INTRODUCTIONThere are three distinct activities in every government through which the will of the people are expressed. These are the legislative, executive and judicial functions of the government. Corresponding to these three activities are three organs of the government, namely the legislature, the executive and the judiciary. The legislative organ of the state makes laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the breach of law. Each organ while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the general public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs. The question which assumes significance over here is that what should be the relation among these three organs of the state. Whether there should be complete separation of powers or there should be co-ordination among them.An analysis into these three organs and the relations between them is to be done with the experience in different countries along with India which will give a clear idea about this doctrine and its importance in different Constitutions.Today all the systems might not be opting for the strict separation of powers because that is undesirable and impracticable but implications of this concept can be seen in almost all the countries in its diluted form. BackgroundIt is widely accepted that for a political system to be stable, the holders of power need to be balanced off against each other. The principle of separation of powers deals with the mutual relations among the three organs of the government, namely legislature, executive and judiciary. This doctrine tries to bring exclusiveness in the functioning of the three organs and hence a strict demarcation of power is the aim sought to be achieved by this principle. This doctrine signifies the fact that one person or body of persons should not exercise all the three powers of the government.

Montesquieu, a French scholar, found that concentration of power in one person or a group of persons results in tyranny. And therefore for decentralization of power to check arbitrariness, he felt the need for vesting the governmental power in three different organs, the legislature, the executive, and the judiciary. The principle implies that each organ should be independent of the other and that no organ should perform functions that belong to the other. Montesquieu in the following words stated the Doctrine of Separation of Powers[footnoteRef:2]- [2: http://www.americassurvivalguide.com/montesquieu.php last accessed on 22/02/2015]

There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.Through his doctrine Montesquieu tried to explain that the union of the executive and the legislative power would lead to the despotism of the executive, for it could get whatever laws it wanted to have, whenever it wanted them. Similarly the union of the legislative power and the judiciary would provide no defence for the individual against the state. The importance of the doctrine lies in the fact that it seeks to preserve the human liberty by avoiding concentration of powers in one person or body of persons.The same was expounded by the Madison[footnoteRef:3] as- [3: http://www.americaslibrary.gov/aa/madison/aa_madison_father_1.html last accessed on 22/02/2015]

The accumulation of all powers, legislative, executive and judicial, in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.Therefore, separation of powers doctrine acts as a check against Tyrannical rule. The purpose underlying the separation doctrine is to diffuse governmental authority so as to prevent absolutism and guard against arbitrary and tyrannical powers of the state, and to allocate each function to the institution best suited to discharge it.

Concept Behind The Separation Of PowersThe concept of Separation of Powersis a model for the governance of democratic states. The three branches of the government- the legislative, the executive and the judiciary are the three distinct activities in every government through which the will of the people are expressed. The legislature makes laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the breach of law. Thus, it has become a model for the governance of democratic States. This model is also known as Trias Politica, which in the non-political context means separation of duties which, for example, includes the segregation of accounting and custodial functions.The proponents of the separation of powers believe that it protects democracy and forestalls tyranny. Whereas, the others say that there occurs considerable overlap of powers in parliamentary democracies. If we toe the middle line, we can observe that the Doctrine of Separation of Powers is like any other system with both merits as well as demerits. Thus, across the world, there isnt any democracy with absolute separation of powers or complete absence of it. This doctrine (of separation of powers) has got not only relevance to the question of separation of judiciary from the legislature and the executive, it has got a vital bearing upon the whole question of federalism, said Brajeshwar Prasad on May 30, 1949, participating in the Constituent Assembly's discussion.

Lord Acton had once aptly stated, Power corrupts, and absolute power corrupts absolutely.[footnoteRef:4] Separation of power is a way of restraining the amount of power in the hands of any group or faction, making its abuse more difficult. 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.[footnoteRef:5] Therefore, separation of powers limits the unlimited exercise of power by any branch of the government. This doctrine also helps in checking corruption and unlawful activities against the interests of the common man whom the government is supposed to serve. Each organ while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible when it comes to dealing with the general public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs. Thus, each organ will impose checks and balances on the other. [4: http://www.acton.org/research/lord-acton-quote-archive last accessed on 27/02/2015] [5: Ibid.]

In India, a lot of the present debate on the separation of powers is due to the active steps that the judiciary is taking to redress the sufferings of the common man. But behind the present brouhaha over the issue of judicial activism, what is often lost sight of is the politics of a turf-war among members of a troika who are also partners in running the Indian state. Although the Constitution mandates the separation of the judiciary from the executive and makes parliamentary proceedings immune from court jurisdiction, experts from all the three wings agree that instead of any rigid distribution of powers, a system of checks and balances should operate. Within this delicate system, the interests of the judiciary, the executive and the legislature sometimes converge, as well as clash.In this project, the author will deal with the ingredients of the concept of separation of powers, the concept of separation of powers in India and recent developments with respect to the constitutionality of different tribunals in India.Chapter I. Ingredients Of Separation Of PowersThe concept of Separation of Powers runs throughout the Constitution of India although the term has not been mentioned even once. It is a doctrine which is fundamental to the concept of a State and to the concept of Constitutionalism - insofar as it prescribes the appropriate allocation of powers.[footnoteRef:6] [6: https://bookshop.blackwell.co.uk/extracts/9780199232857_parpworth.pdf]

The separation of powers doctrine does not insist that there should be three institutions of government each operating in isolation from each other. In fact, it is essential that there be a sufficient coordination between each institution of the State. It is for the executive for the most part to propose legislation for Parliaments approval. Once passed by the Parliament and given the Presidents assent thereto, the legislation becomes an Act, and thus, a law to be upheld by the judiciary. A complete separation of the three institutions could result in legal and constitutional deadlock. Rather than a pure Separation of Powers, the concept insists that the primary functions of the State should be allocated clearly and that there should be checks to ensure that no institution encroaches significantly upon the function of the other.The author would like to briefly define the three organs of the State which broadly constitutes the governing authority of the nation.The executive may be defined as that branch of the State which formulates policy and is responsible for its execution. In formal terms, the sovereign is the head of the executive. The Prime Minister, the Cabinet and other Ministers, for the most part, are elected members of the Parliament. In addition, the Civil Service, local authorities, police and armed forces, constitute the executive in practical terms.Parliament of India comprises the President of India, the Lok Sabha (House of the People) and the Rajya Sabha (Council of the States). The cardinal functions of the Legislature include overseeing of administration, passing of budget, ventilation of public grievances, and discussing various subjects like development plans, international relations, and national policies. All legislation requires the consent of both Houses of Parliament.In the case of Money Bills, the will of the Lok Sabha prevails. The Parliament is also vested with the power to initiate amendmentsin the Constitution. The various States also have their respective legislatures, the Legislative Assembly (Vidhan Sabha) and the Legislative Council (Vidhan Parishad) in a few States.

The judiciary is that branch of the State which adjudicates upon conflicts between State institutions, between State and individual, and between individuals. The judiciary is independent of both parliament and the executive. It is the feature of judicial independence which is of prime importance in relation to the protection of liberty of the citizen against the executive.Quite recently, the press has been described as a fourth estate because of its considerable influence over public opinion, as well as its indirect influence in the branches of government by, for example, its support or criticism of pending legislation or policy changes. There is no provision in the Constitution of India providing guarantee for the freedom of the press but the Supreme Court in Sakal Papers v. Union of India[footnoteRef:7]interpreted the scope of Article 19(1) (a) widely to include within its fold the freedom of the press which is regarded as a species of which freedom of expression is a genus. [7: 1962 AIR 305, 1962 SCR (3) 842]

Chapter II. Separation Of Powers under different ConstitutionsSeparation Of Powers Under Different ConstitutionsDespite the safeguards it gives against tyranny, the modern day societies find it very difficult to apply it rigidly. In principle they go for separation of powers and dilution of powers simultaneously.U.S.A.The doctrine of separation finds its home in U.S. It forms the basis of the American constitutional structure. Art. I vests the legislative power in the Congress; Art. II vests executive power in the President and Art. III vests judicial power in the Supreme Court. The framers of the American constitution believed that the principle of separation of powers would help to prevent the rise of tyrannical government by making it impossible for a single group of persons to exercise too much power. Accordingly they intended that the balance of power should be attained by checks and balances between separate organs of the government. This alternative system existing with the separation doctrine prevents any organ to become supreme.[footnoteRef:8] [8: http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html last accessed on 15/03/2015]

Despite of the express mention of this doctrine in the Constitution, U.S. incorporates certain exceptions to the principle of separation with a view to introduce system of checks and balances. For example, a bill passed by the Congress may be vetoed by the President in the exercise of his legislative power. Also treaty making power is with the President but its not effective till approved by the Senate. It was the exercise of executive power of the senate due to which U.S. couldnt become a member to League of Nations. The Supreme Court has the power to declare the acts passed by the congress as unconstitutional. There are other functions of an organ also which are exercised by the other. India, too, followed U.S. in adoption of the checks and balances which make sure that the individual organs doesnt behold the powers absolutely. This means that functioning of one organ is checked by the other to an extent so that no organ may misuse the power. Therefore the constitution which gives a good mention of the doctrine in its provisions also does not follow it in its rigidity and hence has opted for dilution of powers just like India. U.K.Before we go to India, its 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.INDIAOn reading the provisions of the Constitution of India, one may be inclined to say that the Constitution accepts the doctrine of Separation of Powers.Under the Indian Constitution, the executive powers are vested with the President,[footnoteRef:9]the legislative powers with the Parliament,and the judicial powers with the judiciary(the Supreme Court, the High Courts and Subordinate Courts). The President holds his office for a fixed period. His functions and powers are enumerated in the Constitution itself. Parliament of India is competent to make any law, subject to the provisions of the Constitution and there is no other limitation on its legislative power. It can amend the law prospectively or even retrospectively but it cannot declare a judgment delivered by a competent court void or of no effect. Parliament has also inherited all the powers, privileges and immunities of the British House of Commons. Similarly, the judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or the legislature. The Supreme Court and High Courts are given the power of judicial review and they can declare any law passed by Parliament or Legislature as ultra vires or unconstitutional. [9: Article 53 in The Constitution Of India 1949]

Taking into account these factors, some jurists are of the opinion that the doctrine of Separation of Powers has been accepted in the Constitution of India and is a part of the basic structure of the Constitution. Separation of functions is not confined to the doctrine of Separation of Powers. It is a part of essential structure of any developed legal system. In Kartar Singh v. State of Punjab,[footnoteRef:10]Justice K. Ramaswamy stated: It is the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the legislature to make law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution. [10: 1994 SCC (3) 569, JT 1994 (2) 423]

The constitutional provisions do not declare the doctrine of Separation of Powers to be followed in its strict sense. There is no provision in the Constitution of India itself regarding the division of functions of the Government and the exercise thereof. Though under Articles 53(1)and 154(1), the executive power of the Union and of the States is vested in the President and the Governors respectively, there is no corresponding provision vesting the legislative and judicial power in any particular organ. Thus, the doctrine of Separation of Powers is not fully accepted in the Constitution of India, and therefore the observations of Justice Mukherjea in Ram Jawaya v. State of Punjab[footnoteRef:11]are important in this regard, wherein he stated that : 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 be 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 one another. [11: AIR 1955 SC 549, 1955 2 SCR 225]

Thus, the legislature writes and enacts laws, Enacts taxes, authorizes borrowing, and sets the budget, has power to declare war, may start investigations, especially against the executive branch, often appoints the heads of the executive branch, appoints judges, ratifies treaties.

Each organ while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the general public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs.In Ram Jawaya v. State of Punjab,[footnoteRef:12]the Hon'ble Supreme Court observed that we follow a separation of functions and not of powers. And hence, we don't abide by the principle in its rigidity. An example of it can be seen in the exercise of functions by the Cabinet ministers, who exercise both legislative and executive functions. Article 74(1) of the constitution of India, gives them an upper hand over the executive by making their aid and advice mandatory for the formal head. The executive, thus, is derived from the legislature and is dependent on it, for its legitimacy. [12: Ibid.]

On the question that where the amending power of the Parliament lies and whether Article 368 confers an unlimited amending power on Parliament, the Supreme Court in the Kesavananda Bharati v. The State of Kerala and Others[footnoteRef:13]case held that amending power was now subject to the basic features of the constitution. And hence, any amendment tampering these essential features will be struck down as unconstitutional. Justice Beg added that Separation of Powers is a part of the basic structure of the constitution. None of the three separate organs of the republic can take over the functions assigned to the other. [13: (1973) 4 SCC 225: AIR 1973 sc 1461]

In Indira Nehru Gandhi v. Raj Narain,[footnoteRef:14]where the dispute regarding Prime Ministers election was pending before the Supreme Court, it was held that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise. So, the main ground on which the amendment was held ultra vires was that when the constituent body declared that the election of Prime Minister wont be void, it discharged a judicial function which according to the principle of separation it shouldn't have done. The place of this doctrine in Indian context was made a bit clearer after this judgment. In a nutshell we can say that the Separation of Power is a method of removing the amount of power in any group's hands, making it more difficult to abuse. [14: (1975) Supp SCC 1, 260]

Chapter III. Recent Developments W.R.T. Various TribunalsIn the recent past there has been lots of conflict w.r.t. the constitutionality of different tribunals especially on the ground that it did not adhered to the separation of powers as reflected in the Constitution. These forums usually have both technical and judicial members and hence have been accused of possessing a quasi-judicial character (and not a full fledged court) which distinguishes them from the main frame of the judicial hierarchy.A major contentious area in this regard is whether these Tribunals fall within the meaning of judiciary as referred to under Article 50 of the Constitution of India. The question therefore that arises is whether these Tribunals, which perform the role of adjudicatory bodies as a substitute to the ordinary courts under the judicial hierarchy, are a part of judiciary as referred to in Article 50. The Supreme Court in the case of Union of India v. Delhi High Court Bar Associationobserved Such Tribunals, whether they pertain to income tax or sales tax or excise or customs or administration, have now become an essential part of the judicial system in this country. Such specialized institutions may not strictly come within the concept of the judiciary, as envisaged by Article 50, but it cannot be presumed that such Tribunals are not an effective part of the justice delivery system, like courts of law.In two recent cases, one involving the Competition Commission of Indiaand another the Appellate Tribunal constituted under the Prevention of Money Laundering Act,the petitioners contended that the constitution of selection committee to recommend members and Chairperson to these bodies was not independent as because all the members of the committee were of the executive and not of the judiciary and there was also no provision for consultation with the Chief Justice of India. They further contended that there cannot be an independent judiciary when the power of appointment of superior judges vests in the executive as the independence of the judiciary is inextricably linked and connected with the constitutional process of appointment of judges of the higher judiciary.This Honble Court in Pareena Swarup[footnoteRef:15]case said in paragraph 8 that the Constitution guarantees free and independent judiciary and the constitutional scheme of separation of powers can be easily and seriously undermined, if the legislatures were to divest the regular courts of their jurisdiction in all matters and entrust the same to the newly created Tribunals which are not entitled to protection similar to the constitutional protection afforded to the regular Courts. [15: http://indiankanoon.org/doc/132042/ last accessed on 22/03/2015]

Subsequently on the direction of the Supreme Court certain portions of Appellate Tribunal Rules, 2007 was amended to provide that the Chairperson of Appellate Tribunal is appointed on the recommendation of the Chief Justice of India and the composition of the Selection Committee to select Members of the Tribunal has been amended to provide for a Judge of the Supreme Court, nominated by the Chief Justice of India, to be the Chairperson of the Selection Committee.Very recently, in the case ofUnion of India v. R. Gandhi, President of the Madras Bar Association[footnoteRef:16]the Supreme Court while deciding the constitutionality of the National Company Law Tribunal (NCLT) stated unambiguously that active bureaucrats could not be tasked with judicial functions since the same would go against the doctrine of separation of powers between the Executive and the Judiciary. [16: Civil Appeal No. 3067 of 2004]

The Supreme Court went on to state that the Legislature has the competence to transfer any particular jurisdiction from courts to Tribunals provided that the persons who are appointed as President/Chairperson/Members are of a standard which is reasonably approximate to the standards of mainstream judicial functioning. On the other hand, if a Tribunal is packed with members who are drawn from the civil services and who continue to be employees of different Ministries or Government Departments by maintaining lien over their respective posts, it would amount to transferring judicial functions to the executive which would go against the doctrine of separation of power and independence of judiciary.

OverlappingIn India, not only is there a functional overlapping but there is personnel overlapping also. The Supreme Court has the power to declare void the laws passed by the legislature and the actions taken by the executive if they violate any provision of the Constitution or the law passed by the legislature in case of executive actions. Even the power to amend the constitution by Parliament is subject to the scrutiny of the Court. The Court can declare any amendment void if it changes the basic structure of the Constitution. The President of India in whom the executive authority of India is vested exercises law-making power in the shape of ordinance-making power and also the judicial powers under Article 103(1) and Article 217(3), to mention only a few. The council of Ministers is selected from the legislature and is responsible to the legislature. 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 judge. One can go on listing such examples yet the list would not be exhaustive. Check and BalanceThe separation of powers is a doctrine which provides a separate authority, which makes it possible for the authorities to check each others checks and balances. The Supreme Court in Indira Nehru Gandhi v. Raj Narain, it held that adjudication of a specific dispute is a judicial function which Parliament, even acting under a constitutional amending power, cannot exercise.

The Constitution has invested the constitutional courts with the power to invalidated laws made by parliament and State Legislature transgressing constitutional limitations. Where an Act made by the legislature is invalidated by the courts on the ground of legislative incompetence, the legislature cannot enact a law declaring that the judgment of the court shall not operate; it cannot overrule or annual the decision of the court. This is what is meant by check and balance inherent in a system of government incorporating separation of powers.[footnoteRef:17] [17: P . Kannadasan v. State of T N, (1996) 5 SCC 670.]

If the doctrine of separation of powers in its classical sense, which is now considered as a high school textbook interpretation of this doctrine, cannot be applied to any modern government, this does not mean that the doctrine has no relevance in the world of today. The logic behind this doctrine is still valid. Therefore, not impassable barriers and unalterable frontiers but mutual restraint in the exercise of power by the three organs of the State is the soul of the doctrine of separation of powers. Hence the doctrine can be better appreciated as a doctrine of check and balance and in this sense administrative process is not an antithesis of the doctrine of separation of powers.

In Indira Nehru Gandhi v. Raj Narain[footnoteRef:18], Chandrachud, J. (as he then was) also observed that the political usefulness of the doctrine of separation of powers is now widely recognised No Constitution can survive without a conscious adherence to its fine checks and balances. Just as courts ought not to enter into problems entwined in the political thicket, Parliament must also respect the preserve of the courts. The principle of separation of powers is a principle of restraint which has in it the precept, innate in the prudence of self-preservationthat discretion is the better part of valour. [18: Ibid]

ConclusionIt has been well said by Lord Acton:- Power corrupts and absolute Power tends to corrupt absolutely.Conferment of power in a single body leads to absolutism. But, even after distinguishing the functions, when an authority wields public power, then providing absolute and sole discretion to the body in the matters regarding its sphere of influence may also cause abuse of such power. Therefore, the doctrine of separation of powers is a theoretical concept and is impracticable to follow it absolutely.From the 1980s, much of the debate on separation of powers has taken place due to the proactive role being played by the judiciary and even to this day the latter is passing through a defining moment. After having gone through the shameful phase of total subjugation under the Indira Gandhi regime, the judiciary had been attempting, since the lifting of the Emergency, to reinvent its role as an independent institution. This was done through steps like evolving the concept of public interest litigation (PIL) and suo motu intervention in many cases involving the marginalised sections of the society.Mention must be also made of the recent attempts of the executive to take over certain judicial functions as had been enumerated by the author in the third chapter of this project.The judiciary, the executive and the legislature have generally managed to work out a compromise formulae on disputes that pose a threat to the status quo, with the apex court intervening to save the situation and for the interest of the smooth and conducive relations between the three organs it is hoped that there will never arise a stalemate situation in which one organs functions have been completely subverted by the other.

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