1.

What is the interrelation between the terms constitution, constitutional law and
constitutionalism? How is a legislative power different from constituent power? How does the
study of comparative constitutional law develops the understanding of a system?

The Constituent power is essentially the power vested in a duly elected or an otherwise
constituted body especially mandated to lay down the fundamental law of the land designated as
its constitution. What should be the nature, character, structure and mechanism of the polity as
also its objectives are largely determined with reference to the philosophy and content of the
political movement or revolution that preceded it.
The American revolution and Constitution illustrate the first endeavour in this direction more
than two centuries ago [1787]. The Indian political movement and Constitution, incorporates not
only the traditional values of constitutionalism but charters of state obligations and the citizens
duties (inductedlater) for ensuring individual and collective welfare, an endavour around the
middle of the last century .
The Constituent power was exercised, for the first time, in India by a Constituent Assembly,
largely an indirectly elected body, having on its floor, a galaxy of the leaders of independence
movement, representing the collective conscience and will of the people as emerged during a
long-drawn political battle fought for the political emancipation of the country from the alien
rule and wedded to the integral development of the society and its constituents. The Constitution,
as framed by the Assembly and enforced on 26 January 1950, gave birth to the modern Indian
state as aspired by the people during their struggle for freedom.
The framers of the Constitution, as alive they were to the need to adapt it to new challenges and
circumstances that might arise in working out the new state provided for its amendment by
Parliament by a special majority plus ratification by state legislatures in certain cases. Soon after
the commencement of the Constitution and in the years that followed, some strains were felt in
giving effect to what the nascent state stood for.
This led to the enactment of a number of constitutional amendments, some of which were
challenged in the courts as unconstitutional and void. One of the issues for judicial consideration
related to the nature and extent of the amending power. Ultimately the verdict handed down by
the Apex Court restricted this power so as to save the basic structure of the Constitution from
political manipulations. While so interpreting the relevant provision, the court was inspired by
the philosophy and content of the independence movement and the deliberations of the
Assembly.
The majority judgment as given in Kesavananda Bharati v State of Kerala [1973] read with
Indira Nehru Gandhi v Rajnarayan [1975] required the validity of each new constitutional
amendment to be tested on its own merits. The actual effect and impact of the law on the
fundamental rights had to be assessed for determining whether or not it destroyed the doctrine of
basic structure. The test of impact would determine the validity of the challenge.
All amendments to the Constitution made on or after 24 April 1973 (the date of Kesavananda
Bharati) by which the Ninth Schedule was amended by inclusion of various laws in it would

have to be tested an the touchstone of the doctrine of basic structure or essential features of the
Constitution as reflected in Article 21 read with Article 14, Article 19 and the principles
underlying them. To say differently even though an Act was placed in the Ninth Schedule by a
constitutional amendment, its provisions would be attacked on the ground that they damaged or
destroyed the doctrine of basic structure of the fundamental right or rights abrogated or taken
away pertained the doctrine of basic structure.
Justification for conferring protection, and not the blanket one? On the laws included in the
Ninth Schedule by the constitutional amendments would be subject of constitutional adjudication
by examining the nature and extent of infraction of fundamental rights by a statute sought to
constitutionally protected and on the touchstone of the doctrine of basic structure as reflected in
Article 21 read with Articles 14 and 19 by applying rights test or essence of the right test
taking the synoptic view of Articles in Part III. Applying these tests to the laws of the Ninth
Schedule, if the infraction affected basic structure, then such a law or laws would not get
protection of the Ninth Schedule.
The validity of any law of the Ninth Schedule was upheld by the Supreme Court, the same would
not be open to challenge such law again on the principles declared by the judgment in current
case. If law held violative of fundamental rights was subsequently included in the Ninth
Schedule after the date of judgment of Kesavananda Bharati, i.e., 24 April 1973, such an
infraction or violation would be open to challenge on the basis of damaging or destroying the
doctrine of basic structure indicated in Article 21 read with Articles 14 and 19 on the principles
underlying them.
Action taken and transaction finalized in consequence of the impugned Acts would not be open
to challenge.

Procedure Established by Law & American Due Process of Law

Article 21 No person except according to procedure established by law shall be deprived of his
life or personal liberty.
Maneka Gandhi v Union of India, AIR 1978 SC
Passport Act 1967- 10(5)--Whether s.10(3)(c) is violative of Articles 14, 19(1) (a) (b) & 21-Grounds for refusing to grant passportWhether the power to impound passport arbitrary--"in
general public interest" if vague.
The petitioner was issued a passport on June 1, 1976 under the Passport Act,1967. On the 4th of
July 1977, the petitioner received a letter dated 2nd July, 1977, from the Regional Passport
Officer Delhi intimating to her that it was decided by the Government of India to impound her
passport under s. 10(3) of the Act "in public interest". The petitioner was required to surrender
her passport within 7 days from the receipt of that letter. The petitioner immediately addressed a
letter to the Regional Passport Officer requesting him to furnish a copy of the statement of
reasons for making the order as provided in s.10(5). A reply was sent by the Government of
India, Ministry of External Affairs on 6th July 1977 stating inter alia that the Government
decided "in the interest of the general public" not to furnish her copy of the statement of reasons
for the making of the order.
The Act was enacted on 24-4-67 in view of the decision of this Court in Satwant Singh
Sawhney's case. The position which obtained prior to the coming into force of the Act was that
there was no law regulating the issue of passports for leaving the shores of India and going
abroad. The issue of passport was entirely within the unguided and unchannelled discretion of
the Executive. In Satwant Singh's case, this Court bell by a majority that the expression 'personal
liberty' in Article 21 takes in, the right of locomotion and travel abroad and under Art 21 no

person can be deprived of his right to go abroad except according to the procedure established by
law. This decision was accepted by the Parliament and the infirmity pointed but by it was set
right by the enactment of the Passport Act, 1967.
Section 10(3), Passport Act provided that the Passport Authority may impound or cause to be
impounded or revoke a passport or travel document on the grounds set out in cl. (a) to (h). The
order impounding the passport in the present, case, was made by the Central Government under
cl. (c) which read as followsIf the passport authority deems it necessary so to do in the interest of the sovereignty and
integrity of India, the security of India, friendly relations of India with the foreign country,
or in the interests of the general public."
Section 10 (c) If the passport authority deems it necessary so to do in the interest of the
sovereignty and integrity of India, the security of India, friendly relations of India with the
foreign country, or in the interests of the general public."
Satwant Singh Sawhney vs D. Ramarathnam,
Assistant 1967 AIR 1836
Court ruled by majority that the expression
"personal liberty" which occurs in article 21 of the Constitution includes the right to travel
abroad and that no person can be deprived of that right except according to procedure established
by law.
2. What are the merits and demerits of a unitary and federal form of government? What is federal
principle according to Prof. Wheare? Does creation of new state against wishes of State violates
spirit of federalism? Comment.
According to Dicey federalism is a national constitution for a body of states which desire union
and do not desire unity. According to Encyclopaedia Britannica, the essence of federation is that
there is a real division of power, operating as a constitutional limitation upon the union and
states.
The Indian Constitution is a Federal Constitution with strong Centralising features. Professor
K.C. Wheare, who regards the American constitution as the model of a true federation has described the
Indian constitution as quasi federal, that is a unitary state with subsidiary federal features rather than a
federal state with subsidiary unitary features. This is not completely true as the following features of

Indian Constitution make it Federal Constitution.

1.
2.
3.
4.

Division of Powers or Dual Government

Written Constitution
Supremacy of Constitution
Rigidity of Constitution- Theory of basic structure held in Kesavanand Bharti v State of
Kerala AIR 1973 SC
5. Authority of the Courts [Article 141]
6. Separation of Powers
7. Check & Balance

The following features of the Indian Constitution make it less federal or quasi federal or
Constitution with strong centralising tendencies.
1.
2.
3.
4.

Creation of New States [Articles 2-4]

Single Citizenship [Articles 5-11]
Appointment of Governors [Article 153]
Divisions of Powers under Article 246 makes Centre more powerful than States [List IUnion List 97 Items], List II State List 66 Items List III Concurrent List 47 Items]
5. Emergency Powers under Article 352, Article 356 & Article 360.
6. Single Integrated Judiciary
COMPARATIVE FEDERALISM: INDIA & USA
The US gained the status of Federal Republic State in the year1789; whereas India occupied the
status of Socialist, Sovereign, Secular, and the Democratic Republic by enacting its Constitution
in
the
year
1950
The Constitution of US is very rigid than the Indian Constitution
The Constitution of US is very precise and rigid running into only a few pages, whereas the
Constitution of India is very bulky containing as many as XXII parts, 395 articles, and ten
schedules. Since the US Constitution is very rigid, the provisions meant for amending the
Constitution are also very rigid and more formal. The US Constitution has been amended only 27
times, whereas, the Indian Constitution, which came into force in the year 1950, has so far been
amended more than 100 times.
Theory of Basic Structure.

2) While the US has the Presidential form of Government, India has the Parliamentary
form of Government
In the US, the President is the head of the state and so his government is popularly referred as the
Presidential form of government. India, on the other hand, has a Parliamentary form of
Government as the Prime Minister with his cabinet exercises real power with the President being
only a nominal head. The President of US holds office for a period of four years while the Indian
Prime Minister holds power for five years as long as his political party enjoys a majority in the
Lok Sabha. While the US follows the bi-party system, India has a multi-party system and a
complicated process of election.
4) Differences in the judicial system between US and India
US being a developed country have an advanced judicial system. The judicial system of India is
however rapidly developing. A Judge in the US holds office as long as he is capable of
performing his duties. Indian Constitution on the other hand states that a District judge holds his

post till the age of 58, a High Court judge holds till the age of 62 and a Supreme court Judge
retires at the age of 65.
5) Difference in citizenship
The Constitution of India recognises single citizenship. On the other hand, USA Constitution
provides for a double citizenship that is a US citizen can have citizenship of two countries, USA
and some other country.

Federal Government:
Federal government is a type of national government in which government have powers to
delegates the power to other elected member of the states. There can be two level of federal
government in a country either it is performing through common institutions or through powers
as prescribed by a constitution of the state. It is totally opposite to the unitary government. In
federation or federal government, provinces or territories enjoys some rights as are available to
the independent states. However international diplomacy, national security, foreign affairs and
other kinds of international dealings are solely made by the federal government. It can be in form
of federal republic and federal monarchy government. Currently there are 27 federations in the
world. Pakistan, India, Brazil, Switzerland, Sudan, etc. are examples of federal republic
government while Australia, Belgium, Canada, etc, are examples of federal monarchy
government.

Unitary Government:
Unitary government is a kind of government system in which a single power, which is known as
the central government, controls the whole government. In fact, all powers and administrative
divisions authorities lies at the central place. Today most of the government system in the world
are based on unitary system of government. It is slightly different from federal states and confederal states. In unitary government, central government has the power to broadened or
narrowed the power of sub-national units. It can create and abolished the same up to his will. It
can be in form of unitary republic or unitary monarchy. UK, US, Afghanistan, Italy, Zambia
Ukraine, etc. are examples of unitary republic government while Kuwait, Saudi Arabia,
Barbados, Morocco, Spain, etc are examples of unitary monarchy government.
Merits
of
Federal
State:
1. It is suitable for countries having a diversity of race, religion and language. Local needs are
met with effectively.Responsibilities of the central government are lessened.
4.
People
get
training
in
the
art
of
self-government.
5. Small states can have dignity and be safe from foreign aggression.
Demerits
of
Federal
State:
1.
It
is
inefficient
because
of
diversity
of
law
and
administration.
2. There is always a tug-of- war between national and local interests.
3.
It
is
highly
expensive.

Merits
of
Unitary
State:
1.
It
is
a
source
of
strong,
stable,
all-powerful
government.
2. It ensures single uniform administration for the whole of the state.
3. The system deserves special praise for its simplicity and less expensiveness.
4. The administration of a unitary state is flexible and can easily adapt itself to the changing
social needs and environment because the central government can amend the constitution as and
when required.5. A unitary government, because of its simplicity, less expensiveness and
strength,
is
ideally
suitable
for
small
states.
6. Since a single government runs the whole show, the responsibility of any lapse can be easily
fixed. The central government cannot blame the local governments for its failures and acts of
omission.
Demerits:
1. Central Government is excessively powerful than the unitary government, & can dissolve it to
the
ground.
2. The central government often behaves inefficiently because of being overburdened with all the
work.
3. Another valid point of criticism against the unitary government is that because of being
located at the centre and faced with pressing national problems, it very often fails to satisfy local
needs.
4. The unitary system is suitable only for small and homogeneous states. For big states or states
with racial, linguistic, cultural, religious and regional diversities, federal system alone can be
suitable.
5. A unitary government is more bureaucratic.
The classic definition of federalism is that offered by K.C. Wheare, who described the federal
principle as "the method of dividing powers so that the general and regional governments are
each within a sphere co- ordinate and independent." [Note 1: K.C. Wheare, Federal Government,
4th ed. (London: Oxford University Press, 1963) at 11.] Wheare's definition states that under a
federal system the general and the regional government each has an autonomous sphere of power
that can be exercised independently of the other level. Further, under Wheare's formulation, the
powers of the central government are exercised directly over individual citizens, rather than
indirectly through the states or provinces. In the event that the central government does not have
power to regulate citizens directly, the form of government would be confederal rather than
federal. A similar definition of federalism was offered by A.V. Dicey, who identified the three
leading characteristics of a "completely developed federalism" as including the distribution of
powers among governmental bodies (each with limited and coordinate powers), along with the
supremacy of the constitution and the authority of the courts as the interpreters of the
constitution. [Note 2: A.V. Dicey, Introduction to the Study of the Law of the Constitution, 7th
ed. (London: Macmillan, 1908) at 140.]
Although Wheare's definition has been criticized by some commentators as being unduly
legalistic [Note 3: See, for example, P.T. King, Federalism and Federation (Baltimore: Johns
Hopkins University Press, 1982) at 77.] or as placing undue stress on the separateness of the
central and regional authorities, [Note 4: See A.H. Birch, Federalism, Finance and Social
Legislation (Oxford: Clarendon Press, 1955) at 306.] it provides a basis for distinguishing federal

from other forms of government and remains widely accepted among students of the subject.
Donald Smiley, for example building on Wheare's formulation, offered the following three-part
working definition of a federal state [Note 5: See D.V. Smiley, The Federal Condition in Canada
(Toronto: McGraw-Hill Ryerson, 1987) at 2.] (one I adopt for purposes of this book):
* legislative powers are distributed between a central and a regional government;
* the powers of the central and regional governments are not subject to change by the other level
of government; and
* individual citizens are subject to laws enacted by both the central and the regional
governments.
This definition clearly distinguishes federal government on the one hand from unitary or
confederate forms of government on the other. In a unitary state, ultimate political authority
resides in the central or national government. The central government may establish regional or
local governments, but local government powers are not constitutionally entrenched and are
subject to unilateral change by the central government. The United Kingdom and New Zealand
are examples of unitary states.
In confederations, on the other hand, ultimate political authority resides in the states or regional
governments, and the central government acts as their delegate. In this model the central
government may not even have the power to enact laws directly affecting individual citizens. For
example, the Articles of Confederation adopted by the American colonies in 1777 did not grant
the national government any free-standing power of taxation. Instead, the national government's
sole source of funds was grants received from the state governments. Only the states had the
power to levy taxes directly on the population. [Note 6: A consensus emerged among the states
after the conclusion of the American War of Independence in the 1780s that the national
government's powers needed to be strengthened. This led to the Constitutional Convention of
1787 and the adoption of the final form of the American constitution, which granted the national
government significant new powers such as the right to levy taxes and to regulate interstate and
foreign commerce. The United States thus transformed what had been a confederacy into the first
example of a truly federal form of government.]
3. What do you understand by the term separation of power? How is it different from distribution
of power?
THE MONTESQUIEU DOCTRINE OF SEPARATION OF POWERS
It was during the middle of 18 th century that Montesquieu gave the doctrine of separation of
power its modern famous formulation; it has been argued that in making this formulation.
Montesquieu was concerned to combat despotism of which King Louis XIV has established in
France. Montesquieu was the French Philosopher. He writes the spirit of laws in 1748. In fact, he

was impressed with the British Politician Lockes views. Montesquieu strongly supported in his
theory that there should be separation of powers. It is essential to the successful working of the
Government that the person entrusted with power in any of the three organs, Executive, Judiciary
and Legislature, shall not be permitted to encroach upon the powers in any one of the three
organs that is Executive, Judiciary and Legislature, shall not be permitted to encroach upon the
powers confided to the others. Concentration of power in one person or a group of persons result
in tyranny. Therefore, the governmental power should be divided and vested in three different
organs. Each of these organs should be independent of the others. No organ should perform
functions belonging to the others. The Montesquieu doctrine of separation of power had some
criticism that there is no pure separation of power. Apart from this criticism the Montesquieu
theory had tremendous impact on development of administrative law throughout the world.
Example for the doctrine of separation of powers, United States of America is the best example.
This doctrine has been developed in America in highest mark. The Congress has legislative
powers, President has executive power and the Supreme Court and its subordinate courts have
the judicial powers. There is coordination between these three most important organs of the stat.
In fact, the rule of law in England hampered the recognition and growth of administrative
law,whereas the separation of powers in America has given an intimate impact on the growth of
administrative law Although they have clearly maintained separation of power in the American
Constitution these powers are not complete. This doctrine succeeded in separating the executive
from legislature and yet enabled the Supreme Court to declare invalid act of the legislature The
Supreme Court of America, in Satinger vs. Philippine.It was held that It ma y be stated ..., as a
general rule inherent in the American Constitutional system, that, unless otherwise expressly
provided or incidental to the powers conferred, the legislature cannot exercise either executive or
judicial power, the executive cannot exercise either legislative or judicial power, the judiciary
cannot exercise either executive or legislature power. Nixons Water Gate Case is another example
of separation of powers in America. In this world famous case, Nixon, then American President
was found guilty by the Supreme Court of America.
Power
corrupts
and
absolute
Power
tends
to
corrupt
absolutely.
The separation of powers is based on the principle of trias politica. The Doctrine of Separation
of Power is the forerunner to all the constitutions of the world, which came into existence since
the days of the Magna Carta. Though Montesquieu was under the erroneous impression that
the foundations of the British constitution lay in the principle of Separation of Power, it found its
genesis in the American Constitution. Montesquieu had a feeling that it would be a panacea to
good governance but it had its own drawbacks. A complete Separation of power without
adequate checks and balances would have nullified any constitution. It was only with this in
mind the founding fathers of various constitutions have accepted this theory with modifications
to make it relevant to the changing times.
The Doctrine of Separation of Powers, a vintage product of scientific political philosophy is
closely connected with the concept of judicial activism. Separation of Powers is embedded
in the Indian Constitutional set up as one of its basic features. In India the fountain-head of
power is the Constitution. The sovereign power has been distributed among the three-wings:
-Legislature
-Executive

-Judiciary
The doctrine of separation of powers envisages a tripartite system. Powers are delegated by the
Constitution to he three organs, and delineating the jurisdiction of each.
The position in India is that the doctrine of separation of powers has not been accorded a
constitutional status. In the Constituent Assembly there was a proposal to incorporate this
doctrine in the Constitution but it was knowingly not accepted and as such dropped. Apart from
the directive principles laid down in Article 50 which enjoins separation of judiciary from the
executive, the constitutional scheme does not embody any formalistic and dogmatic division of
powers.
Historical Background
The tripartite model of governance has its origin in Ancient Greece and Rome. Though the
doctrine is traceable to Aristotle but the writings of Locke and Montesquieu gave it a base on
which modern attempts to distinguish between legislative, executive and judicial power is
grounded.
The doctrine may be traced to ancient and medieval theories of mixed government, which argued
that the processes of government should involve the different elements in society such as
monarchic, aristocratic, and democratic interests. The first modern formulation of the doctrine
was that of the French writer Montesquieu in De lesprit des lois (1748), although the English
philosopher John Locke had earlier argued that legislative power should be divided between king
and Parliament.
Locke distinguished between what he called:
1. Discontinuous legislative power
2. Continuous executive power

Federative power.

He included within discontinuous legislative power the general rule-making power called into
action from time to time and not continuously. Continuous executive power included all those
powers, which we now call executive and judicial. By federative power he meant the power of
conducting foreign affairs. Montesquieus division of power included a general legislative power
and two kinds of executive powers; an executive power in the nature of Lockes federative
power and a civil law executive power including executive and judicial power.
It was Montesquieu who for the first time gave it a systematic and scientific formulation in his
book Esprit des Lois (The Spirit of the laws) published in the year 1748. Locke and
Montesquieu derived the contents of this doctrine from the developments in the British
constitutional history of the 18th Century. In England after a long war between the Parliament and
the King, they saw triumph of Parliament in 1688, which gave Parliament legislative supremacy
culminating in the passage of Bill of Rights. This led ultimately to a recognition by the King of
legislative and tax powers of the Parliament and the judicial powers of the courts. At that time,
the King exercised executive powers, Parliament exercised legislative powers and the courts

exercised judicial powers, though later on England did not stick to this structural classification of
functions and changed to the parliamentary form of government.
After the end of the war of independence in America by 1787 the founding fathers of the
American constitution drafted the constitution of America and in that itself they inserted the
Doctrine of separation of power and by this America became the first nation to implement the
Doctrine of separation of power throughout the world.
The constituent Assembly Of France in 1789 was of the view that there would be nothing like a
Constitution in the country where the doctrine of separation of power is not accepted. In
France, where the doctrine was preached with great force by Montesquieu, it was held by the
more moderate parties in the French Revolution. However the Jacobins, Napoleon I and
Napoleon III discarded the above theory for they believed in the concentration of power. But it
again
found
its
place
in
the
French
Constitution
of
1871.
Later Rousseau also supported the said theory propounded by Montesquieu. England follows the
parliamentary form of government where the crown is only a titular head. The mere existence of
the cabinet system negates the doctrine of separation of power in England as the executive
represented by the cabinet remains in power at the sweet will of the parliament.
In India under the Indian constitution there is an express provision under article 50 of the
constitution which clearly states that the state should take necessary steps to separate judiciary
from the executive i.e. independence of judiciary should be maintained.
Montesquieus Theory
According to this theory, powers are of three kinds: Legislative, executive and judicial and that
each of these powers should be vested in a separate and distinct organ, for if all these powers, or
any two of them, are united in the same organ or individual, there can be no liberty. If, for
instance, legislative and executive powers unite, there is apprehension that the organ concerned
may enact tyrannical laws and execute them in a tyrannical manner. Again, there can be no
liberty if the judicial power be not separated from the legislative and the executive. Where it
joined 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.
Writing in 1748, Montesquieu said:
When the legislative and the executive powers are united in the same person or in the same
body of magistrates, there can be no liberty, because apprehensions may arise, lest the same
monarch or senate should exact tyrannical laws, to execute them in a tyrannical manner. Again
there is no liberty if the judicial power be not separated from the legislative and the executive.
Where it joined with the legislative, the life and the liberty of the subject would be exposed to
arbitrary control; for the judge would be then a legislator. Where it joined to 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 nobles
or of the people, to exercise those three powers, that of enacting laws, that of executing the
public resolutions and of trying the causes of individuals.

The theory of separation of powers signifies three formulations of structural classification of

governmental powers:
1. The same person should not form part of more than one of the three organs of the
government. For example, ministers should not sit in the Parliament.
2. One organ of the government should not interfere with any other organ of the
government.

One organ of the government should not exercise the functions assigned to any other
organ.

Now the question in subject is whether this doctrine finds a place in England?
In England the King being the executive head s also an integral part of the legislature. His
ministers are also members of one or other Houses of Parliament. This concept goes against the
idea that same person should not form part of more than one organ of the Government.
In England House of Commons control the executive. So far as judiciary is concerned, in theory
House of Lords is the highest Court of the country but in practice judicial functions are
discharged by persons who are appointed specially for this purpose, they are known as Law
Lords and other persons who held judicial post. Thus we can say that doctrine of separation of
powers is not an essential feature of British Constitution.
Indian Outlook
In India, the doctrine of separation of powers has not been accorded a constitutional status. Apart
from the the directive principle laid down in Article 50 which enjoins separation of judiciary
from the executive, the constitutional scheme does not embody any formalistic and dogmatic
division of powers.
The Supreme Court in Ram JawayaKapur v. State of Punjab, held:
Indian Constitution has not indeed recognized the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the government have been
sufficiently differentiated and consequently it can be very well said that our Constitution does
not contemplate assumption by one organ or part of the State of functions that essentially belong
to another.
In Indira Nehru Gandhi v. Raj Narain, Ray C.J.also observed that in the Indian Constitution there
is 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. However, the Court
held that though the constituent power is independent of the doctrine of separation of powers to
implant the story of basic structure as developed in the case of KesavanandaBharati v. State of
Kerela on the ordinary legislative powers will be an encroachment on the theory of separation of

powers. Nevertheless, Beg, J. added that separation of powers is a part of the basic structure of
the Constitution. None of the three separate organs of the Republic can take over the functions
assigned to the other. This scheme of the Constitution cannot be changed even by resorting to
Article 368 of the Constitution.
In India, not only is there a functional overlapping but there is personnel overlapping also. The
Supreme Court has the power to declare void the laws passed by the legislature and the actions
taken by the executive if the violate any provision of the Constitution or the law passed by the
legislature in case of executive actions. Even the power to amend the Constitution by Parliament
is subject to the scrutiny of the Court. The Court can declare any amendment void if it changes
he basic structure of the Constitution. The President of India in whom the Executive Authority of
India is vested exercises law making power in the shape of ordinance making power and also the
judicial powers under Article 103(1) and Article 217(3) to mention only a few. The Counsel of
Ministers is selected from the Legislature and is responsible to the Legislature. The Legislature
besides exercising law making powers exercises judicial powers incases of breach of its
privilege, impeachment of the President and the removal of the judges. The Executive may
further affect the functioning of the judiciary by making appointments to the office of the Chief
Justice and other Judges.
Judicial Opinion on the Doctrine of Separation of Powers
The separation of power there were times where the judiciary has faced tough challenges in
maintaining and preserving the Doctrine of separation of power and it has in the process of
preservation of the above said Doctrine has delivered landmark judgments which clearly talks
about the independence of judiciary as well as the success of judiciary in India for the last six
decades.
The first major judgment by the judiciary in relation to Doctrine of separation of power was in
Ram Jawaya v state of Punjab. The court in the above case was of the opinion that the Doctrine
of separation of power was not fully accepted in India. Further the view of Mukherjea J adds
weight to the argument that the above said doctrine is not fully accepted in India. He states that:
The Indian constitution has not indeed recognize the doctrine of separation of powering its
absolute rigidity but the functions of the 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.
Later in I.C.GolakNath v State of Punjab, SubhaRao, C.J opined that
The constitution brings into existence different constitutional entitles, namely the union, the
state and the union territories. It creates three major instruments of power, namely the

Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and
expects them to exercise their respective powers without overstepping there limits. They should
function with the spheres allotted to them
The above opinion of the court clearly states the change in the courts view pertaining to the
opinion in the case of Ram Jawaya v State of Punjab related to the doctrine of separation of
power. The came one of the most land mark judgments delivered by the Supreme Court in
KeshvanandaBharti v Union of Indiathe court was of the view that amending power was now
subject to the basic features of the constitution. And hence, any amendment tampering these
essential features will be struck down as unconstitutional. Beg, J. added that separation of
powers is a part of the basic structure of the constitution. None of the three separate organs of the
republic can take over the functions assigned to the other7. Hence this further confirmed the
opinion of the court in relation to the doctrine of separation of power.
Then in Indira Gandhi Nehru v. Raj Narain, where the dispute regarding P.M. election was
pending before the Supreme Court, opined that adjudication of a specific dispute is a judicial
function which parliament, even under constitutional amending power, cannot exercise i.e. the
parliament does not have the jurisdiction to perform a function which the other organ is
responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions of
the three organs of the state. Also 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. So if there is a provision then there should be proper implementation
and this judgment emphasis on that point only.
Also in I.R. Coelho vs. State of Tamil Nadu, S.C. took the opinion opined by the Supreme court
in Kesavananda Bharaticase pertaining to the doctrine of basic structure
and held that the Ninth Schedule is violative of the above said doctrine and hence from now on
the Ninth Schedule will be amenable to judicial review which also forms part of the basic
structure theory..
From the above few case laws right from Ram Jawaya v state of Punjab in 1955 to I.R. Coelho
vs. State of Tamil Nadu inthere has been a wide change of opinion as in the beginning the court
was of the opinion that as such there is no Doctrine of Seperation of Power in the constitution of
India but then as the passage of time the opinion of the Supreme Court has also changed and now
it do includes the above said Doctrine as the basic feature of the Constitution.
Separation of Powers
This is derived from an old model called as Trias Politica. This is an ancient model for the
governance of state. It has its roots in Greece and it spread all over the world from Roman

republic. This is still a part of Constitution of Roman Republic. In this model, state is divided
into branches and each branch has independent powers and specific areas of responsibility.
These branches are commonly divided into executive, judiciary and legislature.
Division of Powers
According to this system, powers of the government shall be divided into three departments i.e.
Legislative, executive and Judicial and all three departments will exercise their own powers, no
one will interfere with the others. Some powers are with central government, while others are for
provinces.
Fusion of Power Where executive and legislative branches are intermingled, it is called as
fusion of power. We can see Fusion of power is many democratic countries. This system was
evolved in Great Britain over the period of centuries.
Separation of Powers vs Division of Powers vs Fusion of Powers
Separation of power and division of power are similar but yet different. Separation of power is
on higher level, between different departments, while division of powers in within a department.
In both case powers are divided among executive, legislative an judiciary but in separation of
power, powers are dividing in these branches, while in division of powers we talk about powers
division between a single branch. Fusion of powers is entirely opposite. In this situation,
executive and legislative branches are intermingled and there is no separation of powers.
Separation of powers is usually present in presidential democracies while fusion of powers is
found in parliamentary democracies. Fusion of power was evolved from Britain while separation
of power has its root in Roman model of state. Both systems are different but yet both are present
in different countries of the world, according to the situation of country.