supreme authority of all but the functions and powers has been separated.

The Doctrine of separation of power Meaning by Montesquieu -

a. A body or any person should not exercise all the three kinds of power.
b. The same person should not form part of more than one of the three organs of government.
c. One organ of the government should not interfere with any other organ of the government.
d. One organ of the government should not exercise the functions assign to any other organ.
e. The legislature shall never exercise the judicial or the executive powers while the executive shall never
exercise the legislative or the judicial power and the judicial branch shall never exercise the executive
and the legislative.

The Doctrine of separation of power Meaning by Wade and Philips

The doctrine of separation of power as one the same person should not compose more than one branch of the
three branches, one branch should not control and interfere with the act of the other two branches and see one
should not discharge the function of the other two branches.

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The concept of Separation of Powers is a measure to protect individual’s rights, acknowledging the fact that
governments have historically been the major violators of such rights. The hypothesis behind the Separation
of Powers is that when a single person or group has a large amount of power, they can become treacherous to
citizens. The Separation of Power is a method of removing the abuse of power. The significance of this
doctrine can be summed in the following points: Ending the despotism, it safeguards individual liberty.

Article 50 of the constitution describes the separation of the executive from the judiciary and this is the only
article which talks about the separation between two organs. It means that there should be judiciary service
without any executive control. It emphasizes on the necessity of independence of judiciary. It not only
maintains the efficiency in administration but also protects the people from the arbitrary rule of the executive.
This theory admonishes the executive and the administrative wings of the government not to interfere with the
process of law and justice, so as to ensure the liberty of the individuals in the society. Separation of powers
means distribution of powers for specified functions of the government. All the powers of the government have
been conceived as falling within one or another of three great classes, as – (1) the enactment of making laws,
(2) the interpretation of that laws and (3) their enforcement; namely- legislative, judicial and executive.
Government has been deemed to be made up of three branches having for their functions and such classification
is recognized as classical division. The framers of the Indian Constitution did not perceive in an inflexible way
the assumption of the division of forces.

However, many conflicts that arise from the government process are dealt with by the administrative tribunals
rather than by the ordinary courts. Nevertheless, the tribunals’ impartiality is maintained by preserving
essential features of ‘fair judicial procedure’. It is found, on analysis, that under the various provisions of the
Constitution, such as Article 53(1) and 154(1), the executive powers of the union and the states are vested
respectively in the president and the governors. According to this scheme, the president is the chief executive
of the Indian union who exercises his powers constitutionally in accordance with Article 74(1) on the assistance
and advice of the Ministerial Council. The threefold division of powers is partially recognized and the
parliament and the state legislatures and judicial powers in the Supreme Court and other courts have been given
no unbridled “legislative powers. India’s constitution has taken a midway route on this issue Article 50 of the
Constitution provides that the state shall take measures to separate the judiciary from the executive within the
State’s public services. The constitution also empowers the President to issue ordinances in the exercise of his
legislative powers which extend to all matters falling within Parliament’s legislative competence. Under
Article 123, the President shall have the power to promulgate an ordinance when it deemed necessary during
the recess of both houses of Parliament.

In Minerva Mills’s case, the Supreme Court by striking down sections 4 and 5 of the 42nd Amendment Act to
be ultra vires maintained its supremacy and its role as the watchdog of the Constitution. About Sections 4 of
the said amendment, which sought to oust the jurisdiction of the Court, Mr. N.A. Palikhivala 21 has observed
that provision was clearly ultra vires the amending power of the Parliament. That destroyed the balance of

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power between the legislatures and sought to deprive the citizens of the modes of redress which are guaranteed
by Article 32.

Theory of Check and Balances

The doctrine of separation of powers is a part of the basic structure of the Indian Constitution even though it
is not specifically mentioned in it. Hence, no law and amendment can be passed violating it. The system of
checks and balances is essential for the proper functioning of three organs of the government. Different organs
of the state impose checks and balances on the other. Article 50 of the constitution describes the separation of
the executive from the judiciary and this is the only article which talks about the separation between two organs.
Checks and balances acts in such a way that no organ of the state becomes too powerful. The constitution of
India makes sure that the discretionary power bestowed upon any organ of the state does not breach the
principles of democracy. For instance, the legislature can impeach judges but as per the condition i.e. two third
majority.

The system of checks and balances is a part of proper functioning of three branches of government. It
guarantees that no part of the government becomes too powerful. For example, the legislative branch makes
law, the executive branch passes the valid law and the judicial branch may also say that the law is
unconstitutional and thus make sure it is not a law. The legislative branch can also remove judge that is not
doing his/her job properly. The executive branch appoints judges and the legislative branch approves the choice
of the executive branch. Again, the branches check and balance each other so that no one branch has too much
power. This is what describes the theory of checks and balance.

The current practices of the Doctrine of separation of power in India

The Indian Constitution does not define the separation of power. It does not state anywhere clearly of the
distinction of powers but it implies. Even though there are no clear provisions stating the distinction between
the three organs, there are many provisions under the Indian Constitution that states the reasonable separation
of powers.
Article 50: State shall take steps to separate the judiciary from the executive. This is for the purpose of ensuring
the independence of judiciary, Article 122 and 212: validity of proceedings in Parliament and the Legislatures
cannot be called into question in any Court. This ensures the separation and immunity of the legislatures from
judicial intervention on the allegation of procedural irregularity, 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 and they
enjoy immunity from civil and criminal liability. Article 361 the President or the Governor shall not be
answerable to any court for the exercise and performance of the powers and duties of his office.

Legislature: Responsible for making laws and amendment in the made laws The Council of Ministers shall be
chosen from among the members of the Legislature and this Council shall be responsible for the Legislative
Council. Article 61: Impeaching the president and removal of judges.

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Executive: The Indian President, the top executive authority of the state is the authority who gives clearance
when making any law. He can reject if he finds any law not just, and refuse to sign it. Also “Article-123, also
the Judicial powers under Article-103(1) and Article-217(3), he has the consulting power to the SC of India
under Article-143 and also the pardoning power in Article-72 of the Constitution. The executive also affecting
functioning of the judiciary by making appointments to the office of Chief Justice of India and other judges.”
It should also be noted that the executive appoints the Chief Justice of India, affecting the Judiciary.
Judiciary: Article 142 and Article 145 of the Indian Constitution states or talks about the power vested in the
Judiciary that makes it an independent body. The Supreme Court has the power to declare the laws enacted by
the legislature void if it harms the Indian Constitution as well as take appropriate actions against the executive.
The amendment of the laws is also subject to the scrutiny of the Court. As seen in Kesawananda Bharati v.
State of Kerela it was held that the Parliament couldn’t amend the provision in such a way that violates the
basic structure.
Advantages of Separation of Power
Since the functions are divided, the work is hence divided to the three groups. This increases the efficiency
with the work, when every group is working on different aspects simultaneously, hence increases the amount
of work done in less time. It is necessary for the smooth running of the state. The three organs appoint the
experts of the field. The experts work under their respective organs and are capable in handling the work
assigned under different organs hence; with efficiency it ensures the work done to be correct and accurate.
Since the functions and the work is divided, it clears and creates the distinction of skills and labour required.
Since there is a clear distinction and a system of check and balance, there is no arbitrary ruling and no
autonomy. The division creates as systematic procedure to run the country. The clear distinction helps
eradicating the overlapping of work, and hence there is no interference with others work, and since the
overlapping is removed with the organs having its individual work, it helps in removing competition. The
separation of power is essential because it provides an indispensable system of checks and balances, which
prevents the concentration of power. It promotes an accountable and Democratic form of government and helps
in eliminating arbitrariness, tyranny, and totalitarianism. It enhances the accountability and control of different
branches over each other, i.e., "the checks." It divides the power between the various components of
government so that the administration is not concentrated in one hand and is referred to as "balances." It
prevents the abuse of power and safeguards the freedom of everyone as unlimited power in the hands of one
person or group may lead to the suppression of others, and their rights and powers may be curtailed. It prohibits
the misuse of powers within the different organs by demarcating certain limits and boundaries for each branch
of the government. It also allows all three branches to specialize in their respective fields to improve and
enhance the efficiency of the government. This doctrine seizes the powers of one component of the government
to exercise the power of another. Therefore, the principle of separation of powers is considered an essential
pillar of Democracy that prevents malfeasance of power and promotes liberty and equality.

Disadvantages of Separation of Power

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The theory behind doctrine of the separation of power states that the functions between the legislature, the
executive and the judiciary are separate which cannot be seen in reality. The three functions do overlap each
other as the system of check and balance. But this provision may result in the efficiency and increase in
competition. The separation may lead to deadlocks and may get engaged in some conflict between two organs.
As well as in practice it is not possible to dedicate one kind of power under one body. And hence, the doctrine
is impractical in its absolute sense as well as not favourable.
Judicial Approach towards the Doctrine of Separation of Power
In Ram Jawaya v. Punjab 2(1955) case, the Supreme Court held that the executive is derived from the
legislature and is dependent on it for its legitimacy. Cabinet ministers in India both executive and legislative
functions. Art. 74(1) gives the upper hand to the cabinet ministers over the executive by making their aid and
advice mandatory for the President, who is the formal head of the State.

3
In Re Delhi Laws Act A 7 judged bench of the Supreme Court relied on the principle that one body should
not perform the functions which essentially belong to the other. The court held that though the doctrine of
separation of power is not expressly mentioned in our Constitution, but is evident in some exceptional
circumstances. A clear demarcation was also made between the different powers, responsibilities, and
jurisdictions of the three separate organs of the State, namely, the Legislature, the executive, and the Judiciary.

In Ram Krishna Dalmia v Justice Tendolkar 4 The honorable Chief Justice SR Das opined that even if there
is an absence of specific provisions for the separation of power in our Constitution, there is under the American
Constitution. However, some such division of powers among the legislative, executive, and Judiciary is
implicit in our Constitution.

In Keshav Singh v Speaker, Legislative Assembly 5The Supreme Court relied on the doctrine of separation of
power and pointed that Article-211 debars the state legislature from discussing the conduct of a High Court
judge. The existence of a fearless and independent judiciary is the basic foundation of the Constitutional
structure in India does not provide any power to Legislature to take action under Article-194(3) or Article-
105(3) against a judge for its contempt alleged to have been committed by the judge in the discharge of his
duties.

In IC Golakhnath v State of Punjab 6The Supreme Court emphasized the doctrine of separation of power. The
then C.J. Subha Rao opined that: "The Constitution brings into existence different constitutional entitles,
namely the Union, the State, and the Union Territories. It creates the three powerful instruments of power,
namely the Legislature, the executive, and the Judiciary. It demarcates their jurisdictions minutely and expects

2
AIR 1955 SC 549
3
(1951) 2 SCR 747
4
AIR 1958 SC 538
5
AIR 1965 All 349
6
(1967) 2 SCR 762
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them to exercise their respective powers without overstepping their limits. They should function within the
spheres allotted to them.

In Indira Nehru Gandhi v Raj Narain 7The respondent challenged the constitutional validity of Article-329A,
which was added by the 39th Constitutional (Amendment) Act,1975, and argued that it is violating the primary
feature of the Constitution. The court applied The landmark decision of Kesavananda Bharati and thus declared
the impugned clause-4 of Article-329A to be unconstitutional. Justice Chandrachud said that as the pure
judicial function is being transferred into the Legislature's hands, it, therefore, amounts to the violation of the
principle of separation of power.

In Asif Hamid v State of Jammu and Kashmir 8The rigidity of the doctrine of separation of power in India
was absent. However, the limitations of every organ are predefined as Legislature, executive, and Judiciary
have to function within their spheres as mentioned under the Constitution. Although the judicial review helps
to check the unconstitutional functions of the Legislature and executive, the Judiciary must have self-imposed
disciplinary provisions while exercising the powers of judicial review.

9
In Madras Bar Association v UOI The constitutional validity of the National Company Law Tribunal
(NCLT) and the National Company Law Appellate Tribunal (NCLAT) was challenged because these tribunals
are violating the basic structure of the Constitution, and the Legislature did not have powers to transfer the
judicial functions of the courts to the tribunals, and this is violative of the doctrine of separation of powers.
But the court upheld that the creation of NCL and NCLAT and the powers and jurisdiction vested by the High
Courts in such tribunals is not unconstitutional. The court also pointed that only the constitutional amendments
are subjected to the fundamental structure doctrine, and the legislative measures are not subjected under this
doctrine of the basic framework. This independence of the institution refers to the separation from the other
branches of the government. Functional independence would include selecting and the prescribed
qualifications based on the members' caliber, ability, and integrity. It also protects the Judiciary from the
interference of other branches and ensures its independence from the executive pressure, thereby adding to the
separation of powers.

Interdependence of three powers

1. Executive over Legislative-Under Article-123, the President has the power to promulgate ordinance
(which has the same force as the one made by the Parliament or by the state legislature) when
Parliament is not in session and when the situation arises which immediate action is required. The
Executive exercises its powers under delegated legislation. Under articles 118 and 208, both the Houses
of Parliament have the authority to make rules for regulating their respective procedure and conduct of
business subject to the provision of the Constitution.

7
(1975) 3 SCR 333
8
(1989) 3 SCR 19
9
(2014) 10 SCC 1
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2. Judiciary over Legislative- Article-13 talks about the Judicial review under which the Legislature
makes the law, and this process is known as judicial. It refers to the Judiciary's power to interpret the
Constitution and declare any such law and order of the Legislative and Executive to be void if found
unconstitutional. Article 145 and 225 provides Legislative Powers to the High Court and the Supreme
Court by which they can formulate rules to regulate their procedure. There have been many instances
where the emergence of laws and policies can be seen in their judgments. For example, the Vishakha
guidelines were the supreme court a mod guidelines on sexual harassment.
3. Executive over Judiciary- The executive made for effect the functioning of the Judiciary by making
appointments to the office of the chief justice and other judges. Under Article-71, the President
performs judicial functions while granting pardons, reprise, respites, or remission of punishment, remit
or commute the sentence of any person convicted of any offense (must be judicial). Under Article-124
(2A) and 217(3), the President discharges his judicial functions in resolving disputes related to the age
of the Judges of the Constitutional Courts for retirement from their judicial office. The Tribunal and
other Quasi-judicial bodies also perform the judicial functions, which are a part of the executive. In
Administrative adjudication, the Executive agencies have the power to hear and decide cases involving
a particular future of any administrative activity.

Conclusion
The doctrine of separation of powers in India is not strictly adhered to. Instead, it is interpreted and used as
the Doctrinal Division of Functions, which means that although theoretically and strictly the executive must
only implement or execute laws, the Legislature should only make laws, and the Judiciary should only interpret
the laws. Constitution is the terrestrial supreme law. No organ should go beyond the role which the constitution
assigns to it. It is the duty of the judiciary, executive and legislature to adhere strictly to one of the most
fundamental features of the Separation of Powers’ Constitution. In a democratic country like India goals are
enshrined in the constitution and the state machinery is then setup accordingly. And here it can be seen that
constitutional provisions are made as such to support a parliamentary form of government where the principle
can’t be followed rigidly
Today, the doctrine in its absolute form is only recognized in letter as it is entirely unfeasible and impractical
for usage in the operational practices of a government. With the passage of time, States have evolved from
being minimal and non-interventionist to being welfare oriented by playing the multifarious roles of protector,
arbiter, controller and provider to the people.

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REFERENCES

1. Bakshi, P.M. ‘The Constitution of India’, Universal Law Publishing Co. Pvt. Ltd. (2005).
2. Basu, D.D. ‘Administrative Law’, Kamal Law House, Kolkata, Sixth Edition, 2004.
3. Somnath Chatterjee, “Separation of Powers and Judicial Activism in India”, Indian Advocate, vol. 34-
35, 2006-2007.
4. Akhtar Majeed, “Separation of Powers Vs Judicial Activism: Crisis of Governance”, Indian Journal of
Federal Studies, 2008.
5. Justice J.N. Bhatt, “Separation of Powers: The Role of Judicial Review Juristic or Forensic? Evolving
or Elusive?” vol. 86, A.I.R. 1999.
6. Massey, I.P. ‘Administrative Law’, Eastern book Company Lucknow Sixth Edition (2005).
7. Basu, D.D.‘Administrative Law’, Kamal Law House, Kolkata, Sixth Edition, 2004 Jain, M.P. ‘Indian
Constitutional Law’, Wadhwa and company, Nagpur, Fifth Edition, 2005.
8. Gwyn, W. B. (1965). The Meaning of the Separation of Powers.

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