SEPARATION OF POWERS IN INDIA

A STUDY ON SEPARATION OF POWERS IN INDIA

Chitra C1
Malaimagal S2

Abstract:
The Supreme Court applies the structural provisions of the Constitution by wishing on
associate Overarching framework of “separation of powers.” In Indian Constitution, there
square measure mentioned provisions in regard to separation of power however there's
functional overlapping. These theories admit a separate separation of powers principle
derived from the structure of the document as an entire, each contradict the concept that the
Indian Constitution could be a “bundle of compromises” that interpreters should respect if
they're to indicate fidelity to the Constitution creating method. Our constitution did not
mention the clear provisions of separation of powers. Yet, by the perusal of the articles and
their arrangement one could easily understand that the framers of the constitution too inclined
towards the Doctrine of Separation of powers. All the executive powers have been vested in
president. All the legislative powers are vested in the parliament and the state legislatures
subject to the conditions laid down. All the judicial powers are vested in the Supreme Court.
The paper discusses about the doctrine of separation of powers in the Indian Constitution and
about the judicial opinion on the philosophical system of separation of powers and also about
the practical application of the philosophical system in India and checks and balances. The
story reveals that the start generation had no single baseline against that to live what “the
separation of powers” would have needed within the abstract. To analyse the separation of
powers philosophical system, the speculation facet are going to be restricted, and a
comprehensive beneath standing of the philosophical system as employed in our country
under our parliamentary system of governance are going to be created.

Keywords: separation of powers, functional overlapping, checks and balances, three wings
constitutional provisions.

1
3rd year, BBA LL.B., Saveetha School Of Law, Saveetha Institute Of Medical and Technical Science , Tamil
Nadu, India.(chitrac11898.cc@gmail.com)
2
Assistant Professor, Saveetha School Of Law, Saveetha Institute Of Medical and Technical Sciences, Tamil
Nadu, India.(malaimagals.ssl@saveetha.com)
 SEPARATION OF POWERS IN INDIA

Introduction
In India, the philosophical system cannot claim any historical background. The assembly
didn't seem as a body break free the chief until the centre of nineteenth century. The
philosophical system of separation of powers has not been accorded a constitutional standing.
it had been solely once the independence that a constituent assembly was entrenched to draft
a constitution for the country. There was a proposals incorporate the philosophical system in
to the constitution however it had been turned down. The philosophical system of separation
of power isn't followed strictly. With the exception of the directive principle of state policy
ordered down in article fifty that talks concerning separation of judiciary from the chief, the
constitutional theme doesn't embody any practice division of powers.
In India, there square measure three main classes of governmental functions:
i. Legislative
ii. Executive
iii. Judiciary.
According to the idea of Separation of Powers, these three departments of the govt. should in
a very free democracy, perpetually be unbroken separate by three separate department of the
govt. The operate of the assembly is to form laws whereas the operate of the chief is to
execute them which of the judiciary is to enforce and interpret them3. None of those three
departments ought to interfere with exercise of the functions of the opposite departments.
One department shouldn't exercise the functions of another department.
The theory signifies the subsequent three totally different things:
1. That an equivalent person shouldn't kind quite one among the three departments of the
government;
2. That one department of the govt. shouldn't interfere with the other department;
3. That one department of the govt. shouldn't exercise the functions assigned to the other
department.
Thus the philosophical system lays stress on the separation each at the purposeful in addition
as personal level. In a perfect set-up the separation in each these aspects ought to be clear and
complete.4

3
http://www.preservearticles.com/201106258655/6-valid-criticism-against-the-theory-of-doctrine-separation-of-
powers.html
4
http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/9/10_chapter%204.pdf
 SEPARATION OF POWERS IN INDIA

According to Baron de la Brede et de Montesquieu, “If the chief and therefore the assembly
square measure an equivalent body of person there would be a danger of the assembly
enacting tyrannical laws that the chief can administer to realise for its own ends. He
additional aforementioned that if one person or body of persons might exercise each the chief
and judicial powers within the same matter there would be discretional power which might
quantity to finish severity and there would be no perspicacity of law.”
The philosophical system of separation of powers has become a very important a part of the
governmental structure. But, the sensible application of the philosophical system differs from
structural provision5. The paper discusses about the separation of powers in India, the judicial
opinion on the philosophical system of separation of powers and the practical application of
the philosophical system in India.

Objectives
 To study about the Doctrine of Separation of powers in India.
 To analyse about the judicial opinion on the philosophical system of separation of
powers.
 To discuss about the Practical application of the philosophical system in India.

Research Methodology
The research is doctrinal in nature. The sources are collected from the secondary data like
books, e-sources etc.

Hypothesis
 The three organs of the Government do not exercise their power independently in
Constitution of India.
 The three organs of the Government shall exercise their independently in Constitution
of India.

5
http://www.ijsrp.org/research-paper-1113/ijsrp-p2337.pdf
 SEPARATION OF POWERS IN INDIA

Review of Literature
1. The author6 in this article discusses about the separation and powers and the three
important wings of the Government ie. The executive, legislative and judicial. It also
specifies that at a time a person could not exercise these three powers. And also
speaks about separation of powers in different constitutions.

2. The author7 broadly explains that there is associate underlying affiliation between the
principles of rule of law and separation of power. In a system ruled by rule of law
there shouldn't be any absolute power being run at the whims of those having the
repository of an equivalent. Thus if there's no repository of power within the first
place; then possibilities of the facility being exercised fancifully by a body become
even scantier and distant.

3. The author8 clearly explains about the philosophy of Separation of Powers deals with
the mutual relations among the three organs of the govt. specifically assembly, govt
and judiciary. The origin of this principle goes back to the amount of Plato and
Aristotle. It absolutely was philosopher who for the primary time classified the
functions of the Government into 3 classes viz., executive, legislative and judicial.

4. The author9 broadly explains about the view of Montesquie about the separation of
powers and also about the checks and balances. India is the country which follows the
parliamentary system of Government which issues a very clear cut view of the
separation of powers.

6
Aman Chhibber, Separation of powers-Its Role and changing equations
(http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html)
7
Supallab Chakraborty, Zaki Farhan Khan, Seperation of Powers
(http://ijldai.thelawbrigade.com/wp-content/uploads/2015/09/25.pdf)
8
Tej Bahadur Singh, Separation of Powers (http://ijtr.nic.in/articles/art35.pdf)
9
Rajkishore,Sperationof Powers
(https://www.slideshare.net/rajkishorkumawat526/separation-of-powers-45771566)
 SEPARATION OF POWERS IN INDIA

Doctrine of Separation of Powers in India:

There square measure three distinct functions within the Government through that the need of
the folks square measure expressed. The legislative organ of the state makes laws, the chief
forces them and therefore the judiciary applies them to the precise cases arising out of the
breach of law. Every department performs its functions inside own sphere of operating. Thus,
even once acting in extent of their own power, overlapping functions tend to seem amongst
these organs. The question that is very important here is that what ought to be the relation
among these three organs of the state, i.e. whether or not there ought to be complete
separation of powers or there ought to be co-ordination among them. the opposite advantage
10
of judiciary being the arbiter of lawfulness or otherwise of associate government or
legislative call is that, notwithstanding a selected finding is wrong or socially unacceptable,
it's subject to review and reversal. This not typically the case with legislative or government
selections unless the govt. of the day thus decides. A subject has no right to evoke a review of
choices taken by the assembly or the chief, notwithstanding they're not within the public
interest. The recent Right to info Act is a very important breakthrough in creating the chief
responsible to the folks directly. However, just in case of any unjust or partisan selections
taken by the govt., the remedy would still bang the Judiciary. As is that the case in Asian
country, all the judges of the Supreme Court square measure entitled to require their own
separate views on the intent of the Constitution and vote consequently.

Constitutional position:
The Constitution of Asian country shows the concept of separation of powers in associate
understood manner. By wanting into varied provisions of the Constitution, it's evident that the
Constitution intends that the powers of legislation shall be exercised completely by the chief
and judiciary. Similarly, the judicial powers may be aforementioned to vest with the
judiciary. The judiciary is freelance and there may be no interference with its jurisdiction
either by the chief or by the assembly. The executive powers of the Union and therefore the
State square measure unconditional within the President and therefore the Governor
severally.
The constitution of Asian country lays down purposeful separation of the organs within the
following manner:

10
https://www.lawteacher.net/free-law-essays/constitutional-law/indian-constitution-and-separation-of-powers-
constitutional-law-essay.php
 SEPARATION OF POWERS IN INDIA

According to Indian American state shall take steps to separate the judiciary from the chief.
this can be for the aim of making certain the independence of judiciary. Constitutional
provision provides validity of proceedings in Parliament and therefore the Legislatures can
not be known as into question in any Court inside the territory of Asian country11. Judicial
conduct of a decide of the Supreme Court and therefore the High Court’s can not be
mentioned within the Parliament and therefore the State assembly, per the Constitution. the
chief power of the Union and therefore the State shall be unconditional with the President and
therefore12 the Governor and per Article 361 they fancy immunity from civil and criminal
liability.
Applying the doctrines of constitutional provision within the Indian situation, a system is
formed wherever none of the department will usurp the functions or powers that square
measure unconditional into another organ by specific. Further, the Constitution of Asian
country expressly provides for a system of checks and balances so as to stop the discretional
use of power. it's essential so as to change the simply and just functioning of such a
constitutional system.13 By giving such powers, a mechanism for the management over the
exercise of constitutional powers by the several organs is mentioned.
This clearly indicates that the Asian country Constitution in its operate doesn't give for a
strict separation of powers in India. Instead, it creates a system consisting of the 3
departments of state and confers upon them each exclusive and overlapping powers and
functions. Thus, there's no absolute separation of functions between the 3 departments of
state.
Practical application of the philosophical system in India:
Functional overlapping:
In India, not solely ‘functional overlapping’ is there however ‘personnel overlapping’
additionally exists. The Supreme Court has the ability to declare unconstitutional any laws
elapsed the assembly and therefore the actions taken by the chief if they violate any provision
of the Constitution. Even the ability to amend the constitution by Parliament is subject to the
review of the Court. The Court will declare any change void if it violates the essential
structure of the Constitution. The President of Asian country UN agency is government head
exercises law-making power within the form of ordinance-making power and additionally the

11
http://racolblegal.com/administrative-law-with-special-reference-to-doctrine-of-separation-of-powers/
12
http://ijtr.nic.in/articles/art35.pdf
13
https://www.lawctopus.com/academike/doctrine-of-separation-of-powers/
 SEPARATION OF POWERS IN INDIA

judicial powers. The council of Ministers is chosen from the assembly and is accountable to
the assembly.14
In case of Pratibha v State of province, the court has ascertained that since power of the state
executive is co-extensive therewith of the state assembly, it follows that the state government
could create rule concerning any matter inside the legislative ability of the state assembly,
while not previous legislative authority, except wherever a law is needed as a result of the
rule thus framed would violate any provision of the constitution which needs legislation, e.g.,
Articles 265 and 302/162.The Supreme Court just in case of Shri Sitaram Sugar co. ltd. V
15
Union of Asian country, has ascertained that normally, the court, wouldn't exercise its
power of review to interfere with a policy created by the govt. in exercise of its power
beneath Article 162, significantly wherever it involves technical, scientific or economic
experience. correct functioning of state administration shouldn't be jeopardised thanks to ego
clashes between high officers. Such officers ought to bear in mind that power ought to be
exercised for public sensible, and not for private profit.

Checks and Balance:

The separation of powers could be a philosophical system that provides a separate authority,
that makes it doable for the authorities to see the functions of every others. The Supreme
Court in IndiraNehru Gandhi v. Raj Narain, it command that separation of powers could be a
feature of the essential structure of the Indian constitution. None of the three separate
departments of the republic will take over the functions assigned to the opposite. This
constitutional theme can not be modified even by resorting to amending method beneath
Article 368 of the Indian constitution.16
Where any Act created by the assembly is nullified by the courts on the bottom of legislative
incompetence, the assembly cannot enact a law declaring that the judgment of the court shall
not operate, it cannot overturn the choice of the court. this can be what's meant by “check and
balance” inherent in a very system of state incorporating separation of powers.
The logic behind this philosophical system continues to be valid and relevant. Therefore,
mutual restraint within the exercise of power17 by the three departments of the State is that
the soul of the philosophical system of separation of powers. Therefore the philosophical

14
http://iclrq.in/editions/apr/9.pdf
15
https://lawrato.com/indian-kanoon/civil-law/separation-of-powers-in-administrative-law-in-india-640
16
https://poseidon01.ssrn.com/delivery.php.
17
https://www.civilserviceindia.com/subject/General-Studies/notes/separation-of-powers-between-various-
organs.html
 SEPARATION OF POWERS IN INDIA

system may be higher appreciated as a ‘doctrine of check associated balance’ and during this
sense body method isn't an antithesis of the ‘doctrine of separation of powers’.
The debate concerning the philosophical system of separation of powers in relevancy Indian
governance is as previous because the Constitution itself. With the exception of the directive
principles ordered down in Part-IV of the constitution that provides for separation of
judiciary from the chief, the constitutional provision doesn't give any practice division of
powers. It appeared in varied judgments by the Supreme Court once the Constitution was
adopted. it's through these judicial selections, passed from time to time, that the boundaries of
application of the philosophical system are determined.18

Judicial opinion on the philosophical system of separation of powers:

Justice Mahajan took note of this time and expressed within the famed case of re urban centre
Laws Act case that except wherever the constitution has unconditional power in a very
body19, the principle that one department should not perform functions20 that basically belong
to others in Asian country. By a majority of 5:2, the Court command that the idea of
separation of powers tho' not a part of our Constitution, in exceptional circumstances is clear
within the provisions of the Constitution itself.
The philosophical system of separation of powers was expressly recognized to be a
neighbourhood of the Constitution within the case of Ram Jawaya Kapur v. State of
geographic region, wherever the Court ascertained that the philosophical system of separation
of powers isn't expressly mentioned within the Constitution however it stands to be profaned
once the functions of one department of state square measure performed by another.
The supreme court within the case of Asif Hamid v. State of Jammu, has ascertained that
Legislature, government and judiciary got to operate inside their own sphere as mentioned
beneath the constitution. The functioning of the democracy depends upon the strength and
independence of every of its departments. Review could be a powerful weapon to restrain
unconstitutional exercise of power by the assembly and government. Review is like social
and economic justice. 21It had been ascertained by the Supreme Court that within the Indian
Constitution, there's separation of powers in its provision solely. A rigid separation of powers

18
http://www.raijmr.com/wpcontent/uploads/2017/11/IJRHS_2014_vol02_issue_04_07.pdf
19
https://www.scribd.com/doc/155578006/Doctrine-of-Separation-of-Powers-in-India#
20
https://www.abyssinialaw.com/about-us/item/302-separation-of-powers-as-a-limitation-on-administrative-law
21
https://www.legalbites.in/law-notes-administrative-law-separation-powers/
 SEPARATION OF POWERS IN INDIA

as beneath the yank Constitution or beneath the Australian Constitution doesn't apply to
Asian country. Chandrachud J. additionally ascertained that the political utility of the
philosophical system of Separation of Power isn't well known. No Constitution will survive
while not a acutely aware provision to its fine check and balance.”
In I.C. Golak Nath v. State of geographic region, Supreme Court took the assistance of
philosophical system of basic structure as propounded in Kesvananda Bharati case and
aforementioned that ninth Schedule is offensive of this philosophical system and therefore the
ninth Schedule was created amenable to review that additionally forms a part of the essential
structure. 22 The Constitution brings into existence totally different constitutional entities,
namely, the Union, the States and therefore the Union lists. It creates 3 major instruments of
power, namely, the assembly, the chief and therefore the Judiciary. It demarcates their
jurisdiction circumstantially and expects them to exercise their several powers while not
overstepping their limits. They ought to operate inside the spheres given to them.

22
https://pdfs.semanticscholar.org/f703/775b1ec104661fc5e4265a35a42fad3ad1a5.pdf
 SEPARATION OF POWERS IN INDIA

Conclusion
The philosophical system of separation of powers has come back a protracted manner from
its theoretical kind. The mere separation of powers between the three departments isn't spare
for the elimination of the hazards of discretional government. Therefore, a system of checks
and balances could be a sensible necessity so as to realise the prospering finish of the
philosophical system of separation of powers23. Such a system like separation of power is
critical so as to strengthen its actual usage. it's evident that governments in their actual
operation don't decide on the strict separation of powers as a result of it's unfeasible,
however, application of this idea may be seen in the majority the countries in its mixed kind.
Asian country depends heavily upon the philosophical system so as to control, check and
management the exercise of power by the three departments of state. Whether or not it's in
theory or in sensible side, the philosophical system of Separation of Powers is important for
the effective functioning of a democracy. Therefore, the “Doctrine of separation of Powers”
in today’s context of relief, privatization and globalisation can not be understood to mean
either ‘separation of powers’ or ‘check and balance’ or ‘principle of restraint’ however
community of powers exercised within the spirit of cooperation by varied departments of the
State within the best interest of the folks. It is to be noted that the philosophical system24 of
separation of powers shouldn't be taken to mean that the chief and therefore the assembly can
not be directed by the judiciary to discharge their operates if they're found inactive in
discharging of the function assigned to them by the constitution.

23
http://www.publishyourarticles.net/knowledge-hub/political-science/theory-of-separation-of-powers-meaning-
practical-effects-and-criticism/6005/
24
http://racolblegal.com/separation-of-powers-theory-practice-indian-perspective/
 SEPARATION OF POWERS IN INDIA

Reference
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07.pdf
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limitation-on-administrative-law
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administrative-law-in-india-640
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separation-of-powers/
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India#
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powers-between-various-organs.html
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theory-of-doctrine-separation-of-powers.html
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df
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21. Aman Chhibber, Separation of powers-Its Role and changing
equations(http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html)
22. Supallab Chakraborty, Zaki Farhan Khan, Seperation of Powers
(http://ijldai.thelawbrigade.com/wp-content/uploads/2015/09/25.pdf)
23. Tej Bahadur Singh, Separation of Powers (http://ijtr.nic.in/articles/art35.pdf)
24. Rajkishore,Sperationof Powers
(https://www.slideshare.net/rajkishorkumawat526/separation-of-powers-45771566)