SYMBIOSIS LAW SCHOOL, PUNE

Legal research and methodology

SEPARATION OF POWER IN INDIAN CONTEXT

FUNCTIONAL OVERLAPPING

Submitted by:
Prashant Kumar Singh,
LL.M. 1st yr.
Roll No. 35,
SLS, Pune

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Separation of powers in Indian context:

1-Doctrine of separation of powers is structural rather than functional.
2-In India not only there is a functional overlapping but there is personnel overlapping also.

Abstract:
The Supreme Court applies the structural provisions of the Constitution by relying on an
Overarching framework of separation of powers. In Indian Constitution, there are mentioned
provisions in relation to separation of power but there is functional overlapping.
These theories rely on a freestanding separation of powers principle derived from the structure of
the document as a whole, both contradict the idea that the Indian Constitution is a bundle of
compromises that interpreters must respect if they are to show fidelity to the Constitution
making process. The historical record reveals that the founding generation had no single baseline
against which to measure what the separation of powers would have required in the abstract.

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Doctrine of Separation of Powers in India:

Development:
In India, the doctrine cannot claim any historical background. The legislature did not appear as a
body separate from the executive till the middle of 19th century. The doctrine of separation of
powers has not been accorded a constitutional status. It was only after the independence that a
constituent assembly was constituted to draft a constitution for the country. There was a
proposal1 to incorporate the doctrine in to the constitution but it was turned down. The doctrine
of separation of power is not followed strictly. Apart from the directive principle of state policy
laid down in article 50 which talks about separation of judiciary from the executive, the
constitutional scheme does not embody any formalistic division of powers.2
In India, there are three main categories of governmental functions:
i.
ii.
iii.

Legislative
Executive
Judiciary.

Importance:
According to the theory of Separation of Powers, these three departments of the Government
must in a free democracy, always be kept separate by three separate department of the
Government. The function of the legislature is to make laws while the function of the executive
is to execute them and that of the judiciary is to enforce and interpret them. None of these three
departments should interfere with exercise of the functions of the other departments. One
department should not exercise the functions of another department.

1 Proposal proposed by Prof. K.T. Shah, a member of constituent assembly.

22Upendra baxi : Developments in Indian Administrative Law.

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The theory signifies the following three different things:3

1. That the same person should not form more than one of the three departments of the
government;
2. That one department of the government should not interfere with any other department;
3. That one department of the government should not exercise the functions assigned to any
other department.
Thus the doctrine lays emphasis on the separation both at the functional as well as personal level.
In an ideal set-up the separation in both these aspects should be clear and complete.
According to Montesquieu, If the executive and the legislature are the same body of person
there would be a danger of the legislature enacting tyrannical laws which the executive will
administer to attain for its own ends. He further said that if one person or body of persons could
exercise both the executive and judicial powers in the same matter there would be arbitrary
power which would amount to complete severity and there would be no objectivity of law.4
The doctrine of separation of powers means that no one person or body should be vested with all
three types of powers. There must be a division of functions on the following basis: the
legislature should make laws, the executive must administer the made laws and the judiciary
must determine rights and uphold justice. Such separation is necessary in order to ensure that
justice does not become arbitrary.
This idea of this theory stems from the logical concept that if the law-makers should also be the
administrators of law and justice, then the people at large will be left without remedy in case any
injustice is done as there will be no superior authority. The concentration of power in one person
or a group of persons results in tyranny. And thus, for decentralization of power to check
arbitrariness, there is a need for vesting the governmental power in three different organs. The
3 Vanderbilt- The doctrine of separation of powers and its present day significance,
page, 38-45.
4 Prof. U.P.D. Kesari : Administrative law, page, 19-25
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principle implies that each organ should be independent of the other and that no organ should
perform functions that belong to the other.
The doctrine of separation of powers has become an important part of the governmental
structure. But, the practical application of the doctrine differs from structural provision. In
theory, the doctrine of separation of powers is supposed to have a classification of functions and
corresponding organs. But because of the complex nature of a modern state, where the process of
law making, administration and adjudication cannot be clearly assigned to separate institutions,
the application of this doctrine in strict sense is very difficult thats why there is functional and
personal overlapping exist in our system.
We know that the government is form for the protection of our rights, but governments have
historically been the major violators of these rights. The concept of Separation of Powers is one
such concept. The basic concept behind this is that when a single person or group has a large
amount of power, they can become dangerous to society and citizens. The Separation of power is
a way of removing the amount of power in any groups hands, making it more difficult to use.

Doctrine of Separation of Powers in India:

There are three distinct functions in the Government through which the will of the people are
expressed. The legislative organ of the state makes laws, the executive forces them and the
judiciary applies them to the specific cases arising out of the breach of law. Each department
performs its functions within own sphere of working. Thus, even when acting in ambit of their
own power, overlapping functions tend to appear amongst these organs. The question which is
important here is that what should be the relation among these three organs of the state, i.e.
whether there should be complete separation of powers or there should be co-ordination among
them. The other advantage of judiciary being the arbiter of legality or otherwise of an executive
or legislative decision is that, even if a particular verdict is wrong or socially unacceptable, it is
subject to review and reversal. This not usually the case with legislative or executive decisions
unless the government of the day so decides. A citizen has no legal right to ask for a review of
decisions taken by the legislature or the executive, even if they are not in the public interest. The
recent Right to Information Act is an important step forward in making the executive accountable
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to the people directly. However, in case of any unjust or partisan decisions taken by the
government, the remedy would still lie with the Judiciary. As is the case in India, all the judges
of the Supreme Court are entitled to take their own separate views on the intent of the
Constitution and vote accordingly.

Constitutional position:
The Constitution of India shows the idea of separation of powers in an implied manner. By
looking into various provisions of the Constitution, it is evident that the Constitution intends that
the powers of legislation shall be exercised exclusively by the executive and judiciary. Similarly,
the judicial powers can be said to vest with the judiciary. The judiciary is independent and there
can be no interference with its jurisdiction either by the Executive or by the Legislature. The
executive powers of the Union and the State are vested in the President and the Governor
respectively.
The constitution of India lays down functional separation of the organs in the following
manner:
According to Indian Constitution State shall take steps to separate the judiciary from the
executive. This is for the purpose of ensuring the independence of judiciary.5 Constitutional
provision provides validity of proceedings in Parliament and the Legislatures cannot be called
into question in any Court within the territory of India. 6 Judicial conduct of a judge of the
Supreme Court and the High Courts cannot be discussed in the Parliament and the State
Legislature, according to the Constitution.7 The executive power of the Union and the State shall
be vested with the President and the Governor and according to Article 361 they enjoy immunity
from civil and criminal liability.8
5 Article 50.
6 Article 122 and 212.
7 Article 121 and 211.
8 Article 53 and 154.
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Our legislature has law making powers and judicial powers in cases of breach of its privilege,
impeachment of the President and the removal of the judges. The executive may affect the
functioning of the judiciary by making appointments to the office of Chief Justice and other
judges. Legislature exercising judicial powers in the case of amending a law declared ultra vires
or unconstitutional by the Court. While discharging the function of disqualifying its members
and impeachment of the judges, the legislature discharges the functions of the judiciary. In
certain cases legislature can impose punishment for exceeding freedom of speech in the
Parliament; this comes under the powers and privileges of the parliament.
Applying the doctrines of constitutional provision in the Indian scenario, a system is created
where none of the department can usurp the functions or powers which are vested into another
organ by express. Further, the Constitution of India expressly provides for a system of checks
and balances in order to prevent the arbitrary use of power. It is essential in order to enable the
just and equitable functioning of such a constitutional system. By giving such powers, a
mechanism for the control over the exercise of constitutional powers by the respective organs is
mentioned.
This clearly indicates that the Indian Constitution in its function does not provide for a strict
separation of powers in India. Instead, it creates a system consisting of the three departments of
Government and confers upon them both exclusive and overlapping powers and functions. Thus,
there is no absolute separation of functions between the three departments of Government.

Practical application of the doctrine in India:

Functional overlapping:
In India, not only functional overlapping is there but personnel overlapping also exists. The
Supreme Court has the power to declare unconstitutional any laws passed by the legislature and
the actions taken by the executive if they violate any provision of the Constitution. Even the
power to amend the constitution by Parliament is subject to the review of the Court. The Court
can declare any amendment void if it violates the basic structure of the Constitution. The
President of India who is executive head exercises law-making power in the shape of ordinance-

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making power and also the judicial powers.9 The council of Ministers is selected from the
legislature and is responsible to the legislature.
In case of Pratibha v State of Karnataka,10 the court has observed that since the executive power
of the state executive is co-extensive with that of the state legislature, it follows that the state
executive may make rule regarding any matter within the legislative competence of the state
legislature, without prior legislative authority, except where a law is required because the rule so
framed would violate any provision of the constitution which requires legislation, e.g., Articles
265 and 302/162.
The Supreme Court in case of Shri Sitaram Sugar co. ltd. V Union of India,11 has observed that
In general, the court, would not exercise its power of judicial review to interfere with a policy
made by the government in exercise of its power under Article 162, particularly where it involves
technical, scientific or economic expertise. Proper functioning of state administration should not
be jeopardized owing to ego clashes between high officers. Such officers should be aware that
power should be exercised for public good, and not for personal benefit.
The Supreme Court in case of Harish Uppal v Union of India,12 has observed that the Supreme
Court power to frame rules including rules regarding condition on which a person (including an
advocate) can practice in the Supreme Court. Such a rule would be valid and binding on all. Such
a rule if framed would not have anything to do with the disciplinary jurisdiction of Bar
Councils.13

Check and Balance:

The separation of powers is a doctrine which provides a separate authority, which makes it
possible for the authorities to check the functions of each others. The Supreme Court in Indira
9 Article 103(1) and 217(3).
10 AIR 1991 Kant 205.
11 AIR 1990 SC 1277: (1990) 3 SCC 223.
12 AIR 2003 SC 739: (2003) 2 SCC 45: (2003) 1 KLT 192.
13 Article 145.
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Nehru Gandhi v. Raj Narain,14 it held that separation of powers is a feature of the basic structure
of the Indian constitution. None of the three separate departments of the republic can take over
the functions assigned to the other. This constitutional scheme cannot be changed even by
resorting to amending process under Article 368 of the Indian constitution.
Where any Act made by the legislature is invalidated by the courts on the ground of legislative
incompetence, the legislature cannot enact a law declaring that the judgment of the court shall
not operate, it cannot overrule the decision of the court. This is what is meant by check and
balance inherent in a system of government incorporating separation of powers.
The logic behind this doctrine is still valid and relevant. Therefore, mutual restraint in the
exercise of power by the three departments of the State is the soul of the doctrine of separation of
powers. Hence the doctrine can be better appreciated as a doctrine of check and balance and in
this sense administrative process is not an antithesis of the doctrine of separation of powers.
The debate about the doctrine of separation of powers in regard to Indian governance is as old as
the Constitution itself. Apart from the directive principles laid down in Part-IV of the
constitution which provides for separation of judiciary from the executive, the constitutional
provision does not provide any formalistic division of powers. It appeared in various judgments
by the Supreme Court after the Constitution was adopted. It is through these judicial decisions,
passed from time to time, that the boundaries of application of the doctrine have been
determined.

Judicial opinion on the doctrine of separation of powers:

Justice Mahajan took note of this point and stated in the famous case of re Delhi Laws Act case15
that except where the constitution has vested power in a body, the principle that one department
should not perform functions which essentially belong to others in India. By a majority of 5:2,
the Court held that the theory of separation of powers though not part of our Constitution, in
exceptional circumstances is evident in the provisions of the Constitution itself.
14 AIR 1975 SC 2299.
15 AIR 1951 SC 747.
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To the same effect is the observation of Justice Das in Ram Krishna Dalmia v Justice Tendolkar 16
that the constitution does not express the existence of separation of powers, and it is true that
division of powers of the government into legislative, executive and judiciary is implicit in the
constitution but the doctrine does not form an essential basis of foundation-stone of the
constitutional framework as it does in U.S.A.
Again in Udai Ram Sharma v Union of India,17 the court categorically stated that the doctrine has
not been accepted by our constitution. The court expressed its opinion that the American doctrine
of separation of powers has no application in India.
The doctrine of separation of powers was expressly recognized to be a part of the Constitution in
the case of Ram Jawaya Kapur v. State of Punjab,18 where the Court observed that the doctrine of
separation of powers is not expressly mentioned in the Constitution but it stands to be violated
when the functions of one department of Government are performed by another.
The supreme court in the case of Asif Hamid v. State of Jammu & Kashmir,19 has observed that
Legislature, executive and judiciary have to function within their own sphere as mentioned under
the constitution. The functioning of the democracy depends upon the strength and independence
of each of its departments. Judicial review is a powerful weapon to restrain unconstitutional
exercise of power by the legislature and executive. Judicial review is like social and economic
justice. While exercise of powers by the legislature and executive is subject to judicial restraint,
the only check on our own exercise of power is the self-imposed discipline of judicial restraint.

16 1959 SCR 229: see also Jayanti Lal v S.M. Ram, AIR 1964 SC 649.
17 AIR 1968 SC 1138.
18 AIR 1955 SC 549 at 556.
19 AIR 1989 SC 1899.
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It was after the landmark case of Indira Nehru Gandhi v. Raj Narain 20 that the place of this
doctrine in the Indian context was made clear. It was observed by the Supreme Court that in the
Indian Constitution, there is separation of powers in its provision only. A rigid separation of
powers as under the American Constitution or under the Australian Constitution does not apply
to India. Chandrachud J. also observed that the political usefulness of the doctrine of Separation
of Power is not widely recognized. No Constitution can survive without a conscious provision to
its fine check and balance.
In I.C. Golak Nath v. State of Punjab,21 Supreme Court took the help of doctrine of basic
structure as propounded in Kesvananda Bharati case22 and said that 9th Schedule is violative of
this doctrine and hence the 9th Schedule was made amenable to judicial review which also forms
part of the basic structure. The Constitution brings into existence different constitutional entities,
namely, the Union, the States and the Union lists. It creates three major instruments of power,
namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely
and expects them to exercise their respective powers without overstepping their limits. They
should function within the spheres given to them.
But in I.R. Coelho (dead) by L.Rs v State of Tamil Nadu,23 the Supreme Court observed that the
constitution is living document. The constitutional provisions have to be construed having regard
to the march of time and the development of law. The principle of constitutionalism is now a
legal principle which requires control over the exercise of governmental power to ensure that it
does not destroy the democratic principles including the protection of fundamental rights. The
principle of constitutionalism advocates a check and balance model of separation of powers. It
requires a diffusion of powers, necessitating different independent centers of decisions-making.
The legislature can restrict fundamental rights but it is impossible for law protecting fundamental
20 (1975) supp SCC 1, 260.
21 (1975) supp SCC 1: AIR 1975 SC 2299.
22(1973) 4 SCC 225: AIR 1973 SC 1461.
23 AIR 2007 SC 861.
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right to be impliedly repealed by future statutes. The protection of fundamental rights through the
common law is main feature of common law constitutionalism.

Conclusion
The doctrine of separation of powers has come a long way from its theoretical form. The mere
separation of powers between the three departments is not sufficient for the elimination of the
dangers of arbitrary government. Therefore, a system of checks and balances is a practical
necessity in order to achieve the successful end of the doctrine of separation of powers. Such a
system like separation of power is necessary in order to strengthen its actual usage. It is evident
that governments in their actual operation do not opt for the strict separation of powers because it
is impracticable, however, application of this concept can be seen in almost all the countries in its
mixed form. India relies heavily upon the doctrine in order to regulate, check and control the
exercise of power by the three departments of Government. Whether it is in theory or in practical
aspect, the Doctrine of Separation of Powers is essential for the effective functioning of a
democracy. Therefore, the Doctrine of separation of Powers in todays context of
Liberalization, privatization and globalization cannot be interpreted to mean either separation of
powers or check and balance or principle of restraint but community of powers exercised in
the spirit of cooperation by various departments of the State in the best interest of the people.
It is to be noted that the doctrine of separation of powers should not be taken to mean that the
executive and the legislature cannot be directed by the judiciary to discharge their functions if
they are found inactive in discharging of the function assigned to them by the constitution. The
Supreme Court has been made the guardian and protector of the constitution and therefore it can
direct the legislature and executive to discharge their function properly. The judiciary in India, in
addition to the judicial function, has been assigned the functioning to see that the constitution is
not violated by any authority including the executive and the legislature. For the maintenance of
rule of law in the country it is necessary that each department of the government perform its
functions properly.

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Bibliography:
Books referred:
1. Administrative Law by Prof. U.P.D. Kesari (Page 19-25),
2. Administrative Law by Kailash Rai (Page 43),
3. The Indian Administrative Law by M.C. Jain Kagzi (Page 15-20),
4. Administrative Law by I.P. Massey (Page 33),
5. Administrative Law by Durga Das Basu,
6. Introduction To Administrative Law by Prof. Neil Hawke and Neil Papworth,
7. Principles of Administrative Law by M.P. Jain and S.N. Jain (Page 31-37),
8. Administrative Law by S.P. Sathe (Page 20-23),
9. Administrative Law by D.D. Basu (Page 23-28),
10. Administrative Law by Wade (Page 251),
11. Developments in India Administrative Law by Upendra Baxi (Page 136),
12. Indian constitutional Law by M.P. Jain (Page 115-119),
13. Changing face of Administrative Law by M.P. Jain (Page 80-98),
14. Lectures on Administrative Law by C.K. Takwani,
15. The constitution of India by P.M. Bakshi.
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Websites:
1. http://airwebworld.com/articles/index.php?article=1531
2. http://www.legalquest.in/index.php/students/law-study-materials/45-administrative3.
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law/407-doctrine-of-separation-of-powers.html
http://www.pucl.org/Topics/Law/2006/seperation-of-powers.html
http://indiankanoon.org/doc/1274763/
http://indiankanoon.org/doc/342033/
http://indiankanoon.org/doc/748977/
http://indiankanoon.org/doc/748977/
Polybius and the Founding Fathers: the separation of powers
Arbitrary Government Described and the Government of the Massachusetts Vindicated

from that Aspersion (1644)

10. http://legalservicesindia.com/article/article/separation-of-power-in-india-&-usa-4831.html
11. http://www.lawyersclubindia.com/articles/-Separation-of-Powers-EncroachingBoundaries3014.asp
12. http://www.pucl.org/Topics/Law/2006/seperation-of-powers.html

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