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Constitutionalism
Constitution
Constitutional law
5/18/2014 Prof.(Dr.) T.V. Subba Rao, NLSIU, B'LORE
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Doctrine of Separation of powers is an important
instrument to perpetuate constitutionalism.
The doctrine of separation of powers in its elementary
sense existed even in second century B.C. in the
writings of Polybius in Rome. He propounded the
theory of mixed government. He advocated that the
stability in Rome could be achieved by mixing the
features of monarchy, aristocracy and democracy. The
consuls, the senate and popular assembly in ancient
Rome exemplified such mixed government. The power
of the government is distributed in such a way that each
will have check over the other.
In that sense this concept was a forerunner to the
seventeenth century theories of checks and balances
and separation of powers.

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PROF. ( DR. ) T. V. SUBBA RAO, NLSI U,
B' LORE 3
John Lockes contribution to the theory of
Separation of Powers:
John Lockes ( 1632-1704) exposition of separation
of powers was marked with three divisions.
Firstly, discontinuous legislative power where the
rule making power is required to act from time to
time and not continuously.
Secondly, the continuous executive power includes
both executive power and judicial powers.
Thirdly, the federative powers include foreign affairs,
war and peace, leagues and alliances and all the
transactions outside commonwealth.
5/18/2014 Prof.(Dr.) T.V. Subba Rao, NLSIU, B'LORE
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5/18/2014 Prof.(Dr.) T.V. Subba Rao, NLSIU, B'LORE
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He observed, it may be too great a temptation
to human frailty apt to grasp at power for the
same persons who have power of making laws
to have also in their hands the power to
execute them, where they may exempt
themselves from obedience of the laws they
make and suit the law, both in its making and
execution, to their own private advantage and
thereby come to have a distinct interest from
the rest of the community, contrary to the end
of society and government and thus the
legislative and executive powers come often to
be separated.
French Jurist Baron de Montesquieu (1689-1775)
improved Lockes theory of separation of powers and
laid strong foundations. In order to prevent the
exercise of arbitrary power, he advocated that the
separation of legislation, administration and
adjudication and they should not be placed in the
hands of same body of persons. He observed, when
the legislative and executive powers are united in the
same person or body there can be no liberty because
apprehensions may arise lest the same monarch or
senate should enact tyrannical laws to enforce them in
tyrannical mannerwhere the power of judging
joined with the legislature the life and liberty of the
subject would be exposed to arbitrary control, for the
judge would then be legislator. Where it joined to the
executive power, the judge might behave with all the
violence of an oppressor.
5/18/2014 Prof.(Dr.) T.V. Subba Rao, NLSIU, B'LORE
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Impact of Montesquieus theory of separation of
powers on American Constitution:

Madison, who took leading part in the framing of
American Constitution, in his writings in Federalist,
observed that The accumulation of all powers legislative,
executive and judiciary 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.

Art. I Section I of the American Constitution vests all
legislative power in the Congress, where as all the
executive power is vested in the President by virtue of
Art.II , Sec I. The Supreme court of America exercises
all judicial power by virtue of Art. III Sec.I. American
constitution technically exemplifies separation of powers.
However, in practice there are many deviations
5/18/2014 Prof.(Dr.) T.V. Subba Rao, NLSIU, B'LORE
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Usurpation of the power of Judicial Review, which
was not granted explicitly under the constitution of
America, was carried by Chief Justice Marshall in a
famous case of Marbury Vs Madison (1803).
The President of America interferes with legislative
process by his veto power. While exercising treaty
making power he involves in law-making power.
The President can pack the judiciary with his own
men.
It can be stated that all the three branches of govt.
exercise mutual interference.
Separation of powers in strict sense does not exist
in America. However, one may state that with
degree of variation it constitutionally recognizes
separation of powers.

5/18/2014 Prof.(Dr.) T.V. Subba Rao, NLSIU, B'LORE
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Separation of powers in India.:
Indian Constitution, no doubt, makes tripartite classification of powers
between executive, legislature and judiciary
Nonetheless, it is not on the lines of Montesquieus classification
Separation of powers is one of the Directive Principles of State Policy,
Art.50, that executive should be separated from the Judiciary.
Justice Patanjali Sashtri in Inre Delhi Laws Act case observed, the
historical background and the political environment which
influenced the making of the American Constitution were entirely
absent here and beyond the creation of three organs of the state to
exercise their respective functions of most civilized governments,
there is not least indication that the framers of the Indian
Constitution made American Doctrine of Separation of Powers,
namely that their absolute separation of powers and vesting in
different hands lay the basis, an integral and basic feature of the
Indian Constitution.
5/18/2014 Prof.(Dr.) T.V. Subba Rao, NLSIU, B'LORE
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The Indian Supreme Court was more specific in Ram
Jawaya Vs. State of Punjab AIR 1955 S.C. 549
wherein it has stated, Indian Constitution has not
indeed recognized the doctrine of separation powers in
its absolute rigidity but the functions of the different
parts or branches of the government have sufficiently
differentiated and consequently it can very well said
that our Constitution does not contemplate
assumption by one organ or part of the state of
functions that essentially belong to another.
However, it would be interesting to note that Justice
Sikri and Justice Shelat and Grover in their
exposition of basic structure theory in Keshavananda
Bharathis case observed that separation of powers
and demarcation of power between the legislature, the
executive and judiciary constitute basic structure.
The separation of powers is often blurred in the Indian
governmental power distribution 5/18/2014 Prof.(Dr.) T.V. Subba Rao, NLSIU, B'LORE
History of separating judiciary from the executive in India:
Initially Collectors of East India Company were presiding over
civil of criminal cases
In 1793 Lord Cornwallis declared, the revenue officers must be
deprived of their judicial powers.
It had fluctuating fortunes: reintroduced by Birds Committee in
1837 followed till 1854 when Lord Delhousie, he was both
Governor of Bengal and Governor-General in India, sought to
discontinue it.
After mutiny, after transfer of power to the Queen also no
specific measures were taken-even though several laws were
codified.
Since 1886 Indian National Congress continuously adopted
resolutions for separation -There was a favourable move in
1913 but shelved due to the outbreak of Ist world war
In 1919 several provincial legislatures have recommended for
the same not acceded. -When the GI Act of 1935 was framed,
the separation powers was treated as an exploded doctrine
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Framing of Art. 50
The Draft Article 39A
The debates in the Constituent Assembly on separation of
judiciary and executive took place on 24
th
and 25
th

November, 1948
Dr. B.R. Ambedkar required separation of judiciary from
executive to be completed in three years so that there is
no room left for what might be called procrastination in a
matter of this kind.
The article was being deliberately introduced in the
Chapter on Directive Principles for otherwise separation
could be required to be done instantaneously
But on the next day, i.e. 25
th
, Nov. 1948, Dr. Ambedkar
moved another amendment dropping the 3 years limit.
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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Pandit Nehru: Clarified by saying that the Government is
entirely in favour of the separation of judiciary and
executive functions, if anyone suggested the period of
three years or some other period, my first reaction would
have been that the period is too long.
In the 14
th
Report of the Law Commission (1958),
the Chairman, the greatest Jurist, M.C. Setalvad observed,
the real purpose of this reform is to ensure the
independent functions of the judiciary freed of all
suspicion of executive influence or control, direct or
indirect. It incidentally ensures that officers will devote
their time entirely to judicial duties and this fact leads to
efficiency in the administration of justice .
He added, separation is most urgently and immediately
called for to ensure the efficiency of the Magistrates and
the removal of extreme delays.
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
B'LORE 13
In the 37
th
Report of the Law Commission(1967 ) on the
Code of Criminal Procedure, 1898, the question of
separation of judiciary from executive was again
considered and the Commission observed that it was
necessary that the members of the judiciary on the criminal
side should be independent of executive control.
The 41
st
Report, 1969, dealing with the reforms of criminal
procedure, states that separation should be
completed fast and must be uniform in all States and
advocated for parliamentary legislation.
The separation of executive from the judiciary is still to be
realized even after 61 years of the republic
The Indian Constitution, though does not accept the strict
doctrine of separation of powers, provides for an
independent judiciary, prescribes the institutional conditions
of service of the Judges, confers extensive jurisdiction on it
and power to issue writs.
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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Whether separation of judiciary and executive
envisaged only for subordinate courts.:
In Chandra Mohan v. State of U.P. AIR 1966 SC 1987
It was observed that the makers of the Constitution realised
that "it is the Subordinate Judiciary in India who are brought
most closely into contact with the people, and it is no less
important, perhaps indeed even more important, that their
independence should be placed beyond question in the case of
the superior Judges." Presumably to secure the independence
of the judiciary from the executive, the Constitution introduced
a group of articles in Ch. VI of Part VI under the heading "Sub-
ordinate Courts". Article 50 of the Directive Principles of Policy
States that the State shall take steps to separate the judiciary
from the executive in the public services of the States. Simply
stated, it means that there shall be a separate judicial service
free from the executive control.
H.M. Seervai opines that the separation is required at
subordinate level
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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In Supreme Court Advocates-on-Record Association v. Union of
India AIR 1994 SUPREME COURT 268
It was held by S. Ratnavel Pandian, J.:- that the definition of the
expression "the State" in Article 12 shall apply throughout Part IV,
wherever that word is used. Therefore, it follows that the expression
"the State" used in Article 50 has to be construed in the distributive
sense as including the Government and Parliament of India and the
Government and the Legislature of each State and all local or other
authorities within the territory of India or under the control of the
Government of India. When the concept of separation of the judiciary
from the executive is assayed and assessed that concept cannot be
confined only to the subordinate judiciary, totally discarding the higher
judiciary. If such a narrow and pedantic or syllogistic approach is made
and a constricted construction is given, it would lead to an anomalous
position that the Constitution does not emphasise the separation of
higher judiciary from the executive. Indeed, the distinguished judges of
the Supreme Court, in various decisions have referred to Article 50 while
discussing the concept or independence of higher or superior judiciary
and thereby highlighted and laid stress on the basic principle and values
underlying Article 50 in safeguarding the independence of the judiciary.
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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Judiciary Vs. Executive
the period of up to 1967 was a period of subservience
From 1967 period of conflict
After 1977 period of assertion on the part of judiciary
The general criticism of executive assault comes from the
appointments, conditions of service, appeasement by
post retirement benefits and threats of impeachment.
Statements in and out of Parliament denigrating the
judiciary are generally on increase
The non-confirmation /appointment of additional judges
Efforts to appoint committed political activists as judges.

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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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Till 1973 the practice was to appoint senior most judge of
the Supreme Court as the Chief Justice of India
Ostensibly acting under the Law Commissions Report
(1956) where it was stated that administrative competence,
experience and merit should be counted while appointing
the CJI and acting according to Kumaramangalams thesis
the S.C. superseded Shelat, Hegde and Grover and
appointed A.N. Ray as CJI as a consequence of
Keshavanandabharathis case.
The result is the self inflicted wound on the Indian S.C. in a
Habeas Corpus case
Justice Khanna and other judges of various high courts who
displayed courage were punished for their independent
views. Fourteen judges of high courts who were a party to
various judgements against the government were
transferred from one high court to another without their
consent. A list of 52 inconvenient judges was prepared at
that time.
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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Upon the retirement of Justice A.N. Ray, the next senior
most judge, Justice H.R. Khanna, was denied his right to
become the Chief Justice of India. Justice R.N. Aggarwal
and Justice U.R. Lalit, who were additional judges of the
Delhi and Bombay High Courts respectively, were not
confirmed. ( Subsequently even Justice Khanna was in
politics!)
However the post emergency period saw high altitude of
judicial activism. But the executive is at the receiving end.
It would be interesting to note that in its 125
th
Report, the
Law Commission stressed the need to bring the judiciary
under the concept of planned expenditure, and observed
that, it is time to frankly annihilate a myth that expenditure
on administration of justice is non-plan expenditureOne
can say with confidence that expenditure on administration
of justice must be now treated as plan expenditure. speedy
disposable of the cases and infrastructure facilities are
directly linked to the budgetary allocations.
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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Under Art.124 Every Judge of the Supreme Court
shall be appointed by the President by warrant
under his hand and seal after consultation with such
of the Judges of the Supreme Court and of the High
Courts in the States as the President may deem
necessary for the purpose and in the case of
appointment of a Judge other than the Chief Justice,
the Chief Justice of India shall always be consulted.
apparently it gave primacy to the executive but
the courts interpreted it differently
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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Undermined the role of the executive in appointments and
transfers by judicial interpretation. initially it was thought
consultation was mentioned under Art.124 the President is not
bound by the opinion thus given.
Union of India v. Sankalchand Himatlal Sheth AIR 1977 S
C2328 - The power to transfer a High Court Judge is conferred by
the Constitution in public interest and not for the purpose of
providing the executive with a weapon to punish a Judge who
does not toe its line or who, for some reason or the other, has
fallen from its grace Art. 222 (1) is, in substance, worded in
similar terms as the 1st proviso to Art. 124. It casts an absolute
obligation on the President to consult the Chief Justice of India
before transferring a Judge from one High Court to another. That
is in the nature of a condition precedent to the actual transfer of
the Judge. After an effective consultation with the Chief Justice of
India, it is open to the President to arrive at a proper decision of
the question whether a Judge should be transferred to another
High Court because, what the Constitution requires is
consultation with the Chief Justice, not his concurrence
with the proposed transfer.
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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In S.P.Gupta Vs. Union of India AIR 1982 SC 149
the court reiterated the above view but added that the
decision of the President can be challenged on the ground
of Malafide. The court opined that the appointment of
judges was not an executive act but the result of
constitutional process which must be observed in word
and spirit.
S.C. Advocates-on-Record Association Vs. Union of
India ( Second Judges Case) AIR1994 S.C. 268
read with Presidential ReferenceAIR 1999 SC 1
laid certain guidelines totally departing from the above .
Primacy given to opinion of Chief Justice of India the
opinion of Chief Justice of India which is reflective of
opinion of judiciary i.e. having an element of plurality in
its formation - Opinion formed in any other manner - Not
binding on Govt.
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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The expression "consultation with the Chief Justice of India"
in Arts. 217(1) and 222(1) of the Constitution of India
requires consultation with a plurality of Judges in the
formation of the opinion of the Chief Justice of India. The
sole, individual opinion of the Chief Justice of India does not
constitute "consultation" within the meaning of the said
Articles.
The opinion of the Chief Justice of India which has primacy in
the matter of recommendations for appointment to the
Supreme Court has to be formed in consultation with a
collegium of Judges. It is desirable that the collegium should
consist of the Chief Justice of India and the four senior-most
puisne Judges of the Supreme Court.
Successor CJI to be included in collegium - Senior-most
Judge of Supreme Court coming from High Court to which
person proposed to be recommended belongs - Not to be
included in collegium.
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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Opinion of all members of collegium and of senior-most
Supreme Court Judge who hails from same High Court as of
the person to be re-commended - Must be in writing - To
be conveyed by C.J.I. to Govt. with recommendation.
When the Chief Justice of India is in a minority and the
majority of the collegium disfavour the appointment of a
particular person that person shall not be appointed.
Merit is the predominant consideration - inter se seniority of
Judges to be given due weight - Strong cogent reasons
required to be recorded in case of departure from order of
seniority - Means recording of good reasons for appointing
a particular Judge.
High Court Judge - Appointment - Opinion of C.J.I. - To be
formed in consultation with collegium - Collegium to consist
of Chief Justice of India and two senior-most puisne Judges
of S.C. only.
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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Judicial review in the case of an appointment, or a
recommended appointment, to the Supreme Court or a High
Court is available if the recommendation concerned is not a
decision of the Chief Justice of India and his senior-most
colleagues, which is constitutionally requisite.
Before recommending the transfer of a puisne Judge of one
High Court to another High Court, also as a puisne Judge,
the Chief Justice of India must consult a plurality of Judges.
He must take into account the views of the Chief Justice of
the High Court from which the Judge is to be transferred,
any Judge of the Supreme Court whose opinion may have
significance in the case and atleast one other senior Chief
Justice of a High Court or any other person whose views he
considers relevant.
High Court Judge - Transfer - Judicial review - Only on
ground of absence of proper consultation.
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
B'LORE 26
The appointment of those judges with questionable
credentials by collegium underscored the point that it
requires revision
The process of appointing appellate justices or their
transfer is not a small affair without sufficient
secretariat, intelligence inputs, inputs of professional
background all requires a separate process more than a
closed room meeting of judges.
The whole process is without transparency
Law Commission in its 214
th
report sought to reconsider
the above judgments of the Supreme Court. - it also
suggested to restore the primacy of the CJI and the
executive.
One of the suggestions made was to establish National
Judicial commission which was previously thought of and
shelved.
This assumption of the power and judges becoming judges in
their own cause, corruption at different levels, undue
subjugation of the executive brought in the thinking of bringing
The Judicial Standards and Accountability Bill, 2010 The
Bill seeks to (a) lay down judicial standards, (b) provide for the
accountability of judges, and (c) establish mechanisms for
investigating individual complaints for misbehaviour or
incapacity of a judge of the Supreme Court or High Courts. It
also provides a mechanism for the removal of judges. The Bill
establishes two authorities to investigate complaints against
judges. The Two authorities are: National Judicial Oversight
Committee; and Scrutiny Panel.
the bill in the present form is criticised as a measure which is
an example of cure being worse than the disease. There is a
complete misalignment and a mismatch between the present
system of judicial appointments and core values of judicial
accountability. the criticism mainly related to the definition of
misconduct and composition of scrutiny committee
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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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Why delay in implementing separation
Lack of strong public opinion not even 10% of the
citizenry know about utility of such separation it stands
last in priorities.
The so called civil society/ whistle blowers are not
bothered about such division
Absence of political will and growing political interference.
Development of lack of trust mutually between Excutive
and judiciary it is a common feature of mutual
onslaughts between executive and judiciary it is
criticized that judicial activism is often used to clip the
wings of executive.
Overlapping constitutional distribution of the power
between executive and judiciary

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Prof.(Dr.) T.V. Subba Rao, NLSIU,
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The principle of the complete independence of the
judiciary from the executive is the foundation of many
things in our island life. It has been widely imitated in
varying degrees throughout the free world .It is perhaps
one of the deepest gulfs between us and all forms of
totalitarian rule.
-Sir Winston Churchill
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