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Separation Of Power And Indian Constitution

The doctrine of Separation of Powers emphasizes mutual exclusiveness of the three organs of the government viz., legislature, executive and judiciary. The rationale behind the doctrine is that concentration of power in one hand leads to tyranny.

It is an old saying that power corrupts and absolute power corrupts absolutely. Separation of power is an anti-dote to this accumulation of power in one man or body. The credit for the origin of the doctrine of separation of power can be given to notable jurists like Locke and Montesquieu.

In The Second Treatise of Government (1689), John Locke drew a distinction amongst the three powers viz., legislature, executive and judiciary. Though Locke's analysis doesn't strictly speak of independence of the three organs as he opines that:
They are always almost united' in the hands of the same person, it does at least classifies the three organs.

The doctrine, however, saw its detailed expansion in the hands of Charles Louis de Second at otherwise known as Baron de Montesquieu. He believed that history of despots like Tudors and Stuarts show that freedom wasn't secured if executive and legislative powers are held in the same hands.

In his book De L'Esprit des Lois (The Spirit of the Laws), published in the year 1748, Montesquieu said:
When legislative power is united with executive power in a single person or in a single body of the magistrates, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will executive them tyrannically. Nor is there liberty if the power of judging is not separate from legislative power and from executive power.

If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor. All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.

Separation of Powers in India
The Indian Constitution, though not in its entirety, does incorporate the principle of separation of power within its provisions. The doctrine is a part of the basic structure of the Indian Constitution. For instance, Article 50 puts an obligation upon the State to separate the judiciary and the executive. Under Article 123, the President being the executive head of the country has powers to exercise legislative powers in certain conditions.

Articles 121 and 211 provide that the legislatures i.e. the Parliament and the State Assembly cannot discuss the conduct of the judge of Supreme Courts or any of the High Courts. This can be done only in case of impeachment. As per Article 361, the President and the Governors enjoy immunity from court proceedings.

There is also a system of checks and balances as well since India doesn't implement the doctrine in its strict sense. Judiciary has power of judicial review over the actions of the executive and the legislature so much so that the Union and State governments are the biggest litigants before the constitutional courts in India.

The judiciary also has power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per the provisions under Article 13 of the Constitution. It can also declare unconstitutional executive actions as void. The legislature has power to review actions of executive.

Though the judiciary is independent, judges are appointed by executive though the job of the executive in this case is purely mechanical as they have to make appointment on recommendations made by the Chief Justice of India or the Chief Justices of High Courts and cannot act independently on their own accord. The legislature can alter or annul a judgment by bringing out a new legislation. Any legislation passed by the legislature or any action of the executive, is subject to the test of constitutionality before the judiciary.

The legislature may at times delegate its power of legislation upon the executive in certain cases. This is also known as delegated legislation. However, in such case the power is limited and again subject to judicial review.

The power of judicial review of the judiciary is very vast. The judiciary in this country can review any law, order, bye-law, ordinance, rule, on the touchstone of the Constitution. This it can do on a petition filed before it or even suo moto.

Judicial pronouncements
Article 368 of the Indian Constitution gives the legislature the power to amend the constitution. This power was limited by the Honorable Supreme Court of India in the case of Kesavananda Bharati and others v. State of Kerala and another.[1]

Herein, the apex court held that the power of amendment is subject to the basic structure of the Constitution. Any amendment violating the basic feature will be declared unconstitutional.

The Indian Constitution doesn't make any absolute or rigid separation of powers of the three organs viz., the legislature, the executive and the judiciary, owing to its pro-responsibility approach rather than having stability at the centre stage.[2]

In another case it was held that as per the Indian constitution, the legal sovereign power has been distributed among the legislature to make the law, the executive to implement it and the judiciary to interpret it within the limits set down by the Constitution.[3] Thus, all the three organs are subject the supreme authority i.e. the Indian Constitution.

In I.R. Coelho v. State of Tamil Nadu[4], the Supreme Court took help of the doctrine of basic structure as propounded in the Kesavananda Bhari case and said that the Ninth Schedule that granted blanket protection to certain legislations from judicial review is violative of this doctrine.

Separation of powers is vital to protect any responsible democracy from turning into a tyrannical state. However, absolute separation of power is detrimental to the development of any society. Thus, though it is important that power shouldn't get concentrated in one hand, a system of checks and balances must be maintained for a smooth functioning.


  1. AIR 1973 SC 1461.
  2. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.
  3. Kartar Singh v. State of Punjab, AIR 1967 SC 1643.
  4. 2007 (2) SCC 1.
Written By: Syed Aatif a practicing advocate at the Central Administrative Tribunal, Delhi High Court and Supreme Court. Email: [email protected]

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