Acknowledgement

I am using this opportunity to express my gratitude to everyone who supported me

throughout the course of this project. I am thankful for their aspiring guidance,
invaluably constructive criticism and friendly advice during the project work. I am
sincerely grateful to them for sharing their truthful and illuminating views on a
number of issues related to the project.
I express my warm thanks to Mr.Vinod Shankar Mishra for his guidance for the
completion of this project as I believe it could not be possible without his support.
I would also like to thanks my professors and all the people who provided me with
the facilities being required and conductive conditions for my constitutional law
project.

Thank you,
Pavitra Shivhare
B.A. LLB.

Content
INTRODUCTION
DOCTRINE OF SEPARATION OF
POWERS
SEPARATION OF POWERS IN INDIA
CONSTITUTIONAL PROVISIONS
CASE LAWS
CONCLUSION : MYTH OR REALITY ?
BIBLIOGRAPHY

SEPARATION OF POWERS
Introduction
The doctrine of separation of powers contemplates the idea that
the governmental functions must be based on a tripartite division
of legislature, executive and judiciary. The three organs should be
separate, distinct and sovereign in its own sphere so that one
does not trespass the territory of the other. Aristotle who first
perceived and saw that there is a specialization of function in
each Constitution developed this doctrine The three organs of the
government represent the people and their will in our country and
are responsible for the smooth running of a democratic
government in our society. The legislature is the law-making body,
the executive is responsible for the enforcement of all such laws
and the judiciary deals with the cases that arise from a breach of
law. Thus they are all interlinked organs of the government and
their roles and functions tend to overlap with each other, as it
isnt possible to separate the three from each other completely.
This has been the cause for not only serious political debate in our
country but has 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 coordinated system of distribution of powers thus becomes the focal
point of contemplation. To analyse the separation of powers
doctrine, the theory aspect will be dealt with, and a
comprehensive understanding of the doctrine as used in our
country under our parliamentary system of governance will be
made. Landmark cases will also be discussed to understand the
progression of this debate, and the basic structure doctrine will be
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used to emphasize this point.

Doctrine of Separation Of Powers

Understanding that a government's role is to protect individual
rights, but acknowledging that governments have historically
been the major violators of these rights, a number of measures
have been devised to reduce this likelihood. The concept of
Separation of Powers is one such measure. The premise behind
the Separation of Powers is that when a single person or group
has a large amount of power, they can become dangerous to
citizens. The Separation of Power is a method of removing the
amount of power in any group's hands, making it more difficult to
abuse.
It is generally accepted that there are three main categories of
governmental functions (i) the legislative, (ii) the Executive, and
(iii) the Judicial. At the same time, there are three main organs of
the Government in State i.e. legislature, executive and judiciary.
According to the theory of separation of powers, these three
powers and functions of the Government must, in a free
democracy, always be kept separate and exercised by separate
organs of the Government. Thus, the legislature cannot exercise
executive or judicial power; the executive cannot exercise
legislative or judicial power of the Government.
As the concept of Separation of Powers explained by Wade and
Philips, it means three different things:i. That the same persons should not form part of more than one of
the three organs of Government, e.g. the Ministers should not sit
in Parliament;
ii. That one organ of the Government should not control or
interfere with the exercise of its function by another organ, e.g.
the Judiciary should be independent of the Executive or that
Ministers should not be responsible to Parliament; and
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iii. That one organ of the Government should not exercise the
functions of another, e.g. the Ministers should not have legislative
powers.

Separation Of Powers In India :

Constitutional Provisions and Case
laws
In India, the doctrine of Separation of Powers has not been
accorded a constitutional status. Apart from the directive principle
laid down in Article 50 which enjoins separation of judiciary from
the executive, the constitutional scheme does not embody any
formalistic and dogmatic division of powers.
As a general provision, Parliament is entrusted to make the law
for the union. Executive is entrusted with duty of implementation
of law and judiciary is also considered to be independent under
the constitutional scheme in India. However, there are many
exceptions which negate the application of this doctrine.

Constitutional Provisions
Under Article 53 the executive powers of the union are vested
with the President and under Article 154 the Governor is vested
with execution powers but they do exercise their powers with the
aid and advice of the council of ministers at the Centre (Article
74) and at the State, as the case may be. Both President and
Governor exercise the power of ordinance making under the
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constitution thus performing legislative functions. President

makes laws for a State, after the dissolution of the State
Legislature, following the imposition of the Presidents Rule
(Article 356). President has the power to disqualify any member of
the house under Article 103. The judges of the Supreme Court are
appointed by the President, while the parliament has the power to
impeach the judges. The President has the power to decide a
disputed question of the age of a judge of Supreme Court or any
High Court for purpose of set restrain from the judicial service.
The Union Council of Ministers is responsible to the Lok Sabha
(Article 75). This house has the powers to start impeachment
proceedings against the President (Article 61) and the judges of
the Supreme Court. The members of Council of Ministers will be
members of either house of Parliament under Article 75(5) which
means there is overlapping of personnel also.
The judicial function of Parliament is too substantial in certain
respects. It can consider the question of breach of any known
parliamentary privilege; and in a case where the charge is
established have power to punish for their contempt.
The High Courts in certain marginal spheres perform such
functions which are administrative rather than judicial. Their
power of supervision over other subordinate courts under Article
227 is more of the administrative nature than judicial. When
under Article 228 they have power to make transfer of cases, they
exercise administrative control over the State district courts as
well. The legislative power of the High Courts and the Supreme
Court includes their power to frame rules which is fairly wide.
The Executive in India is authorized to legislate in the name of
delegated legislation. In the name of administrative adjudication
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of the right of individual citizens, the administrative agencies,

which are statutory tribunals and domestic tribunals have been
constituted and perform judicial function.

Case Laws
There have been several landmark judgements that have
changed the face of the doctrine of separation of powers in India.
These are discussed in this section.
The Kesavananda Bharati [AIR 1973 SC 1461]. case is most
important in this context. The main question was whether the
parliament had unrestricted amending powers due to article 368
over the constitution and how much could actually be amended.
To this the judgement given by the supreme court held that the
amending power of the parliament was subject to the basic
structure of the Constitution, and any amendments which
tampered with the basic structure would be unconstitutional. In
this judgement, the separation of powers doctrine was included in
the basic structure of the constitution and thus any amendments
which gave control of one organ over another would be
unconstitutional, leaving the Executive, the Legislature and the
Judiciary completely independent. It must be kept in mind though
that in India the separation of powers doctrine is not followed
extremely rigidly.
In Indira Nehru Gandhi v. Raj Narain, [AIR 1975 SC 2299]. the
Supreme court asserted the Kesavananda ruling and upheld the
basic structure as well as the separation of powers doctrine,
making it a landmark case our country. The dispute in this case
was regarding the Prime Minister elections, where the constituent
body had declared that the elections werent void, thus acting in a
judicial capacity. This made the actions of the constituent body
ultravires. It was thus held that a parliament cannot under any
constitutional amending power or the like take on the role of the
judiciary. Thus the position of separation of powers was upheld
and asserted in this case.
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A recent case Delhi Development Authority v M/s UEE

Electricals Engg. Pvt. Ltd , where the Supreme Court ruling
has sought to clarify the meaning and objective of judicial review
as a protection and not an instrument for undue interference in
executive functions. The Supreme Court made the observation
that, One can conveniently classify under three heads the
grounds on which administrative action is subject to control by
judicial review. The first ground is illegality, the second
irrationality and the third procedural impropriety.
Therefore we see that the organs of the state remain separated
and this position of separation of powers doctrine has been
upheld by the rulings made by the courts. No organs can
encroach upon the others ambit of powers, and incase an attempt
is made even by was of an amendment it has been struck down to
uphold the basic structure doctrine.

Conclusion : Myth Or Reality ?

The doctrine of separation of powers has no place in strict sense in Indian
Constitution, but the functions of different organs of the Government have been
sufficiently differentiated, so that one organ of the Government could not usurp the
function of another. In Constituent Assembly Debates Prof. K.T. Shah a member
of Constituent Assembly laid emphasis to insert by amendment a new Article 40-A
concerned with doctrine of separation of powers. This Article reads: There shall
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be complete separation of powers as between the principal organs of the State, viz;
the legislative, the executive, and the judicial.Kazi Syed Karimuddin (a member
of Constituent Assembly) was entirely in agreement with the amendment of Prof.
K.T. Shah. Shri K. Hanumanthiya, a member of Constituent Assembly dissented
with the proposal of Prof. K.T. Shah. He stated that Drafting Committee has given
approval to Parliamentary system of Government suitable to this country and Prof.
Shah sponsors in his amendment the Presidential Executive. He further
commented: Instead of having a conflicting trinity it is better to have a
harmonious governmental structure. If we completely separate the executive,
judiciary and the legislature conflicts are bound to arise between these three
departments of Government. In any country or in any government, conflicts are
suicidal to the peace and progress of the country..... Therefore in a governmental
structure it is necessary to have what is called harmony and not this three-fold
conflict.Prof. Shibban Lal Saksena also agreed with the view of Shri K.
Hanumanthaiya. Dr. B.R. Ambedkar, one of the important architect of Indian
Constitution, disagreeing with the argument of Prof. K.T. Shah, advocated thus:
There is no dispute whatsoever that the executive should be separated from the
judiciary. With regard to the separation of the executive from the legislature, it is
true that such a separation does exist in the Constitution of United States; but many
Americans themselves were quite dissatisfied with the rigid separation embodied
in the American Constitution between the executive and legislature. There is not
slightest doubt in my mind and in the minds of many students of law, that the work
of Parliament is so complicated, so vast that unless and until the members of the
Legislature receive direct guidance and initiative from the members of the
Executive, sitting in Parliament, it would be very difficult for Members of
Parliament to carry on the work of the Legislature. I personally therefore, do not
think that there is anyvery great loss that is likely to occur if we do not adopt the
American method of separating the Executive from the Legislature. With the
aforesaid observations the motion to insert a new Article 40-A dealing with the
separation of powers was negative i.e. turned down. In Indian Constitution there is
express provision that Executive power of the Union shall be vested in the
President,and the executive power of the State shall be vested in Governor..
(Article 154(1) of Indian Constitution). But there is no express provision that
legislative and judicial powers shall be vested in any person or organ. Now we
have to see what is the real position in India regarding the separation of powers?
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President being the executive head is also empowered to exercise legislative

powers. In his legislative capacity he may promulgate Ordinances in order to meet
the situation as Article 123(1) says If at any time, except when both Houses of
Parliament are in Session, President is satisfied that circumstances exist which
render it necessary for him to take immediate action, he may promulgate such
Ordinance as the circumstances appear to him to require. When Proclamation of
emergency has been declared by the President due to failure of Constitutional
machinery the President has been given legislative power under Article 357 of our
Constitution to make any Law in order to meet the situations. A power has also
been conferred on the President of India under Article 372 and 372-A to adapt any
Law in country by making such adaptations and modifications, whether by way of
repeal or amendment as may be necessary or expedient for the purpose or bringing
the provisions of such Law into accord with the provisions of the Constitution. The
President of India also exercises judicial function. Article 103(1) of the
Constitution is notable in this connection. According to this Article If any
question arises as to whether a member or either of House of Parliament has
become subject to disqualification mentioned in clause (1) of Article 102, the
questions hall be referred for the decision of the President and his decision shall be
final. Article 50 lays emphasis to separate judiciary from executive. But in
practice we find that the executive also exercises the powers of judiciary as in
appointment of judges. (Articles 124, 126 & Article 127). The legislative (either
House of Parliament) also exercises judicial function in removal of President
(Article 56) in the prescribed manner.14 Judiciary also exercises legislative power,
High Court and Supreme Court are empowered to make certain rules legislative in
character. A line I would like to add

Bibliography
Books referred 1] Bakshi, P.M. , The Constitution Of India, Universal Law
Publishing Co. Pvt. Ltd., 2005.
2]Jain, M.P., Indian Constitutional Law, Wadhwa and Company,
Nagpur , 2011.
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3]Basu, D.D., Constitution Of India , Kamal Law House , 2004

OTHER SOURCES
1] http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html
2] www.ijsrp.org
3] www.legalserviceindia.com/article/l16-Separation-Of-Powers.html

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