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Critical Evaluation of Doctrine of Separation of Power in Indian Context

In a democracy like India, it is very difficult to establish a precise separation of power, and the function of one branch frequently overlaps with other. India is a quasi-federal country, and administration is divided into three organs also known as the three pillars of democracy, that is, legislature, executive and judiciary.

The doctrine has ancient philosophical origins, and the purpose of this article is to demonstrate how those roots have added in development of executive judiciary and legislative branch in Indian context as it stands today. This paper focuses on the Doctrine of Separation Power and how it works within India.

This paper will further focus on the nuances of this doctrine by critically analysing the concept of separation of power in Indian context. Lastly, through this paper, the researcher has tried to analyze the doctrine and its interdependence along with its working.
Keywords: Separation of power, Constitution, Judiciary, Executive, Legislature, Doctrine, Supreme Court, Government of India.

The Doctrine of separation of power emerged from the Roman states. Charles de Montesquieu[1] was the first one to propose the doctrine of Separation Of Power or Trias Politica. As per him, there shall be an absolute separation of power among the state. It gives the liberty to the bodies to act independently; however, there is no liberty in case of concentration of power because apprehension may arise.

This doctrine is an essential part of the Indian Constitution as it comes within the ambit of the Basic Structure Of The Constitution. The doctrine of separation power divides three organs of government- Legislature, Executive, Judiciary. It distributes how things work, how much authority they have, how much jurisdiction they have, and how they relate to one another. It further states that the legislative should limit itself to creating laws and the executive to enforcing those laws, and that the judiciary should function independently of the two institutions to preserve the laws of the nation from abuse and to render impartial judgements.

The Doctrine is based on four different principles:
  1. Functional Principle: forbids usurpation and amalgamation but not interaction of all three organs
  2. Exclusivity Principle: suggests structural division amongst three-organs.
  3. Checks and Balance Principle: all the organs must keep a check on other to keep the functions within constitutional bounds.
  4. Mutuality Principle: aims at creating cooperation and concord.

Aim & Objective

The researcher through this paper aims to critically evaluate the doctrine of separation of powers primarily in Indian context by analysing relevant case laws.

Comparative Study
Separation of powers theory suggests that government powers be separated into three parts: legislative, executive, and judicial.

The tripartite administration should be autonomous, distinct, and sovereign in their respective fields, with none of them intruding on the domains of the others. Separation of powers is a highly rigorous principle in the United States, and it has given the court a distinct status. Although the United States is highly strict in its application of this concept, it is difficult to have such a precise allocation of organs in actuality.

The United States Supreme Court adopted the novel notion of separation of powers in the case of William Marbury v. James Madison[2]. While there is no rigorous legislation or regulation governing the theory of separation of powers in India, its application may be observed in the discharge of authority and functions by the government's organs.

The Supreme Court previously held in Ram Jawaya v. the State of Punjab[3] that the government might exercise its own powers as long as they stayed within the limits. The constitution has not recognised the doctrine in a stricter sense but the workings of the government has been sufficiently segregated.

Analysis In Indian Context
While framing the Constitution of India, various efforts were made to make provisions regarding the separation of power. K.T Shah proposed the idea of adding Article 40A for defining separation of power. However, the idea was turned down. Dr. B.R. Ambedkar, one of the Constitution's framers, also expressed reservations about the addition of any specific clause. He claimed that because India has a parliamentary style of government and is such a varied country, it cannot accept the division of powers only because it is necessary to check on each other's work on a regular basis.

He decided to take responsibility for stability rather than make the Indian Constitution solid and tangible by dividing powers among the three institutions. Articles of the Indian Constitution being vague somewhere implies the distribution of power and how it shall flow.

For example, Executive power lies with the Indian President, and any law made by the legislature shall mandatory be passed and assented by him. This indicates the executive action. On the other hand, the legislature makes the laws being made and given to the executive for implementation, which shows the power and responsibility of legislative action. In respect of judicial activity, the judiciary, through its power and jurisdiction, keeps checking on the applicability of the laws in case the question has been raised.

The doctrine of Separation of power has no proper definition. However, this theory has been bifurcated into three points:
  1. Any of the parts of three organs should not be formed by the same person.
  2. No organ should interfere with the others.
  3. Each organ should exercise its own assigned functions and duties.

Unlike USA, in India, this doctrine has not been defined strictly in the Indian Constitution. Though this doctrine is in action in India, it is still not appropriately defined. Part IV of the Constitution of India dealing with DPSP. Under which Article 50[4] talks about the separation of power, but it only talks about the separation of power between judiciary and executive; it does not include the word legislature or anything related to its power or separation from the other organs. Some articles in the Constitution deal with the power and functioning of the legislature. Article 79[5] states that the power of legislature shall exclusively vest with Parliament.

In India, separation of power among the three organs have been, in various instances, where the judiciary, legislature, or executive have taken a step up and have overpowered the other organs. Article 122[6] of the Indian Constitution states that where the dispute is about the irregularity of the procedure, the court shall not inquire into the logic of the legislative procedures. Furthermore, Article 212[7] states that the court shall not probe into the actions of the legislature.

However, the judiciary did not approach the same where the SC gave the interim order against two of the cases: Jagdambika Pal Case, 1998, and the Jharkhand Assembly Case 2005.

Here, the judiciary violated the principle of separation of power. "Parliament has the exclusive right to make any laws relevant to List I," according to Article 246.[8] The phrase "exclusive" exclusively refers to the state government, not the executive branch of government. These articles exacerbate the gap in the tangible supply of power separation. These gaps date back to the time of the Indian Constitution's formation, when the drafters were adamant about avoiding including explicit measures governing the division of powers.

The legislature committed a similar breach of authority when it passed the 99th Constitutional Amendment Act, 2014, which replaced the collegium system with the NJAC. The Supreme Court later declared it illegal and invalid, claiming that it harmed the independence of the judiciary. The legislature overstepped its authority and power by proposing the amendment, which was ultimately found to be illegal.[9]

Judicial Pronouncements In India And Separation Of Power Theory

This section deals with the development of the doctrine through series of judicial decisions and case laws. It can be inferred from abovementioned discussion that there is no hard and fast rule regarding the separation of power among legislature, executive, and judiciary. The legislature is called a lawmaker, whereas the judiciary is a law interpreter. The division of power, jurisdiction, etc., is implicitly made.

In Re, Delhi Laws Act,[10] the Court for the first time held that except where the power has been vested in an organ by the constitution, the idea that one organ should not perform functions which belong to another organ is followed in India. In Kartar Singh v. State of Punjab[11], Justice observed that "it is the basic postulate under the Constitution of India that the legal sovereign power has been distributed between the legislature to make the law, the executive to implement the law and the judiciary to interpret law."

The court in Jayantilal Amritalal Shodhan v. F. N. Rana,[12] held that is cannot be presumed that legislative functions are only conducted by legislature, administrative by executive and judicial by judiciary.

The Indian Supreme Court, in one of the prominent judgments of Golak Nath v. the State of Punjab,[13] held that all three organs have their own set of power, functions, and responsibilities. They should work by keeping it in mind as they have been certainly constitutionally assigned. Also, keeping its limit and does not overstep the power and area of jurisdiction of other organs.

Nothing is more supreme than the Constitution, and all the organs shall function as per the Constitutional mandate. Multiple times the question that arises is in regards to Article 368[14] of the Constitution. It deals with the amending power of the parliament. However, there have been circumstances where the said power has been arbitrarily used by the Parliament and has kept an upper hand over the judiciary.

The judiciary has always been the interpreter of the law has set a judgment regarding the scope of the power conferred to the Indian Parliament in matters of amendments. The Supreme Court of India put forward a similar view in the landmark judgment of Keshvananda Bharti v. the State of Kerala,[15] where the amending power of parliament is subject to the basic features of the Constitution. Parliament cannot take away the basic structure as defined by the judiciary by making any arbitrary law.

Thus, any law acting arbitrarily in nature will be struck down and will be held unconstitutional. The doctrine of basic structure also came into light via this judgment. The bench also held that separation of power forms the basic structure of the Constitution, and no one could take that away even by restoring Article 368 of the Indian Constitution.

It is not like that there should not be any kind of encroachment by either of the organs, but that encroachment should be within limits and should not be excessive, harming the independence of the organs.[16] Whereas, in Udai Ram Sharma v. Union of India,[17] the court held "the American doctrine of separation of power is precise and has no application to India".

Thus, it can be inferred from the above analysis that three organs should act within the scope of their power and cannot act arbitrarily and by harming the basic structure of the Indian Constitution in any sense.

Conclusion And Suggestion
To conclude, the preceding explanation of the doctrine does not support its application in pure and rigid sense, rather in a partial and flexible sense. If the doctrine is applied rigidly or completely, the government would work inefficiently. This is because there has been a shift in the status of the State today.

The Constitution of India has demarcated the three organs - Legislature, Executive, and Judiciary, that have their own set of power and responsibilities. Thus, it is imperative that it should be followed as it is. The doctrine has developed over time, performing a variety of functions for the people. This concept has developed through time and judiciary has a major role in it. Every time the discussion is regarding the exclusiveness of the separation of power, it should be kept in view that the framers of Constitution did not mean to give exclusive power to any organ to keep an eye on each other's working.

The aim of these three organs shall be to protect the people from any harm or violation of their rights. In a democratic country like India, not only do the other organs keep an eye on the functions of either of the three organs, but the population has become very vigilant about the same. The arbitrariness of any of the organs may cause criticism and backlash. This is in line with the current interpretation of the doctrine, which emphasises the need of departing from its pure form and applying it in a flexible and wide manner.

  • The abovementioned discussion brings into light the inter-relationship, and often contradictory natures that exists between doctrine of separation of power and power of judicial review. There principles need to be carefully balanced to ensure that the constitutional setup is maintained as envisaged.
  • The functioning of separation of powers should be examined through the lens of institutional efficiency, which is meaningless unless directed toward more sustainable goals.
  • There is a vast lacuna in the constitutional framework and practice when it comes to the separation of powers. The lacuna can only be filled when all three organs try to work in harmony and balance.
  • There are some lacunas in relation to the separation of power between the legislature and executive, especially in cases where the legislature acts on the power of the executive. There is a need for some better applicable principles to demarcate the functions and powers.
  • It is also required to do away with the notion that Constitution works on its own. Indian Constitution by its very nature, is malleable; and needs to be moulded into the conscience keeper of people. There is a need for a concrete statue or a strong interpretation to separate the authority and functions of all three organs.

  1. L' esprit des lois (1748) Chap, 12
  2. (1803) 2Law Ed 69: 1 Cranch 138
  3. AIR 1995 SC 549
  4. India Constitution. art. 50
  5. India Constitution. art. 79.
  6. India Constitution. art. 122
  7. India Constitution. art. 212
  8. India Constitution. art. 246.
  9. Supreme Court Advocates-on-Records Association and Anr. V. Union of India, 2015.
  10. AIR 1951 SC 332.
  11. (1926) 32 AWR 16.
  12. AIR 1964 SC 648
  13. Golak Nath v. State of Punjab, AIR 1967 SC 1643 (India).
  14. India Constitution. art. 368.
  15. Keshvananda Bharati v. State of Kerala, AIR 1973 SC 1461 (India)
  16. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 (India).
  17. AIR 1968 SC 1138.

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