Separation of Power

and
Theory of Checks and Balances:
A Comparative Analysis of USA, UK and
India

Submitted by: Submitted to:

Nancy Shamim, Dr. Deepak Srivastav
Roll No. 24,
I Semester,
LLM.
CERTIFICATE OF DECLARATION

The I hereby declare that the project work entitled “Separation of Power and Theory of
Checks and Balances: A Comparative Analysis of USA, UK and India” submitted to the
Hidayatullah National Law University is a record of an original work done by me under
the guidance of Dr. Deepak Srivastav of Hidayatullah National Law University, Naya
Raipur, and this project work has not been performed on the basis for the award of any
Degree or diploma/ associate ship/fellowship and similar project if any.

Nancy Shamim

Roll No. 24

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Acknowledgement

Firstly, I would like to express my profound sense of gratitude towards the almighty for
providing me with the authentic circumstances which were mandatory for the completion of
my project.

Secondly, I am highly indebted to Dr Deepak Srivastav, for providing me with constant

encouragement and guidance throughout the preparation of this project.

My cardinal thanks are also for my parents, friends and all teachers of law department in our
college who have always been the source of my inspiration and motivation without which I
would have never been able to unabridged my project.

Nancy Shamim

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CONTENTS

1. Introduction…………………………………………………..……….3

2. Historical Background…………………………………………..……4-5

2.1 Meaning……………………..…………………………………..…5-.6

2.2 Importance……………………….…………………………………6-7

2.3 Pitfalls……………………………….…………………………..….7-8

3. Constitutional Status in US……..……………………………..…….....9

3.1 Doctrine in US……………………………………………….…..….9

3.2 Legislative power………………//…………………….…………....10

3.3 Executive power…………………………………………………….10

3.4 Judicial power……………………………………………………….11-12

4. Constitutional Status in UK……………………………………….…....13

5. Constitutional Status in India………………………………….….…….14

5.1 Doctrine in India……………………………………………..….......14-15

5.2 Theory of Checks and Balances

5.3 Exceptions to the Doctrine in India………………………………....15-18

5.4 Relationship among the Organs of Government…………………....18-19

5.5 Present Scenario..............................................................................19-20

5.6 Judiciary and Activism……………………………………………….20-22

5.7 Constitutionality to the Doctrine of Separation of Power...………...23-24

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 5.8 Judicial ‘Over’ Activism……..…………………………….………...25-26

5.9 A Myth or Reality?...........................................................................27-29

6. Conclusion………………………………………………………………..30-31

7. Bibliography………………………………………………………………32

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Chapter 1 INTRODUCTION

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 the three organs, and delineating the jurisdiction of each.1

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.2

1 “Doctrine of Separation of Powers”, Academike <https://www.lawctopus.com/academike/doctrine-of-

separation-of-powers/#_edn1> accessed on October 6, 2017.
2 Upadhyaya, Administrative Law, 8th Ed., Central Law Agency, p. 48.

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Chapter 2 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.3

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 l’esprit 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:

 Discontinuous legislative power

 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. Montesquieu’s division of power included a general
legislative power and two kinds of executive powers; an executive power in the nature of
Locke’s ‘federative power’ and a ‘civil law’ executive power including executive and judicial
power.4

It was Montesquieu who for the first time gave it a systematic and scientific formulation in
his book De l’esprit des lois (The Spirit of the laws) published in the year 1748. Locke and

3 Separation of Powers, Encyclopædia Britannica <https://www.britannica.com/topic/separation-of-powers>

accessed on October 5, 2017.
4 Supra note 1.

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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. 5 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.

2.1 Meaning

Understanding that a government's role is to protect individual rights, but acknowledging that
governments have historically been the major violators of these rights, a number of measures

5 Bertrand Russell, The History of Western Philosophy, 4th Printing, American Bookstratford Press, Inc., New
York, p. 639.

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have been devised to reduce this likelihood. The concept of Separation of Powers is one such
measure. The premise behind the Separation of Powers is that when a single person or group
has a large amount of power, they can become dangerous to citizens. The Separation of
Power is a method of removing the amount of power in any group's hands, making it more
difficult to abuse.6

It is generally accepted that there are three main categories of governmental functions – (i)
the legislative, (ii) the Executive, and (iii) the Judicial. At the same time, there are three main
organs of the Government in State i.e. legislature, executive and judiciary. According to the
theory of separation of powers, these three powers and functions of the Government must, in
a free democracy, always be kept separate and exercised by separate organs of the
Government. Thus, the legislature cannot exercise executive or judicial power; the executive
cannot exercise legislative or judicial power of the Government.7

As the concept of ‘Separation of Powers’ explained by Wade and Philips 8, it means three
different things:

1. That the same person should not form part of more than one of the three organs of
government, e.g. the minster should not sit in parliament

2. That one organ of the government should not control or interfere with the exercise of
its functions by another organ, e.g. the judiciary should not independent of the
executive or that minsters should not be responsible to parliament

3. That one organ of the government should not exercise the functions of another, e.g.,
the minster should not have legislative power.

2.2 Importance

The doctrine of separation of power in its true sense is very rigid 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 per Montesquieu in the Doctrine of separation of power is that there should be government
of law rather having wills and whims of the official. Also another most important feature of

6 “Separation of Powers” And The Indian Constitution’

<http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/9/10_chapter%204.pdf> accessed on Oct. 6, 2017.
7 C.K.Takwani, Lectures on Administrative Law, 1999, p.31.
8 Constitutional Law, 6th ed., 1960, pp. 22-34.

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the above said doctrine is that there should be independence of 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 power do plays a
vital role in the creation of a fair government and also fair and proper justice is dispensed by
the judiciary as there is independence of judiciary. Also the importance of the above said
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”.9

2.3 Pitfalls

Theoretically, the doctrine of separation of power was very sound, many defects surfaced
when it was sought to be applied in real life situations. Mainly, the following defects were
found in this doctrine.

1) Historically speaking, the theory was incorrect. There was no separation of power
under the British constitution. At no point of time, this doctrine was adopted in
England. Prof Ullman says, “England was not the classic home of separation of
power.”10 Donoughmore Committee11 also observed that there is no such thing as the
absolute separation of power between legislature, executive and judiciary.

2) This doctrine is based on presumption that the three organs of the government are
independent to each other. In fact it’s not so. There are no watertight compartments.
It’s not easy to draw a distinguishing line between these with a strict mathematical
calculation.12

3) As Paton observed “it’s extraordinarily difficult to define precisely each particular

power”. President Woodrow Wilson rightly said: “The trouble within the theory is that
government is not a machine, but a living thing…no living thing can have its organ
offset against each other as checks, and live. On the contrary, its life is dependent
9 Supra note 6 at 113.
10 Supra note 7 at 33.
11 M.S. Rama Rao, Administrative Law, Msrlawbooks, p. 19.
12 Dr. Nuzhat Parveen Khan, Comparative Constitutional Law, 1st ed., Satyam Law Publication, 2015, p. 260.

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 upon their quick cooperation, their ready response to the commands of instinct or
intelligence, their amicable community of purpose. Their cooperation is
indispensable, their welfare fatal”13

4) Enforcement of rigid concept of separation of power will make modern government

an impossible entity. Strict adherence to this theory is practically impossible. The
modern state has to work as a pedestrian father. Gone are the days when it was police
state. As the time passes the problems of the state grows. Today the state is supposed
to solve the complex issues. Socio-economic problems and it’s not possible to do a
strict adherence of this theory. Justice Frankfurter says also observed that enforcement
of rigid conception of separation of power would make modern government
impossible.

5) The fundamental object behind Montesquieu’s doctrine was liberty and freedom of an
individual, but it cannot be achieved by mechanical division of functions and
powers.in England, theory of separation of power is not accepted and yet it’s known
for the protection of individual liberty. For freedom and liberty, it’s necessary that
there should be rule of law and impartial ad independent judiciary and eternal
vigilance on the part of subjects.

6) In modern practice, the theory of separation of power means an organic separation

and the distinction must be drawn between “essential and incidental power”. And that
one organ of government cannot usurp or encroach upon the essential functions
belonging to another organ, but may exercise some incidental function thereof.14

13 Friedmann, Law in a Changing Society, Berkeley and Los Angeles, University of California Press, 1959,
p.382.
14 Dr. J.J.R.Upadhyaya, Administrative Law, Central Law Agency, 8th ed., 2014, p.47.

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Chapter 3 CONSTITUTIONAL STATUS IN US

3.1 Doctrine in USA15

The doctrine of Separation of Powers forms the foundation on which the whole structure of
the Constitution is based. It has been accepted and strictly adopted in U.S.A. Article I;
Section 1 vests all legislative powers in the Congress. Article II; Section 1 vest all executive
powers in the President and Article III; Section 1 vests all judicial powers in the Supreme
Court.

Jefferson quoted, “The concentration of legislative, executive and judicial powers in the same
hands in precisely the definition of despotic Government.”

On the basis of this theory, the Supreme Courts was not given power to decide political
questions so that there was not interference in the exercise of power of the executive branch
of government. Also overriding power of judicial review is not given to the Supreme Court.
The President interferes with the exercise of powers by the Congress through his veto power.
He also exercises the law-making power in exercise of his treaty-making power. He also
interferes in the functioning of the Supreme Court by appointing judges.

The judiciary interferes with the powers of the Congress and the President through the
exercise of its power of judicial review. It can be said that the Supreme Court has made more
amendments to the American Constitution than the Congress. To prevent one branch from
becoming supreme, protect the "opulent minority" from the majority, and to induce the
branches to cooperate, governance systems that employ a separation of powers need a way to
balance each of the branches. Typically this was accomplished through a system of "checks
and balances", the origin of which, like separation of powers itself, is specifically credited to
Montesquieu. Checks and balances allow for a system based regulation that allows one
branch to limit another, such as the power of Congress to alter the composition and
jurisdiction of the federal courts.

15 Prachi Shah, Separation of Power in India & USA, Legal Services India, Dec. 29, 2010
<http://www.legalservicesindia.com/article/article/separation-of-power-in-india-&-usa-483-1.html> accessed on
Oct. 7, 2017.

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3.2 Legislative power

Congress has the sole power to legislate for the United States. Under the non-delegation
doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. In
this vein, the Supreme Court held in the 1998 case Clinton v. City of New York that Congress
could not delegate a "line-item veto" to the President, by which he was empowered to
selectively nullify certain provisions of a bill before signing it. The Constitution Article I,
Section 8; says to give all the power to Congress. Congress has the exclusive power to
legislate, to make laws and in addition to the enumerated powers it has all other powers
vested in the government by the Constitution. Where Congress does not make great and
sweeping delegations of its authority, the Supreme Court has been less stringent. One of the
earliest cases involving the exact limits of non-delegation was Wayman v. Southard (1825).
Congress had delegated to the courts the power to prescribe judicial procedure; it was
contended that Congress had thereby unconstitutionally clothed the judiciary with legislative
powers.

3.3 Executive power

Executive power is vested, with exceptions and qualifications, in the president by Article II,
Section 1, of the Constitution. By law the president becomes the Commander in Chief of the
Army and Navy, Militia of several states when called into service, has power to make treaties
and appointments to office “...with the Advice and Consent of the Senate” receive
Ambassadors and Public Ministers, and “...take care that the laws be faithfully executed”
(Section 3). By using these words, the Constitution does not require the president to
personally enforce the law; rather, officers subordinate to the president may perform such
duties. The Constitution empowers the president to ensure the faithful execution of the laws
made by Congress. Congress may itself terminate such appointments, by impeachment, and
restrict the president. The president's responsibility is to execute whatever instructions he is
given by the Congress.

Congress often writes legislation to restrain executive officials to the performance of their
duties, as authorized by the laws Congress passes. In INS v. Chadha (1983), the Supreme
Court decided (a) The prescription for legislative action in Article I, Section 1—requiring all
legislative powers to be vested in a Congress consisting of a Senate and a House of

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Representatives—and Section 7—requiring every bill passed by the House and Senate, before
becoming law, to be presented to the president, and, if he disapproves, to be repassed by two-
thirds of the Senate and House—represents the Framers' decision that the legislative power of
the Federal Government be exercised in accord with a single, finely wrought and
exhaustively considered procedure. This procedure is an integral part of the constitutional
design for the separation of powers. Further rulings clarified the case; even both Houses
acting together cannot override Executive veto’s without a 2/3 majority. Legislation may
always prescribe regulations governing executive officers.

3.4 Judicial power

Judicial power — the power to decide cases and controversies — is vested in the Supreme
Court and inferior courts established by Congress. The judges must be appointed by the
president with the advice and consent of the Senate, hold office for life and receive
compensations that may not be diminished during their continuance in office. If a court's
judges do not have such attributes, the court may not exercise the judicial power of the
United States. Courts exercising the judicial power are called "constitutional courts."
Congress may establish "legislative courts," which do not take the form of judicial agencies
or commissions, whose members do not have the same security of tenure or compensation as
the constitutional court judges. Legislative courts may not exercise the judicial power of the
United States. In Murray's Lessee v. Hoboken Land & Improvement Co. (1856), the Supreme
Court held that a legislative court may not decide "a suit at the common law, or in equity, or
admiralty," as such a suit is inherently judicial. Legislative courts may only adjudicate "public
rights.

Even though of above all, Separation of Powers is not accepted in America in its strict sense,
only it has attracted the makers of most modern Constitution, especially during 19th century.

Marbury v. Madison is a landmark case in United States law. It formed the basis for the
exercise of judicial review in the United States under Article III of the Constitution.

This case resulted from a petition to the Supreme Court by William Marbury, who had been
appointed by President John Adams as Justice of the Peace in the District of Columbia but
whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to
force Secretary of State James Madison to deliver the documents, but the court, with John

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Marshall as Chief Justice, denied Marbury's petition, holding that the part of the statute upon
which he based his claim, the Judiciary Act of 1789, was unconstitutional.

Marbury v. Madison was the first time the Supreme Court declared something
"unconstitutional", and established the concept of judicial review in the U.S. (the idea that
courts may oversee and nullify the actions of another branch of government) The landmark
decision helped define the "checks and balances" of the American form of government.

Separation of powers has again become a current issue of some controversy concerning
debates about judicial independence and political efforts to increase the accountability of
judges for the quality of their work, avoiding conflicts of interest, and charges that some
judges allegedly disregard procedural rules, statutes, and higher court precedents.

It is said on one side of this debate that separation of powers means that powers are shared
among different branches; no one branch may act unilaterally on issues, but must obtain some
form of agreement across branches. That is, it is argued that "checks and balances" apply to
the Judicial branch as well as to the other branches.

It is said on the other side of this debate that separation of powers means that the Judiciary is
independent and untouchable within the Judiciaries' sphere. In this view, separation of powers
means that the Judiciary alone holds all powers relative to the Judicial function, and that the
Legislative and Executive branches may not interfere in any aspect of the judicial branch.

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Chapter 4 CONSTITUTIONAL STATUS IN UK

Before we go to India, it’s important to know the constitutional setup of the country to which
India was a colony and ultimately owes the existence of the form of government it has. U.K.
follows a parliamentary form of government where the Crown is the nominal head and the
real legislative functions are performed by the Parliament.

The existence of a cabinet system refutes the doctrine of separation of powers completely. It
is the Cabinet which is the real head of the executive, instead of the Crown. It initiates
legislations, controls the legislature, it even holds the power to dissolve the assembly. The
resting of two powers in a single body, therefore denies the fact that there is any kind of
separation of powers in England.16

Chapter 5 CONSTITUTIONAL STATUS IN INDIA

16 Supra note 6 at 125.

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5.1 Doctrine in India17

On a casual glance at the provisions of the Constitution of India, one may be inclined to say
that that the doctrine of Separation of Powers is accepted in India. Under the Indian
Constitution, executive powers are with the President, legislative powers with Parliament and
judicial powers with Judiciary (Supreme Court, High Courts and Subordinate Courts).

The President’s function and powers are enumerated in the Constitution itself. Parliament is
competent to make any law subject to the provisions of the Constitution and there is no other
limitation on it legislative power. The Judiciary is independent in its field and there can be no
interference with its judicial functions either by the Executive or by the Legislature. The
Supreme Court and High Courts are given the power of judicial review and they can declare
any law passed by the Parliament or the Legislature unconstitutional. Taking into account
these factors, some jurists are of the opinion that the doctrine of Separation of Powers has
been accepted in the Indian Constitution.

In I.C. Golak Nath v. State of Punjab18, it was observed: “The Constitution brings into
existence different constitutional entities, namely, the Union, the States 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 their limits. They should function
within the spheres allotted to them.

If we study the constitutional provisions carefully, it is clear that the doctrine of Separation of
Powers has not been accepted in India in its strict sense. In India, not only there is functional
overlapping but there is personnel overlapping also. The Supreme Court has power to declare
void the laws passed by the legislature and the actions taken by the executive if they violate
any provision of the Constitution or the law passed by the legislature in case of executive
actions. The executive can affect the functioning of the judiciary by making appointments to
the office of Chief Justice and other judges. One can go on listing such examples yet the list
would not be exhaustive.

17 Supra note 15.

18 AIR 1967 SC 1643.

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In Indira Nehru Gandhi v. Raj Narain19, it was 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.
Chandrachud J. also observed that the political usefulness of doctrine of Separation of Power
is not widely recognized. No constitution can survive without a conscious adherence to its
fine check and balance. The principle of Separation of Power is a principle of restraint which
has in it the precept, innate in the prudence of self-preservation, that discretion is the better
part of valour.”

Thus doctrine of separation of powers is not fully accepted in the Indian Constitution. It can
be said with the observation of Mukherjee, J. in Ram Jawaya v. State of Punjab: “The 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 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.”

Thus referring to the above content it proves that Separation of Power is practiced in India
but not that rigidly. It is not embodied in the constitution though practiced. The three main
powers do cross their limit and interfere in each other’s task whenever necessary.

5.9 Theory of Checks and Balances

Even in case of America, the country which has accepted the doctrine in strict sense we can
see how the doctrine is followed in hand with the very system of “checks and balances” and
further how the country has relaxed the strict application of this doctrine to an extent where
certain exceptions have helped flexible functioning of the government. In case of Britain the
doctrine does not exist in strict sense as discussed above.

The doctrine of separation of powers is a part of the Basic Structure of the Indian
Constitution, even though it is not specifically mentioned in it. Hence, no law and
amendment can be passed violating it. The system of checks and balances is essential for the
proper functioning of three organs of the Government and different organs of the state

19 AIR 1975 SC 1590.

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imposed checks and balances on the other. The following examples illustrate the checks and
balances:

 Judiciary exercises Judicial Review over legislative and executive actions. Judiciary
has the power to void laws passed by the parliament. Similarly it can declare the
unconstitutional executive actions as void.

 Legislators review the functioning of the executive.

 Executive appoints the judges.

 Legislative branch removes the judge. It can also alter the basis of the judgement
while adhering to the constitutional limitation.

Checks and balances act in such a way that no organ of the state becomes too powerful. The
constitution of India makes sure that the discretionary power bestowed upon any organ of the
state does not breach the principles of democracy. For instance the legislature can increase
judges but as per the condition that is two third majorities.

5.3 Exceptions to the Doctrine in India

The executive power of the union is vested in the president expressly 20, but there is no
corresponding provision in the constitution vesting legislative and judicial power in a
particular organ of the state. Legislative power is primarily vested in a legislature in the union
parliament and in the State Legislatures.21

In India the parliament consists of the president, the house of the people and the council of
the states.22 Thus the theory of separation of powers breaks down here because the executive
head is a part of legislature.

 The president is the head of the executive but the real executive powers are vested in
the cabinet. There is council of ministers to aid or advice the president in exercise his
functions.23 It is further prescribed that the president shall act in accordance with such
advice.
20 Article 53
21 Article 245(1)
22 Article 79
23 Article 74 (1)

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  The prime minister being head of the council of ministers is the real head of the
executive. Ministers are essentially to be appointed from amongst members of either
house of the parliament. The union council of ministers is collectively responsible to
the house of the people.24
 In UN Rao vs. Indira Gandhi,25 the Supreme Court laid down that the council of
ministers is in actual control of both executive and legislative functions. By reading
Article 74(1)26 with Article 75(2)27 and Article 75(3)28 it becomes evident that
president cannot exercise executive powers without the aid and advice of the council
of ministers.
 In Samsher Singh v. State of Punjab29 this proposition has been clarified. In this case
the Supreme Court has stated that the president as well as the governors are only
“constitutional or formals heads”. They exercise their powers and functions under the
constitution only with the aid or advice of the council of ministers. Whenever the
constitution requires the satisfaction of the president or the governor it indicates the
satisfaction is not personal satisfaction of the president or the governor but the
satisfaction of the council of ministers.
 Relationship between parliament and president are exhibited by Articles 3, 85, 86, 87,
108, 111, 352, 356 and 360 leaves least scope for separation of powers between
parliament and executive. Article 78 also provides that it shall be the duty of the
prime minister:
1. To communicate to the president “all decisions” of the council of ministers
relating to the administration of the affairs of the union and proposal for
legislation.
2. To furnish such information relating to administration of affairs of the union and
proposals for legislations as the president may call for and
3. If the president so requires to submit for the consideration of the council of
ministers any matter on which a decision has been taken by a minister but which
has not been considered by the council.
 President being the executive head is also empowered to exercise legislative powers.
In his legislative capacity he may promulgate Ordinances in order to meet the
situation as Article 123(1) says “If at any time, except when both Houses of

24 Article 75(3)
25 AIR 1971 SC 1002
26 There shall be Council of Ministers with the Prime Minister at the head to aid or advice the president who
shall, in the exercise of his functions, act in accordance with such advice.
27 The ministers shall hold office during the pleasure of President.
28 The Council of Ministers shall be collectively responsible to the House of the People.
29 AIR 1974 SC 2192

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 Parliament are in Session, President is satisfied that circumstances exist which render
it necessary for him to take immediate action, he may promulgate such Ordinance as
the circumstances appear to him to require”.
 When Proclamation of emergency has been declared by the President due to failure of
Constitutional machinery the President has been given legislative power under Article
357 of our Constitution to make any Law in order to meet the situations.
 A power has also been conferred on the President of India under Article 372 and 372-
A to adapt any Law in country by making such adaptations and modifications,
whether by way of repeal or amendment as may be necessary or expedient for the
purpose or bringing the provisions of such Law into accord with the provisions of the
Constitution
 The President of India also exercises judicial function. Article 103(1) of the
Constitution is notable in this connection. According to this Article “If any question
arises as to whether a member or either of House of Parliament has become subject to
disqualification mentioned in clause (1) of Article 102, the questions hall be referred
for the decision of the President and his decision shall be final”.
 Article 50 lays emphasis to separate judiciary from executive. But in practice we find
that the executive also exercises the powers of judiciary as in appointment of judges.
(Articles 124, 126 & Article 127).
 The legislative (either House of Parliament) also exercises judicial function in
removal of President (Article 56) in the prescribed manner.30
 Under Article 61 of the Indian Constitution .Judiciary also exercises legislative power;
High Court and Supreme Court are empowered to make certain rules legislative in
character. Whenever High Court or the Supreme Court finds a certain provision of law
against the Constitution or public policy it declares the same null and void, and then
amendments may be incorporated in the Legal System. Sometimes High Court and
Supreme Court formulate the principles on the point where law is silent. This power is
also legislative in character.

5.4 Relationship among the Organs Of Government

When talking of relationship between legislature, executive and judiciary the first thing that
one can say in context to India is that judiciary exercises completely independent functioning.

30 Article 61 of the Indian Constitution.

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Article 50 clearly states that the state shall take steps to separate the judiciary from the
executive in the public services of the state. Article 122 and 212 provides validity of
proceedings in Parliament and the Legislatures cannot be called into question in any Court.
This ensures the separation and immunity of the legislatures from judicial intervention on the
allegation of procedural irregularity.31

Judicial conduct of a judge of the Supreme Court and the High Courts cannot be discussed in
the Parliament and the State Legislature, according to Article 121 and 211 of the Constitution.

Articles 53 and 154 respectively provide that the executive power of the Union and the State
shall be vested with the President and the Governor and they enjoy immunity from civil and
criminal liability which clearly implies that separation of powers is constitutionally accepted
in India, in regard to certain exceptions which have already been discussed above.

The legislature besides exercising law making powers exercises judicial powers in cases 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 Chief Justice and other judges. Legislature exercising judicial powers in the case of
amending a law declared ultra vires by the Court and revalidating it. While discharging the
function of disqualifying its members and impeachment of the judges, the legislature
discharges the functions of the judiciary32. Legislature can impose punishment for exceeding
freedom of speech in the Parliament; this comes under the powers and privileges of the
parliament. But while exercising such power it is always necessary that it should be in
conformity with due process.

The concept of independence of the judiciary has been described as a basic feature of the
constitution and has been elaborated in S.P. Gupta v. Union of India33. The independence of
the judiciary is a part of the basic structure of the constitution to secure the rule of law and is
essential for preservation of the democratic system. The broad principle of separation of
powers adopted in the constitution together with Article 50, provide some insight into
meaning of the relevant provisions in the constitution relating to the composition of the
judiciary34.

31 L Chandra Kumar v. Union of India, (1995) 1 SCC 400.

32 Pandit M.S.M. Sharma v. Sri Krishna Sinha AIR 1960 SC 1186
33 AIR 1982 SC 149.
34 Supreme Court Advocates -on-Record-Association v. Union of India (1993) 4 SCC 441.

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Independence of the judiciary is one of the basic tenets and a fundamental requirement of our
constitution .Article 50 is one such Article for safeguarding the independence of the judiciary
by separation of judiciary from the executive.35

Also the judicial and law making functions, even in realm of “constituent power” are not
interchangeable.36 The courts alone can interpret statutes and determine the jurisdiction of any
body or Tribunal constituted under it.37

It’s not the duty of the court to enlarge the scope of the legislation or the intention of the
legislature when the language of the provision is plain and unambiguous.38

5.5 Present Scenario

Although drafting of legislation and its implementation by and large are functions of the
legislature and executive respectively but under the constitution, the power to the limit the
legislature and the executive is vested in the judiciary. With passage of time the concept on
peek of discussion in present day’s scenario is judicial activism. It is through judicial
activism and the doctrine of checks and balances that judiciary helps in fair and just working
of other two organs of the government but on the other had it gives rise to a huge
contradiction, whether judiciary is entitled to interfere in their functioning ? Does this not
mean a clear breach of doctrine of separation of powers? Time and again judiciary has and
still is in many ways interfering in functioning of executive and legislature both.39

5.6 Judiciary and Activism

Article 21 states: “No person shall be deprived of his life or personal liberty except according
to procedure established by law.”

In this connection it may be mentioned that when the Indian Constitution was being framed
the Constitutional Adviser Mr. B.N. Rau went to America and met Justice Frankfurter, the
celebrated Judge of the U.S. Supreme Court, to seek his advice. Justice Frankfurter advised
that the Indian Constitution should not have a due process clause as that had created a lot of

35 Gupta MM. v. State of Jammu & Kashmir AIR 1982 SC 1579.

36 Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299.
37 State of Tamil Nadu v. State of Karnataka,1991 SUPP (1) SCC 240.
38 Union Of India v. Deoki Nandon Aggarwal AIR 1992 SC 96 .

39 Supra note 1.

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difficulties in America. Hence following his advice, and following the language used in the
Japanese Constitution, only procedural due process was adopted in the Indian Constitution,
and not substantive due process. Also, before the word `liberty’ the word `personal’ was
added to clarify that liberty did not include liberty of contract.

In A.K. Gopalan v. State of Madras40 the Indian Supreme Court rejected the argument that to
deprive a person of his life or liberty not only the procedure prescribed by law for doing so
must be followed but also that such procedure must be fair, reasonable and just. To hold
otherwise would be to introduce the due process clause in Article 21 which had been
deliberately omitted when the Indian Constitution was being framed.

However, subsequently in Maneka Gandhi v. Union of India41, this requirement of substantive

due process was introduced into Article 21 by judicial interpretation. Thus, the due process
clause, which was consciously and deliberately avoided by the Constitution makers, was
introduced by judicial activism of the Indian Supreme Court.

Another great arena of judicial activism was begun by the Indian Supreme Court when it
interpreted the word `life’ in Article 21 to mean not mere survival but a life of dignity as a
human being.

Court further introduced many other rights emanating from article 21 and one wonders
whether there will be any limit to the number of such rights created by court orders.

Further Judicial interpretation also expanded the definition of ‘State’ under Article 12 of the
Constitution whereby even corporation42 ‘instrumentalities of the State’, etc. were brought
within the scope of ‘State’ helping in the expanded enforcement of fundamental rights.

Right to freedom of expression provided by Article 19 of the Constitution is one of the widely
construed rights. Thus, the right also brings within its ambit the freedom of press and
43
publication in the print media and the right to participate in the public communicative
systems.44 The importance of this right in democracy gained importance when the judiciary
struck down the Ordinance that amended the Representation of People Act, 1950 that allowed

40 AIR 1950 SC 27
41 AIR 1978 SC 597
42Ramana v. International Airport Authority (1979) 3 SCC 479
43Romesh Thapar v. State of Madras AIR 1950 SC 124
44Indian Express Newspaper (Bombay) v. Union of India AIR 1986 SC 515

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the candidates non-disclosure of assets stating that in the context of exercise of voting rights
in democracy, the right to know the assets, liabilities and past criminal records cannot be
restricted by the right to privacy of the candidates. In Vishakha v. State of Rajasthan45 the
judiciary expressly laid down the law regarding sexual harassment at the work place. In
Sakshi vs. Union of India46, the provisions of in camera proceedings were made applicable in
cases of rape victims keeping in view their needs in the absence of specific legislative
provisions.

Another instance where the judiciary was needed to come to the rescue of the its people was
the case of Lata Singh v. State of U.P. & Another47 where the Supreme Court taking note of
the deep rooted caste system of the country came down hard on the relatives of a newly
married couple who resorted to violence and harassment as a way of showing their anger on
the boy and girl marring outside their caste or religion. Appropriately exercising judicial
activism the Court held:-

“This is a free and democratic country, and once a person becomes a major he or she
can marry whosoever he/she likes. […] We, therefore, direct that the
administration/police authorities throughout the country will see to it that if any boy
or girl who is a major undergoes inter-caste or inter-religious marriage with a woman
or man who is a major, the couple are not harassed by any one nor subjected to threats
or acts of violence, and anyone who gives such threats or harasses or commits acts of
violence either himself or at his instigation, is taken to task by instituting criminal
proceedings by the police against such persons and further stern action is taken
against such persons as provided by law.”

One of the most famous case on judicial activism was the case of Aruna Ramchandra
Shanbaug v. Union of India and Others48 Aruna Shanbaug, a nurse in 1973, while working
at a Hospital at Mumbai, was sexually assaulted and has been in a permanent vegetative
state since the assault. In 2011, after she had been in this status for 37 years, the Supreme
Court of India heard the petition to the plea for euthanasia filed by a social activist claiming
to be Aruna’s friend. The Court turned Down the petition, but in its landmark judgment

45 AIR 1997 SC 3011

46 (2004) 5 SCC 518
47 2006 (5) SCC 475
48 JT 2011 (3) SC 300

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(authored by the writer) it allowed passive euthanasia i.e. withdrawal of life support to a
person in permanently vegetative state, subject to approval by the High Court.

5.7 Constitutionality of the Doctrine of Separation of Power

In re Delhi Law Act case49, Hon’ble Chief Justice Kania observed:

“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. It is then too much to say that under the
Constitution the duty to make laws, the duty to exercise its own wisdom, judgment
and patriotism in making law is primarily cast on the legislature? 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?”

To the same effect another case is Rai Sahib Ram Jawaya v. State of Punjab,50 Hon’ble Chief
Justice B.K. Mukherjee observed:

“The Indian Constitution has not indeed recognized the doctrine of separation of
powers in the 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 the functions that essentially belong to another.”

In Ram Krishna Dalmia v. Justice Tendolkar51, Hon’ble Chief Justice S.R. Das opined that in
the absence of specific provision for separation of powers in our Constitution, such as there is
under the American Constitution, some such division of powers legislative, executive and
judicial- is nevertheless implicit in our Constitution. Same view was expressed in Jayanti Lal
Amrit Lal v. S.M. Ram52.

Later in I.C.Golak Nath v. State of Punjab53 Subha Rao, C.J opined that

49 AIR 1951 SC 332 at p. 346

50 AIR 1955 SC 549 at p. 556
51 AIR 1958 SC 538
52 AIR 1964 SC 649
53 AIR 1967 SC 1643

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“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”.

In the landmark decision of Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala
and Anr54 The question placed before the Supreme Court in this case was in regard to the
extent of the power of the legislature to amend the Constitution as provided for under the
Constitution itself. It was argued that Parliament was “supreme” and represented the
sovereign will of the people. As such, 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 did
not allow this argument and instead found in favor of the appellant on the grounds that the
doctrine of separation of powers was a part of the “basic structure” of our Constitution.

As per this ruling, there was no longer any need for ambiguity as the doctrine was expressly
recognized as a part of the Indian Constitution, unalterable even by an Act of Parliament.
Thus, the doctrine of separation of powers has been incorporated, in its essence, into the
Indian laws.

54 AIR 1973 SC 1461

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5.8 Judicial ‘Over’ Activism

Of late the Indian judiciary appears to have become overactive, and is often accused of
judicial overreach. The judiciary plays the important role to ensure the constitutional checks
and balances and to adjudicate disputes touching the limits on the power of the respective
branches of the government. In the present day’s scenario there is a debate related to judicial
activism .The judges need great wisdom and restraint in wielding this great judicial power
lest they erect their own predilections into principles. The self –imposed discipline of judicial
power as we can see in recent judgments is good indication for healthy democracy.

In State of U.P. & Others v. Jeet Singh Bisht & Another 55, Justice Markandey Katju observed,
“The supreme court of India cannot direct legislation. The judiciary must exercise self-
restraint and eschew the temptation to encroach into domain of the legislature or the
administrative authorities. By exercising self-restraint it will enhance its own respect and
prestige …judicial restraint is consistent with and complementary to the balance of power
among three independent branches of the state .It accomplishes this in two ways. First,
judicial restraint not only recognizes the equality of the other two branches with judiciary, it
also fosters that equality by minimizing inter branch interference by the judiciary. In this
analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary
for the other coequal branches. Second, judicial restraint tends to protect the independence of
the judiciary. When courts encroach into the legislative or administrative fields almost
inevitably voters, legislators and the other elected officials will conclude that the activities of
the judges should be closely monitored. If judges act like legislators or administrators, it
follows that the judges should be elected like legislators or trained like administrators. This
would be counter –productive”

Thus courts have to maintain judicial self-restraint and they should not try to take over the
functions of the executive and legislature.

In Common Cause v. Union of India56, the court held that there is broad separation of power
under the constitution and hence one organ of the state should not encroach into the domain
of another organ. The judiciary should not therefore seek to perform legislative or executive
functions.
55 (2007) 6 SCC 586
56 (2008) 5 SCC 511

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In Divisional Manager, Aravali Golf Club & Another v. Chander Hass & Another57, the
Supreme Court held that:

“Under the constitution, the legislature, the executive and the judiciary all have their
own broad spheres of operation. Ordinarily it is not proper for any of these three
organs of the state to encroach upon the domain of the other, otherwise the delicate
balance in the constitution will be upset and there will be a reaction. Judges must
know their limits and must not try to ruin the government. They must have modesty
and humility and not behave like emperors…”

Of the three organs of the state the legislature, the executive and the judiciary, only the
judiciary has the power to declare the limits of jurisdiction of all the three organs. That is a
great power and hence must never be abused or misused, but should be exercised by the
judiciary with utmost humility and self restraint. However, it does not mean that judges
should never be activist. Sometimes the judicial activism is useful adjunct to democracy.

If the legislature or the executive are not functioning properly it is for the people to correct
the defects by exercising their franchise properly in the next elections and voting for
candidates who will fulfill their expectations, or by other lawful methods e.g. peaceful
demonstrations. The remedy is not in the judiciary taking over the legislative or executive
functions, because that will not only violate the delicate balance of power enshrined in the
constitution, but also the judiciary neither the expertise nor the resources to perform the
functions.

In the University of Kerala v. Council, Principals, Colleges, Kerala & Others 58, the question
of great constitutional importance which has risen is “whether after getting the
recommendations of some expertise body by a court order, the court itself can implement the
said recommendations by passing a judicial order or whether the court can only send it to the
legislature or its delegate to consider making a law for implementation of these
recommendations”. Justice Markandey Katju observed: “There is a broad separation of
powers under the constitution , and hence one organ of the state should not encroach into the
domain of another organ. The judiciary should not therefore seek to perform legislative or
executive functions”.

57 (2008) 1 SCC 683

58 (2010) 1 SCC 353

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Very recently in Chief Election Commissioner etc. v. Jan Chaukidar59, according to the court,
in cases, where a person is confined in the prison, his right to vote gets temporarily
suspended. Right to vote is a mere statutory right and such privilege is taken away by the
statute when a person is in the prison. In such a case, an elector would not be qualified to vote
even though his name is entered in the electoral rolls. His name is not struck off, but the
essential qualification to be an elector is to be able to vote is not fulfilled in such cases
(Article 326). Hence, the person ceases to be an elector and is therefore not qualified to
contest the election to the House of the People or the Legislative Assembly of a State.

Similarly, in DK Basu v. State of West Bengal 60 SC laid down guidelines on arrests over
taking what parliament should have done.

5.9 A Myth or Reality?

After having studied the doctrine of separation or power and its application across not only
India but across the world it’s very clear that in strict sense the principle of separation of
powers cannot be applied in any modern Government either may be U.K., U.S.A., France,
India or Australia But it does not mean that the principle has no relevance now a days.
History proves this fact that if there is a complete separation of powers the government
cannot run smoothly and effectively. Smooth running of government is possible only by co-
operation and mutual adjustment of all the three organs of the government. Prof. Garner has
rightly said, “the doctrine is impracticable as a working principle of Government.” It is not
possible to categorize the functions of all three branches of Government on mathematical
basis. The observation of Frankfurter is notable in this connection. According to him
“Enforcement of a rigid conception of separation of powers would make Government
impossible.”61

It is my opinion that the doctrine of Montesquieu is not merely a myth “it also carries a truth,
but in the sense that each organ of the Government should exercise its power on the principle
of Checks and Balances” signifying the fact that none of the organs of Government should
usurp the essential functions of the other organs. The doctrine does not apply in strict sense in
any part of the world because practically it is not possible to strictly differentiate between the

59 (2013) 7 SCC 507

60 (1997) 1 SCC 416
61 Frankfurter –The Public and its Government (1930) quoted by B. Schwartz in American Constitutional Law,
1955, p. 286.

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working of the three organs of the government. In a democracy the strict application can only
lead it dictatorship and thus creating chaos among people of the country. The doctrine is a not
fully a reality because it is NOT strictly followed but it’s not merely a myth because it is in its
all possible senses being followed but with subject to certain exceptions.

Now the question that arises when discussing reality or myth one cannot forget the
functioning of independent judiciary which forms an integral part of the doctrine. To this
certain observations are made in following bullets which will clarify the “Independent
Functioning of Judiciary in short”:

 When there is a clear casus omissus i.e. gap in the statute?

The Indian Supreme Court in D. Velusamy v. D. Patchaiammal62, the Protection of

Women from Domestic Violence Act, 2005 was considered. Section 2 (f) of that Act
defines ‘domestic relationship. That definition uses the expression ‘relationship in the
nature of marriage’ but does not explain what it means. Hence the court had to fill in
the gap in the law.

 But what if there is no law and hence there is no question of filling in the gap?

In Vishakha v. State of Rajasthan63 there was no law for protection of women from
sexual harassment at work places, and hence no gap in an existing law. Yet the
Supreme Court laid down guidelines in this connection, and said that this will be the
law until Parliament makes a law on the subject. Here the court practically acted as an
interim Parliament.

But is this a valid approach?

In Kumari Mathuri Patil v. Addl. Commissioner64, in order to check issuance of false

and fabricated scheduled caste certificates, the Supreme Court issued a set of 15
guidelines about how such certificates should be issued, which authority can issue
them, etc. It also created a vigilance cell headed by a senior police officer to check the
malpractice.

62 (2010) 10 SCC 469

63 Supra Note 44.
64 (1994) 6 SCC 241

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 Can the court itself perform functions which have been given to a statutory authority?

In several decisions the Supreme Court held that it cannot. Thus in Supreme Court
Bar Association v. Union of India,65 a Constitution Bench of the Court held that under
the Advocates Act, 1961 only the Bar Council can debar a lawyer, and hence it
reversed the earlier decision of a 3 Judge bench debarring a lawyer.

In M.C. Mehta v. Union of India66, the Supreme Court directed that the maximum
speed limit of heavy vehicles in Delhi can be 40 kmph. But fixing speed limits is the
task of the State Government or its nominee vide Section 112 Motor Vehicles Act,
1988.

 Can the Court ignore a statutory or Constitutional provision, and substitute it by its own
order?

It is evident that this cannot validly be done, but in fact it was done by the Supreme
Court in the second Judges case (Supreme Court Advocates on Record Association v.
Union of India67) in which the court in effect ignored the provisions of Article 124 for
appointing Judges to the Supreme Court, and substituted its own procedure.

 Can the Court direct the legislature to make a law or amend an Act of the legislature?

In catena of decisions, some of which have been referred to in Divisional Manager,

Aravali Golf Course v. Chander Haas68 the Supreme Court held that the court has no
such power.

Yet in Vineet Narain v. Union of India 69, the Supreme Court directed amendment to
the Delhi Special Establishment Act 1946 (under which the C.B.I. is constituted) by
setting up a Central Vigilance Commission to which the C.B.I. will be accountable for
its efficient functioning.

Functioning of judiciary is still and will always be a matter of debate till a final conclusion is
drawn to its jurisdiction which is quite next to impossible in modern day working of

65 AIR 1998 SC 1895

66 AIR (1997) 8 SCC 770
67 Supra note 34.
68 (2008) 1 SCC 683
69 AIR 1998 SC 889

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democracies therefore the doctrine as mentioned is clearly not a reality in strict sense. It is a
myth with an element of truth in hand to exceptions and relaxations.

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Chapter 6 CONCLUSIONS

The Modern State has transformed from Police State to Welfare State. Earlier the State
functions were confined to defense, administration of justice or maintenance of law and
order. With the gradual change in time, state undertook the responsibility to provide social
security and social welfare for the common man, regulate industry, trade, etc. with a view to
protecting as well as promoting public interest. Thus with such a workload it is not possible
for the State to stick to the doctrine of Separation of powers. Theory of Separation of power
cannot be practically possible in reality.

It is rightly said by Madison that, “The accumulation of all powers, legislative, executive and
judicial, in the same hands of one, a few or many, and whether hereditary, self-appointed or
elective, may justly be pronounced the very definition of tyranny”.

From this it can be concluded that the doctrine of separation of powers in the strict sense is
undesirable and impracticable and therefore till now it has not been fully accepted in any of
the country. In theory under the Constitution of United States of America the doctrine of
separation of power has been strictly adopted but there also gradually the Supreme Court is
relaxing the policy. In India also on casual viewing of the Constitution it can be said that
India has adopted the doctrine of separation of power but in reality it is not so. The three
organs in some or the other way perform the task of other. For e.g. the legislature delegate
some powers to executive, thus executive the function of the legislature, in the same way the
Parliament other than making laws also have judicial power which it can exercise when its
contempt take places.

The researcher after considering all the aspects have come to the conclusion that the doctrine
of separation of power is not accepted in any country till now due to many critical issues
involved in it. And on comparing the Indian Constitution and U.S.A Constitution it can be
said that on face it seems that both the Constitution has adopted the doctrine of separation of
power but after thorough study it can be said that the doctrine is not strictly accepted in both
the countries including UK.

Particularly regarding Indian scenario, the above discussion makes it self-evident and well
settled that Indian Constitution does not tilt in favour of ‘pure doctrine’ of separation of

Page | 33
powers. Having rejected the structural separation, the Constitution has however adopted the
principle in its broad sense coupled with the objective of securing checks and balances within
the system. In principle, the doctrine bars the active jurisdiction of organs and in general
contemplates no assumption by one organ, of functions pertaining to another organ.

“To become truly great, one has to stand with people, not above them”

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BIBLIOGRAPHY

Books Referred:

 Brij Kishore Sharma, Introduction to the Constitution of India, 3 rd ed., Prentice-Hall

of India Pvt. Ltd. Delhi, October 2005.

 C.K. Takwani, Lecture on Administrative Law, Eastern Book Company, 1999.

 Upadhyaya, Administrative Law, 8th Ed., Central Law Agency.

 Bertrand Russell, The History of Western Philosophy, 4 th Printing, American

Bookstratford Press, Inc., New York.

 Wade, Constitutional Law, 6th ed., 1960.

 Friedmann, Law in a Changing Society, Berkeley and Los Angeles, University of

California Press, 1959.

Article Referred:

 Tej Bahadur Singh, Principle of Separation of Powers And Concentration of

Authority, J.T.R.I. Journal, Second Year, Issue 4, March, 1996.

Web Articles Referred:

 Aman Chhibber, Separation of Powers: Its Scope, Legal Service India

< http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html>

 Separation of Powers in Constitution of India, IAS Point

< https://academy.gktoday.in/article/separation-of-powers-in-constitution-of-india/>

 Separation of Power-India & USA, Legal Service India

<http://www.legalservicesindia.com/article/article/separation-of-power-in-india-&-
usa-483-1.html>

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 Bani Mahajan, Doctrine of Separation of Powers

< https://www.lawctopus.com/academike/doctrine-of-separation-of-powers/#_edn3>

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