CHAPTER II

THE THEORY OF DOCTRINE OF SEPARATION

OF POWERS

Introduction

The doctrine of separation of powers is no longer a mere philosopher’s theoretical

conception, in the modern context. It is a practical concept which determines the
structure and organization of the day to day functioning of governments. This
chapter is aiming towards analyzing and discussing the concept of doctrine of
separation of powers, in its plan and practice, as provided under the Constitution.
Beginning of this analysis from the evolution of the doctrine itself, the rationale
behind its creation, this chapter further explains the relevance of the doctrine as
recognized under the constitutional provisions of the United States and Britain and
subsequently compares the practice of the said two countries with that in India.
Relying upon land marking events and judicial proclamations and the opinions of
eminent jurists, the researcher puts forth his own inferences as to the discrepancies
that exist between the constitutional plan and the actual usage of the said doctrine.
To sum up, the chapter highlights that the doctrine of separation of powers, is seen
to be applied in various dilatory combinations, as an integral aspect of the structure
and working of most governments, though never used in its absolute form.

Meaning of separation of powers-

The very theme behind the separation of powers is that when a single person or
group has got large amount of power then it becomes dangerous to citizens. The
separation of powers is a method by which large the amount of power in any
group's hands is removed, making it more difficult to abuse.
It is well settled that there are three main categories of governmental functions-a)
Legislative b) Executive, and c) Judicial. In the same way, there are three main
organs of the Government in a State-a) Legislature, b) Executive and c) Judiciary.
According to this theme, these three powers and functions of the government must,
in a free democracy, always be kept separate and be exercised by three separate
organs of the government. Thus, legislature cannot exercise executive or judicial
power; the executive cannot exercise legislative or judicial and the judiciary cannot
exercise legislative or executive power of the government.

Importance of the doctrine -

Actually, the doctrine of separation of power is very rigid concept and this is one
of the reasons of why it is not accepted by a large number of countries in the
world. The main object as stated by Montesquieu in the doctrine of separation of
power is that ‘there should be government of law rather than having will and
whims of the official’. Also another most important feature this doctrine is that
‘there should be independent judiciary i.e. it should be free from the other organs
of the state and if it is so then justice would be delivered properly’. The judiciary is
the scale through which one can measure the actual development of the state. If the
judiciary is not independent then it is the first step towards a tyrannical form of
government i.e. power is concentrated in a single hand and if it is so then there is a
cent percent chance of misuse of power. Hence, the doctrine of separation of
powers does play a vital role in the creation of a fair government and also fair and
proper justice is dispensed by the judiciary, it is independent from all the other
organs of the government. Also the importance of this doctrine can be traced back
to as early as 1789 where the constituent assembly of France in 1789 was of the
view that “there would be nothing like a constitution in the country where the
doctrine of separation of power is not accepted”.

Historical development-

The history of ‘doctrine of separation of powers’ can be traced back to Greece and
Aristotle,’ politics’1, who identified three elements of the constitution as follows-

1) The deliberative -which discusses everything of common importance,

2) The officials and

3) The judicial element.

Aristotle explained that if these three elements are well arranged, the constitution is
bound to be well arranged and the differences in the constitution are bound to
correspond to the difference between each of these elements. Elizabeth Giussani in
his book has written that the jurist, F.W.Maitland, in his ‘The Constitutional
history of England2’ traces evidence of doctrine within the UK constitution to the
region of Edward I3 when the functions of the state became more separate. The
doctrine of separation of powers was a method formulated by English jurists in the
middle of the 17th century in order to control such abuse of governmental power.
Then theory of separation of powers was further developed by John Locke in his
‘Second Treatises of Civil Government 1689 4 ,in which he believed that the
legislative and executive functions should be placed in separate hands and insisted
upon the supremacy of the legislative function. Bolingbroke’s writing in 1748 on
‘Remarks on the history of England’ recognized that the protection of liberty

1
BK iv ,Xiv 1297 b 35
2
Cambridge University Press 1920
3
Edward (1272-1307)
4
laslett(ed.) 1960
within the state depended upon maintaining equilibrium between the crown and it’s
people. As in relation to the English Constitution he noted “In a constitution like
ours the safety of whole depends on the balance of the parts.” Ultimately a more
systematic form was granted by the French jurist Montesquieu in his book ‘The
Spirit of Laws’. John Adams, in agreement with his predecessors, has also
highlighted this doctrine as the means to protect a nation from the broad spectrum
of ills of passionate partiality, absurd judgments and ambitious, self-serving
behavior.

As stated by Madison, “The accumulation of all powers, legislative, executive and

judicial, in the same hands whether of one, a few, or many and whether hereditary,
self-appointed or elective, may justly be pronounced the very definition of
tyranny”. And it is in the prevention of this tyranny that the doctrine of separation
of power holds its greatest importance.

Montesquieu’s theory on the separation of powers -

As we discussed above, the history of the doctrine of separation of powers is

traceable to the ancient times of Aristotle, and subsequently 16 th and 17th century
by philosophers such as John Bodin and Locke. It was the French Jurist,
Montesquieu who gave it a systematic and scientific formulation. Montesquieu, for
the first time, in his book ‘Esprit de Lois’5 extensively discussed this doctrine and
its form.

It is the writing of Montesquieu who is credited with the modern expression

‘Charles Louis de Secondat’. Baron Montesquieu was the French jurist aristocrat,
who having toured England from 1729 to 1731 was confirmed admirer of English
liberty and the political arrangements that gave rise to it. Montesquieu explains the

5
(,spirit of laws) ( Bk xi,ch.6, 1748)
doctrine of separation of powers (des pouvoirs) as ‘no person or body should be
vested with all three types of powers’.

There are three aspects of Montesquieu’s theory—

1) At First, he recognized that government has three functions “that of making

laws, that of executing public affairs and that of adjudicating on crimes or
individuals cases.”

2) He stipulated that there should be three corresponding organs of government;

the legislature, the executive and the judiciary.

3) Finally he stated that these three functions should be held by three separate
branches in order to uphold and protect liberty.

The British jurist Blackstone and the founding fathers of the American
constitution, particularly, Madison, Hamilton and Jefferson, extended their full
support to the theory of separation of powers. They regarded Separation of Powers
essential for protecting the liberty of the people.6

Criticism against Montesquieu’s theory-

There are some criticisms against this theory. The criticisms are as follows:-

1. Complete separation is neither possible nor desirable:

As the government is a single entity so it is impossible to have complete separation

of three organs of government. It is not desirable because without having mutual
coordination amongst these, the government cannot carry out its functions
effectively and efficiently. Complete separation of powers amongst these organs

6
http://www.yourarticlelibrary.com/constitution/separation-of-powers-what-is-the-theory-of-separation-of-
powers/40336/
can seriously limit the unity and coordination needed by the three organs. Thus, its
three organs can never be completely separated. The legislative, executive and
judicial functions are interdependent and inter-related functions and hence cannot
be fully separated.

2. Impracticable in itself:

As stated by this theory, we cannot fully use separation of powers. The function of
law-making cannot be exclusive domain of the legislature. The needs of our times
have made it essential to provide for law-making by the executive under the system
of delegated legislation. In the same way, judges while giving judgments lays
down certain judicial legislation which is criticized as judicial overreach.

3. Unhistorical:

It is criticized that the theory of separation of powers is unhistorical as it has never

been in operation in England. While formulating and advocating this theory,
Montesquieu advocated that it was at work in England. Under the British
parliamentary system of government, there is a close relationship between the
British parliament and the Cabinet. Even there is no separation of judiciary from
legislature and the British House of Lords acts as the highest court of appeals. The
British Constitution has never been based on the theory separation of powers.

4. The three organs of government are not equal:

It is criticized that the theory of separation of powers wrongly assumes the equality
of all the three organs of the government. The legislature of the state is always
regarded as the primary organ of government. The work of the government begins
by law-making. However, in actual practice the executive acts the most powerful
organ of the government. The judiciary is considered to be the weakest organs, yet
it is always held in high esteem by the people. But, it appears to me that this
preposition has no application in India because with the passage of time, Indian
judiciary has proved to be the strongest organ but not dominating. Therefore I
think that this criticism has no application in India and the three organs are equally
respected in India.

5. Separation of powers can lead to deadlocks and inefficiency:

As discussed earlier, separation of powers may lead to deadlocks and inefficiency

in the working of the government. It may create a situation in which each organ
can get engaged in conflict and deadlocks with other two organs.

6. Liberty does not depend only upon separation of powers:

The critics of this theory reject the view that liberty can be safeguarded only when
there is a separation of powers among the three organs of the government. Further,
they argue that in the absence of fundamental rights, independent judiciary, rule of
law, economic equality and a spirit of democracy, there cannot be liberty even
when there may be present full separation of powers.

7. Separation of functions and not of powers:

It is further criticized that the name of this theory as ‘ The Doctrine of Separation
of Powers’ is wrong because this theory actually advocates a separation of
functions and not the powers. Power of the government is one whole. It cannot be
separated into three separate parts. It is at the back of the functions of all the three
organs of government. The theory of separation of powers is really a theory of
separation of functions.

Thus, the theory of separation of powers has several limitations. All scholars
accept that absolute and rigid separation of powers is neither possible nor
desirable. Three organs of government cannot be and should not be totally
separated into unrelated water-tight compartments.

Now all of the above criticisms are existed against Montesquieu’s theory of
separation of powers. Now we will focus on one of the important feature of this
theory i.e. checks and balance system

Checks and Balances system-

Checks and balances is one of the features of the doctrine of separation of powers.
As per this feature each organ, along with its own power, enjoys some checking
powers over the other two organs. In the process a system of checks and balances
governs the inter-organ relations.

As per this theory of checks and balances no organ of power should be given
unchecked power in its sphere. The power of one organ should be restrained and
checked with the power of the other two organs. In this way a balance should be
secured which will prevent any arbitrary use of power by any organ of the
government.

Thus, as per this theory, the legislative power should be in the hands of the
legislature but the executive and judiciary should have some checking powers over
it with a view to prevent any misuse or arbitrary use of legislative powers by the
legislature. In the same way, the executive powers should be vested with the
executive but legislature and judiciary should be given some checking powers over
it. The same should be the case of the judiciary and its power should be in some
respects checked by the legislature and executive. In other words, each organ
should have some checking power over the other two organs and there should
prevail a balance among the three organs of government and thus will lead to a
constitutionalism i.e. no one is above the law and equality amongst all the organs
of the government.

Geoffrey Marshall in his book, Constitutional Theory 7 believed that the phrase
separation of powers was one of the most confusing vocabularies in political and
constitutional thoughts. He thought it into be “infected with so much imprecision
and inconsistency that it may be counted little more than a jumbled portmanteau of
arguments for policies.”

For some proponents the separation of powers necessitates a strict operation with
no organ encroaching on the area of the others; in the terms of both personnel and \
or functions. For some proponents a system of checks and balance would interfere
with the doctrine who has argued that such a formulation of the doctrine is extreme
and doctrinaire.

Bradley and Ewing8 argue that a strict separation of powers is “neither possible in
theory nor in practice.”In similar Vein and Barnett 9 recognizes that a complete
separation of powers would be unworkable. A lack of cooperation and conciliation
between the three organs could easily result in legal and constitutional dead lock;

The strict reading of the doctrine is not always taken and many proponents
advocate a system of checks and balances. This is certainly justifiable position
considering that the doctrines desired end, avoiding tyranny could be compromised
by a strict application as above. Indeed, the avoidance of tyranny may well be
better achieved through efficient checks and balance and could represent the
doctrine in its highest form.

7
(oxford Clarendon Press,1971,P.124)
8
(In constitutional and Administrative law,14 th edition ( pearson 2006,p.87 )
9
constitutional and Administrative law,6th edition ( Cavendish ,2006) p.94)
Thus till now we have discussed the doctrine of separation of powers, its
development and the theory of Montesquieu with criticism against it. Moreover we
have discussed the concept of checks and balance system and views of different
political thinkers on it. Now, we will focus on one question i. e. Was Montesquieu
advocating strict separation of powers?

Montesquieu on strict separation of powers-

It is possible to interpret the final sentence above as Montesquieu was advocating a

10
complete or strict separation. Munro states though this is a possible
interpretation, it is not clear which of several forms of separation Montesquieu (
for Jennings ) have argued that Montesquieu was not advocating a strict or
complete separation of powers .For, Montesquieu, the genius of the British system
of government lay in combining separation with supervision. It can be further
stated that although, Montesquieu states that neither the legislature nor the
executive should exercise the power of the other, he does not mean to say that they
should have no influence over the other. In the other words, Montesquieu
recognized that there should be some overlapping or checks between the three
organs. However the independence of the judiciary must not to be compromised in
any way.

There must be a division of functions on the following basis: the legislature should
make laws but not administer or enforce them, the executive must administer the
made laws but neither influence the legislature in the making of the laws nor stand
in judgment of the same and the judiciary must determine rights and uphold justice
without taking over the functions of law-making or administration. He further said

10
(Studies in constitutional law,( 2nd edition ) (London: Butterworths 2001 p.301)
that such separation is necessary in order to ensure that justice does not become
arbitrary and capricious.

Ultimately, the value of this doctrine lies in it’s attempts to preserve human liberty
by avoiding the concentration of powers in any one person or body of persons.
Montesquieu propounded this theory after careful consideration and study of
numerous crucial event and factors. At first, he learnt from the historical trends of
the despotic Tudors and the absolutist Stuarts that freedom could not be secured if
the executive and legislative powers were held in the same hands. After having
experienced the tyrannies in monarchical France, he felt that such a combination of
powers would lead to the enacting of oppressive laws which the executive would
administer to attain its own ends. Montesquieu also carefully followed the events
unfolding on the other side of the channel prior to determining what he thought
was the best course of action. In England, the inception of the Magna Carta and the
Act of Settlement, drastically curtailed the powers of the monarch vesting them
with parliament and courts. Though, there was no clear separation of powers, the
positive effect of the reduced prerogative powers of the king cemented
Montesquieu’s belief that the secret to liberty is the separation and functional
independence of the three departments of government.

He wrote “All would be lost, if the same man or the same ruling body, whether of
nobles or the people, were to exercise these three powers, that of law making, that
of executing public resolutions and that judging crimes and civil causes”

Although Montesquieu separated governmental functions and powers, he did not

insist on an absolute separation. Thus, although the executive is a separate branch,
it properly partakes (through the veto, for example) in a legislative function. This
blending or overlapping of functions is in part necessitated by Montesquieu’s
intention that separation checks the excesses of one or the other branch. Separation
of powers here reinforces or even merges into balanced government regulating
excesses from all sides.

Some critics criticizes that Montesquieu has been misunderstood. According to

their view, his real insight was the general principle that power must be distributed
in order to avoid a monopoly of power being created. They stated that
Montesquieu was not advocating a strict separation of powers, rather he cautiously
referred to certain distribution of powers as well as the balancing, controlling,
tempering and combining of powers in a model of liberal political order where all
three are sometimes separated and sometimes combined. This broader view affords
a rationalization for the idea of checks and balances thereby highlighting the
necessity for restraints and safeguards in order to prevent the monopolization of
power even within any one department of the government.

It is necessary to note here that the separation proposed by Montesquieu did not
apply merely to the organs and their functions but in regard to their personnel as
well. This according to him was for the reason that, if a person holding office in
one wing of the government should wield power in regard to another wing, it
would defeat the purpose of the separation itself.

Montesquieu was convinced that it was only through such a system of separation
of powers that a government could be made free from the dangers of capricious or
tyrannical rule. Until today, no other system of government has been developed to
oppose this notion and hence, it must be inferred that his opinion has proven itself
true. Other philosophical contributors left alone, it is the work of Montesquieu that
has ensured the lasting influence of the theory of separation of powers. Thus, in
fact, the theories of separation of powers and checks and balances always go
together. These have been together in operation in the US Constitution. The
theories of separation of powers and checks and balances have to adopt
simultaneously.

Separation of powers in the United States-

Under the Constitution of the United States of America, Montesquieu’s theory of

doctrine of separation of powers finds its highest recognition. The American
Constitution accepts the separation in explicit terms and specifically provides for
the division of powers and functions amongst the three organs of government as a
part of its basic structure. Article I of the US Constitution assigns legislative power
to the Congress while Articles II and III vest executive and judicial powers in the
President and the Courts of America respectively. Thus, in other words, it implies
that as per the constitutional plan, the constitution of the US is desirous of a system
of organization characterized by the independence of power and action of the
Congress, the President and the Courts respectively. However, the practical
implementation of such independent functioning has proven unsuccessful and the
actual position is quite different.

Louis Leventhall Jaffe has aptly summed up the practical interpretation of the
doctrine in the US in the following manner:

“The separation of powers principle is a fundamental and valid dogma of the US

constitution, the primary purpose of which is the preservation of political
safeguards against the capricious exercise of power. The logic behind such division
is the logic of polarity and not strict classification. In many crucial instances where
there is pressure for the transfer of old, or for the creation of new functions the
logical implications become conflicting and it should be kept in mind that the
purpose of the said division is not to externally stratify the governmental
arrangements.”

In practice, the system of government provides for checks and balances amongst
the three organs in order to restrict and regulate the use of their powers. The
President of the United States has got the power to veto a legislation passed by
Congress and the Congress in turn is the final ratifying authority for treaties signed
by the President, the legislature is vested with the power to impeach judges and the
judiciary has the power of judicial review over legislative and executive action.
Further, in cases expressly provided for or incidental to the powers conferred, one
organ may venture into the territory earmarked for another.

Naturally, since the practice varies from the constitutional plan of separated
functions, this matter of cross-functioning of the organs has given rise to much
debate and speculation. In Madison, 1787, it was observed, “One of the principal
objections inculcated by the more respectable adversaries to the constitution is its
supposed violation of the political maxim that the legislative, executive and
judiciary ought to be separate and distinct”. In regarding to this matter, the court,
citing the oracle behind the doctrine itself, held that “Montesquieu did not mean
that these departments ought to have a partial agency in or no control over each
other. His meaning can amount to no more than this, that where the whole power
of one department is exercised by the same hands which possess whole control
over another department, the fundamental principle of a free Constitution is
subverted”. On the basis of this interpretation of Montesquieu’s doctrine, the cross-
functioning between the three organs was recognized as being constitutionally
valid.
Despite the pre-determined system of checks and balances, in routine working
there has remained a continuous battle between the three wings of Government in
order to gain greater might over each other, the most significant attempts of which
have been initiated by the executive. As the vesting Clause of Article II puts entire
executive power in the hands of the President, considerable debate has been raised
over the years to the extent of the power granted by the said clause. The general
principle that the president controls the entire executive branch was originally
innocuous; however depending on the person occupying office it has been
subjected to varied interpretations.

Such instances were visible makeable during the tenure of Presidents Theodore
Roosevelt and Richard Nixon. Former President Roosevelt stretched his executive
authority on the claim that a President was authorized to do whatever was not
explicitly prohibited by law – thereby implying a dominance of executive power
over the other branches of government. This interpretation was directly
contradictory to the purpose of the doctrine as enshrined within the constitution as
it removed the essential ingredient of equality, resulting in a situation similar to
that if the doctrine didn’t exist. Richard Nixon’s policies on executive power were
considerably more bold and questionable. Nixon sought to achieve executive
supremacy on the basis of ‘national security’. Under the guise of the inherent
Presidential duty “to safeguard the security of the nation” he sought to bypass
legislative and judicial control over his actions. Claiming the shield of protection
of “executive privilege” in matters such as the use of federal funds assigned by
Congress and the ordering of wiretaps without previous judicial authorization he
appropriated for himself a seemingly absolute control over national affairs.
However, due to the proactive measures of the Hon’ble Supreme Court, these
defenses were deemed unconstitutional and the accountability between the three
organs was re-established. As a result, Presidential claims to power have been
greatly augmented since then.

Similarly, in certain instances, there have been attempts made by the other two
organs of government to usurp the powers of one another or those of the executive.
However, due to the political safeguards established through the system of checks
and balances and the inherent reluctance of any organ to sacrifice its powers, such
attempts to increase the extent of authority of one organ have been rectified and the
balance of powers once again restored.

Thus it is seen that even in the US, where the constitution explicitly recognizes the
doctrine of separation of powers there has remained a considerable ambiguity in
regard to the extent of its application. In letter, the constitutional plan appears to
warrant an absolute separation of powers and functions, however in practice such
an ideal situation is not possible to be achieved. Through the interpretations of the
court and the legislature, the rigidity of the doctrine has been considerably relaxed
and its applicability widened, thereby enabled its efficient practical
implementation.

Separation of powers in Britain-

“Under the British Constitution there is no such thing as the absolute separation of
legislative, executive and judicial powers; but in practice it is inevitable that they
should overlap”

In England, the doctrine of separation of powers was opposed in the 18th century
by the doctrine of the mixed or balanced constitution in which monarchial,
aristocratic and democratic elements were joined and held in equilibrium rather
than strictly separated. According to parliamentary government that evolved in the
UK during the 19th century was evidently not based on the theory of separation of
powers. In fact, the modern Constitution of the UK is less conformable to the
theory as traditionally understood. While we may concede that the British
constitution is not based on separation of powers, but it does not mean to say that
the separation of powers is of no relevance to the British constitution.

This model of government is quite different from the model of government in the
US. The British idea of mixed government is based on the belief that the degree of
connection, rather than separation is what provides checks and balances in the
governmental system. Nevertheless, even this system must use the language of
separation of powers to illuminate some of its crucial features such as the
executive’s dominance over parliament.

This doctrine was expressly recognized as a part of the British constitutional

system in the 1930 report of the Donoughmore Committee. This committee was
created to inquire into matters of delegated legislation and administrative
adjudication submitted a report the provisions of which were justified on the basis
of the doctrine of separation of powers.

The importance of this doctrine has also been expressly recognized by the British
courts in their judicial pronouncements made from time to time. In a situations
where controversial political and social issues were made the subjects of judicial
purview, in order to avoid conflict between the judicial and political machinery the
courts have claimed a lack of jurisdiction on the basis of this doctrine of separation
of powers. Especially in cases of statutory interpretation, they employ the language
of separation of powers to explain and justify their decisions, a case in point being
the steel strike case of 1980.

In the said case, Lord Diplock pointed out that:

“At a time when more and more cases involving the application of legislation
which gives effect to policies that are the subject of bitter public and parliamentary
controversy, it cannot be too strongly emphasised that the British Constitution,
though largely unwritten, is firmly based on the separation of powers: parliament
makes the laws, the judiciary interprets them…it is parliament’s opinion on these
matters that is paramount.”

Thus it is seen, under the British scenario, though the doctrine is not expressly
recognized in the constitutional plan, it does exist, albeit not in its absolute form, in
the practice of the organs of the government

Separation of powers in India-

The constitution of India provides the doctrine of separation of powers in an

implied manner. Despite there being no express provision recognizing the doctrine
of separation of powers under the constitution of India, in its absolute form, the
constitution provides the provisions for a reasonable separation of functions and
powers between the three organs of government. Though the executive power of
the Union and of the States is vested by the constitution in the President and
Governor by Articles 53(1) and 154(1) respectively, there is no corresponding
provision vesting legislative and judiciary provisions in any particular organ.
However, the constitution, being a written one, the powers and function of each
must be found from the constitution itself. Thus subject to exceptional provisions
like Articles 123, 213 and 357, it is evident that the constitution provides that the
powers of legislation shall be exercised exclusively by the legislature. Similarly,
the judicial powers can be said to vest with the judiciary. Thus, a system is created
where none of the organs can usurp the functions or powers which are assigned to
another organ by express or necessary provisions; neither can they divest
themselves of essential functions which belong to them as under the constitution.
Though it is the case still there is no absolute separation of functions between the
three organs of government. The President, being the head of the Union exercises
his powers constitutionally on the aid and advice of the council of ministers. On
the other hand, he has been given exclusive legislative powers for the making and
promulgation of ordinances even during the course of recess of parliament. He has
got further powers to make laws for the state after emergency has been declared
under Article 356 of the constitution and exercises purely legislative functions as
provided under Articles 372 and 372-A. The President has also been assigned
judicial functions to the extent of deciding cases of disqualification of the House of
parliament as also granting pardon in exceptional circumstances. In the same way,
parliament has also been granted judicial functions in which it can consider the
questions of breach of any parliamentary privileges and where the breach is
established they have the power to punish for contempt. Also, in the event of
impeachment of the President, one of the Houses acts as the prosecutor and the
other as investigator in order to determine whether the charges are sustainable or
not as under Article 61 of the constitution. In a further example of the merger of
functions, the High Courts within a certain marginal sphere perform functions that
are administrative in nature. Their power of supervision over subordinate courts as
provided under Article 227 demonstrates a function that is administrative rather
than judicial. They also possess legislative powers to the extent that they are
allowed to frame rules for their efficient functioning.

Besides the functional overlapping, Indian system also lacks the separation of
personnel amongst the three departments. An inevitable part of a parliamentary
system of government, this can be seen under Article 75(5) of the constitution
which states that a person in order to be a member of the council of ministers must
necessarily be a member of either house of parliament.

In addition, the constitution of India expressly provides for a system of checks and
balances in order to prevent the arbitrary or capricious use of power derived from
the said supreme document. Though such a system appears dilatory of the doctrine
of separation of powers, it is necessary in order to enable the just and equitable
functioning of such a constitutional system. The constitution within its articles
provides for the provisions of legislative impeachment of judges and executive
officers, executive control over the appointment of judges and the power to veto
legislation made by parliament and most importantly, confers the judiciary with the
power of judicial review over legislation and executive action. Thus, through the
conferment of the said powers, a mechanism for the control over the exercise of
constitutional powers by the respective organs is established.

The above mentioned provisions clearly shows that the Indian constitution in its
plan does not provide for a strict separation of powers but instead of this, it creates
a system consisting of the three organs of government and confers upon them both
exclusive and overlapping powers and functions. Thus, from the above we can
conclude that in India the doctrine of separation of powers is not followed strictly
but it is followed with checks and balances system.

Judicial pronouncements on the doctrine of separation of powers in

India-

The debate on the topic of doctrine of separation of powers in India, and exactly
what it involves in regard to governance in the country, is as old as the constitution
itself. It was extensively debated in the constituent assembly. It also figured in
various judgments handed down by the Hon’ble Supreme Court of India, after the
constitution was adopted. It is through these judicial pronouncements and with the
passage of time, the boundaries of applicability of the doctrine have been
determined.

In the Re Delhi Laws Act case11, it was for the first time , the Hon’ble Supreme
Court of India observed that except where the constitution has vested power in a
body, the principle that one organ should not perform functions which essentially
belong to others is followed in India. By a majority of 5:2, the court held that the
theory of separation of powers though not part and parcel of our constitution, in
exceptional circumstances is evident in the provisions of the constitution itself.

As observed by Kania, C.J.:

“Although in the constitution of India there is no express separation of powers, it is

clear that a legislature is created by the constitution and detailed provisions are
made for making that legislature pass laws. Does it not imply that unless it can be
gathered from other provisions of the constitution, other bodies-executive or
judicial-are not intended to discharge legislative functions?”

In summary, all it states that all the three organs of the State, i.e., the legislature,
the judiciary, and the executive are bound by the limits of the constitution, which
demarcates their respective powers, jurisdictions, responsibilities and relationship
with one another. Further, it can be assumed that none of the organs of the State,
including the judiciary, would exceed its powers as laid down by the constitution
of India.

As there was a broad agreement on the principles put forth by this judgment, but in
practice, disputes continued to arise as to whether one organ of the state has
exceeded it’s limits assigned to it under the constitution. The same question i.e.
11
1951 AIR 332
‘what amounts to an excess’, was the basis for action in the land marking case of
1973 of Kesavananda Bharti 12 . The question rose before the Hon’ble Supreme
Court in this case was in relation to the extent of the power of the legislature to
amend the constitution as provided for under the constitution itself. It was argued
that as parliament was “Supreme” and represented the sovereign will of the people
so, if the people’s representatives in parliament decided to change a particular law
to curb individual freedom or limit the scope of judicial scrutiny, the judiciary had
no right to question whether it was constitutional or not. However, the court
rejected this argument and instead found in favour of the appellant on the ground
upholding that the doctrine of separation of powers was a part of the “basic
structure” of the Indian constitution. As per this ruling, the ambiguity was removed
by holding this doctrine as a part of the Indian constitution, which cannot be
altered, amended even by an Act of parliament. Thus, the doctrine of separation of
powers has been incorporated, in its essence, into the Indian laws.

Further, in the case of Ram Jawaya Kapur v. State of Punjab 13, the doctrine of
separation of powers was recognized to be a part of the constitution where the
court held that though the doctrine of separation of powers is not expressly
mentioned in the constitution it stands to be violated when the functions of one
organ of government are performed by another.

However, it was after the landmark case of Indira Nehru Gandhi v. Raj Narain14
that the position of this doctrine in the Indian context was made clearer. In this
case, the election of Mrs. Indira Gandhi, who was the Prime Minister of India, was
challenged before the Allahabad High Court on the grounds of violation of the
election code and misuse of power during her election campaign. The Hon’ble

12
(1973) 4 SCC 225
13
AIR 1955 SC 549
14
1975 AIR 1590
Allahabad High Court cancelled her candidature. In response to that, a cross-appeal
was filed before the Hon’ble Supreme Court of India. However, before the
Hon’ble apex court heard the matter finally, Mrs. Indira Gandhi exerted influence
over the legislature and amended the Constitution by inserting (Thirty-ninth
Amendment) Act, 1975, with an aim of negating the then ongoing judicial process.
The question of constitutionality of the said constitutional amendments was
brought before the court in which it was declared as ultra virus of the basic
structure of the constitution. Further, on the matter of the legislatures’ declaration
of validity of the election, the Hon’ble Supreme Court held that, the adjudication of
a specific dispute is a judicial function which parliament cannot exercise even
under its constitutional amending power. Therefore, the amendment was held to be
ultra-vires on the basis that when the constituent body declared the validity of the
election of Prime Minister, it discharged a judicial function, which according to the
principle of separation, should not have been done.

Further, the basic structure doctrine as laid down in Kesavananda Bharti 15 was
once again challenged in recent case of I.R. Coelho v. State of Tamil Nadu16.In this
case, the state passed a law creating 69% of reservations in educational institutions,
far exceeding the accepted limit of 50%. In order to protect the said provision from
being struck down on the grounds of being unconstitutional, it was placed under
the Ninth Schedule, which was specifically created in order to be outside the scope
of judicial review. The matter was challenged before the court, on the ground of
the constitutional validity of the Ninth Schedule on the grounds that it was
violative the basic structure of the constitution. The court took cognizance of the
said argument and held the Ninth Schedule as being violative of this doctrine and
hence even matters placed under the said schedule shall henceforth be open to

15
(1973) 4 SCC 225
16
AIR 2007 SC 861
judicial inquiry. Thereby, this previously protected portion of the constitution was
also brought under the ambit of the Basic structure theory and the Golden triangle
comprising of Art.14, 19 and 21, making laws placed under it amenable to judicial
review.

The Separation of powers and emergency-

There are two aspects of this doctrine of separation of powers under Indian
constitution out of that, one is to discuss the usage of the doctrine of separation of
powers in normal governance and another is to examine it under the unique
circumstances of a national emergency. In such a situation, there is likelihood that
either of three organs may try to exceed its power as checks or balances are
suspended. However, it is commonly agreed that even during emergency, the
doctrine must continue to be in force.

It was the matter of debate in the case of Rameshwar Prasad v. State of Bihar 17,
where the court was to determine ‘whether the imposition of Art. 356 in the State
without proper consultation with State authorities or considering the Governor’s
report, amounts to an excessive use of legislative power?’ Finding that the central
legislature had to step into the shoes of the state legislature and thereby usurp the
power completely to itself, in the given case, the court upheld that there to be a
clear violation of the doctrine of separation of powers.

Recent developments-

The point of the relative jurisdictional boundaries of the organs of the state has
acquired a new momentum in the recent period in the view of coalition politics at
the center and in states. This can be gathered from the instances such as those that

17
1980 AIR 104
occurred in some states during the state elections of 2005, particularly in
Jharkhand, Goa and Bihar, where no party or coalition of parties had a majority.
The situation was further complicated by the fact that neither the Governors of
these states (who had the final powers to appoint a government) nor the presiding
officers of the legislatures (who had the powers to conduct the proceedings of the
House where the majority claimed by the new government was to be tested) were
considered to be impartial in their decisions.

In Jharkhand, after the elections in March 2005, the governor conducted the
swearing-in of a government headed by a member of the Union Cabinet, who
however, did not seem to have a clear majority. He was given a fixed number of
days to prove his majority on the floor of the House. The opposition parties, who
claimed to have a majority, were not in favour of such granting such a grace period
and hence filed a writ petition in the Hon’ble Supreme Court challenging the
decision of the governor. On 9 March 2005 the court passed an order giving
directions to the speaker to extend the Assembly session by a day and conduct a
floor test between the contending political alliances. In the light of Court’s
decision, the earlier government formed by the Union minister decided to tender its
resignation on the advice of the central government. An alternative government
was then formed by a combination of other parties which was able to prove its
majority on the floor of the House.

There has been considerable debate as to whether the court was right in taking
cognizance of such a matter, as it might be considered an intrusion into the duties
of the executive. However, in light of the fact that the executive was functioning in
a biased manner, there were no other options available for redress apart from the
decree of the court. Hence, it had to be accepted as a valid action, in consonance
with its constitutional powers.
With such changing political scenario, the effective functioning of the organs has
also been changed. That being said, the effect of the doctrine of separation of
powers is in no way diluted or changed due to these changed systems and remains
an integral part of the basic structure of the system that governs the executive,
legislative and judicial practice in the country.

Judicial view and doctrine of separation of powers-

As mentioned above, there was a time when the judiciary has faced tough
challenges in maintaining and preserving the doctrine of separation of power and it
has been in the process of preservation of the above said doctrine.

As discussed above, the first major judgment by the judiciary in relation to

doctrine of separation of power was in Ram Jawaya v state of Punjab18 where the
court 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.Golak Nath v State of Punjab 19, Subha Rao, C.J opined that “The
constitution brings into existence different constitutional entities, 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

18
AIR 1955 SC 549
19
AIR 1967 SC 1643
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 20 related to
the doctrine of separation of power. Then came one of the most land mark
judgments delivered by the Hon’ble Supreme Court in Keshvananda Bharti v
Union of India 21 in which the court was of the view that amending power was now
subject to the basic features of the constitution and therefore, 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 other. Therefore this view further confirmed the opinion of the
court in relation to the doctrine of separation of power.

After that in Indira Gandhi Nehru v. Raj Narain 22 case, where the dispute
regarding Prime Minister’s election was pending before the Hon’ble 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.

20
AIR 1955 SC 549
21
(1973) 4 SCC 225
22
1975 AIR 1590
Also in I.R. Coelho vs. State of Tamil Nadu23, the Hon’ble Supreme Court took the
view observed in Kesavananda Bharati case24, 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 25, in 1955
to I.R. Coelho vs. State of Tamil Nadu26, there 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
separation of power under the constitution of India but then as the passage of time
the opinion of the Hon’ble Supreme Court changed and now it includes the above
said doctrine as the basic feature of the constitution.

Conclusion -

In order to understand the topic of present study it is necessary to understand the

position of doctrine of separation of power in India. From this chapter we can
gather that the doctrine of separation of powers is followed in India not strictly but
along with the theory of checks and balances. Now, the introduction of checks and
balances system while following this doctrine has given the scope for overlapping
of functioning by one organ of the government over the functions of another. In
such a situation it is crucial to understand the role of judiciary in the light of
present position of this doctrine in India as this doctrine creates a scope for
functional overlapping. Now, in present thesis we have to analyze that whether the
judiciary is encroaching over the powers of legislature by violating the doctrine of
separation of powers? Because the modern day’s interpretation of the doctrine does

23
AIR 2007 SC 861
24
supra
25
supra
26
supra
not recognize the division of government into three water-tight compartments but
provides for crossing boundaries in order to establish a system of checks and
balances. Thus, to sum up, it is clear that governments in their actual operation do
not opt for the strict separation of powers because it is undesirable and
impracticable, however, implications of this concept can be visualized in almost all
the countries in its diluted form. The discrepancies between the plan and practice,
if any, are based on these very grounds that the ideal plan is impractical for
everyday use. Otherwise, the doctrine is itself a part of the founding structure of
the constitution of all democratic nations. India in particular, relies heavily upon
the doctrine in order to regulate, check and control the exercise of power by the
three organs of government. Whether in its theoretical conception or its practical
usage, the doctrine of separation of powers is essential for the effective functioning
of a democracy