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NANCY SHARMA UILS, PU, CHD
SUBMITTED BY: GUNNEET KAUR 126/10, 4th semester
Gunneet Kaur 1 .Acknowledgement I have taken efforts in this project. However. I would like to extend my sincere thanks to her. And I would also like to express my special gratitude and thanks to my parents and my friends. it would not have been possible without the kind support and help of my teacher Ms Nancy Sharma.
Coelho vs. State of Tamil Nadu.11 I. AIR 1973 SC 1461.11 Ram Jawaya Kapoor v. AIR 1975 SC 2299.10 Re Delhi Laws Act case. p.C.9 2 .Golak Nath v State of Punjab. Raj Narain. State of Punjab.10 Indira Gandhi Nehru v. p. AIR 1951 SC 332. p.R. p. AIR 1955 SC 549.Table of Cases I. AIR 2007 SC 8617.11 Kesavananda Bharati v State of Kerela. AIR 1967 SC 1643. p. p.
Bibliography 4 5 7 10 13 14 16 17 3 . Criticism 7. Conclusion 8.Index TOPIC PAGE NO. Separation Of Powers Under Indian Constitution 4. Historical background 3. Separation of Powers and Judicial Pronouncements in India 5. Introduction 2. 1. Importance of the Doctrine 6.
namely the legislature. The premise behind the Separation of Powers is that when a single person or group has a large amount of power. one has to stand with people. The Separation of Power is a method of removing the amount of power in any group's hands. „Administrative Law‟. 1 2 3 http://legalservicesindia. The legislative organ of the state makes laws. Thus. a number of measures have been derived to reduce this likelihood. they can become dangerous to citizens. even when acting in ambit of their own power.” Charles de Montesquieu Understanding that a government's role is to protect individual rights. these three powers and functions of the Government must. the executive enforces them and the judiciary applies them to the specific cases arising out of the breach of law. 2 According to the theory of separation of powers.1 There are three distinct activities in every government through which the will of the people are expressed. Kolkata. in a free democracy. executive and judicial functions of the government.D. Corresponding to these three activities are three organs of the government.3 But each organ while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the general public. These are the legislative. making it more difficult to abuse. 2004 4 .html Basu. the executive and the judiciary. D.html http://www. overlapping functions tend to appear amongst these organs.legalserviceindia. the Executive cannot exercise legislative or judicial and the Judiciary cannot exercise legislative or executive power of the Government. legislature cannot exercise legislative or judicial power. The concept of Separation of Powers is one such measure. but acknowledging that governments have historically been the major violators of these rights. Thus.com/article/l16-Separation-Of-Powers. always be kept separate and be exercised by three separate organs of the Government. not above them. Kamal Law House.. Sixth Edition.com/article/article/separation-of-power-in-india-usa-483-1.Introduction “To become truly great.
4 http://legalservicesindia. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the un-codified Constitution of the Roman Republic.e.html 5 . there should not be any overlapping of jurisdictions of the organs of the state. Montesquieu studied the English constitution for two years and after that he came to the conclusion that the stability of the English Constitution is because of its adherence of the separation of power. Executive. The doctrine of separation of powers has emerged in several forms at different periods.4 Montesquieu’s Doctrine Though the doctrine of Separation of Power is traceable to Aristotle but the writings of Locke and Montesquieu gave it a base on which modern attempts to distinguish between legislative. Its origin is traceable to Plato and Aristotle.Historical Background The separation of powers is a model for the governance of both democratic and federative states. This made Montesquieu propound the above said theory and according to this it was held that each organ of the state should be confined to its own spheres i. published in the year 1748.e. scientifically and clearly in his book „Esprit des Lois‟ (The Spirit of the Laws). French philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers. To avoid this situation with a view to checking the arbitrariness of the government he suggested that power of governance there should be clear cut division of power between the three organs of the state i. executive and judicial power is grounded. Legislative and the Judiciary. Montesquieu had clearly misconstrued the statement pertaining to the British constitution and later on he was criticized and in a very sarcastic manner its criticism was made.com/article/article/separation-of-power-in-india-usa-483-1. In the 16th and 17th centuries. But it was Montesquieu who for the first time formulated this doctrine systematically. Montesquieu found that if the power is concentrated in a single person‟s hand or a group of people then it results in a tyrannical form of government.
5 5 http://www. Later Rousseau also supported the said theory propounded by Montesquieu.in/law/ejournals/previous/article3-v1i2. In France.pdf 6 . But it again found its place in the French Constitution of 1871. Napoleon I and Napoleon III discarded the above theory for they believed in the concentration of power.After the end of the war of independence in America by 1787 the founding fathers of the American constitution drafted the constitution of America and in that itself they inserted the Doctrine of separation of power and by this America became the first nation to implement the Doctrine of separation of power throughout the world. However the Jacobins. The mere existence of the cabinet system negates the doctrine of separation of power in England as the executive represented by the cabinet remains in power at the sweet will of the parliament. The constituent Assembly of France in 1789 was of the view that “there would be nothing like a Constitution in the country where the doctrine of separation of power is not accepted”.nirmauni. where the doctrine was preached with great force by Montesquieu.ac. England follows the parliamentary form of government where the crown is only a titular head. it was held by the more moderate parties in the French Revolution.
The Supreme Court and High Courts are given the power of judicial review and they can declare any law passed by the Parliament or the Legislature unconstitutional. Judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or the legislature. one may be inclined to say that that the doctrine of Separation of Powers is accepted in India. executive powers are with the President. I. It has accordingly been held that there is no rigid separation of powers. Eastern book Company.C. legislative powers with Parliament and judicial powers with Judiciary (Supreme Court. The Judiciary is independent in its field and there can be no interference with its judicial functions either by the Executive or by the Legislature. The judges of the S.P.Separation of Powers under Indian Constitution On a casual glance at the provisions of the Constitution of India. Although prima facie it appears that our constitution has based itself upon doctrine of separation of powers. Lucknow. The High Courts and the Supreme Court has been given the power of judicial review and they can declare any law passed by parliament as unconstitutional. there is express mention that the executive power of the Union and of a State is vested by the constitution in the President and the Governor. Parliament is competent to make any law subject to the provisions of the Constitution and there is no other limitation on it legislative power. Under the Indian Constitution. Sixth Edition. „Administrative Law‟. Constitution restricts the discussion of the conduct of any judge in the Parliament. are appointed by the 6 Massey. respectively. by articles 53(1) and 154(1).. Functional overlapping: The President‟s function and powers are enumerated in the Constitution itself. but there is no corresponding provision vesting the legislative and judicial powers in any particular organ. High Courts and Subordinate Courts). 2 005 7 .6 No rigid separation of powers: In Indian constitution.
has power to make Rules for efficient conduction of business. in certain matters Parliament exercises judicial functions too. and in case of impeaching the President. Privileges and Immunities to the MPs. But. in reality he is only a formal head and that. The S.President in consultation with the CJI and judges of the S. However. The reading of Article 74(1) makes it clear that the executive head has to act in accordance with the aid and advice given by the cabinet. These were some instances of the executive head becoming the repository of legislative functioning. the executive power vests in the President but. It is noteworthy that Article 50 of the constitution puts an obligation over state to take steps to separate the judiciary from the executive. It is responsible to the legislature for its actions and also it derives its authority from legislature. under some specified circumstances President is also empowered to exercise legislative functions. Like while issuing an ordinance. President performs judicial functions also under article 103 (1) and article 217(3). it is clear that doctrine of separation of powers has not been accepted in India in its strict sense. both the houses take active participation and decide the charges 8 . Generally the legislature is the repository of the legislative power but. etc. Such provisions are thereby making legislature independent. the Real head is the Prime minister along with his Council of Ministers.C. On the other side.C. since it is a Directive Principle of State Policy. since it is a parliamentary form of government. therefore it‟s unenforceable. In a similar fashion certain constitutional provisions also provide for Powers. framing rules and regulations relating to Public service matters. if studied carefully. Parliamentary executive: In India. It can decide the question of breach of its privilege. therefore it is based upon intimate contact and close co-ordination among the legislative and executive wings. in a way. But. Immunity from judicial scrutiny into the proceedings of the house . The President and the Governor enjoy immunity from civil and criminal liabilities. The executive is a part of the legislature. The Constitution provides for conferment of executive power on the President. His powers and functions are enumerated in the constitution itself. formulating law while proclamation of emergency is in force.
observed-Although in the constitution of India there is no express separation of powers. in India. it‟s quite evident from the constitutional provisions themselves that India. not been awarded a Constitutional status.com/article/l16-Separation-Of-Powers. But. that. dependant on the other organ which checks and balances it. it was held by a majority of 5:2. Except where the constitution has vested power in a body.legalserviceindia. 8 7 8 · AIR 1951 SC 332 http://www. this doesn‟t mean that this doctrine is not followed in India at all. C. the theory of separation of powers is not part and parcel of our Constitution. This observation was made by the Supreme Court in the re Delhi Laws Act case7. too can be seen exercising administrative functions when it supervises all the subordinate courts below. rather based upon fusion of powers. it is evident that constitution intends that the powers of legislation shall be exercised exclusively by the Legislature. each organ is. does not follow an absolute separation and is. Thus.html 9 . the principle that one organ should not perform functions which essentially belong to others is followed. thus. The doctrine has. where a close co-ordination amongst the principal organs is unavoidable and the constitutional scheme itself mentions it. As Kania. every organ of the government is required to perform all the three types of functions.Judiciary. But. wherein.J. In essence they imported the modern doctrine of separation of powers. The reason for the interdependence can be accorded to the parliamentary form of governance followed in our country.. being a parliamentary democracy. Also. It has legislative power also which is reflected in formulation of rules regulating their own procedure for the conduct and disposal of cases So. it was also held that except for exceptional circumstances like in Article 123 and 357. it is clear that a legislature is created by the constitution and detailed provisions are made for making that legislature pass laws. in some form or the other.
State of Punjab9. The executive.Golak Nath v State of Punjab10 Subha Rao. namely the union. thus. In India.C. the state and the union territories. Article 74(1) wins them an upper hand over the executive by making their aid and advice mandatory for the formal head.C. we don‟t abide by the principle in its rigidity. there were times where the judiciary has faced tough challenges in maintaining and preserving the Doctrine of separation of power and it has in the process of preservation of the above said Doctrine has delivered landmark judgments which clearly talks about the independence of judiciary as well as the success of judiciary in India for the last six decades. is derived from the legislature and is dependent on it.Separation of Powers and Judicial Pronouncements in India As clearly mentioned about the separation of power.J opined that “The constitution brings into existence different constitutional entitles. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping there limits. And hence. C. namely the Legislature. in Ram Jawaya Kapoor v. An example of it can be seen in the exercise of functions by the Cabinet ministers. 9 10 AIR 1955 SC 549 AIR 1967 SC 1643 10 . who exercise both legislative and executive functions. It creates three major instruments of power. This was the observation made by the Hon‟ble S. They should function with the spheres allotted to them” The above opinion of the court clearly states the change in the courts view pertaining to the opinion in the case of Ram Jawaya v state of Punjab related to the doctrine of separation of power. for its legitimacy. Later in I. we follow a separation of functions and not of powers. the Executive and the Judiciary.
This scheme cannot be changed even by resorting to Article 368 of the constitution. None of the three separate organs of the republic can take over the functions assigned to the other.C. No constitution can survive without a conscious adherence to its fine check and balance. Chandrachud J. it discharged a judicial function which according to the principle of separation it shouldn‟t have done. the S. won‟t be void. There are attempts made to dilute the principle. even under constitutional amending power. where the dispute regarding P. Beg. opined that adjudication of a specific dispute is a judicial function which parliament. Raj Narain12. any amendment tampering these essential features will be struck down as unconstitutional.13 S.On the question that where the amending power of the Parliament does lies and whether Article 368 confers an unlimited amending power on Parliament. The place of this doctrine in Indian context was made a bit clearer after this judgment.M. State of Tamil Nadu. added that separation of powers is a part of the basic structure of the constitution. Then in Indira Gandhi Nehru v.e.R. the main ground on which the amendment was held ultravires was that when the constituent body declared that the election of P.C. And hence. the parliament does not have the jurisdiction to perform a function which the other organ is responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions of the three organs of the state. Coelho vs. election was pending before the Supreme Court. So. to the level of usurpation of judicial power by the legislature. The principle of Separation of Power is a principle of restraint which has in it the precept.M. innate in the prudence of self preservation. Also in I. J. cannot exercise i. also observed that the political usefulness of doctrine of Separation of Power is not widely recognized. in Kesavananda Bharati v State of Kerela11 held that amending power was now subject to the basic features of the constitution. that discretion is the better part of valor. 11 12 AIR 1973 SC 1461 AIR 1975 SC 2299 13 AIR 2007 SC 8617 11 . took the opinion opined by the Supreme court in Kesavananda Bharati case pertaining to the doctrine of basic structure and held that the Ninth Schedule is violative of the above said doctrine and hence from now on the Ninth Schedule will be amenable to judicial review which also forms part of the basic structure theory.
a part of this doctrine is. the principle of „checks and balances‟. which constitute a part of „basic structure‟ doctrine so much so that. not even by amending the constitution and if any such amendment is made. none of the three organs can usurps the essential functions of the organs. 12 . the court will strike it down as unconstitutional. Therefore.Though in India strict separation of powers is not followed but.
php?article=1512 13 . power is concentrated in a single hand and if it is so then there is a cent percent chance of misuse of power.e. Also the importance of the above said doctrine can be traced back to as early as 1789 where the constituent Assembly of France in 1789 was of the view that “there would be nothing like a Constitution in the country where the doctrine of separation of power is not accepted”. 14 14 http://www.com/articles/index.e. Hence the Doctrine of separation of power do plays 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.Importance of the Doctrine The 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.airwebworld. The main object as per Montesquieu in the Doctrine of separation of power is that there should be government of law rather than having willed and whims of the official Also another most important feature of the above said doctrine is that there should be independence of judiciary i. 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. it should be free from the other organs of the state and if it is so then justice would be delivered properly.
executive and judicial in the same hands whether of one.ac. Chaos would prevail if the same man or the same body were to exercise the three powers. Organic separation: The theory is criticized on the ground that the government is an organic unity and absolute demarcation of powers is impossible. The legislature does not act merely as law making body. According to Justice Frankfurter “Enforcement of a rigid conception of separation of powers would make modern government impossible.” Adherence to it not possible in welfare state: As we know the legislature can only legislate and the executive can only punish anyone who commits a breach of privilege.pdf 14 . The distinction must be drawn between essential and incidental powers and that one organ of government cannot usurp upon the essential functions belonging to another organ Practical difficulties in its acceptance: in practice it has not been found possible to concentrate power of one kind in one organ only.in/law/ejournals/previous/article3-v1i2. The aim of the doctrine of the Separation of Powers is to “bring exclusiveness in the functioning of the three organs. In principle each organ should be able to perform its function independent of the other organs and no organ should perform functions that belong to the other.Criticism The legislature. “The accumulation of all powers. a few. 15 http://www.nirmauni. may justly be pronounced the very definition of tyranny. legislative. It is neither practicable nor desirable to divide it into three water-tight compartments. self-appointed or elective. So this theory cannot be accepted in its entirety because separation of powers can only be relative and not absolute.” 15 Division of function: The assumption behind the doctrine of separation of powers is that the three functions of the government are divisible from each other. the Judiciary and the Executive are the three pillars of a stable government. The fact however is that it is not so in reality. neither of these two can assume the powers of the other. or many and whether hereditary. There is overlapping with each other.
suspicion and internal friction. The separation of powers is too mechanical in nature to be of any avail against these types of domination. JJR. Although this doctrine of separation of powers ensures a certain degree of efficiency it can even give rise to jealousy. Central Law Agency. Although Montesquieu‟s doctrine aims to secure the liberty and freedom of the individual yet it is impossible to achieve the same through the mechanical division of functions and powers. Such despotism does not exist today. But it is impossible to perform functions without the necessary powers. At one point of time this theory held great value against the despotism of a king and later of a parliament. Some have argued that while functions may be demarcated powers should always remain supreme. Rule of Law accompanied by eternal vigilance are the mainstay of freedom and liberty. The judiciary has not only judicial functions but also has some rule making powers.but also act as an overseer of the executive. What is required is not separation of powers but „co-ordination‟ or „articulation‟ of powers. „Administrative Law‟. 2006 15 .16 Thus separation of powers is not only practically impossible but theoretically absurd too. “the theory of separation of powers throws government into alternative conditions of coma and convulsion. the administrative organ has legislative function. 7 th ed. The modern day governments require protection against the domination of parliament and of civil servants. In the words of Finer.” 16 Upadhya.
. the doctrine of separation of powers is a theoretical concept and is impracticable to follow it absolutely The 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. Therefore. then providing absolute and sole discretion to the body in the matters regarding its sphere of influence may also cause abuse of such power. 16 . even after distinguishing the functions. So the framers of the Indian constitution did not incorporate a strict doctrine of separation of powers but envisaged a system of „checks and balances. But.Conclusion “Power corrupts and absolute Power tends to corrupt absolutely” -Lord Acton Conferment of power in a single body leads to absolutism. when an authority wields public power.
JJR. 2004 Massey. „Administrative Law‟. Sixth Edition.Bibliography BOOKS: Basu.com/articles/index.ac.airwebworld. Kolkata. Eastern book Company.php?article=1512 http://www. „Administrative Law‟. Sixth Edition.html http://www. I.D. „Administrative Law‟. Kamal Law House.. 7th ed..in/law/ejournals/previous/article3-v1i2.pdf 17 . 2006 WEBSITES: http://legalservicesindia. D. Central Law Agency. Lucknow. 2005 Upadhya.P.com/article/article/separation-of-power-in-india-usa-483-1.nirmauni.
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