0 w? trac? th? v?ry principl? of s?paration of

Symbiosis Int?rnational Univ?rsity, Pun?
Int?rnal I
Submitt?d by:
Pulkit D?vpura
Batch: 2017-2020
Symbiosis Law School, Pun?
Th?r? is an und?rlying conn?ction b?tw??n th? principl?s of rul? of law and s?paration of
pow?r. In a syst?m gov?rn?d by rul? of law th?r? should not b? any absolut? pow?r b?ing run
at th? whims of th? on?s having th? sourc? of th? sam?.515 Th?r?for? if th?r? is no sourc? of
pow?r in th? first plac?; th?n chanc?s of th? pow?r b?ing ?x?rcis?d whimsically by a body
b?com? ?v?n l?ss and distant. Th? conc?pt of S?paration of Pow?r has b??n d?riv?d to r?duc?
th? lik?lihood of gov?rnm?nt violating th? rights of individuals. Th? basic assumption b?hind
this conc?pt is that wh?n a singl? p?rson or group has a larg? amount of pow?r, th?y can
b?com? dang?rous to citiz?ns. Th? S?paration of Pow?r is a way of r?moving th? amount of
pow?r in any group’s hands, making it mor? difficult to abus?.
It has b??n known that S?paration of pow?r had b??n found?d by th? Mont?squi?u and Lock?
but its roots ar? found in th? V?das. If w? study th? Smritis which ar? anci?nt sourc? of law
i.?. Dharma, w? find such typ? of s?paration. In Narad Smriti w? trac? th? v?ry principl? of
s?paration of pow?r. At that tim? D??wan was h?ad of th? ?x?cutiv? wing of any l?gacy,
S?napati did a job to maintain law and ord?r and Kaji was th? judicial h?ad. At th? sam? tim?
w? hav? to b?ar in mind that th?y all ar? subordinat? to th? King and King was th? supr?m?
authority who mak?s th? law and th?r?for? h? was similar to pr?s?nt form of l?gislatur?. In
short, what com?s out is that in anci?nt tim? also th?r? was a s?paration of pow?r in on?
provinc? or l?gacy. Aft?r all, King is known as th? supr?m? authority of all but th? functions
and pow?rs has b??n s?parat?d.
Th? valu? of this doctrin? li?s in that it att?mpts to pr?s?rv? human lib?rty by avoiding th?
conc?ntration of pow?rs in any on? p?rson or body of p?rson. As stat?d by Madison- “Th?
accumulation of all pow?rs, l?gislativ?, ?x?cutiv? and judicial, in th? sam? hands wh?th?r of
on?, a f?w, or many and wh?th?r h?r?ditary, s?lf-appoint?d or ?l?ctiv?, may justly b?
pronounc?d th? v?ry d?finition of tyranny.” And for th? pr?v?ntion of this tyranny, th?
doctrin? of s?paration of pow?r holds its gr?at?st importanc?.
India, th?r? ar? thr?? distinct activiti?s in th? Gov?rnm?nt through which th? will of th?
p?opl? ar? ?xpr?ss?d. Th? l?gislativ? organ of th? stat? mak?s laws, th? ?x?cutiv? forc?s
th?m and th? judiciary appli?s th?m to th? sp?cific cas?s arising out of th? br?ach of law.
?ach organ whil? p?rforming its activiti?s t?nds to int?rf?r? in th? sph?r? of working of
anoth?r functionary b?caus? a strict d?marcation of functions is not possibl? in th?ir d?alings
with th? g?n?ral public. Thus, ?v?n wh?n acting in ambit of th?ir own pow?r, ov?rlapping
functions t?nd to app?ar amongst th?s? organs. Th? qu?stion which is important h?r? is that
what should b? th? r?lation among th?s? thr?? organs of th? stat?, i.?. wh?th?r th?r? should b?
compl?t? s?paration of pow?rs or th?r? should b? co-ordination among th?m.
Th? application of doctrin? of s?paration of pow?r has a proposition that non? of th? thr??
organs of Gov?rnm?nt, L?gislativ? ?x?cutiv? and Judicial, can ?x?rcis? any pow?r which
prop?rly b?longs to ?ith?r of th? oth?r two.
L?gislatur? is that institution which consist of th? r?pr?s?ntativ? of th? p?opl? i.?., politician.
Its main obj?ctiv? is to discuss and d?bat? on th? issu?s conc?rning th? p?opl? and th?
Country. It is th? law and policy making body. G?n?rally, n?w laws or polici?s ar?
introduc?d in th? Parliam?nt/ Stat? L?gislatur? in th? form of Bills. Th?s? Bills onc? pass?d
by th? L?gislatur? ar? s?nt to th? Pr?sid?nt for ass?nt. Onc? th? pass?d bill g?ts th? ass?nt of
th? Pr?sid?nt, it b?com?s th? law, or th? policy com?s into ?ff?ct. Parliam?nt or th? Stat?
L?gislatur? ar? th? forms of “L?gislatur?”. It is h?r? wh?r? th? Govt. is bound to answ?r th?
qu?stions which ar? rais?d by anoth?r r?pr?s?ntativ? of th? hous?.
?x?cutiv? is that branch of th? Govt. which ?nabl?s and impl?m?nt th? actions and d?cisions
of th? Govt. may it b? impl?m?ntation of th? laws pass?d by th? l?gislatur? or pr?paring th?
blu?print of various oth?r initiativ?s which ar? tak?n up by th? Govt lik? Jan-Dhan Yojana,
Start-up India Stand Up India ?tc., th? rul?s and r?gulation as w?ll as th?ir fram?work is
pr?par?d by th? ?x?cutiv? only. This body consist of th? bur?aucrats from All India S?rvic?s
lik? IAS, IFS, IRS, IPS.
Lik? th? oth?r two important parts of syst?m or country wh?r? l?ad?rs ar? chos?n by vot?s,
th? ?x?cutiv? is ?qually ?xp?ct?d to b? fr?? of invasions from th? oth?r two. It is always said
that ?x?cutiv? is ind?p?nd?nt of th? two, but th? un?xp?ct?d w?irdn?ss continu?s to ?xist and
do hard or annoying things. It is compl?t?ly w?aring away in actual practic?. Th? r?ason is
that th? ?x?cutiv? is qu?stion?d for its actions by th? judg?s, th? court and th? Gov?rnm?nt.
This wat?rs down th? ind?p?nd?nc? of th? ?x?cutiv? to th? high?st possibl? valu?. It’s not
that th? qu?stion of answ?rability pops up only in th? cas? of ?x?cutiv?. Th? judiciary and th?
l?gislatur? ar? ?qually answ?rabl? but in th?ir cas?s, a built-in syst?m from within would b?
availabl? for discharging thos? functions. This is th? r?al situation, which ?xists in practic?.
is anoth?r ‘ind?p?nd?nt’ branch of th? Govt whos? main task is to b? uphold th?
Constitution and th? rul? of law. It acts as a watchdog ov?r th? actions of th? l?gislatur? and
?x?cutiv? and curtails th? sam? wh?n it violat?s th? rights of th? individuals. Judiciary has to
?nforc? th? law and p?nalis? thos? who ar? found to b? br?aching th? sam?. It consists of th?
Judg?s who pr?sid? ov?r th? court. It is th? most important f?atur? of d?mocracy. It is
r?sponsibl? for saf?guarding th? int?r?sts and th? fundam?ntal rights of th? p?opl?. Judiciary
consists of th? Hon’bl? Supr?m? Court, Hon’bl? High Court and oth?r low?r courts.
Judiciary k??ps a tab on th? activiti?s of th? gov?rnm?nt and plays an important rol? in th?
?v?nt of violation of Fundam?ntal Rights of th? p?opl? of th? country. Judiciary also has th?
authority to ?xamin? th? validity of th? Laws ?nact?d by th? Parliam?nt on th? constitutional
1. In th? r? D?lhi Laws Act cas?, it was for th? first tim? follow?d by th? Supr?m? Court
that ?xc?pt wh?r? th? constitution has v?st?d pow?r in a body, th? way of thinking that
on? organ should not compl?t? functions which basically b?long to oth?rs is follow?d in
India. By a majority of 5:2, th? Court h?ld that th? ?xplanation of s?paration of pow?rs
though not an important part of our Constitution, in rar? circumstanc?s is obvious in th?
l?gal rul?s of th? Constitution its?lf. As obs?rv?d by Kania, C.J.-
“Although in th? constitution of India th?r? is no ?xpr?ss s?paration of pow?rs, it is cl?ar that
a l?gislatur? is cr?at?d by th? constitution and d?tail?d provisions ar? mad? for making that
l?gislatur? pass laws. Do?s it not imply that unl?ss it can b? gath?r?d from oth?r provisions
of th? constitution, oth?r bodi?s-?x?cutiv? or judicial-ar? not int?nd?d to discharg? l?gislativ?
This judgm?nt sugg?st?d that all th? thr?? organs of th? Stat? which ar? th? L?gislatur?,
th? Judiciary and th? ?x?cutiv? ar? bound by and subj?ct to th? l?gal rul?s of th?
Constitution, which limits th?ir pow?rs, l?gal controls, r?sponsibiliti?s and r?lationship
with on? anoth?r. Also, that it can b? assum?d that non? of th? organs of th? Stat?, th?
L?gislatur?, th? Judiciary, and th? ?x?cutiv? would go b?yond its pow?rs as laid down in
th? Constitution.
Th? qu?stion plac?d b?for? th? Supr?m? Court in this cas? was conn?ct?d to th? ?xt?nt of th?
pow?r of th? gov?rnm?nt to updat? th? Constitution as giv?n und?r th? Constitution its?lf. It
was argu?d that Parliam?nt was “b?tt?r than anyon? or anything ?ls?” and r?pr?s?nt?d th?
sov?r?ign will of th? p?opl?. So, if th? p?opl?’s r?pr?s?ntativ?s in Parliam?nt d?cid?d to
chang? a particular law to control individual fr??dom or limit th? ?xt?nt of th? rang? of th?
judiciary, th? ?x?cutiv? and th? l?gislatur? had no right to qu?stion wh?th?r it was r?lat?d to
th? Constitution or not. How?v?r, th? Court did not allow this argum?nt and inst?ad found in
favor of th? p?rson who’s arguing against a l?gal d?cision on th? grounds that th? b?li?f of
s?paration of pow?rs was a part of th? “basic structur?” of our Constitution.
As p?r this ruling, th?r? was no long?r any n??d for confusing doubl?-m?aning as th? id?a for
a singl? purpos? r?cogniz?d as a part of th? Indian Constitution, p?rman?nt ?v?n by an Act of
Parliam?nt. So, th? id?a of s?paration of pow?rs has b??n includ?d into th? Indian laws.
How?v?r, it was aft?r th? landmark cas? of Indira N?hru Gandhi v. Raj Narain that th? plac?
of this doctrin? in th? Indian cont?xt was mad? cl?ar?r. It was obs?rv?d: “That in th? Indian
Constitution, th?r? is s?paration of pow?rs in a broad s?ns? only. A rigid s?paration of
pow?rs as und?r th? Am?rican Constitution or und?r th? Australian Constitution do?s not
apply to India.”Chandrachud J. also obs?rv?d that th? political us?fuln?ss of th? doctrin? of
S?paration of Pow?r is not wid?ly r?cogniz?d. No Constitution can surviv? without a
conscious adh?r?nc? to its fin? ch?ck and balanc?.
Th? doctrin? of s?paration of pow?rs was furth?r ?xpr?ssly r?cogniz?d to b? a part of th?
Constitution in th? cas? of Ram JawayaKapur v. Stat? of Punjab, wh?r? th? Court h?ld that
though th? doctrin? of s?paration of pow?rs is not ?xpr?ssly m?ntion?d in th? Constitution it
stands to b? violat?d wh?n th? functions of on? organ of Gov?rnm?nt ar? p?rform?d by
anoth?r. This m?ans th? Indian constitution had not ind??d r?cogniz?d th? doctrin? of
s?paration of pow?rs in its absolut? rigidity but th? functions of diff?r?nt parts or branch?s of
th? Govt. 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
functions that ?ss?ntially b?longs to anoth?r.
In I.C. GolakNath v. Stat? of Punjab, Supr?m? Court took th? h?lp of doctrin? of basic
structur? as propound?d in K?svanandaBharati cas? and said that Ninth Sch?dul? is violativ?
of this doctrin? and h?nc? th? Ninth Sch?dul? was mad? am?nabl? to judicial r?vi?w which
also forms part of th? basic structur? th?ory. It was obs?rv?d: “Th? Constitution brings into
?xist?nc? diff?r?nt constitutional ?ntiti?s, nam?ly, th? Union, th? Stat?s and th? Union
T?rritori?s. It cr?at?s thr?? major instrum?nts of pow?r, nam?ly, th? L?gislatur?, th?
?x?cutiv? and th? Judiciary. It d?marcat?s th?ir jurisdiction minut?ly and ?xp?cts th?m to
?x?rcis? th?ir r?sp?ctiv? pow?rs without ov?rst?pping th?ir limits. Th?y should function
within th? sph?r?s allott?d to th?m.”
Diff?r?nt mod?ls around th? world:
Constitutions with a high d?gr?? of s?paration of pow?rs ar? found all ov?r th? world. ?v?n
though th?r? is th? ?xist?nc? of th? saf?guards it giv?s against v?ry bad tr?atm?nt, th?
mod?rn-day communiti?s of p?opl? find it v?ry hard to apply it stiffly and strictly. In way of
basic truth/rul? th?y go for s?paration of pow?rs and dilution of pow?rs at th? sam? tim?.
Unit?d Stat?s:
In th? Unit?d Stat?s Constitution, Articl? I S?ction I giv?s Congr?ss only thos? “law-bas?d
pow?rs within this ar? grant?d” and mov? forwards to list thos? allow?d actions in Articl? I
S?ction 8, whil? S?ction 9 lists actions that ar? prohibit?d for Congr?ss. Th? claus? in Articl?
II plac?s no limits on th? ?x?cutiv? branch, simply stating that, “Th? ?x?cutiv? Pow?r will
b? v?st?d in a Pr?sid?nt of th? Unit?d Stat?s of Am?rica.”
Th? Supr?m? Court holds “Th? Judicial Pow?r” according to Articl? III, and it ?stablish?d
th? ?ff?ct of Judicial r?vi?w in Mar bury v. Madison. Th? f?d?ral gov?rnm?nt r?f?rs to th?
branch?s as “branch?s of gov?rnm?nt”, whil? som? syst?ms us? “gov?rnm?nt” to d?scrib? th?
?x?cutiv?. Th? ?x?cutiv? branch has tri?d to forc?fully tak? pow?r from Congr?ss arguing
for S?paration of pow?rs to includ? b?ing th? Command?r in Chi?f of a standing army sinc?
th? war b?tw??n groups that all liv? in on? country, ?x?cutiv? ord?rs, ?m?rg?ncy pow?rs and
s?curity classifications sinc? WWII, national s?curity, signing stat?m?nts, and now th? id?a
of a unitary ?x?cutiv?.
To pr?v?nt on? branch from b?coming most pow?rful or b?tt?r than anyon? or anything ?ls?,
and to caus? th? branch?s to coop?rat?, authority and control syst?ms that ?mploy a
s?paration of pow?rs n??d a way to balanc? ?ach of th? branch?s. Usually this was v?ry
skilful through a syst?m of “ch?cks and balanc?s”, th? origin of which, lik? s?paration of
pow?rs its?lf, is sp?cifically cr?dit?d to Mont?squi?u. Ch?cks and balanc?s allows for a
syst?m bas?d r?gulation that allows on? branch to limit anoth?r, such as th? pow?r of
Congr?ss to chang? th? composition and ar?a of l?gal control of th? f?d?ral courts.
India a p?rf?ct syst?m of s?paration of pow?r do?s not ?xist, this is du? to th? un?qual
distribution of pow?rs among th? 3 organs. As s??n in th? yardsticks as giv?n by prof?ssor
Ivo Duchac?k, India fails in c?rtain asp?cts of impl?m?nting doctrin? of s?paration of pow?r.
If th?s? conditions ar? th?n fulfill?d all th? organs can work tog?th?r smoothly. Th? first
sugg?stion for th? sam? is:
? ?ach organ should b? giv?n ?qual r?pr?s?ntation as giv?n in th? U.S. constitution. This
will giv? a b?tt?r chanc? to all th? organs, bringing th?m on par with th?ir pow?rs.
? Th? pow?r to am?nd th? constitution is giv?n mainly to th? parliam?nt. Th? oth?r organs
hav? a v?ry small say in th? sam?. Mor? pow?r should b? giv?n to th? ?x?cutiv? to giv?
rath?r mor? r?pr?s?ntation.
? Th?y should consciously r?aliz? th? uns??n boundari?s and r?sp?ct ?ach oth?r’s
? It is not only th? duty of th? tripartit? to r?aliz? th? sam? but also th? obligation of th?
citiz?ns to r?aliz? th? ultimat? sanctity of th? Constitution.
Th?s? ar? f?w of th? sugg?stions that might giv? ris? to a n?ar to p?rf?ct syst?m of doctrin?
of s?paration of pow?r h?lping in a smooth functioning b?tw??n th? c?ntr? and stat?.
doctrine of separation of power in its true sense is very rigid and this is one of the
reasons of why it is not accepted by a large number of countries in the world. The main
object as per Montesquieu in the Doctrine of Separation of Power is that there should be
government of law rather than having will and whims of the official. Also another most
important feature of the said doctrine is that there should be independence of judiciary i.e. it
should be free from the other organs of the State and if it is so then justice would be
delivered properly. The judiciary is the scale through which one can measure the actual
development of the State. If the judiciary is not independent, then it is the first step towards a
tyrannical form of government i.e. power is concentrated in a single hand and if it is so then
there is a very high chance of misuse of power. Hence the Doctrine of Separation of Power
does play a vital role in the creation of a fair government and also fair and proper justice is
dispensed by the judiciary as there is independence of judiciary.
In conclusion, it is evident that governments in their actual operation do not opt for the strict
separation of powers because it is undesirable and impracticable, however, implications of
this concept can be seen in almost all the countries in its diluted form. The discrepancies
between the plan and practice, if any, are based on these very grounds that the ideal plan is
impractical for everyday use. India relies heavily upon the doctrine in order to regulate,
check and control the exercise of power by the three organs of Government. Whether it is in
theory or in practical usage, the Doctrine of Separation of Powers is essential for the effective
functioning of a democracy.