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
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 was the first one to propose the doctrine of Separation Of
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
- Functional Principle: forbids usurpation and amalgamation but not
interaction of all three organs
- Exclusivity Principle: suggests structural division amongst
- Checks and Balance Principle: all the organs must keep a check on other
to keep the functions within constitutional bounds.
- 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
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
. 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
The Supreme Court previously held in Ram Jawaya v. the
State of Punjab
 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
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
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:
- Any of the parts of three organs should not be formed by the same
- No organ should interfere with the others.
- 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 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 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 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 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
, 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. 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
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, 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
, 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
, 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
, 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 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
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
, 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. Whereas, in Udai Ram
Sharma v. Union of India
, 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
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
- L' esprit des lois (1748) Chap, 12
- (1803) 2Law Ed 69: 1 Cranch 138
- AIR 1995 SC 549
- India Constitution. art. 50
- India Constitution. art. 79.
- India Constitution. art. 122
- India Constitution. art. 212
- India Constitution. art. 246.
- Supreme Court Advocates-on-Records Association and Anr. V. Union of
- AIR 1951 SC 332.
- (1926) 32 AWR 16.
- AIR 1964 SC 648
- Golak Nath v. State of Punjab, AIR 1967 SC 1643 (India).
- India Constitution. art. 368.
- Keshvananda Bharati v. State of Kerala, AIR 1973 SC 1461 (India)
- Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 (India).
- AIR 1968 SC 1138.