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Constitutional Provisions related to SOP

Constitutional status and practice of Separation of Power in India

On a casual glance at the provisions of the Constitution of India, one may be inclined to say
that the doctrine of separation of powers is accepted in India. Under the Indian Constitution,
the executive powers are with the President, the legislative powers with the Parliament and
the judicial powers with the judiciary. The President holds his office for a fixed period. His
functions and powers are enumerated in the Constitution itself. The Parliament is competent
to make any law subject to the provisions of the Constitution and there is no other limitation
on its legislative powers. Similarly, 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. At the
same time, the Court also cannot arrogate to itself any function, which is left to the domain of
the other two branches, namely, the executive and the legislature. The Supreme Court and
High Courts are given the powers of judicial review and they can declare any law passed by
the Parliament or Legislature as ultra vires or unconstitutional. Taking into account these
factors, Kania, C.J. and some jurists are of the opinion that the doctrine of separation of
powers has been accepted in the Constitution of India. In Golak Nath v. State of Punjab1,
Subba Rao, C.J. observed: “The Constitution brings into existence different constitutional
entities, namely, the Union, the States, and the Union Territories. It creates three major
instruments of powers, namely, the Legislature, the Executive and the Judiciary. It
demarcates their jurisdiction minutely and expects them to exercise their respective powers
without over stepping their limits. They should function within the spheres allotted to them.”
In Bandhua Mukti Morcha v. Union of India2, Pathak, J. observed: “The Constitution
envisages a broad division of the powers of the State between the legislature, the executive
and the judiciary. Although the division is not precisely, there is general acknowledgement of
its limits. The limits can be gathered from the written text of the Constitution, from
conventions and constitutional practice, and from an entire array of judicial decisions. The
constitutional lawyer concedes a certain measure of overlapping in functional action among
the three organs of the State. But there is no warrant for assuming a geometrical congruence.
It is common place that while the Legislature enacts the law, the Executive implements it and

1
AIR 1967 SC 1643: (1967) 2 SCR 762.
2
(1984) 3 SCC 161, 231: AIR 1984 SC 802.
the Court interprets it and, in doing so, adjudicates on the validity of executive action and,
under our Constitution, even judges the validity of the legislation itself. And yet it is well
recognised that in a certain sphere the Legislature is possessed of judicial powers, the
executive possesses a measure of both legislative and judicial functions and the Court, in its
duty of interpreting the law, accomplishes in its perfected action a marginal degree of
legislative exercise. Nonetheless a fine and delicate balance is envisaged under our
Constitution between these primary institutions of the State”. But if we study the
constitutional provisions carefully, it is clear that the doctrine of separation of powers has not
been accepted in India in its strict sense.

There is no provision in the Constitution itself regarding the division of functions of the
government and the exercise thereof. Though, the executive power of the Union and of the
States is vested in the President and the Governors respectively, there is no corresponding
provision vesting the legislative and judicial powers in any particular organ. The President
has wide legislative powers. He can issue ordinances, make laws’ for a State after the State
legislature is dissolved, adopt the laws or make necessary modifications and the exercise of
this legislative power is immune from judicial review. He performs judicial functions also.
He decides disputes about the age of a judge of a High Court or the Supreme Court for the
purpose of retiring him, and cases of disqualification of members of any house of Parliament.
Though the Parliament exercises legislative functions and is competent to make any law not
inconsistent with the provisions of the Constitution, many legislative functions are delegated
to the executive. In certain matters, the Parliament exercises judicial functions also. Thus, it
can decide the question of breach of its privilege and, if proved, can punish the person
concerned. In case of impeachment of the President, one house acts as a prosecutor and the
other house investigates the charges and decides whether they were proved or not. The latter
is a purely judicial function.

Though judiciary exercises all judicial powers, at the same time, it exercises certain executive
or administrative functions also. The High Court has supervisory powers over all subordinate
courts and tribunals. The Supreme Court and High Courts have also powers to transfer cases.
The High Courts and the Supreme Court have legislative powers also and they frame rules
regulating their own procedure for the conduct and disposal of cases. Thus, the doctrine of
separation of powers is not accepted fully in the Constitution of India, and we are with the
observations of Mukherjea, J. in Ram Jawaya v. State of Punjab3: “The Indian Constitution
has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the
functions of the different parts or branches of the Government have been sufficiently
differentiated and consequently it can very well be said that our Constitution does not
contemplate assumption, by one organ or part of the State, of functions that essentially belong
to another.” In State of Kerala v. Lakshmikutty4 also the Supreme Court observed “Our
Constitution does not envisage a rigid separation of powers Even though this is so, the
respective powers of the three wings of the State are well defined with the object that each
wing must function within the field earmarked for it. The object of such demarcation is to
exclude the possibility of encroachment on the field earmarked for one wing by the other or
others. As long as each wing of the State functions within the field carved out and shows due
deference for the other two branches, there would arise no difficulty in the working of the
Constitution. But the trouble arises when one wing of the State tries to encroach on the field
reserved for the other.”

There are no separate provisions regarding the Doctrine of Separation of Powers has been
given in our Constitution. But there are some directive principles are given in the constitution
as in Part-IV and Part-V and Articale-50 of our constitution is separating the judiciary from
executive as, “the state shall take steps to separate judiciary from the executive in the public
services of the state,” and except this there is no formal and dogmatic division of powers.5

In India, not only functional overlapping is there but also the personal overlapping is
prevailing.

Judiciary:
Under Article-142 and Article-145 of our constitution, the SC has the power to declare void
the laws passed by legislature and actions taken by the executive if they violate any provision
of the constitution or the law passed by the legislature in case of executive actions. Even the
power to amend the constitution by Parliament is subject to the scrutiny of the Court. The

3
AIR 1955 SC 549: (1955) 2 SCR 225.
4
(1986) 4 SCC 632: AIR 1987 SC 331.
5
Accessed from http://www.legalservicesindia.com/article/1878/Administrative-Law-Separation-of-
Powers.html on 21 February, 2019 at 9:00 PM.
Court can declare any amendment void if it changes the basic structure of the
constitution.[12] In many cases courts have issued directions for the Parliament to make
policies.

Executive:
The President of India who is the supreme executive authority in India exercise law making
power in the form of ordinance making power under Article-123, also the Judicial powers
under Article-103(1) and Article-217(3), he has the consulting power to the SC of India under
Article-143 and also the pardoning power in Article-72 of the Constitution. The executive
also affecting functioning of the judiciary by making appointments to the office of Chief
Justice of India and other judges.

Legislature:
The Council of Minister is selected from the legislature and this Council is responsible for the
legislature. The legislature exercising judicial powers in cases of breach of its privileges,
impeachment of the President under Article-61 and removal of judges. The legislative body
has the punitive powers under Article-105(3).

In words of Gledhill, “constitution of India has not ceremoniously wedded with Doctrine of
Separation of Powers, however, it is whenever possible followed the doctrine of separation of
powers.”

Judicial Response:
There are many cases in which SC has given judgements on basis of the facts related to those
cases but we can understand the position of this doctrine in India by seeing some landmark
opinions given by the Supreme Court in following cases;

In Ram Jawaya v. State of Punjab[13]

C.J. Mukerjee, said and held:


“Indian Constitution has not indeed recognized the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the government have
been sufficiently differentiated and consequently it can be very well said that our constitution
does not contemplate assumption by one organ or part of the State of Functions that
essentially belong to another.”

In Indira Nehru Gandhi v. Raj Narain [14]

C.J. Ray said and held:


“In the Indian constitution there is separation of powers in a broad sense only. A rigid
separation of powers as under the US constitution or as under Australian constitution does not
apply to India.”

J. Beg added:
“Separation of powers is the part of the basic structure of constitution. None of the three
separate organs of the republic can take over the functions assigned to the other. This scheme
of the constitution cannot be changed even by restoring to Article-368 of the constitution.”

SOP (3)6

The Constitution of India embraces the idea of separation of powers in an implied manner.
Despite there being no express provision recognizing the doctrine of separation of powers in
its absolute form, the Constitution does make the provisions for a reasonable separation of
functions and powers between the three organs of Government.

By looking into the various provisions of the Constitution, it is evident that the Constitution
intends that the powers of legislation shall be exercised exclusively by the legislature.
Similarly, the judicial powers can be said to vest with the judiciary. 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. Also, the executive powers of the Union and the State are
vested in the President and the Governor respectively.

6
Accessed from https://www.civilsdaily.com/doctrine-of-separation-of-powers-in-india/ on 20th February,
2019 at 9:00 PM.
The Constitution of India lays down a functional separation of the organs of the State in the
following manner:

 Article 50: State shall take steps to separate the judiciary from the executive. This is
for the purpose of ensuring the independence of judiciary.
 Article 122 and 212: validity of proceedings in Parliament and the Legislatures
cannot be called into question in any Court. This ensures the separation and immunity
of the legislatures from judicial intervention on the allegation of procedural
irregularity.
 Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be
discussed in the Parliament and the State Legislature, according to Article 121 and
211 of the Constitution.
 Articles 53 and 154 respectively, provide that the executive power of the Union and
the State shall be vested with the President and the Governor and they enjoy immunity
from civil and criminal liability.
 Article 361: the President or the Governor shall not be answerable to any court for
the exercise and performance of the powers and duties of his office.

Functional overlap

 The legislature besides exercising law-making powers exercises judicial powers in


cases of breach of its privilege, impeachment of the President and the removal of the
judges.
 The executive may further affect the functioning of the judiciary by making
appointments to the office of Chief Justice and other judges.
 Legislature exercising judicial powers in the case of amending a law declared ultra
vires by the Court and revalidating it.
 While discharging the function of disqualifying its members and impeachment of the
judges, the legislature discharges the functions of the judiciary.
 Legislature can impose punishment for exceeding freedom of speech in the
Parliament; this comes under the powers and privileges of the parliament. But while
exercising such power it is always necessary that it should be in conformity with due
process.
 The heads of each governmental ministry is a member of the legislature, thus making
the executive an integral part of the legislature.
 The council of ministers on whose advice the President and the Governor acts are
elected members of the legislature.
 Legislative power that is being vested with the legislature in certain circumstances can
be exercised by the executive. If the President or the Governor, when the legislature
or is not in session and is satisfied that circumstances exist that necessitate immediate
action may promulgate ordinance which has the same force of the Act made by the
Parliament or the State legislature.
 The Constitution permits, through Article 118 and Article 208, the Legislature at the
Centre and in the States respectively, the authority to make rules for regulating their
respective procedure and conduct of business subject to the provisions of this
Constitution. The executive also exercises law making power under delegated
legislation.
 The tribunals and other quasi-judicial bodies which are a part of the executive also
discharge judicial functions. Administrative tribunals which are a part of the executive
also discharge judicial functions.
 Higher administrative tribunals should always have a member of the judiciary. The
higher judiciary is conferred with the power of supervising the functioning of
subordinate courts. It also acts as a legislature while making laws regulating its
conduct and rules regarding disposal of cases.

Besides the functional overlapping, the Indian system also lacks the separation of personnel
amongst the three departments.

Applying the doctrines of constitutional limitation and trust in the Indian scenario, a system is
created where none of the organs can usurp the functions or powers which are assigned to
another organ by express or necessary provision, neither can they divest themselves of
essential functions which belong to them as under the Constitution.

Further, the Constitution of India expressly provides for a system of checks and balances in
order to prevent the arbitrary or capricious use of power derived from the said supreme
document. Though such a system appears dilatory of the doctrine of separation of powers, it
is essential in order to enable the just and equitable functioning of such a constitutional
system.
By giving such powers, a mechanism for the control over the exercise of constitutional
powers by the respective organs is established. This clearly indicates that the Indian
Constitution in its plan does not provide for a strict separation of powers.

Instead, it creates a system consisting of the three organs of Government and confers upon
them both exclusive and overlapping powers and functions. Thus, there is no absolute
separation of functions between the three organs of Government.