CHAPTER II

THE THEORY OF DOCTRINE OF SEPARATION

OF POWERS

Introduction

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

conception, in the modern context. It is a practical concept which determines the

structure and organization of the day to day functioning of governments. This

chapter is aiming towards analyzing and discussing the concept of doctrine of

separation of powers, in its plan and practice, as provided under the Constitution.

Beginning of this analysis from the evolution of the doctrine itself, the rationale

behind its creation, this chapter further explains the relevance of the doctrine as

recognized under the constitutional provisions of the United States and Britain and

subsequently compares the practice of the said two countries with that in India.

Relying upon land marking events and judicial proclamations and the opinions of

eminent jurists, the researcher puts forth his own inferences as to the discrepancies

that exist between the constitutional plan and the actual usage of the said doctrine.

To sum up, the chapter highlights that the doctrine of separation of powers, is seen

to be applied in various dilatory combinations, as an integral aspect of the structure

and working of most governments, though never used in its absolute form.

Meaning of separation of powers-

The very theme behind the separation of powers is that when a single person or

group has got large amount of power then it becomes dangerous to citizens. The

separation of powers is a method by which large the amount of power in any

group's hands is removed, making it more difficult to abuse.

It is well settled that there are three main categories of governmental functions-a)

Legislative b) Executive, and c) Judicial. In the same way, there are three main

organs of the Government in a State-a) Legislature, b) Executive and c) Judiciary.

According to this theme, these three powers and functions of the government must,

in a free democracy, always be kept separate and be exercised by three separate

organs of the government. Thus, legislature cannot exercise executive or judicial

power; the executive cannot exercise legislative or judicial and the judiciary cannot

exercise legislative or executive power of the government.

Importance of the doctrine -

Actually, the doctrine of separation of power is very rigid concept and this is one

of the reasons of why it is not accepted by a large number of countries in the

world. The main object as stated by Montesquieu in the doctrine of separation of

power is that ‘there should be government of law rather than having will and

whims of the official’. Also another most important feature this doctrine is that

‘there should be independent judiciary i.e. it should be free from the other organs

of the state and if it is so then justice would be delivered properly’. The judiciary is

the scale through which one can measure the actual development of the state. If the

judiciary is not independent then it is the first step towards a tyrannical form of

government i.e. power is concentrated in a single hand and if it is so then there is a

cent percent chance of misuse of power. Hence, the doctrine of separation of

powers does play a vital role in the creation of a fair government and also fair and

proper justice is dispensed by the judiciary, it is independent from all the other

organs of the government. Also the importance of this doctrine can be traced back

to as early as 1789 where the constituent assembly of France in 1789 was of the

view that “there would be nothing like a constitution in the country where the

doctrine of separation of power is not accepted”.

Historical development-

The history of ‘doctrine of separation of powers’ can be traced back to Greece and

Aristotle,’ politics’1, who identified three elements of the constitution as follows-

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

2) The officials and

3) The judicial element.

Aristotle explained that if these three elements are well arranged, the constitution is

bound to be well arranged and the differences in the constitution are bound to

correspond to the difference between each of these elements. Elizabeth Giussani in

his book has written that the jurist, F.W.Maitland, in his ‘The Constitutional

history of England2’ traces evidence of doctrine within the UK constitution to the

region of Edward I3 when the functions of the state became more separate. The

doctrine of separation of powers was a method formulated by English jurists in the

middle of the 17th century in order to control such abuse of governmental power.

Then theory of separation of powers was further developed by John Locke in his

‘Second Treatises of Civil Government 1689 4 ,in which he believed that the

legislative and executive functions should be placed in separate hands and insisted

upon the supremacy of the legislative function. Bolingbroke’s writing in 1748 on

‘Remarks on the history of England’ recognized that the protection of liberty

1 BK iv ,Xiv 1297 b 35 2 Cambridge University Press 1920 3 Edward (1272-1307) 4 laslett(ed.) 1960

within the state depended upon maintaining equilibrium between the crown and it’s

people. As in relation to the English Constitution he noted “In a constitution like

ours the safety of whole depends on the balance of the parts.” Ultimately a more

systematic form was granted by the French jurist Montesquieu in his book ‘The

Spirit of Laws’. John Adams, in agreement with his predecessors, has also

highlighted this doctrine as the means to protect a nation from the broad spectrum

of ills of passionate partiality, absurd judgments and ambitious, self-serving

behavior.

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

judicial, in the same hands whether of one, a few, or many and whether hereditary,

self-appointed or elective, may justly be pronounced the very definition of

tyranny”. And it is in the prevention of this tyranny that the doctrine of separation

of power holds its greatest importance.

Montesquieu’s theory on the separation of powers -

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

traceable to the ancient times of Aristotle, and subsequently 16th and 17th century

by philosophers such as John Bodin and Locke. It was the French Jurist,

Montesquieu who gave it a systematic and scientific formulation. Montesquieu, for

the first time, in his book ‘Esprit de Lois’5 extensively discussed this doctrine and

its form.

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

‘Charles Louis de Secondat’. Baron Montesquieu was the French jurist aristocrat,

who having toured England from 1729 to 1731 was confirmed admirer of English

liberty and the political arrangements that gave rise to it. Montesquieu explains the

5 (,spirit of laws) ( Bk xi,ch.6, 1748)

doctrine of separation of powers (des pouvoirs) as ‘no person or body should be

vested with all three types of powers’.

There are three aspects of Montesquieu’s theory—

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

laws, that of executing public affairs and that of adjudicating on crimes or

individuals cases.”

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

the legislature, the executive and the judiciary.

3) Finally he stated that these three functions should be held by three separate

branches in order to uphold and protect liberty.

The British jurist Blackstone and the founding fathers of the American

constitution, particularly, Madison, Hamilton and Jefferson, extended their full

support to the theory of separation of powers. They regarded Separation of Powers

essential for protecting the liberty of the people.6

Criticism against Montesquieu’s theory-

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

1. Complete separation is neither possible nor desirable:

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

of three organs of government. It is not desirable because without having mutual

coordination amongst these, the government cannot carry out its functions

effectively and efficiently. Complete separation of powers amongst these organs

6http://www.yourarticlelibrary.com/constitution/separation-of-powers-what-is-the-theory-of-separation-of-

powers/40336/

can seriously limit the unity and coordination needed by the three organs. Thus, its

three organs can never be completely separated. The legislative, executive and

judicial functions are interdependent and inter-related functions and hence cannot

be fully separated.

2. Impracticable in itself:

As stated by this theory, we cannot fully use separation of powers. The function of

law-making cannot be exclusive domain of the legislature. The needs of our times

have made it essential to provide for law-making by the executive under the system

of delegated legislation. In the same way, judges while giving judgments lays

down certain judicial legislation which is criticized as judicial overreach.

3. Unhistorical:

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

been in operation in England. While formulating and advocating this theory,

Montesquieu advocated that it was at work in England. Under the British

parliamentary system of government, there is a close relationship between the

British parliament and the Cabinet. Even there is no separation of judiciary from

legislature and the British House of Lords acts as the highest court of appeals. The

British Constitution has never been based on the theory separation of powers.

4. The three organs of government are not equal:

It is criticized that the theory of separation of powers wrongly assumes the equality

of all the three organs of the government. The legislature of the state is always

regarded as the primary organ of government. The work of the government begins

by law-making. However, in actual practice the executive acts the most powerful

organ of the government. The judiciary is considered to be the weakest organs, yet

it is always held in high esteem by the people. But, it appears to me that this

preposition has no application in India because with the passage of time, Indian

judiciary has proved to be the strongest organ but not dominating. Therefore I

think that this criticism has no application in India and the three organs are equally

respected in India.

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

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

in the working of the government. It may create a situation in which each organ

can get engaged in conflict and deadlocks with other two organs.

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

The critics of this theory reject the view that liberty can be safeguarded only when

there is a separation of powers among the three organs of the government. Further,

they argue that in the absence of fundamental rights, independent judiciary, rule of

law, economic equality and a spirit of democracy, there cannot be liberty even

when there may be present full separation of powers.

7. Separation of functions and not of powers:

It is further criticized that the name of this theory as ‘ The Doctrine of Separation

of Powers’ is wrong because this theory actually advocates a separation of

functions and not the powers. Power of the government is one whole. It cannot be

separated into three separate parts. It is at the back of the functions of all the three

organs of government. The theory of separation of powers is really a theory of

separation of functions.

Thus, the theory of separation of powers has several limitations. All scholars

accept that absolute and rigid separation of powers is neither possible nor

desirable. Three organs of government cannot be and should not be totally

separated into unrelated water-tight compartments.

Now all of the above criticisms are existed against Montesquieu’s theory of

separation of powers. Now we will focus on one of the important feature of this

theory i.e. checks and balance system

Checks and Balances system-

Checks and balances is one of the features of the doctrine of separation of powers.

As per this feature each organ, along with its own power, enjoys some checking

powers over the other two organs. In the process a system of checks and balances

governs the inter-organ relations.

As per this theory of checks and balances no organ of power should be given

unchecked power in its sphere. The power of one organ should be restrained and

checked with the power of the other two organs. In this way a balance should be

secured which will prevent any arbitrary use of power by any organ of the

government.

Thus, as per this theory, the legislative power should be in the hands of the

legislature but the executive and judiciary should have some checking powers over

it with a view to prevent any misuse or arbitrary use of legislative powers by the

legislature. In the same way, the executive powers should be vested with the

executive but legislature and judiciary should be given some checking powers over

it. The same should be the case of the judiciary and its power should be in some

respects checked by the legislature and executive. In other words, each organ

should have some checking power over the other two organs and there should

prevail a balance among the three organs of government and thus will lead to a

constitutionalism i.e. no one is above the law and equality amongst all the organs

of the government.

Geoffrey Marshall in his book, Constitutional Theory7 believed that the phrase

separation of powers was one of the most confusing vocabularies in political and

constitutional thoughts. He thought it into be “infected with so much imprecision

and inconsistency that it may be counted little more than a jumbled portmanteau of

arguments for policies.”

For some proponents the separation of powers necessitates a strict operation with

no organ encroaching on the area of the others; in the terms of both personnel and \

or functions. For some proponents a system of checks and balance would interfere

with the doctrine who has argued that such a formulation of the doctrine is extreme

and doctrinaire.

Bradley and Ewing8 argue that a strict separation of powers is “neither possible in

theory nor in practice.”In similar Vein and Barnett9 recognizes that a complete

separation of powers would be unworkable. A lack of cooperation and conciliation

between the three organs could easily result in legal and constitutional dead lock;

The strict reading of the doctrine is not always taken and many proponents

advocate a system of checks and balances. This is certainly justifiable position

considering that the doctrines desired end, avoiding tyranny could be compromised

by a strict application as above. Indeed, the avoidance of tyranny may well be

better achieved through efficient checks and balance and could represent the

doctrine in its highest form.

7 (oxford Clarendon Press,1971,P.124) 8 (In constitutional and Administrative law,14 th edition ( pearson 2006,p.87 ) 9 constitutional and Administrative law,6th edition ( Cavendish ,2006) p.94)

Thus till now we have discussed the doctrine of separation of powers, its

development and the theory of Montesquieu with criticism against it. Moreover we

have discussed the concept of checks and balance system and views of different

political thinkers on it. Now, we will focus on one question i. e. Was Montesquieu

advocating strict separation of powers?

Montesquieu on strict separation of powers-

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

complete or strict separation. Munro 10 states though this is a possible

interpretation, it is not clear which of several forms of separation Montesquieu (

for Jennings ) have argued that Montesquieu was not advocating a strict or

complete separation of powers .For, Montesquieu, the genius of the British system

of government lay in combining separation with supervision. It can be further

stated that although, Montesquieu states that neither the legislature nor the

executive should exercise the power of the other, he does not mean to say that they

should have no influence over the other. In the other words, Montesquieu

recognized that there should be some overlapping or checks between the three

organs. However the independence of the judiciary must not to be compromised in

any way.

There must be a division of functions on the following basis: the legislature should

make laws but not administer or enforce them, the executive must administer the

made laws but neither influence the legislature in the making of the laws nor stand

in judgment of the same and the judiciary must determine rights and uphold justice

without taking over the functions of law-making or administration. He further said

10 (Studies in constitutional law,( 2nd edition ) (London: Butterworths 2001 p.301)

that such separation is necessary in order to ensure that justice does not become

arbitrary and capricious.

Ultimately, the value of this doctrine lies in it’s attempts to preserve human liberty

by avoiding the concentration of powers in any one person or body of persons.

Montesquieu propounded this theory after careful consideration and study of

numerous crucial event and factors. At first, he learnt from the historical trends of

the despotic Tudors and the absolutist Stuarts that freedom could not be secured if

the executive and legislative powers were held in the same hands. After having

experienced the tyrannies in monarchical France, he felt that such a combination of

powers would lead to the enacting of oppressive laws which the executive would

administer to attain its own ends. Montesquieu also carefully followed the events

unfolding on the other side of the channel prior to determining what he thought

was the best course of action. In England, the inception of the Magna Carta and the

Act of Settlement, drastically curtailed the powers of the monarch vesting them

with parliament and courts. Though, there was no clear separation of powers, the

positive effect of the reduced prerogative powers of the king cemented

Montesquieu’s belief that the secret to liberty is the separation and functional

independence of the three departments of government.

He wrote “All would be lost, if the same man or the same ruling body, whether of

nobles or the people, were to exercise these three powers, that of law making, that

of executing public resolutions and that judging crimes and civil causes”

Although Montesquieu separated governmental functions and powers, he did not

insist on an absolute separation. Thus, although the executive is a separate branch,

it properly partakes (through the veto, for example) in a legislative function. This

blending or overlapping of functions is in part necessitated by Montesquieu’s

intention that separation checks the excesses of one or the other branch. Separation

of powers here reinforces or even merges into balanced government regulating

excesses from all sides.

Some critics criticizes that Montesquieu has been misunderstood. According to

their view, his real insight was the general principle that power must be distributed

in order to avoid a monopoly of power being created. They stated that

Montesquieu was not advocating a strict separation of powers, rather he cautiously

referred to certain distribution of powers as well as the balancing, controlling,

tempering and combining of powers in a model of liberal political order where all

three are sometimes separated and sometimes combined. This broader view affords

a rationalization for the idea of checks and balances thereby highlighting the

necessity for restraints and safeguards in order to prevent the monopolization of

power even within any one department of the government.

It is necessary to note here that the separation proposed by Montesquieu did not

apply merely to the organs and their functions but in regard to their personnel as

well. This according to him was for the reason that, if a person holding office in

one wing of the government should wield power in regard to another wing, it

would defeat the purpose of the separation itself.

Montesquieu was convinced that it was only through such a system of separation

of powers that a government could be made free from the dangers of capricious or

tyrannical rule. Until today, no other system of government has been developed to

oppose this notion and hence, it must be inferred that his opinion has proven itself

true. Other philosophical contributors left alone, it is the work of Montesquieu that

has ensured the lasting influence of the theory of separation of powers. Thus, in

fact, the theories of separation of powers and checks and balances always go

together. These have been together in operation in the US Constitution. The

theories of separation of powers and checks and balances have to adopt

simultaneously.

Separation of powers in the United States-

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

doctrine of separation of powers finds its highest recognition. The American

Constitution accepts the separation in explicit terms and specifically provides for

the division of powers and functions amongst the three organs of government as a

part of its basic structure. Article I of the US Constitution assigns legislative power

to the Congress while Articles II and III vest executive and judicial powers in the

President and the Courts of America respectively. Thus, in other words, it implies

that as per the constitutional plan, the constitution of the US is desirous of a system

of organization characterized by the independence of power and action of the

Congress, the President and the Courts respectively. However, the practical

implementation of such independent functioning has proven unsuccessful and the

actual position is quite different.

Louis Leventhall Jaffe has aptly summed up the practical interpretation of the

doctrine in the US in the following manner:

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

constitution, the primary purpose of which is the preservation of political

safeguards against the capricious exercise of power. The logic behind such division

is the logic of polarity and not strict classification. In many crucial instances where

there is pressure for the transfer of old, or for the creation of new functions the

logical implications become conflicting and it should be kept in mind that the

purpose of the said division is not to externally stratify the governmental

arrangements.”

In practice, the system of government provides for checks and balances amongst

the three organs in order to restrict and regulate the use of their powers. The

President of the United States has got the power to veto a legislation passed by

Congress and the Congress in turn is the final ratifying authority for treaties signed

by the President, the legislature is vested with the power to impeach judges and the

judiciary has the power of judicial review over legislative and executive action.

Further, in cases expressly provided for or incidental to the powers conferred, one

organ may venture into the territory earmarked for another.

Naturally, since the practice varies from the constitutional plan of separated

functions, this matter of cross-functioning of the organs has given rise to much

debate and speculation. In Madison, 1787, it was observed, “One of the principal

objections inculcated by the more respectable adversaries to the constitution is its

supposed violation of the political maxim that the legislative, executive and

judiciary ought to be separate and distinct”. In regarding to this matter, the court,

citing the oracle behind the doctrine itself, held that “Montesquieu did not mean

that these departments ought to have a partial agency in or no control over each

other. His meaning can amount to no more than this, that where the whole power

of one department is exercised by the same hands which possess whole control

over another department, the fundamental principle of a free Constitution is

subverted”. On the basis of this interpretation of Montesquieu’s doctrine, the cross-

functioning between the three organs was recognized as being constitutionally

valid.

Despite the pre-determined system of checks and balances, in routine working

there has remained a continuous battle between the three wings of Government in

order to gain greater might over each other, the most significant attempts of which

have been initiated by the executive. As the vesting Clause of Article II puts entire

executive power in the hands of the President, considerable debate has been raised

over the years to the extent of the power granted by the said clause. The general

principle that the president controls the entire executive branch was originally

innocuous; however depending on the person occupying office it has been

subjected to varied interpretations.

Such instances were visible makeable during the tenure of Presidents Theodore

Roosevelt and Richard Nixon. Former President Roosevelt stretched his executive

authority on the claim that a President was authorized to do whatever was not

explicitly prohibited by law – thereby implying a dominance of executive power

over the other branches of government. This interpretation was directly

contradictory to the purpose of the doctrine as enshrined within the constitution as

it removed the essential ingredient of equality, resulting in a situation similar to

that if the doctrine didn’t exist. Richard Nixon’s policies on executive power were

considerably more bold and questionable. Nixon sought to achieve executive

supremacy on the basis of ‘national security’. Under the guise of the inherent

Presidential duty “to safeguard the security of the nation” he sought to bypass

legislative and judicial control over his actions. Claiming the shield of protection

of “executive privilege” in matters such as the use of federal funds assigned by

Congress and the ordering of wiretaps without previous judicial authorization he

appropriated for himself a seemingly absolute control over national affairs.

However, due to the proactive measures of the Hon’ble Supreme Court, these

defenses were deemed unconstitutional and the accountability between the three

organs was re-established. As a result, Presidential claims to power have been

greatly augmented since then.

Similarly, in certain instances, there have been attempts made by the other two

organs of government to usurp the powers of one another or those of the executive.

However, due to the political safeguards established through the system of checks

and balances and the inherent reluctance of any organ to sacrifice its powers, such

attempts to increase the extent of authority of one organ have been rectified and the

balance of powers once again restored.

Thus it is seen that even in the US, where the constitution explicitly recognizes the

doctrine of separation of powers there has remained a considerable ambiguity in

regard to the extent of its application. In letter, the constitutional plan appears to

warrant an absolute separation of powers and functions, however in practice such

an ideal situation is not possible to be achieved. Through the interpretations of the

court and the legislature, the rigidity of the doctrine has been considerably relaxed

and its applicability widened, thereby enabled its efficient practical

implementation.

Separation of powers in Britain-

“Under the British Constitution there is no such thing as the absolute separation of

legislative, executive and judicial powers; but in practice it is inevitable that they

should overlap”

In England, the doctrine of separation of powers was opposed in the 18th century

by the doctrine of the mixed or balanced constitution in which monarchial,

aristocratic and democratic elements were joined and held in equilibrium rather

than strictly separated. According to parliamentary government that evolved in the

UK during the 19th century was evidently not based on the theory of separation of

powers. In fact, the modern Constitution of the UK is less conformable to the

theory as traditionally understood. While we may concede that the British

constitution is not based on separation of powers, but it does not mean to say that

the separation of powers is of no relevance to the British constitution.

This model of government is quite different from the model of government in the

US. The British idea of mixed government is based on the belief that the degree of

connection, rather than separation is what provides checks and balances in the

governmental system. Nevertheless, even this system must use the language of

separation of powers to illuminate some of its crucial features such as the

executive’s dominance over parliament.

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

system in the 1930 report of the Donoughmore Committee. This committee was

created to inquire into matters of delegated legislation and administrative

adjudication submitted a report the provisions of which were justified on the basis

of the doctrine of separation of powers.

The importance of this doctrine has also been expressly recognized by the British

courts in their judicial pronouncements made from time to time. In a situations

where controversial political and social issues were made the subjects of judicial

purview, in order to avoid conflict between the judicial and political machinery the

courts have claimed a lack of jurisdiction on the basis of this doctrine of separation

of powers. Especially in cases of statutory interpretation, they employ the language

of separation of powers to explain and justify their decisions, a case in point being

the steel strike case of 1980.

In the said case, Lord Diplock pointed out that:

“At a time when more and more cases involving the application of legislation

which gives effect to policies that are the subject of bitter public and parliamentary

controversy, it cannot be too strongly emphasised that the British Constitution,

though largely unwritten, is firmly based on the separation of powers: parliament

makes the laws, the judiciary interprets them…it is parliament’s opinion on these

matters that is paramount.”

Thus it is seen, under the British scenario, though the doctrine is not expressly

recognized in the constitutional plan, it does exist, albeit not in its absolute form, in

the practice of the organs of the government

Separation of powers in India-

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

implied manner. Despite there being no express provision recognizing the doctrine

of separation of powers under the constitution of India, in its absolute form, the

constitution provides the provisions for a reasonable separation of functions and

powers between the three organs of government. Though the executive power of

the Union and of the States is vested by the constitution in the President and

Governor by Articles 53(1) and 154(1) respectively, there is no corresponding

provision vesting legislative and judiciary provisions in any particular organ.

However, the constitution, being a written one, the powers and function of each

must be found from the constitution itself. Thus subject to exceptional provisions

like Articles 123, 213 and 357, it is evident that the constitution provides that the

powers of legislation shall be exercised exclusively by the legislature. Similarly,

the judicial powers can be said to vest with the judiciary. Thus, a system is created

where none of the organs can usurp the functions or powers which are assigned to

another organ by express or necessary provisions; neither can they divest

themselves of essential functions which belong to them as under the constitution.

Though it is the case still there is no absolute separation of functions between the

three organs of government. The President, being the head of the Union exercises

his powers constitutionally on the aid and advice of the council of ministers. On

the other hand, he has been given exclusive legislative powers for the making and

promulgation of ordinances even during the course of recess of parliament. He has

got further powers to make laws for the state after emergency has been declared

under Article 356 of the constitution and exercises purely legislative functions as

provided under Articles 372 and 372-A. The President has also been assigned

judicial functions to the extent of deciding cases of disqualification of the House of

parliament as also granting pardon in exceptional circumstances. In the same way,

parliament has also been granted judicial functions in which it can consider the

questions of breach of any parliamentary privileges and where the breach is

established they have the power to punish for contempt. Also, in the event of

impeachment of the President, one of the Houses acts as the prosecutor and the

other as investigator in order to determine whether the charges are sustainable or

not as under Article 61 of the constitution. In a further example of the merger of

functions, the High Courts within a certain marginal sphere perform functions that

are administrative in nature. Their power of supervision over subordinate courts as

provided under Article 227 demonstrates a function that is administrative rather

than judicial. They also possess legislative powers to the extent that they are

allowed to frame rules for their efficient functioning.

Besides the functional overlapping, Indian system also lacks the separation of

personnel amongst the three departments. An inevitable part of a parliamentary

system of government, this can be seen under Article 75(5) of the constitution

which states that a person in order to be a member of the council of ministers must

necessarily be a member of either house of parliament.

In addition, the constitution of India expressly provides for a system of checks and

balances in order to prevent the arbitrary or capricious use of power derived from

the said supreme document. Though such a system appears dilatory of the doctrine

of separation of powers, it is necessary in order to enable the just and equitable

functioning of such a constitutional system. The constitution within its articles

provides for the provisions of legislative impeachment of judges and executive

officers, executive control over the appointment of judges and the power to veto

legislation made by parliament and most importantly, confers the judiciary with the

power of judicial review over legislation and executive action. Thus, through the

conferment of the said powers, a mechanism for the control over the exercise of

constitutional powers by the respective organs is established.

The above mentioned provisions clearly shows that the Indian constitution in its

plan does not provide for a strict separation of powers but instead of this, it creates

a system consisting of the three organs of government and confers upon them both

exclusive and overlapping powers and functions. Thus, from the above we can

conclude that in India the doctrine of separation of powers is not followed strictly

but it is followed with checks and balances system.

Judicial pronouncements on the doctrine of separation of powers in

India-

The debate on the topic of doctrine of separation of powers in India, and exactly

what it involves in regard to governance in the country, is as old as the constitution

itself. It was extensively debated in the constituent assembly. It also figured in

various judgments handed down by the Hon’ble Supreme Court of India, after the

constitution was adopted. It is through these judicial pronouncements and with the

passage of time, the boundaries of applicability of the doctrine have been

determined.

In the Re Delhi Laws Act case11, it was for the first time , the Hon’ble Supreme

Court of India observed that except where the constitution has vested power in a

body, the principle that one organ should not perform functions which essentially

belong to others is followed in India. By a majority of 5:2, the court held that the

theory of separation of powers though not part and parcel of our constitution, in

exceptional circumstances is evident in the provisions of the constitution itself.

As observed by Kania, C.J.:

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

clear that a legislature is created by the constitution and detailed provisions are

made for making that legislature pass laws. Does it not imply that unless it can be

gathered from other provisions of the constitution, other bodies-executive or

judicial-are not intended to discharge legislative functions?”

In summary, all it states that all the three organs of the State, i.e., the legislature,

the judiciary, and the executive are bound by the limits of the constitution, which

demarcates their respective powers, jurisdictions, responsibilities and relationship

with one another. Further, it can be assumed that none of the organs of the State,

including the judiciary, would exceed its powers as laid down by the constitution

of India.

As there was a broad agreement on the principles put forth by this judgment, but in

practice, disputes continued to arise as to whether one organ of the state has

exceeded it’s limits assigned to it under the constitution. The same question i.e. 11 1951 AIR 332

‘what amounts to an excess’, was the basis for action in the land marking case of

1973 of Kesavananda Bharti 12. The question rose before the Hon’ble Supreme

Court in this case was in relation to the extent of the power of the legislature to

amend the constitution as provided for under the constitution itself. It was argued

that as parliament was “Supreme” and represented the sovereign will of the people

so, if the people’s representatives in parliament decided to change a particular law

to curb individual freedom or limit the scope of judicial scrutiny, the judiciary had

no right to question whether it was constitutional or not. However, the court

rejected this argument and instead found in favour of the appellant on the ground

upholding that the doctrine of separation of powers was a part of the “basic

structure” of the Indian constitution. As per this ruling, the ambiguity was removed

by holding this doctrine as a part of the Indian constitution, which cannot be

altered, amended even by an Act of parliament. Thus, the doctrine of separation of

powers has been incorporated, in its essence, into the Indian laws.

Further, in the case of Ram Jawaya Kapur v. State of Punjab13, the doctrine of

separation of powers was recognized to be a part of the constitution where the

court held that though the doctrine of separation of powers is not expressly

mentioned in the constitution it stands to be violated when the functions of one

organ of government are performed by another.

However, it was after the landmark case of Indira Nehru Gandhi v. Raj Narain14

that the position of this doctrine in the Indian context was made clearer. In this

case, the election of Mrs. Indira Gandhi, who was the Prime Minister of India, was

challenged before the Allahabad High Court on the grounds of violation of the

election code and misuse of power during her election campaign. The Hon’ble

12 (1973) 4 SCC 225 13 AIR 1955 SC 549 14 1975 AIR 1590

Allahabad High Court cancelled her candidature. In response to that, a cross-appeal

was filed before the Hon’ble Supreme Court of India. However, before the

Hon’ble apex court heard the matter finally, Mrs. Indira Gandhi exerted influence

over the legislature and amended the Constitution by inserting (Thirty-ninth

Amendment) Act, 1975, with an aim of negating the then ongoing judicial process.

The question of constitutionality of the said constitutional amendments was

brought before the court in which it was declared as ultra virus of the basic

structure of the constitution. Further, on the matter of the legislatures’ declaration

of validity of the election, the Hon’ble Supreme Court held that, the adjudication of

a specific dispute is a judicial function which parliament cannot exercise even

under its constitutional amending power. Therefore, the amendment was held to be

ultra-vires on the basis that when the constituent body declared the validity of the

election of Prime Minister, it discharged a judicial function, which according to the

principle of separation, should not have been done.

Further, the basic structure doctrine as laid down in Kesavananda Bharti 15 was

once again challenged in recent case of I.R. Coelho v. State of Tamil Nadu16.In this

case, the state passed a law creating 69% of reservations in educational institutions,

far exceeding the accepted limit of 50%. In order to protect the said provision from

being struck down on the grounds of being unconstitutional, it was placed under

the Ninth Schedule, which was specifically created in order to be outside the scope

of judicial review. The matter was challenged before the court, on the ground of

the constitutional validity of the Ninth Schedule on the grounds that it was

violative the basic structure of the constitution. The court took cognizance of the

said argument and held the Ninth Schedule as being violative of this doctrine and

hence even matters placed under the said schedule shall henceforth be open to

15 (1973) 4 SCC 225 16 AIR 2007 SC 861

judicial inquiry. Thereby, this previously protected portion of the constitution was

also brought under the ambit of the Basic structure theory and the Golden triangle

comprising of Art.14, 19 and 21, making laws placed under it amenable to judicial

review.

The Separation of powers and emergency-

There are two aspects of this doctrine of separation of powers under Indian

constitution out of that, one is to discuss the usage of the doctrine of separation of

powers in normal governance and another is to examine it under the unique

circumstances of a national emergency. In such a situation, there is likelihood that

either of three organs may try to exceed its power as checks or balances are

suspended. However, it is commonly agreed that even during emergency, the

doctrine must continue to be in force.

It was the matter of debate in the case of Rameshwar Prasad v. State of Bihar 17,

where the court was to determine ‘whether the imposition of Art. 356 in the State

without proper consultation with State authorities or considering the Governor’s

report, amounts to an excessive use of legislative power?’ Finding that the central

legislature had to step into the shoes of the state legislature and thereby usurp the

power completely to itself, in the given case, the court upheld that there to be a

clear violation of the doctrine of separation of powers.

Recent developments-

The point of the relative jurisdictional boundaries of the organs of the state has

acquired a new momentum in the recent period in the view of coalition politics at

the center and in states. This can be gathered from the instances such as those that

17 1980 AIR 104

occurred in some states during the state elections of 2005, particularly in

Jharkhand, Goa and Bihar, where no party or coalition of parties had a majority.

The situation was further complicated by the fact that neither the Governors of

these states (who had the final powers to appoint a government) nor the presiding

officers of the legislatures (who had the powers to conduct the proceedings of the

House where the majority claimed by the new government was to be tested) were

considered to be impartial in their decisions.

In Jharkhand, after the elections in March 2005, the governor conducted the

swearing-in of a government headed by a member of the Union Cabinet, who

however, did not seem to have a clear majority. He was given a fixed number of

days to prove his majority on the floor of the House. The opposition parties, who

claimed to have a majority, were not in favour of such granting such a grace period

and hence filed a writ petition in the Hon’ble Supreme Court challenging the

decision of the governor. On 9 March 2005 the court passed an order giving

directions to the speaker to extend the Assembly session by a day and conduct a

floor test between the contending political alliances. In the light of Court’s

decision, the earlier government formed by the Union minister decided to tender its

resignation on the advice of the central government. An alternative government

was then formed by a combination of other parties which was able to prove its

majority on the floor of the House.

There has been considerable debate as to whether the court was right in taking

cognizance of such a matter, as it might be considered an intrusion into the duties

of the executive. However, in light of the fact that the executive was functioning in

a biased manner, there were no other options available for redress apart from the

decree of the court. Hence, it had to be accepted as a valid action, in consonance

with its constitutional powers.

With such changing political scenario, the effective functioning of the organs has

also been changed. That being said, the effect of the doctrine of separation of

powers is in no way diluted or changed due to these changed systems and remains

an integral part of the basic structure of the system that governs the executive,

legislative and judicial practice in the country.

Judicial view and doctrine of separation of powers-

As mentioned above, there was a time when the judiciary has faced tough

challenges in maintaining and preserving the doctrine of separation of power and it

has been in the process of preservation of the above said doctrine.

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

doctrine of separation of power was in Ram Jawaya v state of Punjab18 where the

court was of the opinion that the doctrine of separation of power was not fully

accepted in India. Further the view of Mukherjea J adds weight to the argument

that the above said doctrine is not fully accepted in India. He states that:

“The Indian constitution has not indeed recognize the doctrine of separation of

powering its absolute rigidity but the functions of the different parts or branches of

the government have been sufficiently differentiated and consequently it can very

well be said that our constitution does not contemplate assumption, by one organ

or part of the state, of functions that essentially belong to another”.

Later in I.C.Golak Nath v State of Punjab 19, Subha Rao, C.J opined that “The

constitution brings into existence different constitutional entities, namely the

union, the state and the union territories. It creates three major instruments of

power, namely the Legislature, the Executive and the Judiciary. It demarcates their

18 AIR 1955 SC 549 19 AIR 1967 SC 1643

jurisdiction minutely and expects them to exercise their respective powers without

overstepping there limits. They should function with the spheres allotted to them”

The above opinion of the court clearly states the change in the courts view

pertaining to the opinion in the case of Ram Jawaya v state of Punjab 20 related to

the doctrine of separation of power. Then came one of the most land mark

judgments delivered by the Hon’ble Supreme Court in Keshvananda Bharti v

Union of India 21 in which the court was of the view that amending power was now

subject to the basic features of the constitution and therefore, any amendment

tampering these essential features will be struck down as unconstitutional. Beg, J.

added that separation of powers is a part of the basic structure of the constitution.

None of the three separate organs of the republic can take over the functions

assigned to the other. Therefore this view further confirmed the opinion of the

court in relation to the doctrine of separation of power.

After that in Indira Gandhi Nehru v. Raj Narain 22 case, where the dispute

regarding Prime Minister’s election was pending before the Hon’ble Supreme

Court, opined that adjudication of a specific dispute is a judicial function which

parliament, even under constitutional amending power, cannot exercise i.e. the

parliament does not have the jurisdiction to perform a function which the other

organ is responsible for otherwise there will be chaos as there will be overlapping

of the jurisdictions of the three organs of the state. Also the constituent Assembly

of France in 1789 was of the view that “there would be nothing like a Constitution

in the country where the doctrine of separation of power is not accepted. So if there

is a provision then there should be proper implementation and this judgment

emphasis on that point only.

20 AIR 1955 SC 549 21(1973) 4 SCC 225 22 1975 AIR 1590

Also in I.R. Coelho vs. State of Tamil Nadu23, the Hon’ble Supreme Court took the

view observed in Kesavananda Bharati case24, pertaining to the doctrine of basic

structure and held that the Ninth Schedule is violative of the above said doctrine

and hence from now on the Ninth Schedule will be amenable to judicial review

which also forms part of the basic structure theory.

From the above few case laws right from Ram Jawaya v state of Punjab25, in 1955

to I.R. Coelho vs. State of Tamil Nadu26, there has been a wide change of opinion

as in the beginning the court was of the opinion that as such there is no doctrine of

separation of power under the constitution of India but then as the passage of time

the opinion of the Hon’ble Supreme Court changed and now it includes the above

said doctrine as the basic feature of the constitution.

Conclusion -

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

position of doctrine of separation of power in India. From this chapter we can

gather that the doctrine of separation of powers is followed in India not strictly but

along with the theory of checks and balances. Now, the introduction of checks and

balances system while following this doctrine has given the scope for overlapping

of functioning by one organ of the government over the functions of another. In

such a situation it is crucial to understand the role of judiciary in the light of

present position of this doctrine in India as this doctrine creates a scope for

functional overlapping. Now, in present thesis we have to analyze that whether the

judiciary is encroaching over the powers of legislature by violating the doctrine of

separation of powers? Because the modern day’s interpretation of the doctrine does

23 AIR 2007 SC 861 24 supra 25 supra 26 supra

not recognize the division of government into three water-tight compartments but

provides for crossing boundaries in order to establish a system of checks and

balances. Thus, to sum up, it is clear that governments in their actual operation do

not opt for the strict separation of powers because it is undesirable and

impracticable, however, implications of this concept can be visualized in almost all

the countries in its diluted form. The discrepancies between the plan and practice,

if any, are based on these very grounds that the ideal plan is impractical for

everyday use. Otherwise, the doctrine is itself a part of the founding structure of

the constitution of all democratic nations. India in particular, relies heavily upon

the doctrine in order to regulate, check and control the exercise of power by the

three organs of government. Whether in its theoretical conception or its practical

usage, the doctrine of separation of powers is essential for the effective functioning

of a democracy