ADMINISTRATIVE LAW – CRITICAL ANALYSIS OF APPLICATION OF

SEPARATION OF POWER THEORY IN INDIA

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NAME: SRISHTI ORAON

PRN: 18010126161
DIVISION: B
Introduction:

An ideal state is the one which safeguards individual liberty. The need of separation of powers is
not new but owes its existence since many years ago.  The Social Contract Theory on the origin
of state by John Locke paved way for separation of powers. Locke pleaded for separation of
legislature from the executive. J.S. Mill, the English intellect, was the first person to plead for the
liberty of the individual against legislative interference. Liberty can be protected only when
power is not abused and power cannot be abused when a system of checks and balances exists.
Concentration of power in the hands of a sole authority doesn’t yield in the betterment of the
state as the sole ruling authority has greed of power in his malice stuck mind.

James Madison was another scholar who in his Federalist paper no. 51 wrote about how to create
institutions which would check personal ambition of one branch of government by the other
because in his opinion, men are not angels and thus separation of powers is required.

In India, the governmental power is divided between the three organs, namely, legislature,
executive and judiciary. These organs are interlinked and their roles and functions tend to
overlap with each other, as it isn’t possible to separate the three from each other completely.

This has been the cause for not only serious political debate in the country but has also raised
many philosophic and jurisprudential debates among legal scholars and the law fraternity.
Whether there should be a complete separation of powers or a well co-ordinated system of
distribution of powers thus becomes the focal point of contemplation.

Therefore, this article emphasizes on the various pros and cons of the doctrine of separation of
powers in India, analyses the difference between the theory and the real practice of the same and
thereby gives the suggestions to imply the doctrine keeping in view the prevention of corruption
and maintenance of public interest.
History:

The doctrine of separation of powers is a model for the governance of both democratic and
federative states. This theory was first developed in ancient Greece and came into widespread
use in the reign of Roman Republic as part of their uncodified Constitution. The same doctrine
has also been a part of the marvels created by Plato and Aristotle. In the 16th and 17th centuries,
French philosopher John Bodin and British politician Locke also expressed their views about it.
But it was Montesquieu who for the first time formulated this doctrine systematically,
scientifically and accurately in his book ‘Esprit des Lois’ (The Spirit of the Laws), published in
the year 1748.

In essence, Montesquieu lays down that it was in the nature of authority to abuse it and that
unless clear limitations were laid down, arbitrary rule would be inevitable. According to him
each power should be exercised by a different organ of government and among the various
organs of government there should be a system of checks and balances so that one organ might
not become all powerful.
Montesquieu’s Theory of Separation of Powers: How it has been adopted in
India

“Power corrupts and absolute Power tends to corrupt absolutely”  ( said Lord Acton). For any
democratic government to remain stable and function efficiently as well as effectively, the
holders of power need to be put on a check against each other. This was the underlying principle
behind what was propounded by Baron de Montesquieu in his book Esperit de Lois 1748. The
Doctrine of Separation of Powers deals directly with the three organs of the government - the
legislature, the judiciary and the executive - and tries to instil exclusivity in their operation. The
fact of the matter remains that the Doctrine of Separation of Powers, as put forth and envisioned
by Montesquieu has not been implemented in its strict sense in India because it describes an
idealistic situation. In the Indian context, the three organs of government cannot be separated
into water-tight compartments and an adaptive and flexible principle of separation of powers is
followed instead.

The Theory of Separation of Powers has a few key elements to it as Montesquieu envisioned; (a)
The same person should not form a part of more than one of the three organs of the government.
(b) One organ of the government should not interfere with any other organ of the government.
(c) One organ of the government should not exercise the functions assigned to any other organ.
From a prima facie inspection in regards to these principles, it is clear that in India, there is a
functional overlapping in the three organs which deviates from Montesquieu’s third principle.
The Doctrine of Judicial review allows the courts to invalidate certain laws passed by the
legislature if they are unconstitutional while the executive can also be said to have certain impact
on the structure of the judiciary as it reserves the power to make appointments to the offices of
the chief justice and other judges. “Even in the United States of America where the Doctrine Of
Separation of powers finds itself most vigorously canvassed, it has not found favour in absolute
undiluted form”(Bakshi 1956, 553)1. The intermingling of certain functions thus becomes
inevitable. Durga Das Basu is of the view that “in modern practice, the theory of separation of
powers means an organic separation and the distinction must be drawn between 'essential' and
'incidental' powers and that one organ of government cannot usurp or encroach upon the essential

1
Bakshi, P. M. 1956 "Comparative Law: Separation of Powers in
India." American Bar Association Journal 42, no. 6 : 553-95. http:// www.jstor.org/stable/25719656
functions belonging to another organ, but may exercise some incidental function thereof” (Basu
2003, 24)2. This view can be read in light of the second principle that was put forward in
Montesquieu’s theory and it goes further to prove that the interpretation of his theory has not
been followed to the letter and its actual implementation diverges from the initial principle. This
points towards the inference that a straight jacket division of powers in the strict sense of the
Doctrine of Separation of Powers is undesirable in a democracy.

The water-tight separation of the functions of the three organs of the government is not only
unfeasible but also impractical as the inherent nature of their functions requires a certain degree
of interdependency. A situation where there is an absolute division between their powers or
functions would lead to less effective governance. Taking example of the judiciary, its legislative
functions include inter alia, making rules for its own practice and procedure and filling gaps in
law where the law remains silent on an issue which the courts are faced with. The executive
powers of the judiciary include the power to appoint officers and servants of the high court.
Although there are some intended overlaps between the functions or powers between the organs,
there still remains an essential and organic division between their powers as is clear from Bankey
Singh v Jhingan Singh, A.I.R [1952] Patna 166, where the court held that “"The State
Legislature is not competent to reverse the decisions and orders of the court because the power to
nullify the decrees and orders of the court is purely a judicial power and the Constitution does
not appear to have given jurisdiction to the legislature either expressly or by necessary
intendment to arrogate to itself the power to adjudicate a power which is exclusively within the
jurisdiction of the court.” The court in this case, took it upon itself to outline that the state
legislature overreached and encroached upon the powers of the judiciary in accordance with
Montesquieu’s second principle and this reaffirms that there exists a division of power between
the organs although it may not be water-tight.

The Doctrine of Separation of Powers, insofar as its implementation in India is concerned, has
neither been given official status in the constitution nor in any statute but has been recognised
and been given effect through decisions of the courts in specific regard to the Basic Structure
Doctrine. It can be argued that the Doctrine of Separation of Powers has been used as a “guiding
philosophy”(Garg 1964, 331-338) in governance in India. The Indian democratic system lays out
a framework which presupposes separation of powers, gives it effect and re-interprets it
2
Basu, DD 1986 Administrative Law Kamal Law House, Kolkata.
according to the requirements of effective governance. A complete and water-tight separation,
not only being an impossibility but of detrimental impact to the organs, can not be adopted in any
democratic state as has been realised in India. If there is one thing that remains constant
throughout the independent interpretations of the Doctrine of Separation of Powers in the
democracies throughout the world, it is that the independence of judiciary is of paramount
importance to maintain balance among the three organs of the government. It can therefore be
supported that “there can be no liberty if the judicial powers be not separated from the legislative
and the executive” (Garg 1964, 331-338)3. There would be an end of everything if the same body
was entrusted with the powers of the three separate organs and the life and liberty of the people
would become subject to arbitrary control, and the vitality of the Doctrine of Separation of
powers can be understood through the realisation of the consequences of it not being there in the
first place. Although, in theory a plain division of powers between the three organs of the
government as Baron de Montesquieu envisaged seems viable, In India and throughout the
democratic sphere, the doctrine can not be implemented in its strict sense.

Separation of Powers in India

3
Garg, B. L.1964 "Problem of the Separation of Judiciary in India." The Indian Journal of Political
Science 25, no. 3/4: 331-38. http:// www.jstor.org/stable/41854047
On reading the provisions of the Constitution of India, one may be inclined to say that the
Constitution accepts the doctrine of Separation of Powers. Under the Indian Constitution, the
executive powers are vested with the President, the legislative powers with the Parliament, and
the judicial powers with the judiciary (the Supreme Court, the High Courts and Subordinate
Courts). The President holds his office for a fixed period. His functions and powers are
enumerated in the Constitution itself. Parliament of India is competent to make any law, subject
to the provisions of the Constitution and there is no other limitation on its legislative power. It
can amend the law prospectively or even retrospectively but it cannot declare a judgment
delivered by a competent court void or of no effect. Parliament has also inherited all the powers,
privileges and immunities of the British House of Commons. Similarly, the judiciary is
independent in its field and there can be no interference with its judicial functions either by the
executive or the legislature. The Supreme Court and High Courts are given the power of judicial
review and they can declare any law passed by Parliament or Legislature as ultra vires or
unconstitutional.

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

The constitutional provisions do not declare the doctrine of Separation of Powers to be followed
in its strict sense. There is no provision in the Constitution of India itself regarding the division
of functions of the Government and the exercise thereof. Though under Articles 53(1) and
154(1), the executive power of the Union and of the States is vested in the President and the
Governors’ respectively, there is no corresponding provision vesting the legislative and judicial
power in any particular organ. Thus, the doctrine of Separation of Powers is not fully accepted in
the Constitution of India, and therefore the observations of Justice Mukherjea in Ram Jawaya v.
State of Punjab are important in this regard, wherein he stated that : “The Indian Constitution has
not indeed recognized the doctrine of Separation of Powers in its absolute rigidity but the
functions of the different parts or branches of the Government have been sufficiently
differentiated and consequently it can be very well be said that our Constitution does not
contemplate assumption, by one organ or part of the State, of functions that essentially belong to
one another.”

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

Each organ while performing its activities tends to interfere in the sphere of working of another
functionary because a strict demarcation of functions is not possible in their dealings with the
general public. Thus, even when acting in ambit of their own power, overlapping functions tend
to appear amongst these organs.View our services

In Ram Jawaya v. State of Punjab, the Hon’ble Supreme Court observed that we follow a
separation of functions and not of powers. And hence, we don’t abide by the principle in its
rigidity. An example of it can be seen in the exercise of functions by the Cabinet ministers, who
exercise both legislative and executive functions. Article 74(1) of the constitution of India, gives
them an upper hand over the executive by making their aid and advice mandatory for the formal
head. The executive, thus, is derived from the legislature and is dependent on it, for its
legitimacy.

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

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

Critical Analysis:
From the above observations, examples and case laws, it is quite evident that the doctrine of
separation of powers is only structural and not functional in India. Though the doctrine has been
accepted as the part of the basic structure of the Constitution by the Apex Court despite of not
being exclusively mentioned in the Constitution, it is still not practised in its true spirit. It is
agreed that the policy of separation of powers cannot be fully executed in its rigidity because of
the needs of the vast and diverse population in our country. But it certainly can be practised in a
modified form so as to avoid corruption and tyranny of any one organ of the government. The
modified form includes the division of the three branches structurally as well as functionally so
that any of the branches doesn’t act beyond the scope of its authority except in case of
emergency or application of checks and balances to prevent despotism.

Here, some important suggestions can be brought into light as preventive measures for tyranny.

The first and the foremost solution is Judicial Restraint. The Supreme Court of India has on
various occasions itself has highlighted the importance of judicial restraint for the maintenance
of the delicate balance of powers of the different limbs in a democracy. Justice Markandey Katju
in Minor Priyadarshini4 case has explained thus:

“Under the Constitution, the legislature, executive and judiciary have their own broad spheres of
operation.  It is, therefore, important that these three organs of the State do not encroach the
domain of another and confine themselves to their own, otherwise the delicate balance in the
Constitution will be upset…. The judiciary must therefore exercise self-restraint and eschew the
temptation to act as a Super legislature. By exercising restraint, it will only enhance its own
respect and prestige… Judicial restraint is consistent with and complementary to the balance of
power among the three independent branches of the State… If Judges act like legislators or
administrators it follows that judges should be elected like legislators or selected and trained like
administrators. The touchstone of an independent Judiciary has been its removal from the
political and administrative process… Thus, judicial restraint compliments the twin,
overreaching values of the independence of the judiciary and the separation of powers.”

Further, judicial restraint is important because judiciary is not accountable to any other branch or
any other authority. The executive actions are subject to judicial review if there is any departure
from the rule of law by their actions. The laws passed by the legislature can also be declared void
4
Priyadarshini vs. Secretary to Government, 2005 (3) CTC 449
if they are beyond Constitutional bounds. But when Judiciary is guilty of excesses, it is only
subject to public criticism or a larger Bench or a constitutional amendment can intervene. Hence,
judicial restraint is significant.

The next suggestion can be seen whereby the task of the court should be to compel the
authorities to act and to pass appropriate executive orders rather than substitute judicial orders
for administrative ones. They must be told how their duties are to be properly discharged and
then commanded to do so. For, this they must be held accountable to do so. Hence, there should
be answerability of the executive for the actions taken by them as directed by the judiciary.

Also, the legislature should not act as a passive spectator of the judicial orders, rather it should
be active and quick in making the required laws or amending the existing laws as directed by the
judiciary so that the judiciary doesn’t act as a super legislature and prevention of interference by
the judiciary can be achieved.

The last suggestion is that the executive should work in the enforcement of laws actively. Its
duties should be defined and its actions should be accountable. The President’s assent is the
reason for a number of pending bills in our country, hence this lethargic attitude should be
checked.

History has been the witness that concentration of power in the hands of one might have
conquered a number of wraths but never did such autocrat get success in achieving public faith.

Therefore, the doctrine of Montesquieu is not merely a myth it also carries a truth, but in the
sense that each organ of the Government should exercise its power on the principle of Checks
and Balances signifying the fact that none of the organs of Government should usurp the
essential functions of the other organs. In today’s environment this doctrine should be exercised
in the manner in which the best interest of the citizens can be achieved.

The rights of the individuals are the arrows of the bow called the power of the authority. What
the power intends, the delegates follow and the men attain. The power is a failure until not
divided. The balance shall exist in order to save the state from its doomed wrath.

Conclusion:
From the 1980s, much of the debate on separation of powers has taken place due to the proactive
role being played by the judiciary and even to this day the latter is passing through a defining
moment. After having gone through the shameful phase of total subjugation under the Indira
Gandhi regime, the judiciary had been attempting, since the lifting of the Emergency, to reinvent
its role as an independent institution. This was done through steps like evolving the concept of
public interest litigation (PIL) and suo motu intervention in many cases involving the
marginalised sections of the society.

Such activism has drawn ire from legislators and administrators who feel threatened by what
they perceive as an alternative power centre, with Lok Sabha speaker Somnath Chatterjee going
to the extent of denouncing judicial activism as an attack on democracy. [22]

Mention must be also made of the recent attempts of the executive to take over certain judicial
functions as had been enumerated by the author in the third chapter of this project.

The judiciary, the executive and the legislature have generally managed to work out a
compromise formulae on disputes that pose a threat to the status quo, with the apex court
intervening to save the situation and for the interest of the smooth and conducive relations
between the three organs it is hoped that there will never arise a stalemate situation in which one
organ’s functions have been completely subverted by the other.