Constitutional Law I : Int?rnal
Critical analysis on Application
of Doctrin? of S?paration of Pow?r
Submitt?d by – Utkarsh Singh
Batch- 3yr LLB
In th? following ?ssay is an att?mpt
to analyz? th? application of th? doctrin? of s?paration of
pow?r in India . Th? ?ssay sp?aks
about th? origin of this doctrin? and how is it int?rpr?t?d into
th? India constitution . All th?
thr?? organs and th?r? functions ar? ?xplain?d and th? probl?ms
fac?d by th?s? organs wh?n th?y
work tog?th?r is also discuss?d . A comparison is also drawn
b?tw??n th? way USA has int?rpr?t?d
and us?d th? doctrin? of s?paration of pow?r and how is it
us?d in India .
An analysis b?tw??n th? past and th? pr?s?t us? is also drawn so as to
show th? chang?s that th? doctrin? had to go with . Th? qu?stion wh?th?r how us?ful
this doctrin? is in th? pr?s?nt tim? is also analyz?d and in th? ?nd a
conclusion is drawn which ?xplains th? pr?s?nt application of th? doctrin? of s?paration
of pow?r and how in india it’s th? doctrin? of s?paration of function and not
“Pow?r corrupts and absolut? pow?r
Th? Doctrin? of s?paration of pow?r as th? nam? sugg?sts stat?s that th?
pow?r of administration should b? distribut?d among diff?r?nt organs nam?ly l?gislatur?,
?x?cutiv? and judiciary who work mutually . This principl? was originally laid
down by Aristotl? wh?n h? classifi?d th? functions of a Gov?rnm?nt into thr??
cat?gori?s i.?. d?lib?rativ? , magist?rial and judicial this was th? first ?v?r
m?ntion of s?paration of pow?r many oth?r philosoph?rs lik? lock? w?r? alsosugg?stiv?
of th? Id?a and th?y bifurcat?d th? gov?rnm?nts into thr?? parts nam?ly
continuous ?x?cutiv? pow?r , discontinuous l?gislativ? pow?r and f?d?rativ? pow?r
. Wh?r? th? first on? d?not?s th? ?x?cutiv? and judicial pow?rs th? s?cond on?
d?not?s th? pow?r of framing rul?s and th? third on? d?not?s th? pow?r of
handling for?ign affairs .L.?sprit D?s Lois which translat?s to Spirit of Law .
H? stat?d that :
l?gislativ? and ?x?cutiv? pow?rs ar? unit?d in th? sam? p?rson, or int h? sam? body
or Magistrat?, th?r? can b? no
lib?rty. Again, th?r? is no lib?rty if th? judicial pow?r is not
s?parat?d from th? L?gislativ?
and ?x?cutiv? pow?r. Wh?r? it join?d with th? l?gislativ? pow?r,
th? lif? and lib?rty of th? subj?ct
would b? ?xpos?d to arbitrary control, for th? judg? would th?n
b? th? l?gislator. Wh?r? it join?d
with th? ?x?cutiv? pow?r, th? judg? might b?hav? with viol?nc?
and oppr?ssion. Th?r? would b? an
?nd of ?v?ry thing w?r? th? sam? man or th? sam? body to
?x?rcis? th?s? thr?? pow?rs”
In th? pr?s?nt sc?nario th? thr??
organs of S?paration of pow?r ar? known as
1)Th? L?gislatur?- L?gislatur? is
th? prim? law making authority of India . It compris?s of two
hous?s nam?ly Lok Sabha and Rajya
Sabha . It mak?s laws, appli?s tax?s and also k??ps a ch?ck
on th? ?x?cutiv?. Th? l?gislatur?
is r?sponsibl? for th? s?l?ction of th? h?ad of ?x?cutiv? . It
r?pr?s?nts th? tru? will of p?opl?
and s?rv?s as knight for th? prop?r functioning of d?mocracy.
But as th? doctrin? of rul? of
pow?r dictat?s its not all pow?rful.
2)Th? ?x?cutiv?- ?x?cutiv? has th?
pow?r to command and control military. It can v?to laws
,pardon convict?d criminals and
also participat?s in appointm?nt of judg?s out of th? thr??
?xcutiv? is th? only organ who
has an ?xpr?ss provision that d?fin?s its pow?r and functioning .
3)Th? Judiciary – Th? fram?rs of
t our constitution w?r? v?ry car?ful wh?n it cam? to Judiciary
th? provisions mad? for judiciary
w?r? such that th? functioning of th? judiciary b?com?s
ind?p?nd?nt and impartial . Th?
judiciary is th? authority that int?rpr?ts constitution and acts as
th? custodian of th? rights of th?
citiz?ns by using th? pow?r of judicial r?vi?w. But this also
mak?s th? judiciary int?rpr?t th?
law and not mak? th?m
In India th? doctrin? of s?paration
of pow?r is th?r? but it is not follow?d in a strict s?ns? though
th? functions hav? b??n divid?d
into thr?? organs i.?. L?gislatur? , ?x?cutiv? and judiciary th?s?
thr?? organs ar? int?rlink?d with
?ach oth?r and sinc? this doctrin? is not follow?d in a strict
s?ns? in India. Th?r?for? th?ir
functions t?nd to collud? and ov?rlap with ?ach oth?r . Wh?n th?
drafting committ?? was drafting
th? constitution a d?bat? aros? b?tw??n Prof K.T shah a
m?mb?r of th? drafting committ??
who b?li?v?d in th? id?a of compl?t? s?paration of pow?r
b?tw??n th? thr?? organs and Mr K
hanumathiya who b?li?v?d that compl?t? s?paration of pow?r
would l?ad to conflict among th?
thr?? organs as ?ach of th?m will try to stand ov?r th? oth?r .
Mr Hanumathiya Id?ology was –Inst?ad
of having a conflicting trinity its b?tt?r to hav? a
harmonious gov?rnm?nt . Mr
Hanumathiya id?ology and argum?nts w?r? m?t with a hug?
support and ?v?n th? fath?r of
our constitution Dr B.R Amb?dkar was not in favour of th? id?a of
having absolut? s?paration of pow?r
th?r?for? th? motion by Mr K.T Shah was r?j?ct?d . This is
how th? conc?pt of s?paration fo
pow?r was mould?d into India.
In the Indian constitution there
is an express provision which states that the power of the
Executive of the union shall be vested
on the President of the country and the power of the
executive of the state shall be vested
on the Governor of that state . But when it comes to
Legislature and Judiciary there
is no specific mention so as to confirm that there powers are
vested upon some organ . Although
the head of the Executive is the president but when its come
to his powers a closer look shows
he is just the nominal head , the real power lies with the Prime
Minister and his Cabinet of
ministers . The Doctrine of separation of power is not followed in its
strict sense in India i.e. there
is no absolute separation that’s why we can observe that under
certain situations the president
has the power to exercise some judicial as well as legislative
function for eg.
of separation of power works in India :
When the President passes
ordinance he is performing a function that is lying
under both legislative as well as
judicial . Similarly legislature is going through the process of
impeachment of the President stated
in article 61 performs a judicial function. Similarly if the
High court or the Supreme court finds
certain provision against the law then it
cand declare it
null and void. Thus through this
way a proper check and balance is maintained therefore no
single organ gets too much power
and the reason for this doctrine is thus maintained.
th? analysis of th? following cas?s w? can s?? how th? Doctrin?
In Ram Krishna Dalmia v. Justic?
T?ndolkar1 – Th? supr?m? court stat?d that
Am?rican constitution wh?r? th?r?
is a cl?ar bifurcation as far as s?paration of pow?r is
conc?rn?d in India th?r? is no cl?ar
bifurcation but s?paration of pow?r is implicit in th? Indian
In th? D?lhi law act cas?2 th? supr?m? court h?ld that although in th? India constitution th?r? is
no ?xpr?ss s?paration but our constitution mak?rs hav? painstakingly mad?
provisions for th? l?gislatur? to pass laws . This cl?arly impli?s that it’s
only th? duty of th? l?gislatur? is to pass laws ?v?n though it’s not ?xpr?ssly
Ram Krishna Dalmia v. Justice Tendolkar AIR 1958 S.C. 538 at p. 546
2 Delhi law act
case (1951)S.C.R. 747.
In Chandra Mohan v. Stat? of U.P., AIR 1966 SC 1987 at p. 1993 Supr?m?
Court h?ld: “Th? Indian Constitution, though it do?s not acc?pt th? strict
doctrin? of s?paration of pow?rs, provid?s for an ind?p?nd?nt judiciary in th?
Stat?s……. But at th? tim? th? dir?ct control of th?
?x?cutiv?. Ind??d it is common knowl?dg? that in pr?-ind?p?nd?nc? India
th?r? was a strong agitation that th? judiciary should b? s?parat?d from th? ?x?cutiv?
and that th? agitation that th? judiciary should b? s?parat?d from th? ?x?cutiv?
and that th? agitation was bas?d upon th? assumption that unl?ss th?y w?r? s?parat?d,
th? ind?p?nd?nc? of th? judiciary at th? pow?r l?v?ls would b? a mock?ry.”
Justic? B.K mukh?rj?? obs?rv?d : “Th? Indian Constitution has not ind??d
r?cognis?d th? doctrin? of s?paration of pow?rs in th? absolut? rigidity but th?
functions of th? diff?r?nt parts or branch?s of th? Gov?rnm?nt hav? b??n
suffici?ntly diff?r?ntiat?d and cons?qu?ntly it can v?ry w?ll b? said that our
Constitution do?s not cont?mplat? assumption by on? organ or part of th? Stat?
of th? functions that ?ss?ntially b?long to anoth?r.”
In Asif Ham??d v. Stat? of Jammu
and Kashmir 3th? Supr?m? Court obs?rv?d: “Although
doctrin? of s?paration of pow?rs
has not b??n r?cognis?d und?r th? Constitution in its absolut?
rigidity but th? Constitution mak?rs
hav? m?ticulously d?fin?d th? functions of various organs of
th? Stat?. L?gislatur?, ?x?cutiv?
and judiciary hav? to function within th?ir own sph?r?s
d?marcat?d und?r th?
Constitution. No organ can usurp th? functions assign?d to anoth?r. Th?
Constitution trusts to th? judgm?nt
of th?s? organs to function and ?x?rcis? th?ir discr?tion by
strictly following th? proc?dur?
pr?scrib?d th?r?in. Th? functioning of d?mocracy d?p?nds upon
th? str?ngth and ind?p?nd?nc? of ?ach
of its organs.”
Wh?n compar?d to USA wh?r? Doctrin? of S?paration of pow?r is follow?d
in a strict?r s?ns? th?r? (a)all th? l?gislativ? pow?rs ar? v?st?d in th? congr??
(b) all th? ?x?cutiv? pow?r is v?st?d on th? pr?sid?nt (c) and all th? judicial
pow?rs ar? v?st?d on th? supr?m? court .
Thus in USA th? Supr?m? court
cannot int?rf?r? in political d?cision making of th? ?x?cutiv?
branch of th? gov?rnm?nt .Th? pow?r
of Judicial r?vi?w is not v?st?d in th? supr?m? court . But
th? pr?sid?nt can int?rf?r? in
both judicial as w?ll as l?gislativ? matt?rs through his v?to and
tr?aty making pow?r . Th?
judiciary i.? supr?m? court has mad? much mor? am?ndm?nts in th?
Hameed v. State of Jammu and Kashmir reported in AIR 1989 S.C. 1899
Am?rican constitution than th? congr?ss its?lf . Th? syst?m of ch?cks
and balanc?s which was also stat?d by Mont?squi?u allows th? thr?? bodi?s to k??p
a ch?ck on ?ach oth?rs pow?r.
In Symbolism King Solomon’s thron? was support?d by lions on both sid? wh?r?
th? lions r?pr?s?nt?d th? ?x?cutiv? and th? l?gislatur? and th? thron? r?pr?s?nt?d
judiciary. It mad? a stat?m?nt that th? Judiciary was support?d by th? l?gislatur?
and ?x?cutiv?. Th? Supr?m? court has stat?d that : “Und?r th? Constitution, th?
judiciary is abov? th? administrativ? ?x?cutiv? and any att?mpt to plac? it on
par with th? administrativ? ?x?cutiv? has to b? discourag?d.”.
In th? pr? ind?p?nd?nc? India th?r?
was a strong agitation in r?lation to s?paration of pow?r
b?tw??n th? ?x?cutiv? and th? judiciary if judiciary was not s?parat?d
from th? ?x?cutiv? th?n ind?p?nd?nc? of judiciary will just b? mock?ry.
In th? pr?s?nt day Supr?m? Court
is acting as a major litigant and th? supr?m? courts ar? s?rving
as a c?ntr? for major controv?rsi?s
with a flavor of political ting? b?caus? of which th?y hav? to
fac? th? wrath of th? public . Th?
qu?stion has also b? rais?d wh?th?r th? judiciary is crossing th?
lin? and int?rf?ring with th?
functioning of th? ?x?cutiv? and th? l?gislatur? . What on? wants at
pr?s?nt tim? is to ?nsur? a r?lation
of mutual und?rstanding and harmony and sinc? th? way
doctrin? of s?paration of pow?r
has b??n adopt?d in India it fails to d?marcat? th? lin? b?tw??n
th?s? thr?? bodi?s. Nowadays in r?spons?
to public int?r?st litigation writs, th? courts hav? b?gun
to dir?ct th? Gov?rnm?nt on ?v?rything
from cl?aring garbag? off th? str??ts to cl?ansing th?
polity of political sl?az?. With
th? wid?ning of th? horizons of “Judicial Activism” criticism
?manat?d from a f?w p?rc?nt of th?
p?opl? that th? judiciary is ov?rst?pping its bounds and
taking ov?r th? Gov?rnm?nt
functions, but this is not a justificabl? thought. Th? Supr?m? Court
and th? High Courts act as a
watch-dogs to k??p ?x?cutiv? and L?gislatur? within th? bounds of
law. Today millions of th? p?opl?
ar? suff?ring in th? country. It is th? judiciary which is holding
out hop? for th?m Its tim? th?s?
thr?? gov?rning bodi?s r?aliz? th? invisibl? boundari?s that
s?parat? th? thr?? and not int?rf?r?
in th? functioning of th? oth?r and by r?sp?cting this invisibl?
lin? s?t up an ?xampl? of good
From the above analysis of the doctrine of separation of power we saw
that although its not followed rigidly in India it still plays a very important
role when it comes to the functioning of the country we saw how these three
organs work together even though there is no specified boundary as to how much
they can interfere with each others working . We can see from the above
analysis that in the present time of technology and globalization it’s almost
impossible to stick to the old doctrine of separation of power which stated
that the bifurcation of power between the three bodies should be absolute . It’s
not possible to give one organ absolute power in one area because if that
happens there will be no custodian to keep a check or question its working
leading into absolute chaos. Today the countries follow the Ideal of welfare
state and if the priority is the welfare of the people the power cannot be
given into only the hands of a few . So in present time strict application of
doctrine of separation of power is impractical and undesirable
Although there are times when the lines are crossed by one of the organs
and that organ starts to interfere with the working of that other organ
disputes arise and the validity of this doctrine is brought into question . Its
time that these three bodies realize that at the end of the day constitution is
the ultimate authority and any of the three organs should not try and supersed
the power given to them by the constitution . It is time to establish a harmony
between the three organs so that they can learn to the invisible boundary that
is present between them . In India its separation of functions rather than
separation of power and through the system of checks and balances it is ensured
that no organ becomes corrupt.