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Jamia Millia Islamia

(A Central University by an Act of Parliament)

Faculty Of Law
B.A LLB (H) Self- Finance
VI Semester

Assignment
Topic – Sepration of Power Under Indian Constitution

Submitted By – Harshita Negi

Submitted To – Mr. Vinod Chauhan

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ACKNOWLEDGEMENT

Firstly, I would like to thank my professor Mr. Vinod Chauhan, for giving me this
opportunity to do this wonderful project on the topic: “Sepration of power under
Indian Constitution”, which also helped me in doing a lot of research and I came
to know about so many new facts and rules related to Administration law
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Table Of Contents

SR.NO. TITLE PAGE NO.

I. ACKNOWLEDGEMENT 2
II. TABLE OF CONTENTS 3
III. BACKGROUND 4
IV. THEORY OF SEPRATION OF POWER 5
V. SEPRATION OF POWER IN INDIAN CONTEXT 6-10
VI. CONSTITUTIONAL POSITION 10-11

VII. ITS PRACTICAL APPLICATION 12-14

VIII. JUDICIAL OPINION 14-15
IX. CONCLUSION 16
X. BIBLIOGRAPHY 17
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BACKGROUND
Today all the Constitutional systems in the world might not be opting for the strict separation of powers
because that is undesirable and impracticable but implications of this concept can be seen in almost all
the countries in its diluted form. It is widely accepted that for a political system to be stable, the holders
of power need to be balanced off against each other. The principle of separation of powers deals with
the mutual relations among the three organs of the government, namely legislature, executive and
judiciary. This doctrine tries to bring exclusiveness in the functioning of the three organs and hence a
strict demarcation of power is the aim sought to be achieved by this principle. This doctrine signifies the
fact that one person or body of persons should not exercise all the three powers of the government.
Montesquieu, a French scholar, found that concentration of power in one person or a group of persons
results in tyranny. And therefore for decentralization of power to check arbitrariness, he felt the need
for vesting the governmental power in three different organs, the legislature, the executives, and the
judiciary. The principle implies that each organ should be independent of the other and that no organ
should perform functions that belong to the other. The legitimacy of an active judiciary is closely
connected with the constitutional limits enshrined in the constitution which are based on a broad
division of powers among the three organs of the state. In this set up, each organ is earmarked with
certain specific functions any usurpation of such earmarked functions by other organs raises certain
serious questions relating to the harmonious working of the Constitution. For these reasons, the primary
objection that outs the concept of Judicial Activism is the doctrine of Separation of Powers‘. Since early
times, it has been a prime concern of most of the political thinkers to devise methods that can best
stand as a bulwark against the arbitrary exercise of governmental powers. To this effect, it has often
been many a time suggested that there should be no concentration of power in a single man or a body
of men and the government should be that of a government of law and not of men. The frank
acknowledgement of the role of government in a society linked with a determination to bring it under
control by placing limits on its power has influenced the minds of myriad political thinkers as well as the
advocates of constitutionalism who from time to time have come up with distinct theories to grapple
with the burgeoning problem. As a solution to this dilemma, the doctrine of separation of powers has
always stood alongside other theories, as a fundamental political maxim, surmounted with the
intellectual propositions of many philosophers who in some way or the other, developed and perceived
it as per their own apprehensions and understandings.
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MONTESQUIEU‟S THEORY OF SEPARATION OF POWERS

Baron-de-Montesquieu was a French philosopher who is aptly known, criticisms apart, for the
theorization of the concept of separation of powers into a profoundly systematic and scientific doctrine
in his book De L‘ Espirit des Lois (The Spirit of Laws), published in the year 1748. He based his theory on
his understanding of the English system which since the time of Locke had generated a more
independent judiciary and a tendency towards a greater distinction amongst the three branches. Apart
from natural liberty, Montesquieu laid greater emphasis on political liberty of a citizen. He defined
political liberty‘ as ―peace of mind that arises from the opinion each person has of his security‖ and
said that in order to have such liberty, it is necessary that the government be such that one citizen need
not fear another. He further observed that liberty is constantly endangered by the tendency of men to
abuse governmental power and that to prevent such abuse it is necessary to construct a government
where power would check power. This suggests that Montesquieu perceived a separation with an adroit
admixture of checks and balances. In discussing the importance of delineations of power among the
three branches, he wrote―When the legislative and executive powers are united in the same
person or body, there can be no liberty, because apprehensions might arise lest the same
monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again
there is no liberty, if the judiciary power be not separated from the legislative and executive.
Where it joined with the legislative, the life and liberty of the subject would be exposed to
arbitrary control for the judge would then be the legislator. Where it joined with the executive
power, the judge might behave with violence and oppression. There would be an end of
everything, where the same man or the same body, whether of the nobles or the people, to
exercise those three powers, that of enacting the laws, that of executing the public resolutions,
and of trying the cases of individuals. To discover the constitutional principles which best
promoted political liberty, Montesquieu looked to the English Constitution which in his belief, the only
one was having liberty as its chief object. Though the English Constitution classified political power
primarily in terms of legislative and executive functions and further subdivided the latter to take into
account Lock distinction between executive and federative functions, he decided to call the conduct of
foreign affairs as executive power and the execution of domestic law as judicial power. Based on this
broad classification, he divided the governmental power into legislative, executive and judicial functions.
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He apprehended legislative power as an activity of declaring the general will of the state, of informing
the people through general rules of their obligations toward one another and opined that such power
should reside in the body of people, for in a free state, he believed, every man who is supposed to be a
free agent ought to be governed by himself. Further, he understood ‗executive power‘ as that of
executing the public resolutions embodying the general will of State and ‗judicial power‘ as the power
of deciding civil and criminal cases.280 Of the trio, he considered judicial power as the most frightening
power since in his opinion executive could not harm a subject‘s life, liberty, or property until after a
judicial decision

Separation of powers in Indian context:

1-“Doctrine of separation of powers is structural rather than functional.”

2-In India not only there is a ‘functional overlapping’ but there is ‘personnel overlapping’ also.

Abstract:

The Supreme Court applies the structural provisions of the Constitution by relying on an
Overarching framework of “separation of powers.” In Indian Constitution, there are mentioned
provisions in relation to separation of power but there is functional overlapping.
These theories rely on a freestanding separation of powers principle derived from the structure
of the document as a whole, both contradict the idea that the Indian Constitution is a “bundle
of compromises” that interpreters must respect if they are to show fidelity to the Constitution
making process. The historical record reveals that the founding generation had no single
baseline against which to measure what “the separation of powers” would have required in the
abstract.
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Doctrine of Separation of Powers in India:

Development:
In India, the doctrine cannot claim any historical background. The legislature did not appear as
a body separate from the executive till the middle of 19 th century. The doctrine of separation of
powers has not been accorded a constitutional status. It was only after the independence that a
constituent assembly was constituted to draft a constitution for the country. There was a
proposal1 to incorporate the doctrine in to the constitution but it was turned down. The
doctrine of separation of power is not followed strictly. Apart from the directive principle of
state policy laid down in article 50 which talks about separation of judiciary from the executive,
the constitutional scheme does not embody any formalistic division of powers.2

In India, there are three main categories of governmental functions:

i. Legislative
ii. Executive
iii. Judiciary.

Importance:

According to the theory of Separation of Powers, these three departments of the Government
must in a free democracy, always be kept separate by three separate department of the
Government. The function of the legislature is to make laws while the function of the executive
is to execute them and that of the judiciary is to enforce and interpret them. None of these
three departments should interfere with exercise of the functions of the other departments.
One department should not exercise the functions of another department.

1
Proposal proposed by Prof. K.T. Shah, a member of constituent assembly.
2
Upendra baxi : Developments in Indian Administrative Law.
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The theory signifies the following three different things:3

1. That the same person should not form more than one of the three departments of the
government;
2. That one department of the government should not interfere with any other
department;
3. That one department of the government should not exercise the functions assigned to
any other department.

Thus the doctrine lays emphasis on the separation both at the functional as well as personal
level. In an ideal set-up the separation in both these aspects should be clear and complete.

According to Montesquieu, “If the executive and the legislature are the same body of person
there would be a danger of the legislature enacting tyrannical laws which the executive will
administer to attain for its own ends. He further said that if one person or body of persons
could exercise both the executive and judicial powers in the same matter there would be
arbitrary power which would amount to complete severity and there would be no objectivity of
law.”4

The doctrine of separation of powers means that no one person or body should be vested with
all three types of powers. There must be a division of functions on the following basis: the
legislature should make laws, the executive must administer the made laws and the judiciary
must determine rights and uphold justice. Such separation is necessary in order to ensure that
justice does not become arbitrary.

This idea of this theory stems from the logical concept that if the law-makers should also be the
administrators of law and justice, then the people at large will be left without remedy in case
any injustice is done as there will be no superior authority. The concentration of power in one

3
Vanderbilt- The doctrine of separation of powers and its present day significance, page, 38-45.
4
Prof. U.P.D. Kesari : Administrative law, page, 19-25
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person or a group of persons results in tyranny. And thus, for decentralization of power to
check arbitrariness, there is a need for vesting the governmental power in three different
organs. The principle implies that each organ should be independent of the other and that no
organ should perform functions that belong to the other.

The doctrine of separation of powers has become an important part of the governmental
structure. But, the practical application of the doctrine differs from structural provision. In
theory, the doctrine of separation of powers is supposed to have a classification of functions
and corresponding organs. But because of the complex nature of a modern state, where the
process of law making, administration and adjudication cannot be clearly assigned to separate
institutions, the application of this doctrine in strict sense is very difficult that’s why there is
functional and personal overlapping exist in our system.

We know that the government is form for the protection of our rights, but governments have
historically been the major violators of these rights. The concept of Separation of Powers is one
such concept. The basic concept behind this is that when a single person or group has a large
amount of power, they can become dangerous to society and citizens. The Separation of power
is a way of removing the amount of power in any group’s hands, making it more difficult to use.

Doctrine of Separation of Powers in India:

There are three distinct functions 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 department
performs its functions within own sphere of working. 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. The other advantage of judiciary being the arbiter of legality or otherwise of an
executive or legislative decision is that, even if a particular verdict is wrong or socially
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unacceptable, it is subject to review and reversal. This not usually the case with legislative or
executive decisions unless the government of the day so decides. A citizen has no legal right to
ask for a review of decisions taken by the legislature or the executive, even if they are not in the
public interest. The recent Right to Information Act is an important step forward in making the
executive accountable to the people directly. However, in case of any unjust or partisan
decisions taken by the government, the remedy would still lie with the Judiciary. As is the case
in India, all the judges of the Supreme Court are entitled to take their own separate views on
the intent of the Constitution and vote accordingly.

Constitutional position:

The Constitution of India shows the idea of separation of powers in an implied manner. By
looking into various provisions of the Constitution, it is evident that the Constitution intends
that the powers of legislation shall be exercised exclusively by the executive and judiciary.
Similarly, the judicial powers can be said to vest with the judiciary. The judiciary is independent
and there can be no interference with its jurisdiction either by the Executive or by the
Legislature. The executive powers of the Union and the State are vested in the President and
the Governor respectively.

The constitution of India lays down functional separation of the organs in the following
manner:

According to Indian Constitution State shall take steps to separate the judiciary from the
executive. This is for the purpose of ensuring the independence of judiciary. 5 Constitutional
provision provides validity of proceedings in Parliament and the Legislatures cannot be called
into question in any Court within the territory of India.6 Judicial conduct of a judge of the
Supreme Court and the High Court’s cannot be discussed in the Parliament and the State
Legislature, according to the Constitution.7 The executive power of the Union and the State

5
Article 50.
6
Article 122 and 212.
7
Article 121 and 211.
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shall be vested with the President and the Governor and according to Article 361 they enjoy
immunity from civil and criminal liability.8

Our legislature has law making powers and judicial powers in cases of breach of its privilege,
impeachment of the President and the removal of the judges. The executive may affect the
functioning of the judiciary by making appointments to the office of Chief Justice and other
judges. Legislature exercising judicial powers in the case of amending a law declared ultra vires
or unconstitutional by the Court. While discharging the function of disqualifying its members
and impeachment of the judges, the legislature discharges the functions of the judiciary. In
certain cases legislature can impose punishment for exceeding freedom of speech in the
Parliament; this comes under the powers and privileges of the parliament.

Applying the doctrines of constitutional provision in the Indian scenario, a system is created
where none of the department can usurp the functions or powers which are vested into
another organ by express. Further, the Constitution of India expressly provides for a system of
checks and balances in order to prevent the arbitrary use of power. It is essential in order to
enable the just and equitable functioning of such a constitutional system. By giving such
powers, a mechanism for the control over the exercise of constitutional powers by the
respective organs is mentioned.

This clearly indicates that the Indian Constitution in its function does not provide for a strict
separation of powers in India. Instead, it creates a system consisting of the three departments
of Government and confers upon them both exclusive and overlapping powers and functions.
Thus, there is no absolute separation of functions between the three departments of
Government.

8
Article 53 and 154.
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Practical application of the doctrine in India:

Functional overlapping:

In India, not only ‘functional overlapping’ is there but ‘personnel overlapping’ also exists. The
Supreme Court has the power to declare unconstitutional any laws passed by the legislature
and the actions taken by the executive if they violate any provision of the Constitution. Even
the power to amend the constitution by Parliament is subject to the review of the Court. The
Court can declare any amendment void if it violates the basic structure of the Constitution. The
President of India who is executive head exercises law-making power in the shape of ordinance-
making power and also the judicial powers.9 The council of Ministers is selected from the
legislature and is responsible to the legislature.
In case of Pratibha v State of Karnataka,10 the court has observed that since the executive
power of the state executive is co-extensive with that of the state legislature, it follows that the
state executive may make rule regarding any matter within the legislative competence of the
state legislature, without prior legislative authority, except where a law is required because the
rule so framed would violate any provision of the constitution which requires legislation, e.g.,
Articles 265 and 302/162.
The Supreme Court in case of Shri Sitaram Sugar co. ltd. V Union of India,11 has observed that In
general, the court, would not exercise its power of judicial review to interfere with a policy
made by the government in exercise of its power under Article 162, particularly where it
involves technical, scientific or economic expertise. Proper functioning of state administration
should not be jeopardized owing to ego clashes between high officers. Such officers should be
aware that power should be exercised for public good, and not for personal benefit.
The Supreme Court in case of Harish Uppal v Union of India,12 has observed that the Supreme
Court power to frame rules including rules regarding condition on which a person (including an
advocate) can practice in the Supreme Court. Such a rule would be valid and binding on all.
9
Article 103(1) and 217(3).
10
AIR 1991 Kant 205.
11
AIR 1990 SC 1277: (1990) 3 SCC 223.
12
AIR 2003 SC 739: (2003) 2 SCC 45: (2003) 1 KLT 192.
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Such a rule if framed would not have anything to do with the disciplinary jurisdiction of Bar
Councils.13

Check and Balance:

The separation of powers is a doctrine which provides a separate authority, which makes it
possible for the authorities to check the functions of each others. The Supreme Court in Indira
Nehru Gandhi v. Raj Narain,14 it held that separation of powers is a feature of the basic
structure of the Indian constitution. None of the three separate departments of the republic
can take over the functions assigned to the other. This constitutional scheme cannot be
changed even by resorting to amending process under Article 368 of the Indian constitution.
Where any Act made by the legislature is invalidated by the courts on the ground of legislative
incompetence, the legislature cannot enact a law declaring that the judgment of the court shall
not operate, it cannot overrule the decision of the court. This is what is meant by “check and
balance” inherent in a system of government incorporating separation of powers.
The logic behind this doctrine is still valid and relevant. Therefore, mutual restraint in the
exercise of power by the three departments of the State is the soul of the doctrine of
separation of powers. Hence the doctrine can be better appreciated as a ‘doctrine of check and
balance’ and in this sense administrative process is not an antithesis of the ‘doctrine of
separation of powers’.

The debate about the doctrine of separation of powers in regard to Indian governance is as old
as the Constitution itself. Apart from the directive principles laid down in Part-IV of the
constitution which provides for separation of judiciary from the executive, the constitutional
provision does not provide any formalistic division of powers. It appeared in various judgments
by the Supreme Court after the Constitution was adopted. It is through these judicial decisions,
passed from time to time, that the boundaries of application of the doctrine have been
determined.

13
Article 145.
14
AIR 1975 SC 2299.
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Judicial opinion on the doctrine of separation of powers:

Justice Mahajan took note of this point and stated in the famous case of re Delhi Laws Act
case15 that except where the constitution has vested power in a body, the principle that one
department should not perform functions which essentially belong to others in India. By a
majority of 5:2, the Court held that the theory of separation of powers though not part of our
Constitution, in exceptional circumstances is evident in the provisions of the Constitution itself.

To the same effect is the observation of Justice Das in Ram Krishna Dalmia v Justice Tendolkar16
that the constitution does not express the existence of separation of powers, and it 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,17 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.

The doctrine of separation of powers was expressly recognized to be a part of the Constitution
in the case of Ram Jawaya Kapur v. State of Punjab,18 where the Court observed that the
doctrine of separation of powers is not expressly mentioned in the Constitution but it stands to
be violated when the functions of one department of Government are performed by another.

It was after the landmark case of Indira Nehru Gandhi v. Raj Narain19 that the place of this
doctrine in the Indian context was made clear. It was observed by the Supreme Court that in
the Indian Constitution, there is separation of powers in its provision only. A rigid separation of
powers as under the American Constitution or under the Australian Constitution does not apply

15
AIR 1951 SC 747.
16
1959 SCR 229: see also Jayanti Lal v S.M. Ram, AIR 1964 SC 649.
17
AIR 1968 SC 1138.
18
AIR 1955 SC 549 at 556.
19
(1975) supp SCC 1, 260.
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to India. Chandrachud J. also observed that the political usefulness of the doctrine of
Separation of Power is not widely recognized. No Constitution can survive without a conscious
provision to its fine check and balance.”

In I.C. Golak Nath v. State of Punjab,20 Supreme Court took the help of doctrine of basic
structure as propounded in Kesvananda Bharati case21 and said that 9th Schedule is violative of
this doctrine and hence the 9th Schedule was made amenable to judicial review which also
forms part of the basic structure. The Constitution brings into existence different constitutional
entities, namely, the Union, the States and the Union lists. It creates three major instruments of
power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction
minutely and expects them to exercise their respective powers without overstepping their
limits. They should function within the spheres given to them.

But in I.R. Coelho (dead) by L.Rs v State of Tamil Nadu,22 the Supreme Court observed that the
constitution is living document. The constitutional provisions have to be construed having
regard to the march of time and the development of law. The principle of constitutionalism is
now a legal principle which requires control over the exercise of governmental power to ensure
that it does not destroy the democratic principles including the protection of fundamental
rights. The principle of constitutionalism advocates a check and balance model of separation of
powers. It requires a diffusion of powers, necessitating different independent centers of
decisions-making. The legislature can restrict fundamental rights but it is impossible for law
protecting fundamental right to be impliedly repealed by future statutes. The protection of
fundamental rights through the common law is main feature of common law constitutionalism.

Conclusion
The doctrine of separation of powers has come a long way from its theoretical form. The mere
separation of powers between the three departments is not sufficient for the elimination of the

20
(1975) supp SCC 1: AIR 1975 SC 2299.
21
(1973) 4 SCC 225: AIR 1973 SC 1461.
22
AIR 2007 SC 861.
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dangers of arbitrary government. Therefore, a system of checks and balances is a practical

necessity in order to achieve the successful end of the doctrine of separation of powers. Such a
system like separation of power is necessary in order to strengthen its actual usage. It is evident
that governments in their actual operation do not opt for the strict separation of powers
because it is impracticable, however, application of this concept can be seen in almost all the
countries in its mixed form. India relies heavily upon the doctrine in order to regulate, check
and control the exercise of power by the three departments of Government. Whether it is in
theory or in practical aspect, the Doctrine of Separation of Powers is essential for the effective
functioning of a democracy. Therefore, the “Doctrine of separation of Powers” in today’s
context of Liberalization, privatization and globalization cannot be interpreted to mean either
‘separation of powers’ or ‘check and balance’ or ‘principle of restraint’ but community of
powers exercised in the spirit of cooperation by various departments of the State in the best
interest of the people.
It is to be noted that the doctrine of separation of powers should not be taken to mean that the
executive and the legislature cannot be directed by the judiciary to discharge their functions if
they are found inactive in discharging of the function assigned to them by the constitution. The
Supreme Court has been made the guardian and protector of the constitution and therefore it
can direct the legislature and executive to discharge their function properly. The judiciary in
India, in addition to the judicial function, has been assigned the functioning to see that the
constitution is not violated by any authority including the executive and the legislature. For the
maintenance of rule of law in the country it is necessary that each department of the
government perform its functions properly.

Bibliography:
Books referred:
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1. Administrative Law by Prof. U.P.D. Kesari (Page 19-25),

2. Administrative Law by Kailash Rai (Page 43),
3. The Indian Administrative Law by M.C. Jain Kagzi (Page 15-20),
4. Administrative Law by I.P. Massey (Page 33),
5. Administrative Law by Durga Das Basu,
6. Introduction To Administrative Law by Prof. Neil Hawke and Neil Papworth,
7. Principles of Administrative Law by M.P. Jain and S.N. Jain (Page 31-37),
8. Administrative Law by S.P. Sathe (Page 20-23),
9. Administrative Law by D.D. Basu (Page 23-28),
10. Administrative Law by Wade (Page 251),
11. Developments in India Administrative Law by Upendra Baxi (Page 136),
12. Indian constitutional Law by M.P. Jain (Page 115-119),
13. Changing face of Administrative Law by M.P. Jain (Page 80-98),
14. Lectures on Administrative Law by C.K. Takwani,
15. The constitution of India by P.M. Bakshi.

Websites:

1. http://airwebworld.com/articles/index.php?article=1531
2. http://www.legalquest.in/index.php/students/law-study-materials/45-administrative-
law/407-doctrine-of-separation-of-powers.html
3. http://www.pucl.org/Topics/Law/2006/seperation-of-powers.html
4. http://indiankanoon.org/doc/1274763/
5. http://indiankanoon.org/doc/342033/
6. http://indiankanoon.org/doc/748977/
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