Separation of Powers – An Indian Perspective

Authorities Cited
Books and Article Referred
Abbreviations

Chapter 1: Introduction

1.1 Objective
1.2 Hypothesis
1.3 Methodology
1.4 Scheme of the study
1.5 Utility of the study
1.6 Preface
1.6.1 History
1.7 Theory of separation of Power
1.7.1 Montesquieu on Separation of Power
1.7.2. Separation of Power in Ancient India

Chapter 2: Indian Constituent Plan for Separation of Power

2.1 Debate of constituent assembly on adoption of separation of powers.

2.2 Independence of judiciary and separation of power in India.
2.3 Theory of checks and balances: Constitution of India and separation of powers.

Chapter 3: Doctrine of separation of powers at international Regime.

3.1 England
3.2 The united state of America
3.3 Australia
3.4 Islamic Republic of Pakistan

Chapter 4: Comparative Study of formulations of separation of power in Indian

Context.

Electronic copy available at: http://ssrn.com/abstract=2254941

 4.1 Comparative study of three formulation of the theory of separation of power in
Indian state of affair

Chapter 5: Current Practice in India

Chapter 6: Issues around practices of Separation of Powers.

Chapter 7: Conclusion

Electronic copy available at: http://ssrn.com/abstract=2254941

 Authorities Cited

A.C. Thalwal v. High Court of Himachal Pradesh

(2007)7 SCC 1: AIR 2000 SC 2732

Ashok Hurra v. Rupa Bipin Jhaveri

(1997) 4 SCC 226

Kumar Padma Prasad v. U.O.I.

AIR 1992 SC 1213

Kilbourn v. Thomson

103 U.S. 168

Mistretta v. U.S.

488 U.S. 361 (1989)

P. Kannadasan & ors v. State of Tamilnadu

1996 (5) SC 670

Ram Jawaya Kapoor v. State of State of Punjab

AIR 1982 SC 149

S.K. Gupta v. U.O.I.

Electronic copy available at: http://ssrn.com/abstract=2254941

 AIR 1982 SC 149

S.R. Bommai

1994 AIR 1918

State of West Bengal v. U.O.I.

SCR pg. 397

Vineet Narain v. U.O.I.

AIR 1998 SC 889

4
 Books, Articles and References

Indian Constitutional Law

Prof. M. P. Jain- 5th Edition-Reprint 2008- Wadhawa Publication, Nagpur

The Constitution of India

P.M. Bakshi- 8th Edition 2007- Universal Publication

The Constitution of India- Volume I

Prof. S. R. Bhansali- edition 2007- India Publishing House

Principles of Political Science

Anup Chand Kapur- 20th Edition- reprint 2006- S.Chand Publication

Lokshahi, Tena Siddhanto ane Paddhati (Gujarati Language)

Harkant Shukla- First Edition 1969- Bal Govind Prakashan, Ahmedabad

Hindu Dharma Kosh (Hindi Language)

Dr. Pandey- U.P. Sansthan

Constituent assembly Debate held on Friday, the 10th December, 1948

(Source: http://164.100.24.209/newls/constituent/vol7p24.html)

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Politics by Aristotle

(Source: http://classics.mit.edu/Aristotle/politics.4.four/)

Alois Riklin- Montesquieu’s so-called separation of powers in the context of the history
of ideas- September 2000

(Source: http://www.colbud.hu/main_old/PubArchive/DP/DP61-Riklin)

John Locke- Second Treatise of Civil Government

(Source: http://www.sparknotes.com/philosophy/locke)

Balance of power may get affected: Speakers -By Neena Vyas

The Hindu- pg 1- march 21, 2005- online edition

CJI flays minister’s call to HC Judge by Dhananjay Mahapatra (TNN)

The times Of India- 1st July, 2009- Ahmedabad Edition

Constitution of Islamic Republic of Pakistan

(Source: http://www.pakistani.org/pakistan/constitution/)

Constitution of Australia

(Source: http://www.ozpolitics.info/)

Constitution of the United States Of America

(Source: Merriam- Webster’s dictionary of Law, 1st edition 2005 pg 619)

4
 Abbreviations

AIR- All India Reporter

Dec. – December
Ors. - Others
Para. – Paragraph
Pg- page
S. – section
SCC- supreme Court Cases
SCR- Supreme Court Reporter
SC- Supreme Court
U.O.I. - union of India
U.S. - United States
V. versus
W.B. - West Bengal

4
.

Chapter 1:

Introduction

4
 Objective:

The basic objective behind this research is to understand the nuances of the well
known doctrine of the Separation of power and its practice within India and within other
nations of the world. I have studied the Constitutional law as well as Administrative law and
other related aspects of the subject like, rule of law, federalism, and various forms of
government and alike.

Separation of power simply means that distribution of the powers as well duties
among the three pillars of the nation i.e. the executive, legislature and judiciary. It mainly
deals with the function of each organ of the state and its implication on other organ. India is
a quasi-federal country. Hence, I have tried to analyze that whether we have pure
distribution of power among these three organs or they are at any stage overlap each other.
Another purpose was to know about the current practice of these three pillars of
government, their working system and its comparison with other countries.

After studying the concept of separation of power in previous years as a subject of

law as well as a political theory, I was eager to understand the policy behind adopting this
principle by the constituent assembly of India. And as a part of this thesis, I got chance to
research the ideology behind adopting this principle and discussions made by the members
of legislative assembly. Because adoption of this theory can be well understood by the
debates made in constituent assembly and people get to know about the fundamental
objective by those debates only.

Hypothesis

Keeping in view the broad objectives of the study the following hypotheses have been
formulated:
1. Separation of power mainly deals with the functions of legislative, administration,
and judiciary.

4
 2. The scheme of separation of power has been adopted by our framers of the
constitution of India from various countries.
3. Does it really work independently?
4. Apparently, it seems that all three are worked without any interferences, has this
statement truly construed?
5. Without independent and separate bodies of power our democracy cannot survive.

Methodology

This research is purely a doctrinal research with the help of Books, Papers, Ph.D.
thesis, websites and articles with my knowledge and understanding of law.

The method for writing this dissertation was: reading of Books and articles, its analysis and
after that I have put that in my own words. Some part of the dissertation was fully adopted
from the books and papers I have refereed with all credit to the author.

SCHEME OF THE STUDY

The study has been divided into seven chapters.

Chapter 1 gives the general background of the project, its design, objectives, importance
and utility. It gives an idea of what the research is all about and what importance does it
possess. It enlightens us on the social-theoretical-historical background of the subject. It
shows how the society plays a role in such practices and what has been the status of the
practice in the past years. It also gives a theoretical insight of the subject and its present
situation.

Chapter 2 enlightens us on the topic Indian constitutional plan for separation of power. It
includes Debate of constituent assembly on adoption of separation of power, Independence of
judiciary and theory of checks and balances. It elucidates upon the judiciary’s seriousness
towards the problem and the manner in which they are tackled

Chapter 3 briefs us on international practice of the principal of separation of power.

4
Chapter 4 deals with comparative study of separation of power and formulation of
separation of power.

Chapter 5 gives an in-depth and complete analysis of Current practice of separation of power
in India

Chapter 6 deals with the core issues of separation of power.

Chapter 7 concludes the study

UTILITY OF THE STUDY

The legal study on “Separation of power: Indian reality and its practices in the world” gives
an in-depth analysis of the facts regarding the practice of separation of power in India as well
as in the world.

The study throws light upon the provisions/statutes in the Indian Constitution which deals
with the principle of separation of power.

4
 HISTORY

The doctrine of separation of power is known to us by Montesquieu as he gave an

absolute status and difference between the functions and powers of- the executive, the
legislature and the judiciary. But Aristotle was the first one who wrote about it, but not in
obvious manner. In his book, analysis has been found of three parts or we can say branches-
the deliberative, executive and judicial and has explained it as “All constitutions have three
elements, concerning which the good lawgiver has to regard what is expedient for each
constitution. When they are well-ordered, the constitution is well-ordered, and as they differ
from one another, constitutions differ. There is one element which deliberates about public
affairs; secondly that concerned with the magistrates- the question being, what they should
be, over what they should exercise authority, and what should be the mode of electing to
them; and thirdly that which has judicial power. 1” But Aristotle has not much stress on it in
specify.

English theorist, John Locke, in his book “Second Treatise of Civil Government” has
include three powers explicitly- (1) discontinuous legislative power, (2) continuous
legislative power and (3) federative power. According to him, discontinuous legislative
power means the general-rule making power; continuous executive power includes which
we call executive and judicial and federative power means the power of conducting foreign
affairs.

In early 18th century, the developments in the British Constitutional History, led the
Locke and Montesquieu to gather the contents of the doctrine of separation of powers. In
England, there was a long war between the King and the Parliament which gave Parliament
legislative supremacy culminating in the passage of the bill of rights. This led ultimately to
recognition by the King of legislative and tax payers of parliament and judicial powers to the
court. At that time, the King exercised executive powers; Parliament exercised legislative and

1
Aristotle- Politics- BOOK 4- Part XIV

4
courts the judicial powers. But at present, England is following parliamentary form of
government and is not following this type of separation. 2

The separation of powers, also known as trias politica, is a model for the governance of
democratic states. The model was first developed in ancient Greece and came into
widespread use by the Roman Republic as part of the uncodified Constitution of the Roman
Republic. Under this model, the state is divided into branches or estates, each with separate
and independent powers and areas of responsibility. The normal division of estates is into an
executive, a legislature, and a judiciary. 3

The opposite of separation of powers is the fusion of powers, often a feature of parliamentary
democracies. In this form, the executive, which often consists of a prime minister and cabinet
("government"), is drawn from the legislature (parliament). This is the principle of
responsible government. Although the legislative and executive branches are connected in
parliamentary systems, there is often an independent judiciary. Also, the government's role in
the parliament does not give them unlimited legislative influence.

THEORY OF SEPARATION OF POWERS:

The Theory of Separation of Powers signifies three formulations categorization of

Government powers:

I. The same person should not form part of more than one of the three organs (i.e.
Executives, Legislature and Judiciary) of the Government. For example, ministers
should not sit in Parliament.

II. One organ of the Government should not interfere with any other organ of the
Government.
2
http://en.wikipedia.org/wiki/Separation_of_powers
3
http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html

4
 III. One organ of the Government should not exercise the functions assigned to any
other organ.

Separation of powers means distribution of powers for specified functions of the

government. All the powers of the government have been conceived as falling within one or
another of three great classes, as- (1) the enactment of making laws, (2) the interpretation of
that laws and (3) their enforcement; namely- legislative, judicial and executive. Government
has been deemed to be made up of three branches having for their functions and such
classification is recognized as classical division.

Montesquieu on separation of power:

According to Montesquieu, by separating the functions of the executive, legislative

and judicial departments of government, one may operate as a balance against another and,
thus, power should be a check on power. Le pouvouir arête le pouvoir- power halts power.

According to his views “When the legislative and executive powers are united in the
same person or in the same body of magistrates, there can be no liberty, because
apprehensions may arise, lest the same Monarch or Senate should exact tyrannical laws, to
execute them in tyrannical manner. Again there is no liberty if the judicial power be not
separated from the legislative and the executive. Where it joined with the legislative, the life
and liberty of the subject would be exposed to arbitrary control; for the judge would be then a
legislator. Where it joined to the executive power, the judge might behave with violence and
oppression.

4
 There would be an end of everything, where the same man or same body, whether of
the Nobles or of the people, to exercise those three powers, that of exacting laws, that of
executing the public resolutions and of the causes of individuals 4.”

In short, Montesquieu submission is the division of powers by function and the theory
of came out from it is known as separation of powers. The modern doctrine of separation of
powers was a leading tenant in the political philosophy of the 18th century5.

Separation of power in Ancient India:

It should be mentioned here that Separation of power is known as it has been found by
the Montesquieu and Locke but the roots are found in the Vedas. If we study the Smritis
which are ancient source of law i.e. Dharma, we find such type of separation. In Narad Smriti
we trace the very principle of separation of power. At that time Deewan was head of the
Executive wing of any legacy, Senapati did a job to maintain law and order and Kaji was the
judicial head. At the same time we have to bear in mind that they all are subordinate to the
King and King was the supreme authority who makes the law and therefore he was similar to
present form of legislature.

In short, what comes out is that in ancient time also there was a separation of power in
one province or legacy. After all, King is known as the supreme authority of all but the
functions and powers has been separated.

4
p. 31, Thakker. C.K., Administrative Law, (1992), Eastern book company
5
1951 AIR 322: 1951 SCR 747

4
 CHAPTER 2:

4
 INDIAN CONSTITUTIONAL PLAN FOR SEPARATION OF
POWERS

Our constitution was adopted on 26th November, 1949 and came into force on 26th
January, 1950. Our constitution is a written constitution and is the longest constitution of the
world. Indian constitution discusses the federal system of the government at length along
with relations between the government and people; political, social and economic issues; and
relation between the executive, the legislature and the judiciary.

India has a Parliamentary form of government- a system in which a clear division is

made between the head of the state and a head of the government i.e. executive- a president
of India is the head of state and the government of which prime minister is the head of
government. In India, the executive is the President, the legislature includes Parliament- both
the houses- Loksabha and Rajyasabaha and the judiciary contains Supreme Court of India
and High courts of states and other subordinate courts. As India is a federal state- functions
divided in centre & state- at centre level. The President is Executive and at state level The
Governor is executive. Similarly, every state has its state legislative body and at centre levels
a Parliament.

DEBATE OF CONSTITUENT ASSEMBLY ON ADOPTION OF SEPARATION OF

POWERS:

After the independence, Constituent Assembly was formed to make our own Indian
constitution. Indian constitution has adopted various things from various nations’
constitutions. For instance, Indian federalism is influenced by the American, Canadian and
Australian federalism, procedure of constitutional amendment is adopted from American
system, and the parliamentary form of government follows British practice, centre-state
financial relation from Australian constitution and directive principle of state policy from
Irish constitution.

4
 When the constitution was first framed separation between the executive and the
judiciary has been adopted as directive principle of state policy. It means complete separation
of powers between all three organs of the government was not included in constitution in its
absolute form. But when the amendment procedure of the constitution was going on Mr. K.
T. Shah has raised an amendment that complete separation of power should be inserted in the
constitution of India as Article 40-A. He was of the view that it would be best if we have
complete separation of powers between three principle organs of the state and put his
reasoning for the same as “if you maintain the complete independence of all the three,
you will secure a measure of independence between the Judiciary, for example, and the
Executive, or between the Judiciary and the Legislature. This, in my view, is of the
highest importance in maintaining the liberty of the subject, the Civil Liberties and the
rule of law. If there was contract between the Judiciary and the Legislature, for
instance, if it was possible to interchange between the highest judicial officers and the
membership of the legislature, then, I am afraid, the interpretation of the law will be
guided much more by Party influence than by the intrinsic merits of each case. The
Legislature in a democratic assembly is bound to be influenced by Party reasons rather
than by reasons of principle.” 6

In response to the amendment put forward by Mr. K.T. Shah, Shri K. Hanumanthaiya
from Mysore was of the opinion that we have given approval to the parliamentary form of
government and amendment which has been raised by Mr. Shah was of the nature of
Presidential Executive. He opposed the said amendment by saying that “if there is
separation- not separation but Prof. Shah wants complete separation- then conflicts are
sure to arise between these Departments of the Government and main reason is that this
house is wedded to parliamentary system of democracy and this view clause is out of
place in such a constitutional structure.” 7

During the whole discussion Kazi Syed Karimuddin was in support to the said raised
amendment and he was of the opinion that there should be non-parliamentary form of

6
Constituent assemble debates(proceedings)- volume VII- Friday, 10th Dec, 1948, para 20

7
Constituent assemble debates(proceedings)- volume VII- Friday, 10th Dec, 1948

4
government. In his submission he had very strongly mentioned that for the perfect peace in
country along with tranquility, it is very necessary that there should be a non-parliamentary
form of government because in parliamentary from of system the ministers are slaves of the
legislature and they have to depend upon their existence. He was in support to the complete
separation of three organs of the government but not in the parliamentary form of
government.

Most of the members at the constituent assembly were of the opinion that a complete
separation of powers should not be inserted for mainly two reasons.

1. It is too late to amend this type of principle as constitution has already been drafted and by
such amendment the whole structure of the constitution shall be change.

2. Secondly, we have choose the parliamentary form of government between the British
system and American system and we have adopted British system which gives more
responsibility and keeping in view the history of British practice of separation of powers , it
would be better to not to adopt complete separation like America.

Honorable Dr. B. R. Ambedkar said that we have adopted the separation of the
executive and the judiciary as directive principle of the state policy and it was not possible for
him to accept this amendment. The vice-president had put this article for voting and it was
rejected by the members. So, now it becomes clear that Indian constitution has not adopted an
absolute separation of power except in Art.50 as directive principle of the constitution.

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INDEPENDENCE OF JUDICIARY AND SEPARATION OF POWERS IN INDIA:

The principle of independence of judiciary and separation of powers are necessary to study
together because judiciary can get its independent only if there is a separation of power
between three organs of the government. Independence of judiciary means a fair and neutral
judicial system of a country which can afford to take its decision without any interference of
the executive or the legislative branch of the government. Like many other concepts, the
concept of independence of judiciary has also been derived from the England. The
Hampden’s case (1637) and Coke’s (1616) case led to enact the Act of Settlement, 1701 by
which the judicial independence was secured. Before this enactment, judges were removed by
the King’s will. Judges have to work in accordance to the will of the King (Charles) - the
Executive. At that time, the parliamentary has no active role over removal of the judges as we
are having at present.
Independence of judiciary means a fair and neutral judicial system of a country, which can
afford to take its decisions without any interference of the executive or the legislative branch
of government. It means that the judges are in a position to render justice in accordance with
their oath of office and only in accordance with their own sense of justice without submitting
to any kind of pressure or influence be it from executive or legislative or from the parties
themselves or from the superiors and colleagues.

In the pre-independence era, the criminal magistracy was under the direct control of
the executive. There was a strong agitation against such a state of affairs. There was a public
demand for separating the judiciary from the executive at all levels. It was vehemently argued
that without such a separation, the independence of the judiciary at the lower level would be
nothing more than a mockery. This is the idea which incorporated in art. 508

As the prime work of the judiciary is to protect the constitution, it is necessary that
only independent judiciary can protect the rights by which rule of law can be achieved.
Article 50 of the constitution describes the separation of the executive from the judiciary and
this is the only article which talks about the separation between two organs. It means that
there should be judiciary service without any executive control. This article of the

8
Indian Constitutional Law by M.P. Jain, pg 1393, para. 4

4
constitution is based upon the principle of the independence of the judiciary. If, executive
controls the judiciary then the result may be that rights of the people cannot be protected, rule
of law may not be achieved and judiciary work in accordance to the executive only. All
functions including delivery of justice will be according to the executive’s determination. In a
parliamentary form of government, which India has adopted, the executive is the head of the
state and being the head of the state, it can control anything as it may think fit and such
discretionary power may be misused and would result in great chaos in the country because
pure justice will not prevail. It has been held by the Supreme Court of India that “the
constitutional scheme aims at securing an independent judiciary which is the bulwark
of democracy. 9”

By putting it in other words, independence of judiciary means judiciary is

independent to take its decision about it functions. No other organ of the government can
interfere in its task of delivering justice. In India, this independence is limited to the justice
delivering work. Certain other things regarding the subject-matter of judiciary, parliament has
power to decide some matters. For instance, salaries, privileges, allowances 10 and other
related things and parliament has authority to increase the number of judges 11 and etc.
Independence of judiciary has also been considered as a basic structure of the constitution 12.
In the S.K. Gupta v. President of India 13, Fazal Ali, J. has stated that independence of
judiciary is a basic structure of the constitution, but the said concept of independence has to
be confined within the four corners of the constitution. In short, we have separate powers and
functions of judiciary up to some degree. Independence of judiciary has been adopted as a
principle governing Article 50.

9
A.C. Thalwal v. High Court of Himachal Pradesh (2000) 7 SCC 1 : AIR 2000 SC 2732
10
Article 125 (1) - there shall be paid to the Judges of the Supreme Courts such salaries as may be determined
by Parliament…
11
Article 216 of Indian constitution
12
Kumar Padma Prasad v. U.O.I. AIR 1992 SC 1213
13
AIR 1982 SC 149

4
THEORY OF CHECKS AND BALANCE, CONSTITUTION OF INDIA AND
SEPARATION OF POWERS:

The system of checks and balances is a part of proper functioning of three branches of
government. It guarantees that no part of the government becomes too powerful. For
example, the legislative branch makes law, the executive branch passes the valid law and the
judicial branch may also say that the law is unconstitutional and thus make sure it is not a
law. The legislative branch can also remove judge that is not doing his/her job properly. The
executive branch appoints judges and the legislative branch approves the choice of the
executive branch. Again, the branches check and balance each other so that no one branch
has too much power. This is what describes the theory of checks and balance. If we look it in
the purely Indian context, three agencies of government are given different powers but not in
absolute form. All three have their own powers and functions but another can interrupt in its
function if the former has acted against constitutional provisions in described manners.
For such checks and balances between three organs, there are some
constitutional provisions also, like:
Judges are the subject matter of the judiciary but removal of the judges, in a case in
which they have not acted properly, can be removed by the President on an address by both
the houses of Parliament presented in the same session. The address must be supported by a
majority of the total membership in each house, and also by majority of not less than two
thirds of the members of each House present and voting. 14 By this, two things can be
achieved- firstly, judiciary cannot remove any judges by using its discretionary power in both
ways- in a case where judge has really conducted misbehavior and in a case where there is
any political pressure or any prejudice against any judge. By any reason, a judge cannot be
removed except the legislature does it. Secondly, legislative body can remove the judge by
impeachment but only by two third majority. It means legislature can interfere in the process
of judiciary but as per the condition i.e. two third majority.

14
Article 124(2) - every Judge of the Supreme Court shall be appointed by the President… and Article 124(4)- a
judge of the Supreme Court shall not be removed from his office except by an order of the President passed
after an address by each house of Parliament…

4
Another example for the same is that the supreme court of India- judicial wing, has
power to void the laws passed by the legislature. It can also declare the action conducted by
executive void which violate the constitution provisions or law passed by the legislature.

By both the examples, we can say that Indian constitution has separated powers as they do
not get too much power and not get discretionary power which curtails the principles of
Democracy.
The supreme court of India has held about the checks and balance that “where an Act made
by State legislature is invalidated by the courts on the ground that the State legislature
was not competent to enact it, the State legislature cannot enact a law declaring that the
judgment of the court shall not operate; it cannot overrule or annul the decision of the
court. But this does not mean that the legislature which is competent to enact that law
cannot enact that law. Similarly, it is open to a legislature to alter the basis of the
judgment while adhering to the constitutional limitation. In such a case the decision of
the Court becomes ineffective. The new law cannot be challenged on the ground that it
seeks to circumvent the decision of the Court. The Court observed that this is what
meant by "checks and balances" inherent in a system of Government incorporating the
concept of separation of powers.15”

15
P. Kannadasan & Ors. v. State of Tamil Nadu 1996(5) SC 670

4
 CHAPTER 3:

Doctrine of Separation of Powers at

International Regime

4
ENGLAND:

As mentioned above, in 18th century absolute separation of power was prevailing in

England. The King exercised executive powers; Parliament exercised legislative and Courts
the judicial powers. At Present in England, The King- Executive head, is also an integrate
part of the legislature and all his ministers are also member of one or other houses of
parliament. In England, Lord Chancellor is at the same time a member of the House of Lords,
a member of the government, and the senior most member of the judiciary. So, in England
the principle of parliamentary executive is a clear negation of the first formulation that the
same person should not form part of more than one of the three organs of the government. As
regards the second formulation of the Doctrine of Separation of Powers, it is clear that the
House of Commons ultimately control the executive. The judiciary is independent but the
judges of the superior courts can be removed on an address from both houses of parliament.
As to the exercise by one organ of the functions of the other organs, no separation exists in
England. The House of Lords combines judicial and legislative functions. The whole House
of Lords constitutes the highest court of the country but in practice, by constitutional
convention, judicial functions are exercised by specially appointed law Lords and other Lords
who have held judicial office. Again, legislative and adjudicatory powers are being
increasingly delegated to the executive. This also distracts from any effective separation of
powers.

Although the doctrine of separation of power plays a role in the United Kingdom's
constitutional doctrine, the UK constitution is often described as having "a weak separation
of powers" A V Dicey, despite its constitution being the one to which Montesquieu originally
referred. For example, in the United Kingdom, the executive forms a subset of the legislature,
as did—to a lesser extent—the judiciary until the establishment of the Supreme Court of the
United Kingdom. The Prime Minister, the Chief Executive, sits as a member of the
Parliament of the United Kingdom, either as a peer in the House of Lords or as an elected
member of the House of Commons (by convention, and as a result of the supremacy of the
Lower House, the Prime Minister now sits in the House of Commons) and can effectively be
removed from office by a simple majority vote. Furthermore, while the courts in Britain are
undoubtedly amongst the most independent in the world, the Law Lords, who are the final

4
arbiters of judicial disputes in the UK, until recently sat simultaneously in the House of
Lords, the upper house of the legislature, although this arrangement ceased in 2009 when the
Supreme Court of the United Kingdom came into existence. Furthermore, because of the
existence of Parliamentary sovereignty, while the theory of separation of powers may be
studied in Britain, a system such as that of the UK is more accurately described as a "fusion
of powers".

The development of the British constitution, which is not a codified document, is based on
this fusion in the person of the Monarch, who has a formal role to play in the legislature
(Parliament, which is where legal and political sovereignty lies, is the Crown-in-Parliament,
and is summoned and dissolved by the Sovereign who must give his or her Royal Assent to
all Bills so that they become Acts), the executive (the Sovereign appoints all ministers of
His/Her Majesty's Government, who govern in the name of the Crown) and the judiciary (the
Sovereign, as the fount of justice, appoints all senior judges, and all public prosecutions are
brought in his or her name).

The British legal systems are based on common law traditions which require:

 Police or regulators cannot initiate complaints under criminal law but can only
investigate (prosecution is mostly reserved for the Crown Prosecution Service), which
prevents selective enforcement, e.g. the 'fishing expedition' which is often specifically
forbidden.
 Prosecutors cannot withhold evidence from attorneys for the defendant; to do so
results in mistrial or dismissal. Accordingly, their relation to police is no advantage.
 Defendants convicted can appeal, but only fresh and compelling evidence not
available at trial can be introduced, restricting the power of the court of appeal to the
process of law applied. 16

16
http://en.wikipedia.org/wiki/Separation_of_powers

4
THE UNITED STATES OF AMERICA:
In America, the doctrine of separation of power forms the forms the foundation on
which the whole structure of the Constitution is based. Article 1, section 117 vests all
legislative powers in the Congress. Article 2, section 1 18, vests all executive power in the
President of the United States. Article 3, section 1,19 vests all judicial powers in the Supreme
Court. It is on the basis of theory of separation of powers that the Supreme Court of the
United States has not been given power to decide political questions, so that the court may
not interfere the exercise of the power of the executive branch of the Government. The
Constitution of America has not given overriding power of judicial review to the Supreme
Court. It is a queer fact of American Constitution history that the power of judicial review has
been usurped by the court. However, American Constitutional developments have shown that
in the face of the complexity of modern government, strict structural classification of the
powers of the government is not possible. The president of the United States interferes with
the exercise of powers by the Congress through the exercise of his veto power. He also
exercises the law-making power in exercise of his treaty-maker power. The President also
interferes with the functioning of his power to appoint the judges. In fact, the President
Roosevelt did interfere with the functions of the Court when he threatened to pack the court
in order to get the court’s support for his New Deal legislation. In the same manner Congress
interferes with the powers of the President through vote on budget, approval of appointments
by the Senate and the ratification of treaty. Congress also interferes with the exercise of
powers by the courts by passing procedural laws, creating special courts and by approving the
appointment of judges. The judiciary interferes with the powers of the Congress and the
President through the exercise of its powers of judicial review. It is correct to say that
Supreme Court of the United States has made more amendments to the American constitution
than the congress itself.

17
Article I- Section 1-All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of
Representatives.
18
Article II-Section 1-The executive power shall be vested in a President of the United States of America
19
Article III- Section 1-The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time
ordain and establish

4
 The division of powers in the United States has often been criticized as promoting
inefficiency; when different parties hold Congress and the Presidency, a lack of co-operation
may deadlock the legislative process. English author Walter Bagehot famously criticized the
U.S. system on these grounds in his 1867 book The English Constitution, specifically noting
the events during the administration of Andrew Johnson. Several individuals have proposed
that a parliamentary system—in which the same party or coalition of parties controls both the
executive and the legislature—would function more efficiently. Advocates of a parliamentary
system have included President Woodrow Wilson. In comparing the English parliamentary
system with the American system, Bagehot wrote:

"The English Constitution, in a word, is framed on the principle of choosing a single

sovereign authority, and making it good: the American, upon the principle of having
many sovereign authorities, and hoping that the multitude may atone for their
inferiority."

Many political scientists believe that separation of powers is a decisive factor in what
they see as a limited degree of American exceptionalism. In particular, John Kingdon made
this argument, claiming that separation of powers contributed to the development of a unique
political structure in the United States. He attributes the unusually large number of interest
groups active in the United States, in part, to the separation of powers; it gives groups more
places to try to influence, and creates more potential group activity. He also cites its
complexity as one of the reasons for lower citizen participation. 20

AUSTRALIA:

Like the Constitution of the United States, the Australian Constitution provides three
functions of government, and for three institutions to exercise those functions. The first three
chapters of the Australian Constitution deal with the three institutions of government.21

20
http://en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_Constitution

21
http://www.ozpolitics.info/guide/rules/sep/

4
  Chapter I - the parliament;
 Chapter II - the executive; and
 Chapter III - the judicature.

Each of the three functions of government is vested separately in these three institutions by
sections 1, 61 and 71 of the Australian Constitution.

The Australian Constitution provides three functions of government and three

institutions to exercise those functions. Chapter 1- the Parliament, chapter 2- the Executive
and chapter 3-the Judicature deal with three institution of government. Section 1 22, section
6123 and section 7124 of the Australian constitution have described the functions of three
institutions. As the Australian constitution also incorporates the Westminster dogma of
responsible government- which locks together the executive and the legislative branches of
government and in reality also the high courts also has allowed the executive to exercise
significant delegated legislative powers. So, in Australia also there is no strict achievement of
the doctrine of separation of powers as Australia’s system of government is basically a
Westminster form of responsible government with conjoined legislative and executive
functions at its centre.

ISLAMIC REPUBLIC OF PAKISTAN

After discussing situation of Developed country, The Constitution of Pakistan deals
with the superior judiciary in a fairly comprehensive manner and contains elaborate
provisions on the composition, jurisdiction, powers and functions of these courts. The
Constitution provides for the “separation of judiciary from the executive” and the

22
S.1- the legislative power of the commonwealth shall be vested in a Federal Parliament, which shall consist
of the Queen, a Senate, and a House of Representatives.
23
S.61- the executive power of the Commonwealth is vested in the Queen and is exercised by the Governor-
General as the Queen’s representatives, and extends to the execution and maintenance of this Constitution,
and the laws of the Commonwealth.
24
S.71- The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the
High Court of Australia, and in such order other federal courts as the Parliament creates, and in such other
courts as it invests with federal jurisdiction.

4
“independence of judiciary”. It entrusts the superior courts with an obligation to “preserve,
protect and defend” the Constitution. It is necessary to discuss about our neighbouring
country- Islamic Republic of Pakistan. At end of British rule in Hindustan, it was divided into
two different nations- India and Pakistan. Pakistan constitution carries somewhat we are
having in our constitution. After all, both the countries are having inspired by British
constitution. Preamble of the Pakistan’s constitution states that independence of judiciary
shall be fully secured. Powers are distributed between - A President of Pakistan is the Head
of State25 - executive, House of Majlis-e-shoora- Parliament known as National Assembly26
and Supreme Court of Pakistan. They are not having absolute separation powers. And indeed,
after having separated and defined functions or we can say partly separation of powers,
adverse political influence from the ruling of executive, other executive and legislature
transgression- from military dictators, civilian leaders and legislative assembly have
destroyed the balance of separation of power by political changes. By the recent
developments it can be shown that there is no separation of powers between three organs of
the government and political perspective has made the President as Supreme authority.
Detention of Chief Justice of Pakistan- Mr. Iftikhar Chaudhary in 2007 by President Pervez
Mushraff as the Supreme Court has denied the suspension of the constitution and emergency
declared in 2006 by President as rational. The Supreme Court ruled that Mushraff has
overstepped his authority as an executive leader and ultimately, executive branch had
undermined the authority of judiciary by circumventing the constitution. In short, both
complete or partly- as we are having, separation does not exist in the Islamic Republic of
Pakistan practically; separation does only exist in the constitution.

25
PART III-Chapter 1-Article41 (1) there shall be a President of Pakistan who shall be the Head of State and
shall represent the unity of the Republic.
26
PART III-Chapter 2-Article50-There shall be a Majlis-e-Shoora (Parliament) of Pakistan consisting of the
President and two Houses to be known respectively as the National Assembly and the Senate.]

4
 Chapter 4:
Comparative study of formulations of
separation of power in Indian context

4
 This chapter discusses various constitutional provisions regarding separation of
powers which will show us the Indian state of affairs.

By the above discussion it is well agreed that doctrine of separation of powers has not
been recognized under constitution in its absolute rigidity but functions of all three organs
have been defined. No organ can take over the functions of another organ. Three organs are
bound by and subject to the provisions of the constitution, which demarcates their respective
powers, jurisdiction, responsibilities and relationship with each other. It is expected that in
the overall interest of the country, even though their jurisdictions are separated and
demarcated, all the institutions would work in harmony and in tandem to maximize the public
good. It has been laid down by the Supreme Court also that “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 said that our constitution does not
contemplate assumption by one organ or part of the state of the functions that
essentially belong to another.”27

As Indian constitution has separated the functioning and powers of the organs of
government, it has also kept various articles in the constitution which keep the organs
separate in some cases and overlap in some cases.

Comparative study of three formulation of the theory of separation of power

in Indian state of affair:

The very first formulation of the theory is that the same person should not form part
of more than one of the three organs of the Government. But in India, this very first
formulation is not being fulfilled because Cabinet ministers of the government are the
members of the legislature and are responsible to legislature. There is a clear link between the

27
Ram Jawaya Kapoor v. State of Punjab AIR 1955 SC 549

4
executive and the legislature. Because according to Indian constitution, cabinet of ministers
form a part of Executive wing of the government.

Secondly, one organ of the Government should not interfere with any other organ of
the Government. But the Indian constitution has been formed as certain functions regarding
one organ are being performed by another. The constitution itself gives such authority. For
instance, In the matter of judiciary, its main duty is to protect the rights of individual and
keep the rule of law in the nation. Apart from this other functions related to judiciary like-
salaries, allowances and privileges of the Judges 28, removal of judges and appointment of
judges29 etc. will be decided by the legislature. The Supreme Court has power to declare void
the laws passed by the legislature, if they violate any provision of the constitution. The power
to amend the constitution by Parliament is subject to the scrutiny of the court and Supreme
Court can declare any law void if it is against the provision of the constitution.

At last, one organ of the Government should not exercise the functions assigned to
any other organ. It means that functions related to one organ related to its own functioning
should not be exercised by another. But in India, there is no absolute separation of functions
in respect of organs. Some way or another, functions are not fully divided. Logically we find
that one organ of the government should be empowered for all matters related to it but
Constitution empowers some functions to be done by another organ only. As judges are the
subject matter of the judiciary but the allowances and other facilities are being decided by the
legislature. Another instance, 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 judicial
power under article 12330 and article 21331. Yes, there is a condition precedent that it can only
happen when the parliament or the state legislative assembly is not in its active session. But
the law making or the ordinance making power of the legislature will fall in the purview of
executive branch of the government.

Above mentioned are just as an introductory example. One another important example
is- Legislative body of the government makes law. Its duty is to propose any bill in the house,
to discuss and discover its needs and other probabilities of the same. After discussion, if two
28
Article 125 of the Indian constitution
29
Article 123 of the Indian constitution
30
Power of president of promulgate ordinances during recess of parliament.
31
Power of governor to promulgate ordinances during recess of state legislative assembly.

4
third of the total member of the both the houses pass and validate the proposed bill then it has
been sent to the President for his consent. If and only President give consent then the said bill
get the status of Statute or Act. The consent taking system of Indian constitution clearly
shows that there is no fully separation of functioning in law making power of the legislative
body. It is true that constitution provides that after three times of sending bill to the president
for consent and if all three times president returns it, then the bill will be considered as passed
bill. However, the legislature cannot independently pass the laws is of the prime question.
All discussed here shows us upto what and how extent the doctrine of separation of power
exists in India.

4
 CHAPTER 5:

CURRENT PRACTICE IN INDIA

4
 Followings are the instances of a manner in which the doctrine of separation of
powers has been adopted and practiced in India:

One of the important issues for discussion is parliament’s action of putting legislation
of its choice into ninth schedule- a concept adopted from the Irish Constitution, which
prevents the court from passing judgments on them and Supreme Court has to accept it. This
schedule involves subject who are far from everyday life but they are as important as any
other fundamental right. All the legislation took place in ninth schedule through article 31B
of the constitution. Thus Article 31-B of the Constitution of India ensured that any law in the
Ninth Schedule could not be challenged in courts and Government can rationalize its
programme of social engineering by reforming land and agrarian laws. In other words laws
under Ninth Schedule are beyond the purview of judicial review even though they violate
fundamental rights enshrined under part III of the Constitution. On the one hand considerable
power was given to legislature under Article 31-B and on the other hand the power of
judiciary was curtailed, this is the starting point of tussle between legislature and judiciary.

In Vineet Narain v. Union of India32, the Court ordered the CBI to handle the
investigations into the corruption of politicians in a manner that it thought fit. This was the
starting point from when the Court started interfering in decisions of policy by the executive
and the working of Investigative agencies.

In the year of 2005, the controversy was arisen on the court’s judgment regarding
reservation quotas in unaided engineering colleges. The court ruled that if quotas were
necessary, the government should make appropriate amendment in the relevant Acts. If not,
compulsory reservation quotas in unaided colleges were not legal. This judgment of court
raised objections from Parliament. It can be argued that Parliament is the supreme law-
making body and the courts should not pass verdicts which have the effect of changing the
legal position as approved by the Parliament. As the parliament has discretionary power to
make laws and to decide on which matter law should be formed, within the permissible limit
of constitution. By such verdicts two things come in focus- firstly, parliament is indirectly
compelled to pass the laws or amend the existing one and by such its discretionary power to

32
AIR 1998 SC 889

4
amend law will curtail. Because it is upto the parliament whether it want to pass or not.
Secondly, issue for which such verdict has been delivered will get stay until and unless it can
be sort out by Parliament.

The Supreme Court’s order and directions to the speaker of Jharkhand assembly is
one of the important issues to discuss the tug of war prevailing between judiciary and
legislature. After the elections in 2005, the Governor of Jharkhand state was pleased to
swear-in a government headed by a member of the Union Government- Shri Shibu Soren,
who did not seem to have clear majority in the house of 81. He was given a number of days-
20- to prove his majority in the House. After such decision of the governor, the opposition of
party having clear majority filed a writ petition against the conduct of the Governor. As a
result, the court passed an order to Speaker to extend the assembly session by a day and
conduct a majority. Because of such court’s order, the earlier government formed by Shibu
Soren – the union minister decided to tender its resignation on the advice of central
government. After that, alternative government was formed and experts have interpreted such
decisions are within the jurisdiction of the legislature not the judiciary. To react upon such
issue, an emergent conference of the Presiding officers of legislative body of India was
convened on 20th march, 2005 and expressed their
concerned as “such orders passed by the courts repeatedly which tend to disturb the delicate
balance between judiciary and legislature.33”

Rapidly after the Jharkhand assembly case, actions taken by the President of India to
dissolve the Bihar assembly on the recommendation of Governor through the advice of
cabinet of minister acquired one more storm. As no party had clear majority in the elections,
the assembly was suspended in animation and under President’s rule. The governor suddenly
decided to recommend dissolution of the assembly to the president through cabinet of
ministers on the basis of strong rumour that some of the legislators were likely to coalition of
parties which were opposed to the previous ruling party Rashtriya Janta Dal in the state. The
assembly was dissolved and as an upshot, some legislator filed a case against the action taken
by the executive branch. The contention of the government in an affidavit filed before the

33
THE HINDU- pg 1- March 21, 2005- online edition

4
Supreme Court was that the court is not to inquire and is not concerned with whether any
advice was tendered by any minister or council of ministers. Court had no right to examine
whether the action of the executive was legal or not and cabinet ministers could advice the
president to pass any order irrespective of matters. The Supreme Court gave its verdict
declaring the actions of the government to dissolve the Bihar assembly as being
unconstitutional and unreasonable.
There have been many political crises in which the Governor's actions of appointing or
dismissing a Chief Minister have been questioned by the High Courts. In the Uttar Pradesh
Chief Minister Dismissal case (1998), the High Court rendered the Governor's dismissal of
the Chief Minister unconstitutional and the Supreme Court ordered a confidence motion in
the legislature.34 Another view prevailing is that it is not for the Courts- either Supreme Court
or High Court-to interfere with the exercise of the Governor's or the President's discretionary
powers unless such an exercise of powers is mala fide or utterly unreasonable.

It would be inappropriate if we do not discuss the most celebrated case of Chief

Minister of Karnataka- Mr. S.R. Bommai35 while discussing the interference of organs in
each other. The facts are- Janata Party being the majority party in the State Legislature had
formed Government under the leadership of Shri S.R. Bommai. In September 1988, the
Janata Party and Lok Dal merged into a new party called Janata Dal. The Ministry was
expanded with addition of 13 members. Within two days thereafter, a legislator of Janata Dal
defected from the party. He presented a letter to the Governor along with 19 letters, allegedly
signed by legislators supporting the Ministry, withdrawing their support to the Ministry. As a
result, the Governor sent a report to the President stating therein there were dissensions and
defections in the ruling party. In support of his case, he referred to the 19 letters received by
him. He further stated that in view of the withdrawal of the support by the said legislators, the
chief Minister, Shri Bommai did not command a majority in the Assembly and, hence, it was
inappropriate under the Constitution, to have the State administered by an Executive
consisting of Council of Ministers which did not command the majority in the House. He,
therefore, recommended to the President that he should exercise power under Article 356(1).
However on the next day seven out of the nineteen legislators who had allegedly written the
said letters to the Governor sent letters to him complaining that their signatures were obtained
on the earlier letters by misrepresentation and affirmed their support to the Ministry. The

34
The Hindu- March 18, 2005
35
1994 AIR 1918

4
Chief Minister and his Law Minister met the Governor the same day and informed him about
the decision to summon the Assembly Session. The Chief Minister also offered to prove has
majority on the floor of the House even by proponing the Assembly Session, if needed. To
the same effect, he sent a telex message to the President. The Governor however sent yet
another report to the President on the same day i.e., 20-4-1989, and stated that the Chief
Minister had lost the confidence of the majority in the House and repeated his earlier request
for action under Article 356(1). On that very day, the President issued the Proclamation in
question with the recitals already referred to above. The Proclamation was, thereafter
approved by the Parliament as required by Article 356(3).A writ petition was filed on 26th
April 1989 challenging the validity of the proclamation. A special bench of 3 judges of
Karnataka High Court dismissed the writ petition. Such action of the Governor is interference
in the working of the Legislature. The majority of any party can only be decided on the floor
of respective house. Without conducting the test of majority, governor’s such action is a kind
of interference in working procedure of the legislature. The Supreme Court held that a state
government could be dismissed only under extenuating circumstances, and laid down
guidelines for such a dismissal.

Bill of GUJCOC has been pending for the last five years without getting consent from the
President. It has been passed in the state legislative assembly in the year of 2003 and has been
sent to the President on 1st April, 2003. Home Ministry has sent it back for some
amendments and again, it was sent back to the President for the consent on the 19 June,
200436. Political discussions are still going on. It is not the place to discuss the politics. But
because of any reason, this rigid procedure of getting consent from the President and such
delays are one form of complete interference in the working process.

Above mentioned all interference between organs is the questions that they are constitutional
or not. Certain other type of interference does also exist. The most recent example regarding
the practice of separation of power is of Madras High Court. Justice R Regupathi of Madras
High Court has disclosed that a union minister had called him to influence him to grant
anticipatory bail to the accused known to him. Such type of indirect interference in the
another organs does exist. It is just one example, many other still placed. Chief Justice Of

36
Gujarat Mahiti Bureau, Government of Gujarat, 29 June, 2009

4
India has expressed that “it is a gross impropriety for a politician or anyone to call up the
judge regarding a pending case. It is interference in the court of justice. 37” This respective
issue is true or not can be known after the investigation but it is true that such type of
interference or political pressure do exist. PB Mukharji, in his celebrated lectures titled
'Critical Problems in the Indian Constitution' had devoted an entire chapter to the
relationship between the President and the Prime Minister and the Council of Ministers in the
manner of their functioning. The Constitution provides that the President ordinarily acts on
the aid and advice of the Council of Ministers. The extent to which the President is bound to
act in this fashion and the application of the British constitutional conventions to guide
constitutional interpretation has been a source of much controversy.
"The exercise of powers, legislative and executive, in the allotted fields is hedged in by the
numerous restrictions, so that the powers of the States are not co-ordinate with the Union and
are not in many respects independent.38"

37
The Times of India, 1st July. 2009
38
State of W.B. v. Union of India (SCR p.397)

4
 CHAPTER 6:

ISUEES AROUND PRACTICE OF SEPARATION OF

POWERS and Judicial views- Indian Case
laws

4
 In the case of SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY V. UNION
OF INDIA & ORS, Justice B.C. Ray opined that,

“Although the powers of State have been distributed by the Constitution amongst the three
limbs, that is the Legislature, the Executive and the Judiciary, the doctrine of Separation of
Powers has not been strictly adhered to and there is some overlapping of powers in the gray
areas.”39

He further stated that,

“...that rigid Separation of Powers as under the American Constitution or under the
Australian Constitution does not apply to our country and many powers which are strictly
judicial have been excluded from the purview of the courts under our Constitution.” 40

The same view has been taken by the Supreme Court in the case of A. K. ROY V. UNION
OF INDIA & ANR41, Y.V. Chandrchud J. Was of the opinion that,

"there is no place in our Constitution for the doctrine of the political question'', since that
doctrine is based on, and is a consequence of, a rigid separation of powers in the U.S
Constitution and our Constitution is not based on a rigid separation of powers.”

In another case the Supreme Court has rightly observed that,

“The Indian Constitution has not indeed recognised the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the Government have
been sufficiently differentiated and consequently it can very well be said that our Constitution
does not contemplate assumption, by one organ or part of the State, of functions that
essentially belong to another. The executive indeed can exercise the powers of departmental
or subordinate legislation when such powers are delegated to it by the legislature."42

39
1992 AIR 320
40
Smt. Indira Gandhi v. Raj Narain, [1976] 2 SCR 347 at page 415
41
1982 AIR 710
42
FEDERATION OF ASSC OF MAH. VS. UOI

4
 In India there is constant tug of war is going on between legislatures and judiciary. In
many judgements Supreme Court clear their view on the subject. As I have already dealt
with some of the case laws it is unnecessary to dwell the case laws again and again.
Two things of great nature can be discussed here as a result of practice of separation of
powers in a country- whether the separation is in absolute form or a partly separation of
power like India. All the practice of any nature brings matters against and in favor of it. Here,
I would like to discuss two things which show us how does the system of separation of power
have earned?
Firstly, discuss the issue of number of pending bills in the parliament. The rigid procedure of
making or amending laws- proposal of bills, its discussion, majority opinion in its acceptance
and after that consent of the President, takes too much time for passing any Act. The
procedure of making laws has been divided between the legislature and the executive wing of
the government. Bill come to existence only when President gives consent, indeed there is a
condition precedent. Because of such separation of powers or function between the
legislature and the president which is not of the absolute separation of functions, brings the
number of pending bills. Total number of bills pending is 304 (270 of private members bills
and 34 of government bills) till the thirteen session of the fourteen Loksabha. If we were
having absolute separation and legislature would be the supreme authority to make laws
without any such provisions then the problem of the pending bills can be sorted out. It is true
that all the bills are not pending because of delay in consent given by the President but there
are cases of that nature.

Secondly, Judicial Activism is possible at present time only because there is a

separation of power by which the judiciary has been given independent and separate nature.
According to Merriam-Webster's Dictionary of Law, judicial activism is "the practice in the
judiciary of protecting or expanding individual rights through decisions that depart from
established precedent or are independent of or in opposition to supposed constitutional or
legislative intent". It means that the judiciary, under the guise of interpreting the law, goes a
step beyond, and ends up giving the country new binding law, which is usually different from
the existing one. This is called judicial activism. This most celebrated term has its own best
and worst characteristics. In the modern world, such activism is necessary. It is good or bed
will differentiate as per the facts of the cases. In the cases like Ashok Hurra v. Rupa Bipin

4
Zaveri43, practice of judges has been considered as a part of so called judicial activism. It
would not be proper to discuss the issue of its good and bad here. Whatsoever, but this
judicial activism which is of prime importance is possible only because we are having
separated and independent judiciary.

43
(1997) 4 SCC 226

4
 Chapter 7:
Conclusion

4
 According to Mr. Justice Story “when we speak of a separation of three great
departments of government and maintain that the separation is indispensable to public
liberty, we are to understand the maxim in a limited sense. It is not meant to affirm that
they must be kept wholly and entirely and distinct and have no link connection or
dependence.44”

The question about the doctrine of separation of powers is as old as constitution itself.
Since after the framing of constitution, disputes are arising whether one organ of the country
is exceeding the boundaries assigned to it under the constitution or not. It is obvious that the
conflict the judiciary and parliament has grown with the passage of time. Prime Minister
Manmohan Singh has told the Chief Ministers and Chief Justices of High court in the
conference an Administration of Justice on Fast track issue “the dividing line between
judicial activism and judicial overreach is a thin one… a takeover of the functions of another
organ may, at times, become a case of over-reach. 45

In Mistretta v. United States46, the Supreme Court indicated the way in which it
keeps agencies independent of the branch of government in which they are said to reside: "In
adopting [a] flexible understanding of separation of powers, we simply have recognized
Madison's teaching that the greatest security against tyranny-the accumulation of excessive
authority in a single Branch-lies not in a hermetic division among the Branches, but in a
carefully crafted system of checked and balanced power within each Branch." Some believe
that Montesquieu has been misunderstood, particularly by those who argue for the doctrine of
separation of powers. Different view is prevailing that real insight of the Montesquieu’s
theory of separation of power was the general principle that power must be distributed to
avoid a monopoly of power being created.
According to Alois Riklin, in his book, Montesquieu was not advocating a strict
separation of powers. Rather, Montesquieu cautiously referred to a certain distribution of
powers, as well as, “balancing”, “tempering” and “combining” powers in a model of liberal
political order where the three functions of the government are sometimes separated and
sometimes combined. 47

44
Kilbourn v. Thomson 103 US 168, pg 190
45
The Indian Express, April 9, 2007
46
488 U.S. 361 (1989)
47
Alois Riklin- Montesquieu’s so-called separation of powers in the context of the history of ideas- September
2000

4
It 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.

The status of modern state is a lot more different than what it used to be. It has evolved a
great deal from a minimal, non-interventionist state to an welfare state, wherein it has
multifarious roles to play, like that of a protector, arbiter, controller, provider. This
omnipresence of the state has rendered its functions becoming diverse and problems,
interdependent and any serious attempt to define and separate those functions would cause
inefficiency in government. Hence, a distinction is made between ‘essential’ and ‘incidental’
powers of an organ. According to this differentiation one organ can’t claim the powers
essentially belonging to other organ because that would be a violation of the principle of
separation of powers. But, it can claim the exercise of the incidental functions of another
organ. This distinction prevents encroachment of an organ into the essential sphere of activity
of the other.

It is the exercise of incidental powers only which has made executive grow everywhere in
this social welfare state. It has assumed a vital role but, it has not usurped any role from any
other wing. It just happened that the other two organs, namely, judiciary and legislature,
became unsuitable for undertaking the functions of this welfare state and as a consequence
the functions of the executive increased. As controller and provider, the judicial processes
were very time consuming and the legislature was overburdened with work. Therefore, it was
in natural scheme of things which made the administrators end up performing a variety of
roles in the modern state including those of legislature and judiciary too, to an extent.

Further, the check of the adjudicators over functionings of the other two has been regarded as
an ‘essential’ feature of the basic structure theory. The judicial review power is a preventive
measure in a democratic country which prevents administrators and law-makers to exercise
their whims and caprices on the lay man and turn it into a despotic regime. There have been

4
cases where the judiciary has dictated the ambit of their power to the implementers and the
mode to exercise it. Not even the representatives of people are immune to the power of the
courts. Two recent Supreme Court judgments- on the cash-for-query case and on the Ninth
Schedule – have once again brought the powers and roles of the legislature and the judiciary
into focus. In the case of the former, the court upheld the Lok Sabha’s decision to expel
members of Parliament, who were caught on camera taking bribes, but clearly rejected the
contention that it cannot review parliament’s power to expel MPs and claimed for itself the
role of final arbiter on decisions taken by the legislature. The judgment on the Ninth Schedule
has curtailed Parliament’s power to keep certain progressive laws outside judicial Review.

In the Second case, i.e., I.R. Coelho vs. State of Tamil Nadu , S.C. took
the help of doctrine of basic structure as propounded in Kesavananda Bharati case and said
that Ninth Schedule is violative of this doctrine and hence from now on the Ninth Schedule
will be amenable to judicial review which also forms part of the basic feature theory. The
basic structure theory and the Golden triangle comprising of A.14, 19, and 21, will now be
the criterion in scrutiny of the Ninth Schedule.

In a democratic country goals are enshrined in the constitution and the state
machinery is then setup accordingly. And here it can be seen that constitutional provisions
are made as such to support a parliamentary form of government where the principle can’t be
followed rigidly. The S.C. rulings also justify that the alternative system of checks and
balances is the requirement, not the strict doctrine. Constitutionalism, the philosophical
concept of the constitution also insists on limitations being placed upon governmental power
to secure basic freedoms of the individual. Hence, the conclusion drawn out of the study is
that there is no strict separation of powers but the functions of the different branches of the
government have been sufficiently differentiated. 48

At last, the doctrine of separation of powers cannot be practiced in its classical sense,
but it is being used with checks and balances according to the constitution of the respective
nation. As stated by Chandrachud J., “political usefulness of the doctrine of separation of

48
http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html

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powers is now widely recognized 49…” In today’s environment this doctrine should be
exercised in the manner in which the best interest of the citizens can be achieved.

49
Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC (1) 260