ADMINSTRATIVE LAW

Doctrine of Separation
of Powers
The Indian Perspective
Srinivas Atreya
519
July 2011
Introduction
The legislative department shall never exercise the executive and
judicial powers, or either of them; the executive shall never exercise the
legislative and judicial powers, or either of them; the judiciary shall never
exercise the legislative and executive power, or either of them; to the end
that it may be a government of law and not of men
- The State Constittion of
Massachsetts
The separation of powers! in practice if not in for"! is considered to #e
a prere$isite for the e%ective fnctionin& of a de"ocrac'( It)s a parado*ica+
concept that +i,e the -r+e of +aw) that has sper.cia+ si"p+icit' as we++ as a
deeper co"p+e*it'( /road+' spea,in&! it is #ased on the idea that
&overn"enta+ powers are divisi#+e into three cate&ories 0 e*ective to
pro"+&ate +aws! +e&is+ative to "a,e +aws and 1dicia+ to app+' and interpret
the +aws( The idea of separation of fnctions ste"s fro" the +e&a+ conc+sion
that if the +aw-"a,ers sho+d a+so #e the ad"inistrators and dispensers of
+aw and 1stice! then the peop+e at +ar&e wi++ #e +eft withot a re"ed'! for
there wi++ #e no sperior athorit' in case an' in1stice occrs( In essence!
the princip+e of separation of powers dea+s with the "ta+ re+ations a"on&
the three or&ans of the &overn"ent! na"e+' +e&is+atre! e*ective and
1diciar'(
The doctrine atte"pts to #rin& e*c+siveness in the fnctionin& of the three
or&ans and ths a strict de"arcation of power is the ai" so&ht to #e
achieved as the it si&ni.es the fact that one person or #od' of persons
sho+d not e*ercise a++ the three powers of the &overn"ent( 2owever in
practice! each or&an whi+e perfor"in& its activities tends to interfere in the
sphere of wor,in& of another fnctionar' #ecase a strict de"arcation of
fnctions is not possi#+e in their dea+in&s with the &enera+ p#+ic( Ths! even
when actin& in a"#it of their own power! over+appin& fnctions tend to
appear a"on&st these or&ans(
The Theor' of separation of powers was proponded and pop+ari3ed #' the
4rench po+itica+ ana+'st Montes$ie(

P#+ished in 5678! his wor, on the
theor' tit+ed -Esprit des Lois) 9The Spirit of the Laws:! e*tensive+' discssed
the doctrine and &ave it a s'ste"atic and scienti.c desi&n( The inspiration of
this doctrine "a' have ori&inated in the Aristote+ian era and was
conse$ent+' e*p+ored #' the 5;
th
and 56
th
centr' po+itica+ phi+osophers
<ohn /odin and <ohn Loc,e(
Accordin& to Montes$ie)s conception of the doctrine of separation of
powers no one person or #od' sho+d #e vested with a++ three t'pes of
powers and there "st #e a division of fnctions on the #asis that the
+e&is+atre sho+d "a,e +aws #t not ad"inister or enforce the"! the
e*ective "st ad"inister the "ade +aws #t neither in=ence the
+e&is+atre in the "a,in& of the +aws nor stand in 1d&"ent of the sa"e and
the 1diciar' "st deter"ine ri&hts and pho+d 1stice withot ta,in& over
the fnctions of +aw-"a,in& or ad"inistration( It was frther e*p+icated that
sch separation is necessar' in order to ensre that 1stice does not #eco"e
ar#itrar' and capricios(
It is interestin& note that the va+e of this doctrine +ies in that it atte"pts to
preserve h"an +i#ert' #' avoidin& the concentration of powers in an' one
person or #od' of person( Montes$ie proponded this theor' after caref+
consideration and std' of n"eros crcia+ event and factors( 4irst! he
+earnt fro" the historica+ trends of the despotic Tdors and the a#so+tist
Starts that freedo" co+d not #e secred if the e*ective and +e&is+ative
powers were he+d in the sa"e hands( 2avin& persona++' e*perienced the
t'rannies in "onarchica+ 4rance! he fe+t that sch a co"#ination of powers
wo+d +ead to the enactin& of oppressive +aws which the e*ective wo+d
ad"inister to attain its own ends( Montes$ie a+so caref++' fo++owed the
events nfo+din& on the other side of the channe+ prior to deter"inin& what
he tho&ht was the #est corse of action( In En&+and! the inception of the
Ma&na Carta and the Act of Sett+e"ent! drastica++' crtai+ed the powers of
the "onarch vestin& the" instead with Par+ia"ent and Corts(
Tho&h! there was no c+ear separation of powers! the positive e%ect of the
redced prero&ative powers of the >in& ce"ented Montes$ie)s #e+ief that
the secret to +i#ert' is the separation and fnctiona+ independence of the
three depart"ents of ?overn"ent(
@A++ wo+d #e +ostA! he wrote! @If the sa"e "an or the sa"e r+in& #od'!
whether of no#+es or the peop+e! were to e*ercise these three powers! that of
+aw "a,in&! that of e*ectin& p#+ic reso+tions and that 1d&in& cri"es and
civi+ casesA
In the "odern era! it is wide+' accepted that for a po+itica+ s'ste" to #e
sta#+e! the receptac+es of power need to #e #a+anced o% a&ainst each other(
In this re&ard the doctrine of separation of powers can #e pt into app+ied for
di%erent prposes( It "a' #e sed in spport of a princip+e of a++ocation of
fnctions to the "ost appropriate #od' in the State! whether a tri#na+! a
cort! an e+ected asse"#+' or a #od' of e+ected or appointed oBcia+s( Cn the
other hand! the separation of powers "a' a+so #e invo,ed in spport of
arran&e"ents for preventin& the a#se of power in sitations where p#+ic
powers are distri#ted a"on&st di%erent instittions in sch a "anner that
each has the necessar' freedo" for its own actions and si"+taneos+'
possess a concrrent capacit' to chec, the actions of other power-ho+din&
#odies in the event of a "isse of their power 0 a s'ste" of chec,s and
#a+ances( The doctrine ena#+es the creation of a "er&ed and #a+anced
&overn"ent! with safe&ards to chec, e*cesses no "atter where the' arise(
As stated #' Vi+e! this @di%sion of athorit' a"on& di%erent centers of
decision-"a,in& is the antithesis of tota+itarianis" and a#so+tis"A(
Whether accepted #' e*press provision or necessar' i"p+ication! the
doctrine of separation of powers! in its essence! has #eco"e an inte&ra+ part
of the &overn"enta+ strctres of n"eros states( In theor'! the doctrine of
separation of powers has #een traditiona++' spposed to re$ire a threefo+d
c+assi.cation of fnctions and correspondin& instittions( /t as a res+t of
#ein& p+aced in the conte*t of the diverse and co"p+e* natre of a "odern
state! where the process of +aw "a,in&! ad"inistration and ad1dication are
neither c+ear+' de"arcated nor assi&ned to separate instittions! even the
previos+' e*istent #ondaries of separation are #eco"in& "ore #+rred( As
this is a "atter of a++ocatin& fnctions and powers in sch a wa' that the'
can #e operated with the &reatest possi#+e e%ectiveness! the need for
a#so+te separation has #een psta&ed #' the need for eBcient! re&+ated
and non-ar#itrar' &overn"enta+ ad"inistration(
As stated #' Madison! @The acc"+ation of a++ powers! +e&is+ative! e*ective
and 1dicia+! in the sa"e hands whether of one! a few! or "an' and whether
hereditar'! se+f-appointed or e+ective! "a' 1st+' #e prononced the ver'
de.nition of t'rann'A( And it is in the prevention of this t'rann' that the
doctrine of separation of power ho+ds its &reatest i"portance(
In order to nderstand the deve+op"ent and practica+ i"p+ications of the
Doctrine of Separation of Power! it is essentia+ to nderstand this 1ristic
conception in +i&ht of the Constittions and Ad"inistrative setps of the
Dnited States of A"erica and the Dnited >in&do" which are "ore or +ess the
inspiration to the Indian conception of the doctrine(
It is in the Constittion of the Dnited States of A"erica that Montes$ie)s
doctrine of separation of powers has fond its hi&hest reco&nition( The
Constittion accepts the separation in e*p+icit ter"s and speci.ca++' provides
for the division of fnctions and powers a"on&st the three or&ans of
&overn"ent as a part of its #asic strctre( Artic+e I of the DS Constittion
assi&ns +e&is+ative power to the Con&ress whi+e Artic+es II and III vest
e*ective and 1dicia+ powers in the President and the Corts of A"erica
respective+'( In other words! this i"p+ies that as per the constittiona+ p+an!
the constittion of the DS is desiros of a s'ste" of or&ani3ation
characteri3ed #' the independence of power and action of the Con&ress! the
President and the Corts respective+'( 2owever! the practica+ i"p+e"entation
of sch independent fnctionin& has proven nsccessf+ and the acta+
position is $ite di%erent(
Lois Leventha++ <a%e has apt+' s""ed p the practica+ interpretation of the
doctrine in the DS #' statin& that
@The separation of powers princip+e is a fnda"enta+ and va+id do&"a
of the DS constittion! the pri"ar' prpose of which is the preservation of
po+itica+ safe&ards a&ainst the capricios e*ercise of power( The +o&ic
#ehind sch division is the +o&ic of po+arit' and not strict c+assi.cation( In
"an' crcia+ instances where there is pressre for the transfer of o+d! or for
the creation of new fnctions the +o&ica+ i"p+ications #eco"e con=ictin& and
it sho+d #e ,ept in "ind that the prpose of the said division is not to
e*terna++' stratif' the &overn"enta+ arran&e"ents(A
Separation of Powers in India
The Constittion of India e"#races the idea of separation of powers in an
i"p+ied "anner( Despite the a#sence of an e*press provision reco&ni3in& the
doctrine of separation of powers in its a#so+te for"! the Constittion does
"a,e the provisions for a reasona#+e separation of fnctions and powers
#etween the three or&ans of ?overn"ent( Tho&h the e*ective power of the
Dnion and of the States is vested #' the Constittion in the President and
?overnor #' Artic+es EF95: and 5E795: respective+'! there is no correspondin&
provision vestin& +e&is+ative and 1diciar' provisions in an' partic+ar or&an(
2owever! the powers and fnction of each "st #e fond fro" the
Constittion itse+f( Ths s#1ect to e*ceptiona+ provisions +i,e Artic+es 5GF!
G5F and FE6! it is evident that the Constittion intends that the powers of
+e&is+ation sha++ #e e*ercised e*c+sive+' #' the +e&is+atre( Si"i+ar+'! the
1dicia+ powers can #e said to vest with the 1diciar'(
App+'in& the doctrines of constittiona+ +i"itation and trst within this
scenario! a s'ste" is created where none of the or&ans can srp the
fnctions or powers which are assi&ned to another or&an #' e*press or
necessar' provision! neither can the' divest the"se+ves of essentia+
fnctions which #e+on& to the" as nder the Constittion(
In rea+it' however! there is no a#so+te separation of fnctions #etween the
three or&ans of ?overn"ent( The President #ein& the head of the Dnion
e*ercises his powers constittiona++' on the aid and advice of the Conci+ of
Ministers( Cn the other hand! he is &iven e*c+sive +e&is+ative powers for the
"a,in& and pro"+&ation of ordinances even drin& the corse of recess of
Par+ia"ent( 2e is frther e"powered to "a,e +aws for the State after
e"er&enc' has #een dec+ared nder Artic+e FE; of the Constittion and
e*ercises pre+' +e&is+ative fnctions as provided nder Artic+es F6G and F6G-
A( The President is a+so assi&ned 1dicia+ fnctions to the e*tent of decidin&
cases of dis$a+i.cation of the 2ose of Par+ia"ent as a+so &rantin& pardon
in e*ceptiona+ circ"stances( Si"i+ar+'! par+ia"ent is a+so &ranted 1dicia+
fnctions in that the' can consider the $estions of #reach of an'
par+ia"entar' privi+e&es and where the #reach is esta#+ished the' have the
power to pnish for conte"pt( A+so! in the event of i"peach"ent of the
President! one of the 2oses acts as the prosector and the other as
investi&ator in order to deter"ine whether the char&es are sstaina#+e or not
as nder Artic+e ;5 of the Constittion( In a frther e*a"p+e of the "er&er of
fnctions! the 2i&h Cort)s within a certain "ar&ina+ sphere perfor"
fnctions that are ad"inistrative in natre( Their power of spervision over
s#ordinate Corts as provided nder Artic+e GG6 de"onstrates a fnction
that is ad"inistrative rather than 1dicia+( The' a+so possess +e&is+ative
powers to the e*tent that the' are a++owed to fra"e r+es for their eBcient
fnctionin&(
/esides the fnctiona+ over+appin&! the Indian s'ste" a+so +ac,s the
separation of personne+ a"on&st the three depart"ents( An inevita#+e part
of a Par+ia"entar' s'ste" of &overn"ent! this can #e seen nder Artic+e
6E9E: of the Constittion which states that a person in order to #e a "e"#er
of the Conci+ of Ministers "st necessari+' #e a "e"#er of either 2ose of
Par+ia"ent(
4rther! the Constittion of India e*press+' provides for a s'ste" of chec,s
and #a+ances in order to prevent the ar#itrar' or capricios se of power
derived fro" the said spre"e doc"ent( Tho&h sch a s'ste" appears
di+ator' of the doctrine of separation of powers! it is essentia+ in order to
ena#+e the 1st and e$ita#+e fnctionin& of sch a constittiona+ s'ste"(
The constittion within its artic+es provides for a "achiner' of +e&is+ative
i"peach"ent of 1d&es and e*ective oBcers! e*ective contro+ over the
appoint"ent of 1d&es and the power to veto +e&is+ation "ade #' par+ia"ent
and "ost i"portant+'! confers the 1diciar' with the power of 1dicia+ review
over +e&is+ation and e*ective action( Thro&h the confer"ent of the said
powers! a "echanis" for the contro+ over the e*ercise of constittiona+
powers #' the respective or&ans is esta#+ished( The constittion creates a
s'ste" consistin& of the three or&ans of ?overn"ent and confers pon the"
#oth e*c+sive and over+appin& powers and fnctions where in essence there
is separation of fnctions rather than powers( This is i++strated in the case
Ra" <awa'a v( State of Pn1a#
5
5
AIR 5HEE SC E7H
The de#ate a#ot the doctrine of separation of powers! and e*act+' what it
invo+ves in re&ard to Indian &overnance! is as o+d as the Constittion itse+f( It
was e*tensive+' de#ated in the Constitent Asse"#+'( It a+so .&red in
varios 1d&"ents handed down #' the Spre"e Cort after the Constittion
was adopted( It is thro&h these 1dicia+ prononce"ents! passed fro" ti"e
to ti"e! that the #ondaries of app+ica#i+it' of the doctrine have #een
deter"ined(
In the re De+hi Laws Act case! it was for the .rst ti"e o#served #' the
Spre"e Cort that e*cept where the constittion has vested power in a
#od'! the princip+e that one or&an sho+d not perfor" fnctions which
essentia++' #e+on& to others is fo++owed in India( /' a "a1orit' of EIG! the
Cort he+d that the theor' of separation of powers tho&h not part and
parce+ of or Constittion! in e*ceptiona+ circ"stances is evident in the
provisions of the Constittion itse+f( In the decision &iven #' <stice >ania! he
opined that @A+tho&h in the constittion of India there is no e*press
separation of powers! it is c+ear that a +e&is+atre is created #' the
constittion and detai+ed provisions are "ade for "a,in& that +e&is+atre
pass +aws( Does it not i"p+' that n+ess it can #e &athered fro" other
provisions of the constittion! other #odies-e*ective or 1dicia+-are not
intended to dischar&e +e&is+ative fnctionsJA
In essence! this 1d&"ent i"p+ied that a++ the three or&ans of the State! i(e(!
the Le&is+atre! the <diciar'! and the E*ective are #ond #' and s#1ect to
the provisions of the Constittion! which de"arcates their respective powers!
1risdictions! responsi#i+ities and re+ationship with one another( A+so! that it
can #e ass"ed that none of the or&ans of the State! inc+din& the 1diciar'!
wo+d e*ceed its powers as +aid down in the Constittion(
Whi+e there was a #road a&ree"ent on the princip+es pt forth #' this
1d&"ent! in practice! fro" ti"e to ti"e! disptes contined to arise as to
whether one or&an of the State had e*ceeded the #ondaries assi&ned to it
nder the Constittion(
This $estion of what a"onts to an e*cess! was the #asis for action in the
+and"ar, >esavananda /harti
G
case of 5H6F( The $estion p+aced #efore the
Spre"e Cort in this case was in re&ard to the e*tent of the power of the
+e&is+atre to a"end the Constittion as provided for nder the Constittion
itse+f( It was ar&ed that Par+ia"ent was @spre"eA and represented the
soverei&n wi++ of the peop+e( As sch! if the peop+e)s representatives in
Par+ia"ent decided to chan&e a partic+ar +aw to cr# individa+ freedo" or
+i"it the scope of 1dicia+ scrtin'! the 1diciar' had no ri&ht to $estion
whether it was constittiona+ or not( 2owever! the Cort did not a++ow this
ar&"ent and instead fond in favor of the appe++ant on the &ronds that the
doctrine of separation of powers was a part of the @#asic strctreA of or
Constittion( As per this r+in&! there was no +on&er an' need for a"#i&it'
as the doctrine was e*press+' reco&ni3ed as a part of the Indian Constittion!
G
AIR 5H6F SC 57;5
na+tera#+e even #' an Act of Par+ia"ent( Ths! the doctrine of separation of
powers has #een incorporated! in its essence! into the Indian +aws(
The doctrine of separation of powers was frther e*press+' reco&ni3ed to #e
a part of the Constittion in the case of Ra" <awa'a >apr v( State of Pn1a#!
where the Cort he+d that tho&h the doctrine of separation of powers is not
e*press+' "entioned in the Constittion it stands to #e vio+ated when the
fnctions of one or&an of ?overn"ent are perfor"ed #' another(
2owever! it was after the +and"ar, case of Indira Nehr ?andhi v( Ra1
Narain
F
that the p+ace of this doctrine in the Indian conte*t was "ade c+earer(
In this! the e+ection of Mrs( Indira ?andhi! who was the Pri"e Minister of
India! was cha++en&ed in the A++aha#ad 2i&h Cort on the &ronds of vio+ation
of the e+ection code and "isse of power drin& her e+ection ca"pai&n( The
A++aha#ad 2i&h Cort fond the c+ai" into a++e&ed vio+ations #' the appe++ant
to #e va+id and hence cance++ed her candidatre( S#se$ent+'! a cross-
appea+ was .+ed in the Spre"e Cort of India( 2owever! #efore the case
co+d #e heard #' the ape* cort! Mrs( Indira ?andhi e*erted in=ence over
the +e&is+atre and i"p+e"ented the Constittion 9Thirt'-ninth A"end"ent:
Act! 5H6E! with the ai" of ne&atin& the on&oin& 1dicia+ process(
The a"end"ent contained the fo++owin& hi&h+' controversia+ featresI
5( 4irst! Artic+e 65 was s#stitted #' a new Artic+e 65 which stated that
s#1ect to the provisions of the Constittion! Par+ia"ent "a' #' +aw
F
AIR 5H6E SC 5EHK
re&+ate an' "atter re+atin& to or connected with the e+ection of a
President or Vice-President inc+din& the &ronds on which sch
e+ection "a' #e $estioned(
G( The second was the insertion of Artic+e FGH-A! c+ase 97: of which
direct+' concerned the appea+s statin& that no +aw "ade #' Par+ia"ent
#efore the co""ence"ent of the Constittion 9Thirt'-ninth
A"end"ent: Act! 5H6E! in so far as it re+ates to e+ection petitions and
"atters connected therewith! sha++ app+' or sha++ #e dee"ed ever to
have app+ied to or in re+ation to the e+ection the Pri"e Minister or the
Spea,er of the Lo, Sa#ha(
F( The .fth c+ase of Art( FGH-A! provided that an' appea+ or cross appea+
a&ainst an' sch order of an' cort as is referred to in C+ase 97:
pendin& i""ediate+' #efore the co""ence"ent of the Constittion
9Thirt'-ninth A"end"ent: Act! 5H6E! #efore the Spre"e Cort sha++
#e disposed of in confor"it' with the provisions of C+ase
7( 4ina++'! the si*th c+ase of Art( FGH-A which stated that the provisions
of Artic+e FGH-A wo+d spersede the e%ect of an' other provision of
the Constittion i"p+'in& that this Artic+e FGH-A was sperior to the
entire Constittion itse+f(
The $estion of constittiona+it' of the said constittiona+ a"end"ents was
#ro&ht #efore the Cort! which he+d the" to #e vio+ative of the #asic
strctre of the Constittion( 4rther! on the "atter of the +e&is+atres)
dec+aration of va+idit' of the e+ection! the Spre"e Cort that! the
ad1dication of a speci.c dispte is a 1dicia+ fnction which par+ia"ent even
nder its constittiona+ a"endin& power! cannot e*ercise( Therefore! the
a"end"ent was he+d to #e +tra-vires on the #asis that when the constitent
#od' dec+ared the va+idit' of the e+ection of P(M(! it dischar&ed a 1dicia+
fnction! which accordin& to the princip+e of separation! sho+d not have
#een done(
The #asic strctre doctrine as +aid down in >esavananda /harti was once
a&ain ca++ed to se in the "ore recent case of I(R( Coe+ho v( State of Ta"i+
Nad
7
( The State had passed a +aw creatin& ;HL of reservations in
edcationa+ instittions! far e*ceedin& the accepted +i"it of EKL( In order to
protect the said provision fro" #ein& strc, down on the &ronds of #ein&
nconstittiona+! it was p+aced nder the Ninth Sched+e! which was said to
#e otside the scope of 1dicia+ review( The "atter p+aced #efore the Cort!
was a $estionin& of the va+idit' of the Ninth Sched+e itse+f! on the &ronds
that it was not in consonance with the #asic strctre of the Constittion(
The Cort too, co&ni3ance of the said ar&"ent and he+d the Ninth Sched+e
as #ein& vio+ative of this doctrine and hence even "atters p+aced nder the
said Sched+e sha++ henceforth #e open to 1dicia+ in$ir'( There#'! this
previos+' protected portion of the Constittion was a+so #ro&ht nder the
a"#it of the /asic strctre theor' and the ?o+den trian&+e co"prisin& of
Art(57! 5H and G5! "a,in& +aws p+aced nder it a"ena#+e to 1dicia+ review(
It is one thin& to discss the sa&e of the doctrine of separation of powers in
nor"a+ &overnance and entire+' another to e*a"ine it nder the ni$e
7
AIR GKK6 SC 8;56
circ"stances of a nationa+ e"er&enc'( In sch a period! the +i,e+ihood of
an' or&an tr'in& to e*ceed its power increases &reat+' as "an' of the chec,s
and #a+ances #eco"e sspended( 2owever! it is co""on+' a&reed that even
drin& e"er&enc'! the doctrine "st contine to #e in force(
This scenario was the "atter of de#ate in the case of Ra"eshwar Prasad v(
State of /ihar
E
! where the Cort was re$ired to deter"ine whether the
i"position of Art( FE; in the State withot proper cons+tation with State
athorities or considerin& the ?overnor)s report! a"onts to an e*cessive
se of +e&is+ative power( 4indin& that the Centra+ Le&is+atre had so&ht to
step into the shoes of the State Le&is+atre and there#' srp the power
co"p+ete+' to itse+f! in the &iven case! the Cort he+d there to #e a c+ear
vio+ation of the doctrine of separation of powers( India)s E*ective had #een
fond to have co""itted a constittiona+ "isde"eanor! for which it needed
to apo+o&i3e to the cort and the par+ia"ent and then as, the +atter to renew
it con.dence( If con.dence was not renewed! the &overn"ent wo+d fa++ and
a new &overn"ent wo+d have to #e for"ed(
Si"i+ar+' in Asif 2a"id v( State of <a"" M >ash"ir
;
! it was he+d that the
Le&is+atre! e*ective and 1diciar' have to fnction within their own sphere
as de"arcated nder the constittion and no or&an can srp the fnctions
assi&ned to another( The fnctionin& of the de"ocrac' depends pon the
stren&th and independence of each of its or&ans and 1dicia+ review is a
E
AIR 5HE8 Pat G5K! 5HE6 9E: /L<R 7F6! 5HE8 CriL< EE5
;
AIR 5H8H SC 58HH
powerf+ weapon to restrain nconstittiona+ e*ercise of power #' the
+e&is+atre and e*ective( 2owever the on+' chec, on 1dicia+ power is the
se+f-i"posed discip+ine of 1dicia+ restraint( Therefore this doctrine cannot #e
+i#era++' app+ied to an' "odern &overn"ent! #ecase neither the powers can
#e ,ept in water ti&ht co"part"ents nor can an' &overn"ent can rn on
strict separation of powers(
This was ear+ier app+ied in ?o+a,nath v( State of Pn1a#
6
in which the po+ic' of
the &overn"ent to distri#te +and nder the +and refor"s sche"e was
cha++en&ed #efore the Spre"e Cort on the &rond of vio+ation of
fnda"enta+ ri&hts( <stice S##a Rao he+d that sch distri#tion of +and was
nconstittiona+ #t app+ied the decision prospective+' and stated that it is
not practica++' possi#+e to co++ect the +and which was a+read' distri#ted to
the far"ers( It was frther opined that the in the interest of the we+fare of
the state it was desira#+e in the interest of 1stice to app+' the decision with
prospective e%ect and he+d that after the date of this decision the
&overn"ent co+dn)t ac$ire the propert' of an' person and par+ia"ent
didn)t have the power to a"end the fnda"enta+ ri&ht( The Spre"e Cort
has over the 'ears #' the se of doctrine of prospective overr+in& has
atte"pted to #a+ance the share of power #etween 1diciar' and other or&ans
of the &overn"ent(
It is crcia+ to nderstand that the doctrine of separation of powers has co"e
a +on& wa' fro" its theoretica+ inception( Toda'! the doctrine in its a#so+te
6
5H;6 AIR 5;7F 5H;6 SCR 9G: 6;G
for" is on+' reco&ni3ed in +etter as it is nfeasi#+e and i"practica+ for sa&e
in the operation of a &overn"ent( With the passa&e of ti"e! States have
evo+ved fro" #ein& "ini"a+ and non-interventionist to #ein& we+fare
oriented there#' p+a'in& the "+tifarios ro+es of protector! ar#iter! contro++er
and provider to the peop+e( In its o"nipresent ro+e! the fnctions of the State
have #eco"e diverse and its pro#+e"s interdependent hence! an' serios
atte"pt to de.ne and separate the fnctions wo+d on+' case ineBcienc' in
the &overn"ent(
In rea+it'! the stats of "odern state is a +ot "ore di%erent than what it sed
to #e( It has evo+ved a &reat dea+ fro" a "ini"a+! non-interventionist state to
an we+fare state! wherein it has "+tifarios ro+es to p+a'! +i,e that of a
protector! ar#iter! contro++er! provider( This o"nipresence of the state has
rendered its fnctions #eco"in& diverse and pro#+e"s! interdependent and
an' serios atte"pt to de.ne and separate those fnctions wo+d case
ineBcienc' in &overn"ent( 2ence! a distinction is "ade #etween -essentia+)
and -incidenta+) powers of an or&an( Accordin& to this di%erentiation one
or&an can)t c+ai" the powers essentia++' #e+on&in& to other or&an #ecase
that wo+d #e a vio+ation of the princip+e of separation of powers( /t! it can
c+ai" the e*ercise of the incidenta+ fnctions of another or&an( This
distinction prevents encroach"ent of an or&an into the essentia+ sphere of
activit' of the other(
The "odern da' interpretation of the doctrine does not reco&ni3e the
division of ?overn"ent into three water-ti&ht co"part"ents #t has instead
provided for the crossin& of ri&hts and dties in order to esta#+ish a s'ste"
of chec,s and #a+ances( It has #een fond that the "ere separation of
powers #etween the three or&ans is not sBcient for the e+i"ination of the
dan&ers of ar#itrar' and capricios &overn"ent as even after the division of
fnctions! if an athorit' wie+din& p#+ic power! is provided an a#so+te and
so+e discretion within the #od' in the "atters re&ardin& its sphere of
in=ence! there wi++ #e a res+tant a#se of sch power( Therefore! a s'ste"
of chec,s and #a+ances is a practica+ necessit' in order to achieve the
desired ends of the doctrine of separation of powers( Sch a s'ste"!
contrar' to pop+ar notion! is not di+ator' to the doctrine #t necessar' in
order to stren&then its acta+ sa&e( It is however! essentia+ to continos+'
$estion whether powers have #een appropriate+' a++ocated and whether the
chec,in& "echanis"s set p #oth #etween and within di%erent #ranches of
State sBcient+' safe&ard a&ainst the "isse of the powers so &ranted(
It is the e*ercise of incidenta+ powers on+' which has "ade e*ective &row
ever'where in this socia+ we+fare state( It has ass"ed a vita+ ro+e #t! it has
not srped an' ro+e fro" an' other win&( It 1st happened that the other
two or&ans! na"e+'! 1diciar' and +e&is+atre! #eca"e nsita#+e for
nderta,in& the fnctions of this we+fare state and as a conse$ence the
fnctions of the e*ective increased( As contro++er and provider! the 1dicia+
processes were ver' ti"e cons"in& and the +e&is+atre was over#rdened
with wor,( Therefore! it was in natra+ sche"e of thin&s which "ade the
ad"inistrators end p perfor"in& a variet' of ro+es in the "odern state
inc+din& those of +e&is+atre and 1diciar' too! to an e*tent(
4rther! the chec, of the ad1dicators over fnctionin&)s of the other two has
#een re&arded as an -essentia+) featre of the #asic strctre theor'( The
1dicia+ review power is a preventive "easre in a de"ocratic contr' which
prevents ad"inistrators and +aw-"a,ers to e*ercise their whi"s and caprices
on the +a' "an and trn it into a despotic re&i"e( There have #een cases
where the 1diciar' has dictated the a"#it of their power to the
i"p+e"enters and the "ode to e*ercise it( Not even the representatives of
peop+e are i""ne to the power of the corts( Two recent Spre"e Cort
1d&"ents- on the cash-for-$er' case and on the Ninth Sched+e 0 have
once a&ain #ro&ht the powers and ro+es of the +e&is+atre and the 1diciar'
into focs( In the case of the for"er! the cort phe+d the Lo, Sa#ha)s
decision to e*pe+ "e"#ers of Par+ia"ent! who were ca&ht on ca"era ta,in&
#ri#es! #t c+ear+' re1ected the contention that it cannot review par+ia"ent)s
power to e*pe+ MPs and c+ai"ed for itse+f the ro+e of .na+ ar#iter on decisions
ta,en #' the +e&is+atre( The 1d&"ent on the Ninth Sched+e has crtai+ed
Par+ia"ent)s power to ,eep certain pro&ressive +aws otside 1dicia+ Review(
In the other case! I(R( Coe+ho vs( State of Ta"i+ Nad! the Spre"e Cort
too, the he+p of doctrine of #asic strctre as proponded in >esavananda
/harati case and said that Ninth Sched+e is vio+ative of this doctrine and
hence fro" now on the Ninth Sched+e wi++ #e a"ena#+e to 1dicia+ review
which a+so for"s part of the #asic featre theor'( The #asic strctre theor'
and the ?o+den trian&+e co"prisin& of A(57! 5H! and G5! wi++ now #e the
criterion in scrtin' of the Ninth Sched+e(
In a de"ocratic contr' &oa+s are enshrined in the constittion and the state
"achiner' is then setp accordin&+'( And here it can #e seen that
constittiona+ provisions are "ade as sch to spport a par+ia"entar' for"
of &overn"ent where the princip+e can)t #e fo++owed ri&id+'( The S(C( r+in&s
a+so 1stif' that the a+ternative s'ste" of chec,s and #a+ances is the
re$ire"ent! not the strict doctrine( Constittiona+is"! the phi+osophica+
concept of the constittion a+so insists on +i"itations #ein& p+aced pon
&overn"enta+ power to secre #asic freedo"s of the individa+( 2ence! the
conc+sion drawn ot of the std' is that there is no strict separation of
powers #t the fnctions of the di%erent #ranches of the &overn"ent have
#een sBcient+' di%erentiated(
It is evident that &overn"ents in their acta+ operation do not opt for the
strict separation of powers #ecase it is ndesira#+e and i"practica#+e!
however! i"p+ications of this concept can #e seen in a+"ost a++ the contries
in its di+ted for"( The discrepancies #etween the p+an and practice! if an'!
are #ased on these ver' &ronds that the idea+ p+an is i"practica+ for
ever'da' se( Ctherwise! the doctrine is itse+f a part of the fondin&
strctre of the Constittion of a++ de"ocratic nations( India in partic+ar!
re+ies heavi+' pon the doctrine in order to re&+ate! chec, and contro+ the
e*ercise of power #' the three or&ans of ?overn"ent( Whether in its
theoretica+ conception or its practica+ sa&e! the Doctrine of Separation of
Powers is essentia+ for the e%ective fnctionin& of a de"ocrac'(
References
Books
/a,shi! P(M(! -The Constittion of India)! Dniversa+ Law P#+ishin& Co(
Pvt( Ltd(! GKKE(
Masse'! I(P(! -Ad"inistrative Law)! Eastern #oo, Co"pan'! Lc,now!
Si*th Edition! GKKE
<ain! M(P(! -Treatise on Ad"inistrative Law)! Wadhwa and co"pan' Law
P#+ishers! A&ra! Edition 5HH;
Articles
/aron de Montes$ie! Char+es-Lois de Secondat 9Stanford
Enc'c+opedia of Phi+osoph': P+ato(stanford(ed( Retrieved GKK8-5K-GH(
+awi,i(or& +aw N Separation of PowersI the rea+it'O( +awi,i(or&(
Retrieved GK5K-KH-5;(
Cher'+ Sanders( OSeparation of Powers and the <dicia+ /ranchO
C(>(Tha,wani! @Lectres on Ad"inistrative LawA!7
th
edn!Eastern /oo,
Co"pan'!GKK6
Sidhant M! @Separation of PowersI Constittiona+ P+an and PracticeA!
Le&a+ Services India 9httpIPPwww(+e&a+serviceindia(co"Partic+eP+5;-
Separation-Cf-Powers(ht"+:
Separation of Powers-Indian Conte*t #' Deepa, Mi&+ani