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 SUPREMO AMICUS

VOLUME 30 1 JULY, 2022 ISSN 2456-9704

COMPASS OF SEPARATION OF
POWERS IN INDIA
A
By JatinRana
From Law College Dehradun,faculty of C
UttaranchalUniversity

ABSRACT B

Separation of power and fusion of powers, In the picture, it is ceiling fan having three
these both are the characteristic feature of blades A, B and C which can be assumed as
Indian constitution. This article deals with the the three organs of the government (i.e.,
evolution, adoption and extent of the doctrine legislative, executive and judiciary) which
of separation of powers in India. Based on the are pivoted at a single point which can be
parliamentary form of government and assumed as the state which performs
federal structure of government, separation governanc . If any blade detaches or loosely
of power can be classified into two forms i.e., pivoted with the fan, it imbalances the whole
horizontal and vertical. In horizontal form of which can be acknowledged as all the organs
separation of power, there is separation of of the government are important to each other
power between 'Legislature and Judiciary' and if any of them detaches itself, it will lead
and 'Judiciary and Executive' but there is to the knock down of the government. The
fusion of powers between 'Legislature and main function of the government constituting
Executive' while in vertical form of three different organs is to provide welfare
separation of power, there is well distribution and protection to the citizens of the state or
of functions and powers among Central, State the country.
and District. Indian Judiciary is acting as a
pivoted point which is balancing the fusion Evolution
and separation of powers.
Aristotle was the first philosopher who
(Keywords :- Trias Politica, governance, implemented the idea of separation of power.
tyranny, arbitration, federalism, basic He classified government into three parts
structure). (i.e., General Assembly, Public officials and
the judiciary) in his book 'Politics'. His idea
INTRODUCTION was not so clear in this concept but
somewhere the part of its shadow overlaps
The meaning of the doctrine of separation of his theory of Parts of the government.
powers (also known as Trias Politica) is that
all the parts or organs of the governance (i.e., After Aristotle, in 16" and 17" Century, John
legislative, executive, and judiciary) should Locke and Jean Bodin developed the doctrine
exercise their functions separately and no of separation of powers. Locke defined three
organ should interfere in the scope of the organs of the government as 'legislative',
other organ of the government. 'executive' and 'federative' and concluded

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that all the organs of the government should bodies of governance, it will lead to tyranny
be independent and legislative is supreme to and arbitration which will affect liberty and
the other two organs of the government. freedom of the people of the state. To
maintain democracy and rights of the people,
Later Montesquieu, a French philosopher in this doctrine was adopted in many countries
1748 in his book 'E Spirit des Lois' (in including India.
English 'the spirit of law') gave the scientific
and systematic approach of the doctrine. He Applications
categorized organs of the government into
three parts:- The first Constitution framed on the basis of
the doctrine of separation of powers was the
1. Legislative American Constitution in 1787 and later in
2. Executive 1789, France also adopted this doctrine and
3. Judiciary framed it in its constitution. The two different
judicial branches i.e., administrative tribunals
Montesquieu in his book commented that the and ordinary courts, of France became the
concentration of all powers to a single person wannabe odel for the other countries like
or branch leads to the tyranny and arbitration England, Australia and even India which also
in the country. has the likewise shadow of the French legal
system.
Wade and Philips also gave three conditions
to be followed for the strict adoption of the EXTENT OF EXISTENCE IN INDIA
separation of powers:-
India has adopted the parliamentary form of
1. Same person at the same time should not play government from the British (UK)
different role in different organs of the Constitution and also adopted the concept of
government. federalism from the constitution of Canada.
2. No organ should control the function of the The doctrine of separation of powers acts as
other organ. the spirit of federal and parliamentary form
3. No organ should exercise the function of the of government of India. Even in Indian
other organ. constitution, separate powers and functions
are allotted to each organ of the central
Significance of doctrine of Separation of government 2 . But the doctrine is not
Powers adopted in the strict manner under Indian
constitution like the United States of
"Power tends to corrupt and absolute power America which has its long-written
corrupts absolutely."' constitution and has adopted Presidential
Concentration of power over the single body form of Government.
leads to the malfunctioning of that body
which may be dangerous for the other
depending sub-bodies. If there will be
supremacy of either of the body over other

' Lord Acton, letter to bishop Mandell Creighton 2 Constitution of India 1949, pt V

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In India, separation of powers can be prorogue both or either of the houses and to
understood in two parameters:- 3 dissolve Lok Sabha. 8
" After the passing of the bill by both of the
1. Horizontal: - It is on the basis of three organs houses and before the enaction of the bill, it
of the government at the union level where all should be passed to the President for his
the three are kept at equal status. The only assent which is the legislative procedure. 9
thing supreme here, is the law. " President shall present the annual financial
Legislative powers are vested to the statement (which is the expenditure of the
parliament which consists of President, Rajya Government of India) before both the
Sabha and the Lok Sabha, executive powers legislative houses of the parliament. 10
are vested to the president and judicial " President has the power to pass the ordinance
powers are vested to the Supreme Court of when both the houses of the parliament are
India. not in session and the situation makes the
passing of such ordinance important. He can
Indian constitution has separated the also dissolve the ordinance passed by him."
functions and powers of 'judiciary and
executive' 4 and 'judiciary and legislature's 2. Vertical: - It is based on the federal structure
but the powers and functions of legislature and the hierarchy status set by the Indian
and executive overlap in India. constitution among union, state and district.
The constitution of India has credited
How is legislature overlapping executive in separate powers and functions to central,
India? state and district. 12 In India, states are
conferred equal powers and thus, any
" As said by Wade and Philips, for strict disputes among them cannot be resolved by
adoption of the doctrine of separation of themselves because they are equal in status.
powers, same person at the same time should Here, parliament plays the important role and
not play different role in different organs of supervises over the states and is the supreme
the government but in India, President is authority over all of the states. State is neither
vested with the central executive powers and above the any other state nor above the
at the same time he is also the Member of parliament.
Parliament. 6
" President has to exercise all his functions
under the advice of the council of ministers
headed by Prime Minister of India.7
" President has the power to call both the
legislative houses for the sessions whenever
he thinks fit and also has the power to

' Shri CBP Srivastava, Basic structure of Indian ' Constitution of India 1949, art 85
Constitution, YouTube lecture 9 Constitution of India 1949, art 111
4 Constitution of India 1949, art 50 10 Constitution of India 1949, art 112
5 Constitution of India 1949, arts 121, 211 and 212 " Constitution of India 1949, art 123
6 Constitution of India 1949, arts 53 and 79 12 Constitution of India 1949, pts V
- IX B
' Constitution of India 1949, art 74

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* Ram Jawaya Kapoor v. State of

Punjab.19

I Background :-
Petitioner was a publisher of High school and
secondary education books in the State of
Punjab. The Education department made a
The below given diagram shows the division scheme according to which the books were to
of authority between central and state. be directly taken from the authors for
educating students of Higher and Secondary
Education. Excluded publishers from the
whole transacting deal.

Being unsatisfied by the scheme, the

petitioner filed a petition questioning the
legislation of Education department as it is
" The constitution of India has established the execut ve body and also the infringement
Supreme Court at union13 , High Courts at of his right conferred by the Indian
states level14 , and Subordinate Courts at Constitution under Article 19 (g).
district level.15
" Parliament is established at the union level16 Court's Decision :-
and the state legislature at the state level. 17 In this case, the Hon'ble Supreme Court
Also they have separate lists of the matters on observed that the doctrine of separation of
which they can take their own decisions. 18 powers is not adopted in India in a strict
manner as like USA. But the powers and
" At the union level, executive powers are
functions of each organ of the Indian
vested to the President while at the state level,
government are specified clearly under the
the same are vested to the Governor.
constitution of India.
JUDICIAL PRONOUNCEMENTS
The executive body of the state has the
legislative power in the form of delegated
Whenever the question has been raised
legislation. On this basis, the executive body
against the doctrine of separation of powers,
can perform legislative functions to some
the Indian judiciary has well explained and
extent. Making of any policy by the
applied this doctrine. Some highlighted cases
Education department of state Government
have been discussed below where judiciary
cannot be declared as unconstitutional
has descriptively applied the doctrine.
because it is delegated with some powers to
do so.

" Constitution of India 1949, art 124 1 Constitution of India 1949, art 168
14 Constitution of India 1949, art 214 la Constitution of India 1949, art 246
15 Constitution of India 1949, pt VI chap 19 AIR [1955] SC 549
VI
16 Constitution of India 1949, art 79

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Based on the above-mentioned observations, questioning the elections of Prime Minister,

the Hon'ble Court held that the policy made President and Vice president of India.
by the Education department of the State
Government does not infringe fundamental It also violates the basic structure of the
right of the petitioners. Indian Constitution which confers
democracy to each citizen of India. The
" Indra Nehru Gandhi v. Raj Narayan.2 0 government is made by the people and for the
people. Thus, in this democratic country it is
Background :- the right of the people under Article 32 of
Indra Nehru Gandhi and Raj Narayan were Indian Constitution to file a writ petition
battling against each other in Lok Sabha against the government in case of
election from Rae Bareli in 1971. Indra infringement of their rights.
Gandhi won the election and was elected as
the Prime Minister of India. Raj Narayan On the basis of the above observations, the
filed a petition in Allahabad High Court Hon'ble Court held that the clause (4) of
against Indra Gandhi for adopting corrupt Article 329A is unconstitutional and struck
practices which helped her in winning the down the hole 39° amendment of 1975.
election.
" I.C Golakhnath v. State of Punjab.2

'
Allahabad High Court found Indra Gandhi
guilty of adopting corrupt practices in Lok Background:-
Sabha election of 1971. The petitioner was holding 500 acres of land
in the State of Punjab. Punjab government
Indra Gandhi filed an appeal against the order amended the Punjab security &reform Act
of High Court in 1975. Then president according to which people in Punjab could
Fakhruddin Ali Ahmed declared national hold only few acres of land, no person was
emergency in India due to internal permitted to hold excessive land. The
aggression. At the time of national excessive land was to be taken by the
emergency, legislature passed 39°i government for further distribution to the
amendment act which competed the tenants.
jurisdiction of Judiciary against the election
of Prime Minister, President and Vice Being unsatisfied by the land reform Act,
President. Golakhnath filed a petition in Supreme Court
of India under Article 32 of the Indian
Court's Decision :- constitution against infringement of his right
The Hon'ble Supreme Court observed that to property conferred by article 19(f) of the
the 39° amendment act of Indian constitution.
Constitution was completely unconstitutional
because it violates the doctrine of separation Court's Decision :
of powers by competing the jurisdiction of The Hon'ble Supreme Court observed that all
the Hon'ble court in the matters of amendments done by the Indian legislature
are considered as law and lies within the

20 21
AIR [1875] SC 2299 AIR [1967] SC 1643

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ambit of Article 13 of the Indian Court's Decision :-

Constitution. Thus, Indian legislature are The Hon'ble Supreme Court laid down the
bounded by the doctrine of severability. They doctrine of basic structure and marked
cannot make any amendment which infringes restrictions over the power of parliament to
any fundamental right of people conferred amend constitution enriched under article
under part III of Indian constitution. Part III 368 of Indian Constitution. The Hon'ble
of constitution is an integral part and soul of Court approved validity to 24' and 2 5 th
the constitution. Thus, part III should always Amendment Act and stated that if any act
be taken at supreme position by the under 9' schedule acts in contradiction of any
legislature. The Hon'ble court declared the provision of the constitution, the procedure of
amendment of Punjab security &reform Act judicial review will be applicable to the act.
as unconstitutional.
The Hon'ble court held that legislature while
Keshavanand Bharti v. State of Kerela 22 exercising its functions and powers under
Indian constitution, legislature should not
Background :- After independence, India was abridge the doctrine of basic structure. All the
industrially backward there was amendments made my legislature are legally
concentration of resources by wealthy termed as law and come under the ambit of
people. To distribute these resources equally article 13 of the constitution and can be
and to make out an economic and social stand reviewed by Judiciary.
of Indian states, government of different
states enacted different acts including Kerala This judgement overruled the Golakhnath
land Reforms Act, 1963 which aimed at equal case judgement in which it was held that
distribution of land in the state of Kerala. It parliament cannot amend the fundamental
restricted the excessive holding of land by rights of people enshrined under part III of
single person in the state. the constitution but in the present judgement,
the Hon'ble Court held that parliament could
Central government also introduced 24', 25h' amend fundamental rights but without
and 2 9 th Amendment Act which conferred violating the basic structure of Indian
some powers to the parliament. These constitution.
amendments state that the parliament has the
power to amend any part of the constitution, CONCLUSION
it can curtail right to property and any cant
under 9 th schedule cannot be challenged by In India separation of power prevails only in
Judiciary. the matters of 'judiciary and legislature' and
'judiciary and executive' but there is fusion
Being aggrieved by the Act, the petitioner of functions and powers between legislative
filed a writ petition in the Hon'ble Supreme and executive. In the horizontal way of
Court under article 32 of Indian constitution separation of powers, it is not strictly
against the act which infringed the right to adopted. Also, in the vertical way of
hold property. separation of powers, the separate powers are
conferred to each authority of different levels

22 AIR [1973] SC 1461.

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but here, the hierarchy status sometimes

suppresses the doctrine of separation of
powers. Judiciary has always protected the
doctrine of basic structure and on the basis of
this doctrine, judiciary has also well balanced
the fusion and separation of powers in both
horizontal and vertical perspective. Thus, it
can be concluded that Constitution of India
has adopted the doctrine of separation of
power but not in a strict manner. The Indian
constitution has balanced features of opposite
natures which make it unique.

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