AN ANALYSIS OF THE LIMITATIONS OF THE

DOCTRINE OF SEPARATION OF POWERS: Re-visiting

the judgment delivered in Ram Jawaya Kapur v. State of
Punjab (AIR 1955 SC 549)”

Chapter: I

INTRODUCTION & RESEARCH METHODOLOGY

1.1 INTRODUCTION

The earliest reference made to the concept of the Doctrine of Separation of Powers was
in the 16th & 17th centuries by Aristotle & Plato. In the 16th & 17th centuries French
philosopher John Bodin and British politician Locke expressed their views regarding
the doctrine.

But it was Montesquieu, the French jurist, who conceived this principle through his
book, “Espirit des Lois” – Sprit of Law that was published in 1748.1

He found that concentration of powers in one person or group of persons resulted in

tyranny. To avoid this situation and with a view to checking the arbitrariness of the
government he suggested that power of governance should be clearly divided between
the three organs of the state i.e. Executive, Legislative and the Judiciary.2

The principle can be stated as follows:

1. Each organ should e independent of the other.

2. No one organ should perform functions that belong to the other.

Montesquieu was impressed by the liberal thoughts as they existed in England in the
18th century and witnessing the autocratic use of power by Louis XIV in his own
country, he felt that the secret of an Englishman’s liberty was the separation and

1
Justice, Thakker, C.K. (Takwani) & Mrs. Thakker, M.C. Lectures on Administrative Law.
Eastern Book Company. Lucknow. 4th Edition (Reprinted). 2010.
2
http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf.

Electronic copy available at: http://ssrn.com/abstract=2104288

functional independence of the three departments of the Government from one
another.3

According to Montesquieu:

“Miserable indeed would be the case, were the same man or the same body, whether of
the nobles or of the people, to exercise those three powers, that of enacting powers,
that of executing the public resolutions and that of judging the crimes or differences of
individuals.”

This theory had different implications in France, USA & England.

France: It resulted in the rejection of the power of the courts to review the acts of the
legislature or the executive. The existence of separate administrative courts to
adjudicate disputed between the citizen and the administration owes its origin to this
theory.

USA: The principle was categorically adopted in the making of its Constitution. In
USA, executive power is vested in the President, legislative power in Congress and
judicial power in the Supreme Court and the courts subordinate thereto.4

England: In reality, the theory of Integration of Powers has been adopted in England.
The Lord Chancellor is the Head of the Judiciary, Chairman of the House of Lords, a
member of the Executive and often a member of the Cabinet.5

Though, this theory was appreciated by English and American jurists alike and was for
the first time codified in the American Constitution, yet it suffered from many flaws
which has made its strict & absolute application absolutely, a myth.

This paper attempts to first look into the limitations that this doctrine undergoes and
then discuss the same through a series of case laws, with special emphasis on Ram
Jawaya Kapur v. State of Punjab6.

3
Supra. Note. 1
4
Sathe, S.P. Administrative Law. Lexis Nexis Butterworths Wadhwa Nagpur. Haryana. 7th
Edition. (Fourth Reprint). 2009.
5
Justice, Thakker, C.K. (Takwani) & Mrs. Thakker, M.C. Lectures on Administrative Law.
Eastern Book Company. Lucknow. 4th Edition (Reprinted). 2010.
6
AIR 1955 SC 549.

Electronic copy available at: http://ssrn.com/abstract=2104288

1.2 LITERATURE REVIEW

Appropriate knowledge of a particular aspect requires study of literature available on a

subject. The paper though has its base, as the Doctrine of Separation of Powers will
revolve around Ram Jawaya Kapur v. State of Punjab7. An important way to get an
insight into the issue is to study the existing literature on the subject. Some research
work has already been done on the same. Certain works relating to the topic have been
reviewed as under:

 Bakshi, P.M. The Constitution of India. Universal Law Publishing Co. Pvt. Ltd.
10th Edition. 2010.

This book discusses each article of the Constitution by giving various instances
through case-laws. It has mentioned the Ram Jawaya case few times under
different heads. For the topic in question, the book does not discuss it
comprehensively.

 Dr. Pandey, J.N. Constitutional Law of India. Central Law Agency. Allahabad.
47th Edition. 2010.

This book has made sporadic references to the case and has at places discussed
it in brief. The book does not cover every aspect but enables the researcher to
understand the basics.

 Jain, M.P. Indian Constitutional Law. Lexis Nexis Butterworths Wadhwa

Nagpur. Haryana. 6th Edition (Reprinted). 2010.

This book has made only one reference to the Ram Jawaya case from the point
of view of the Doctrine of Separation of Powers. It has however, a distinct sub-
section wherein it has discussed the concept in a unique manner. This book
explains the topic using a method different from the other books and gives a
new insight to the topic.

 Justice, Thakker, C.K. (Takwani) & Mrs. Thakker, M.C. Lectures on

Administrative Law. Eastern Book Company. Lucknow. 4th Edition (Reprinted).
2010.

7
AIR 1955 SC 549.

3
 The Ram Jawaya case has been referred to in this book from the angle of the
doctrine of separation of powers and apart from this the entire concept has been
discussed in detail. This book offers an in-depth analysis of the subject along
with leading cases. The situation in UK, USA & France along with India has
discussed with numerous examples.

 Sathe, S.P. Administrative Law. Lexis Nexis Butterworths Wadhwa Nagpur.

Haryana. 7th Edition. (Fourth Reprint). 2009.

This book also has a sub-section devoted to the explanation of the Doctrine of
Separation of Powers. It discusses the concept in an elemental manner, also
referring the Ram Jawaya case. The book gives a basic insight into the subject.

 www.manupatra.com

The text of the judgment in the Ram Jawaya case has been taken from this
website, which also makes available the other cases referred in the judgment.

 www.indiankanoon.org

This website is also an important source for the Ram Jawaya case.

1.3 AIMS & OBJECTIVES

 The researcher through this paper aims to trace the history of the doctrine of
separation of powers by analyzing relevant case laws.

 The researcher shall make an attempt to find out the status of this theory, as it
exists today, in India.

1.4 RESEARCH METHODOLOGY

Doctrinal research asks what the law is on a particular issue. It is concerned with analysis
of the legal doctrine and how it has been developed and applied. mostly focus on the
nature of law and legal authority; the theories behind particular substantive areas of law,

4
such as torts or contracts; and the nature of rights, justice and political authority. 8 The
present research study is mainly doctrinal and analytical. This method has been adopted
for the purpose of the research as it was not possible to study the subject by experimental
method or through empirical mode of research.

1.5 HYPOTHESIS

 The researcher assumes that the Doctrine of Separation of Powers is subject to

absolute limitations.

 The researcher assumes that the case: Ram Jawaya Kapur v. State of Punjab9 is
the only case, which fully recognizes the principle of Separation of Powers.

 The researcher assumes that the doctrine of Separation of Powers has been
followed in India, in its true sense.

1.6 SCOPE & LIMITATION

This paper shall mainly deal with the general limitations and defects of the doctrine of
Separation of Powers. Further, the scope of the paper is limited to the Indian legal
system and only a passing reference (if any) has been made to foreign legal framework.

1.7 SOURCES:

Primary sources are the first hand evidence left behind by participants or observers at
the time of events. And in case of the legal field they can be said to be the products of
official bodies with the authority to make law such as legislations & case laws.
Secondary sources are accounts of events which were created well after the event
occurred. Secondary sources are based on primary sources — they are usually studies
which analyze, evaluate, interpret, or criticize primary sources.

8
http://econ.upm.edu.my/researchbulletin/artikel/Vol%204%20March% 202009/19-
24%20Adilah.pdf
9
AIR 1955 SC 549.

5
In case of law they are referred to, for their instructive value and for the references they
provide to relevant primary sources of law such as commentaries, articles, reports etc.
Both primary as well as secondary sources have been referred for the purpose of the
research.

1.8 SCHEME:

With the above stated hypotheses, aims and objectives and the doctrinal approach of
study, the paper has been divided into three major chapters:

CHAPTER I - INTRODUCTION & RESEARCH METHODOLOGY

In this chapter the researcher proposes to discuss the basic outline of the paper. The
chapter mainly includes the objectives, aims, hypothesis, research methodology,
Review of Literature etc.

CHAPTER II – DOCTRINE OF SEPARATION OF POWERS : LIMITATIONS & DEFECTS

In this chapter the researcher proposes to discuss the various defects that the
doctrine suffers from in a brief and concise manner.

CHAPTER III – DOCTRINE OF SEPARATION OF POWERS: JUDICIAL

PRONOUNCEMENTS

In this chapter, the researcher shall make an attempt to examine the doctrine as it has
existed in India after Independence and also its relevancy today through a series of
case-laws.

CHAPTER IV - CONCLUSION

In the present chapter, the researcher concludes the paper and provides a brief
summary about the entire concept and also gives the outcome of the hypothesis.

CHAPTER V – BIBLIOGRAPHY

In this chapter, the researcher shall enlist all the materials referred for the purpose of
research.

6
Chapter II
DOCTRINE OF SEPARATION OF POWERS:
LIMITATIONS & DEFECTS

The theory as propounded by Montesquieu, though seemed perfect, yet it suffered from
numerous defects when it was sought to be applied in reality.

Montesquieu’s treatment of mixed government is characteristic of the problems of

interpretation he presents. At the beginning of his work, when enumerating the types of
government, he did not consider mixed government at all. There is no direct mention
of this idea which had been so important in English political thought for centuries, and
which had also figured in the work of Hotman and others in France. Montesquieu
writes of “moderate” governments, but these are the uncorrupted forms of monarchy
and republic. At one point he seems to be saying that a mixed constitution is
impossible, or at least that he knows of none that exists. When Montesquieu turns in
Book XI to his discussion of England, however, he adopts a very different approach.
In the later chapters of his Book XI Montesquieu refers to mixed systems in glowing
terms, whether in reference to the Gothic constitutions of Europe, or to the harmony of
power in the government of Rome when it consisted of a mixture of monarchy,
aristocracy, and democracy. It is difficult to reconcile these these references with the
earlier chapters of the work. failed to reconcile completely the two models of
government that he drew from Bodin and from Bolingbroke.10

The problem is further complicated by the view that, in Book XI, Chapter 6,
Montesquieu was creating an ideal type of a “constitution of liberty,” with England as
its source, but that he was not describing the English Constitution as it actually existed.
When Montesquieu wrote of “England” here he was writing of an imaginary country,
as in the Lettres persanes: “l’Angleterre de Montesquieu c’est l’Utopie, c’est un pays
de rêve.” Thus in certain respects Montesquieu’s statements in this chapter differ
considerably from what he actually knew to be the case in England. For example, he
writes of the judiciary as if it contained no professional judges, as if juries were judges

10
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=
677&chapter=122670&layout=html&Itemid=27.

7
of both fact and law. The reality of English life was, as Montesquieu himself notes
elsewhere, quite different from the ideal situation depicted in XI, 6.11

This makes it very clear that historically, the theory was incorrect. There was n
separation of powers in England and at no time, this doctrine was adopted in England.
The Donoughmore Committee observed: In the British Constitution there is no such
thing as the absolute separation of legislative, executive and judicial powers.
Montesquieu had clearly misconstrued the statement pertaining to the British
constitution and later on he was criticized in a very sarcastic manner:
“Montesquieu saw the foggy England sitting in the sunny wine yard of Paris and he
completely misconstrued the statement”.12

This doctrine is based on the assumption that the three functions of the Government
can be distinguished from one another. But in reality, this is not possible. It is next to
impossible to draw a demarcating line between them. According to President
Woodrow Wilson, the trouble with the theory is that it assumes the Government to be a
machine, which it is not. Rather the Government is a living thing, and no living thing
can have its organs offset against each other as checks, and live. On the contrary its life
is dependent upon their quick cooperation as their cooperation is indispensible and
their warfare is fatal to the system.

It is generally recognised that in a legal system such as ours, judges do not just
interpret the law. They develop and adapt the law to take into account of changing
circumstances, and in that way they actually make law. Hence the judicial branch has
some law-making or legislative powers, but this power should not go beyond refining
and developing existing law.13

It is impossible to take certain actions if this doctrine is accepted in its entirety. Thus, if
the legislature can only legislate, then it cannot punish anyone for committing a breach

11
ibid.
12
http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf.
13
http://www.thezimbabwean.co.uk/news/35650/the-doctrine-of-separation-of-powers--its-
values-and-limitations.html

8
of its privilege nor can it delegate any legislative functions even though, it does not
know the details of the subject-matter of the legislation nor can the courts frame rules
of procedure to be adopted by them for the disposal of cases. Separation of powers,
thus, can only be relative and not absolute.
The fundamental object behind Montesquieu’s doctrine was liberty and freedom of an
individual; but that cannot be achieved by the mechanical division of functions and
powers. In England, the theory of Separation of Powers is not accepted and yet it is
known for the protection of individual liberty. For freedom and liberty, it is necessary
that there should be Rule of Law and impartial and independent judiciary and eternal
vigilance on part of the subjects.14

According to Friedmann (“Law in a changing Society”1996) -

“The truth is that each of the three functions of the Government contains the
elements of the other two and any rigid attempt to define and separate those
functions must either fail or cause serious inefficiency in Government.”15

While the Principle of the Separation of Power is generally admitted as valid,

embodying as it does the scientific principle of differentiation, the practical
difficulties experienced in working it make it of little value to us today. This
doctrine of separation of powers had some inherent defects when applied in real
life situations. Thus the American Constitution upholds the theory of separation of
powers but the essential principle of the British Constitution is Concentration of
Responsibility.

Some have argued that while functions may be demarcated powers should always
remain supreme. 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. But such despotism does not exist today. The
modern day governments require protection against the domination of parliament

14
Justice, Thakker, C.K. (Takwani) & Mrs. Thakker, M.C. Lectures on Administrative Law.
Eastern Book Company. Lucknow. 4th Edition (Reprinted). 2010.
15
Ibid.

9
and of civil servants. The separation of powers is too mechanical in nature to be of
any avail against these types of domination. What is required is not separation of
powers but ‘co-ordination’ or ‘articulation’ of powers. 16

In the words of Finer, “the theory of separation of powers throws government into
alternative conditions of coma and convulsion.”

Justice Franfirter has said: “Enforcement of a rigid conception of separation of

powers would make the modern Government impossible.”

And strict separation of powers is a theoretical absurdity and practical

impossibility. 17

16
http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf.
17
Freidmann, Law in a Changing Society.I (1996) at pages: 382-383.

10
Chapter III
DOCTRINE OF SEPARATION OF POWERS: JUDICIAL
PRONOUNCEMENTS

On a careful study of the constitutional provisions, it can be said that the doctrine of
Separation of Powers has not been accepted in India in the strictest sense (stricto
sensu). Though under Articles 53 (1) and 154 (1), 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 power in any particular
organ.18

This chapter shall deal with the development of the doctrine through a series of judicial
decisions and case-laws.

It was in Re, Delhi Laws Act19, it was for the first time observed by the Supreme Court
that except where the constitution has vested power in a body, the principle that one
organ should not perform functions which essentially belong to others is followed in
India.

It was held in Ram Jawaya Kapur v. State of Punjab20:

“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.”

The facts, issues & judgment of this case have been discussed below.

FACTS

18
Justice, Thakker, C.K. (Takwani) & Mrs. Thakker, M.C. Lectures on Administrative Law.
Eastern Book Company. Lucknow. 4th Edition (Reprinted). 2010.
19
AIR 1951 SC 332.
20
AIR 1955 SC 549.

11
In the State of Punjab, all recognised schools had to follow the course (of studies) as
approved by the Education Department of the Government. For a long period of time
prior to 1950, the method adopted by the Government for selection and approval of
text books for recognised schools was commonly known as the alternative method.
Books on relevant subjects, in accordance with the principles laid down by the
Education Department, were prepared by the publishers with their own money and
arrangements and they were submitted for approval to the Government. The Education
Department after proper scrutiny selected certain number of books on each subject as
alternative text books, leaving it to the discretion of the Head Masters of the different
schools, to select any one of the alternative books on particular subject out of the
approved list. Authors, who were not publishers, could also submit books for approval
and if any of their books were approved, they had to make arrangements for publishing
the same.

This procedure was in practice since 1905 but was altered in May 1950. By certain
resolutions passed by the Government the whole of the territory of Punjab (as it
remained in the Indian Union after partition) was divided into three Zones. The text
books on certain subjects like agriculture, history, social studies, etc., for all the zones
were prepared and published by the Government without inviting them from the
publishers. With respect to the remaining subjects, offers were still invited from
"publishers and authors" but the alternative system was given up and only one text
book on each subject for each class in a particular zone was selected. Another change
introduced at this time was that the Government charged, as royalty, 5% on the sale
price of all the approved text books.

However, by a notification in August 1952, the Government omitted the word

"publishers" altogether and invited only the "authors and others" to submit books for
approval by the Government. These "authors and others, " whose books were selected,
had to enter into agreements in the form prescribed by the Government and the
principal terms of the agreement were that the copyright in these books would vest
absolutely in the Government and the "authors and others" would only get a royalty at
the rate of 5% on the sale of the text books at the price or prices specified in the list.
Thus the publishing, printing and selling of the books were taken by the Government
exclusively in their own hands.

12
A petition against the 1952 petition was filed by six persons under Article 32 of the
Indian Constitution.

ISSUES & CONTENTIONS

1. Whether the acts of the Government in carrying out their policy of establishing
monopoly in the business of printing and publishing text books for school
students is wholly without jurisdiction and illegal.

2. Evevn if the State could create a monopoly in its favour in respect of a

particular trade or business, whether the same could be done by any executive
act or it could be done only by means of a proper legislation which should
conform to the requirements of Article 19 (6) of the Constitution.

3. Whether it was open to the Government to deprive the petitioners of their

interest in any business or undertaking. (It was contended by the petitioners that
such interest amounts to property and the act of the Government led to
deprivation of the same it without authority of law and without payment of
compensation as is required under Article 31 of the Constitution.

CASES REFERRED

1. Motilal v. The Government of the State of Uttar Pradesh21

It was held in this case that an act would be within the executive power of the State if it
is not an act which has been assigned by the Constitution of India to other authorities
or bodies and is not contrary to the provisions of any law and does not encroach upon
the legal rights of any member of the public.

However, Agarwala, J., dissented from the majority view and held that the State
Government had no power to run a bus service in the absence of an Act of the
legislature authorising the State to do so.

21
AIR 1951 All 257.

13
The opinion of Agarwala, J., though supported the contention of the petitioners but was
held to be to be too narrow and unsupportable in the present case (Ram Jawaya).

2. The Commonwealth and the Central Wool Committee v. The Colonial Combing,
Spinning and Weaving Co. Ltd.22

It was the opinion of the judges in the Ram Jawaya case that none of the principles laid
down in the above-mentioned case could have any application to the circumstances of
the present case. Firstly, there is no provision in our Constitution corresponding to
Section 61 of the Australian Act. Secondly, the Government had not imposed anything
like taxation or licence fee in the present case and lastly, the appropriation of public
revenue involved in the so-called business in text books carried on by the Government
was been sanctioned by the legislature by proper Appropriation Acts unlike the facts of
the case referred.

3. Attorney-General for Victoria v. The Commonwealth23

The petitioners had relied upon the dissenting opinion delivered by Starke, J. The
learned Judge laid stress on section 61 of the Constitution Act according to which the
executive power of the Commonwealth extended to the maintenance of the
Constitution and of the laws of the Commonwealth and held that there was nothing in
the Constitution or any law of the Commonwealth which enabled the Commonwealth
to establish and maintain clothing factories for other than Commonwealth purposes.
The opinion, whether right or wrong, turns upon the particular facts of the case and
upon the provision of section 61 of the Australian Act and it was opined that the same
cannot and does not throw any light on the question that requires decision in the
present case.

REASONING

It is permissible for the executive to exercise the powers of departmental or

subordinate legislation when such powers are delegated to it by the legislature. It can

22
31 C.L.R. 421.
23
52 C.L.R. 533.

14
also, when empowered, exercise judicial functions in a limited way. But the executive,
can never go against the provisions of the Constitution or of any law which is clear
from the provisions of Article 154 of the Constitution. This does not mean that in order
to enable the executive to function there must be a law already in existence and that the
powers of executive are limited merely to the carrying out of these laws.

The Indian Constitution, though federal in its structure, is based on the British
Parliamentary system where the executive is deemed to have the primary responsibility
for the formulation of governmental policy and its incorporation into law though the
condition precedent to the exercise of this responsibility is its retaining the confidence
of the Legislature.

The question which arises here is that whether it is necessary to have a specific
legislation legalising such trade activities before they could be embarked upon. The
court was of the opinion that such legislation is not always necessary. If the trade or
business involves expenditure of funds, the only requiremnt is authorisation of the
Parliament regarding such expenditure either directly or under the provisions of a
statute.

Expenditure other than those charged on the consolidated fund are submitted in the
form of demands for grants to the legislature and after deliberation upon the gran if it is
sanctioned then an Appropriation Bill is introduced to provide for the appropriation out
of the consolidated fund of the State of all moneys required to meet the grants thus
made by the Assembly as laid down by Article 204 of the Indian Constitution. As soon
as the Appropriation Act is passed, the expenditure made under the heads covered by it
would be deemed to be properly authorised by law under article 266 (3) of the
Constitution.

In the present case the fact that the entire expenses necessary for carrying on the
business of printing and publishing the text books for recognised schools in Punjab
were estimated and shown in the annual financial statement and that the demands for
grants, which were made under different heads, were sanctioned by the State
Legislature and due Appropriation Acts were passed, is not disputed.

15
And hence, the couurt was unable to agree with the petitioners regarding their first
contention i.e. the carrying on of the business of printing and publishing text books
was beyond the competence of the executive Government without a specific legislation
sanctioning such course.

Generally speaking, a trader might be lucky in securing a particular market for his
goods but if he looses the same because the customers for some reason or the other do
not choose to buy goods from him, it is not open to him to say that it was his
fundamental right to have his old customers for ever. It can be said that the publishers
in the present case had nothing but a chance or prospect of having their books
approved by the Government and at the same time, the Government had the undisputed
right to adopt any method of selection it liked and if ultimately it was decided that after
approving the text books, the copyright would be purchased from the respective
“authors and others” provided that they were were willing to transfer the same to the
Government on certain terms, the court said that it failed to see what right of the
publishers to carry on their trade or business was affected by it.

As has already been enunciated above that the petitioners had no fundamental right in
the present case which can be said to have been infringed by the action of the
Government and hence, the petition was bound to fail on that ground. This being the
position, the court felt the other two points raised by the petitioners did not require
consideration at all. The petitioners did not have any fundamental right under article 19
(1) (g) of the Constitution and therefore, the question whether the Government could
establish a monopoly without any legislation under article 19 (6) of the Constitution
was held to be altogether immaterial. Futher the Court felt that a mere chance or
prospect of having particular customers cannot be said to be a right to property or to
any interest in an undertaking within the meaning of Article 31 (2) of the Constitution
and on that account it was held that no question of payment of compensation could
arise.

JUDGMENT

The petition was dismissed with costs. And hence, it can be said that in India, a
separation of functions and not of powers is followed. It is not possible abide by the
principle in its rigidity. An example of the same can be seen in the exercise of

16
functions by the Cabinet ministers, who exercise both legislative and executive
functions. Article 74(1) wins them an upper hand over the executive by making their
aid and advice mandatory for the formal head. The executive, thus, is derived from the
legislature and is dependant on it, for its legitimacy.24 And this makes the observation
made by the Supreme Court in Ram Jawaya Kapur v. State of Punjab25 extremely
important.

The doctrine of Separation of Powers has served as an excellent platform for a tussle
between the three organs of the State. While there has been a broad agreement on the
principles laid down by the doctrine, in practice, from time to time, disputes have
continued to rise as to whether one organ of the State had exceeded the boundaries
assigned to it under the Constitution
This can be seen from a plethora of judgments laid down in numerous cases.
After independence, several laws were enacted in the states with the aim of reforming
land ownership and tenancy structures. This was in keeping with the promise of the
Government of implementing the socialistic goals of the Constitution. The courts
struck down the land reforms laws saying that they violated the fundamental right to
property guaranteed by the Constitution.26

In Golaknath v. State of Punjab27, the concept of implied limitations on Parliament's

power to amend the Constitution was invoked. The Court held that the fundamental
rights were so sacrosanct and transcendental in importance that they could not be
restricted even if such a move were to receive unanimous approval of both houses of
Parliament.

Within a few weeks of the Golaknath verdict the Congress party suffered heavy losses
in the parliamentary elections and lost power in several states. But then the Parliament
introduced laws to further its goal towards socialism:

24
http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html.
25
AIR 1955 SC 549.
26
http://www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_
constitution.pdf.
27
AIR 1967 SC 1643.

17
a) nationalising of banks and

b) derecognising of erstwhile princes in a bid to take away their Privy purses, which
were promised in perpetuity - as a sop to accede to the Union - at the time of India's
independence.

The Supreme Court struck down both moves. And hence, it was crystal clear that the
Parliament and the Supreme Court were at loggerheads. The battle was about the
supremacy of Parliament as against the power of the courts to interpret and uphold the
Constitution.

Piqued by the unfavourable judgments, the Parliament restored for itself the absolute
power to amend any part of the Constitution including Part III, dealing with
fundamental rights. The President was made duty bound to give his assent to any
amendment bill passed by both houses of Parliament. Several curbs on the right
property were passed. The right to equality before the law and equal protection of the
laws (Article 14) and the fundamental freedoms guaranteed under Article 19 were
made subordinate to Article 39 (b) & (c) in the Directive Principles of State Policy.
And the land laws in were placed the Ninth Schedule of the Constitution in order to
effectively remove them from the scope of judicial review.

The question of what amounts to an excess i.e. overlapping of jurisdictions of both

organs of the state was the basis for action in the landmark judgment in the case:
Keshavananda Bharti v. State of Kerala28. The main point for consideration before the
Court in this case, was regarding the extent of the amending power conferred by
Article 368 of the Constitution.29 It was contended that the Parliament was “supreme”
and sovereign and represented the will of the people. If these representatives of the
people passed or changed a law that would curb the power of the Judiciary then the
latter had no right to claim that such an action was unconstitutional. But the Supreme
Court thought otherwise and delivered the judgment in favour of the appellants and
laid down that there were certain features of the Constitution which formed its basic

28
AIR 1973 SC 1461.
29
Dr. Pandey, J.N. Constitutional Law of India. Central Law Agency. Allahabad. 47th Edition.
2010.

18
structure, one of them being the doctrine of Separation of Powers and this basic
structure cannot be amended.
As per this ruling, there was no longer any need for ambiguity as the doctrine was
expressly recognized as a part of the Indian Constitution, unalterable even by an Act of
Parliament. Thus, the doctrine of separation of powers was incorporated, in its essence,
into the Indian laws.30
In a subsequent case law, the Supreme Court had the opportunity to apply the
Keshavananda ruling regarding the non-amendability of the basic features of the
constitution and a strict adherence to doctrine of separation of powers can be seen from
31
the same. In Indira Gandhi Nehru v. Raj Narain , the dispute was regarding the
validity of election of then-then Prime Minister Smt. Indira Gandhi. The Allahabad
High Court found the claim into alleged violations i.e. violation of the election code
and misuse of power during her election campaign, by the appellant to be valid and
hence cancelled her candidature. A cross-appeal was filed and meanwhile, the
Parliament passed the Thirty-ninth amendment to the Constitution which sought to
remove the authority of the Supreme Court to adjudicate petitions regarding elections
of the President, Vice President, Prime Minister and Speaker of the Lok Sabha.
Instead, a body constituted by the Parliament would be vested with the power to
resolve such election disputes. Amendments were also made to the Representation of
Peoples Acts of 1951 and 1974 and placed in the Ninth Schedule along with the
Election Laws Amendment Act, 1975. This was basically done in order to validate
with retrospective effect the election of the-then Prime Minister. The Thirty-ninth
amendment was upheld but a part of it was struck down on the ground that it curbed
the power of the judiciary to adjudicate in the current election dispute and also on the
ground that it violated the free & fair elections which was an essential of a democracy.
Mrs. Gandhi's election was declared valid on the basis of the amended election laws.
The judges grudgingly accepted Parliament's power to pass laws that have a
retrospective effect.

30
http://jurisonline.in/2010/09/separation-of-powers-constitutional-plan-and-practice/
31
AIR 1975 SC 2299.

19
In B.R. Enterprises v. State of U.P32 the Supreme Court was of the opinion that the first
attempt should be made by the courts to uphold the charged provisions and not to
invalidate it merely because one of the possible interpretation leads to such a result,
howsoever attractive it may be. Thus, where there are two possible interpretations, one
invalidating the law and the other upholding, the latter should be adopted. For this, the
courts have been endeavoring, sometimes to give restrictive or expansive meaning
keeping in view the nature of the legislation. Cumulatively, it is to sub serve the object
of the legislation. Old golden rule is of respecting the wisdom of the legislature, that
they are aware of the law and would never have intended for an invalid legislation.
This also keeps the courts within their track and checks. Yet inspite of this, if the
impugned legislation cannot be saved, the courts shall not hesitate to strike it down.
Here the courts have to play a cautious role of weeding out the wild from the crop, of
course, without infringing the Constitution. The principle of reading down, however,
will not be available where the plain and literal meaning from a bare reading of any
impugned of any impugned provision clearly shows that it confers arbitrary or
unbridled power.

In Union Of India v. K.M. Shankarappa33 the Supreme Court held that the provision
for revision by Central Government of decisions of the Appellant Tribunal under
Section 6 (1) of the Cinematograph Act, 1952 is unconstitutional. The Supreme Court
observed:
“The Government has chosen to establish a quasi-judicial body which has been given
the powers, inter alia, to decide the effect of the film on the public. Once a quasi-
judicial body like the Appellate Tribunal gives its decision, that decision would be final
and binding so far as the executive and the government is concerned. To permit the
executive to review or revise that decision would amount to interference with the
exercise of judicial functions by a quasi-judicial board.”

In the landmark judgment of P.U.C.L v. Union of India34 Justice Shah observed: “The
legislature in this country has no power to ask the instrumentalities of the State to
disobey or disregard the decisions given by the courts. The legislature may remove the

32
(1999) 9 SCC 700.
33
(2001) 1 SCC 582.
34
2003 (3) SCALE 263.

20
defect, which is the cause for invalidating the law by the court by appropriate
legislation if it has power over the subject matter and competent to do so under the
Constitution. The primary duty of the judiciary is to uphold the Constitution and the
laws without fear or favour, without being biased by political ideology or economic
theory. Interpretation should be in consonance with the constitutional provisions,
which envisage a republic democracy.”

In J.P.Bansal v. State of Rajasthan35, it was observed by the Supreme Court that it was
true that the court in interpreting the Constitution enjoyed a freedom which was not
available in interpreting a statute. It endangered continued public interest in the
impartiality of the judiciary, which is essential to the continuance of rule of law, if
judges, under guise of interpretation, provided their own preferred amendments to
statutes which experience of their operation has shown to have had consequences that
members of the court before whom the matters come consider to be injurious to public
interest. Where the words are clear, there is no obscurity, there is no ambiguity and the
intention of the legislature is clearly conveyed, there is no scope for the court to
innovate or to take upon itself the task of amending or altering the statutory provisions.
In that situation the court should not proclaim that it is playing the role of a lawmaker
merely for an exhibition of judicial valour. It has to remember that there is a line,
though thin, which separates adjudication from legislation. That line should not be
crossed or erased.

In Delhi Development Authority v. M/S UEE Electricals Engineering. P. Ltd36 the

Supreme Court dealt with the judicial review of administrative action in detail. The
court observed: “One can conveniently classify under three heads the grounds on
which administrative action is subject to control by judicial review. The first ground is
“illegality”, the second “irrationality”, and the third “procedural impropriety”. Courts
are slow to interfere in matters relating to administrative functions unless decision is
tainted by any vulnerability such as, lack of fairness in the procedure, illegality and
irrationality. Whether action falls in any of the categories has to be established. Mere
assertion in this regard would not be sufficient. The law is settled that in considering
challenge to administrative decisions courts will not interfere as if they are sitting in

35
2003(3) SCALE 154.
36
2004 (3) SCALE 565.

21
appeal over the decision. He who seeks to invalidate or nullify any act or order must
establish the charge of bad faith, an abuse or a misuse by the authority of its powers. It
cannot be overlooked that burden of establishing mala fides is very heavy on the
person who alleges it. The allegations of mala fides are often more easily made than
proved, and the very seriousness of such allegations demands proof of a high order of
credibility”.

Recent Developments
The issue of the relative jurisdictional boundaries of the organs of the State has
acquired a new dimension in the recent period in the context of coalition politics.
During state elections in early 2005, in Jharkhand, the swearing-in ceremony was
conducted by the Government with a member of the Union Cabinet as the head. This
person was also given an opportunity to prove his majority in the house. The
opposition parties, which claimed that they had majority, filed a writ petition in the
Supreme Court which in turn, immediately gave orders to the Speaker of the Assembly
to extend the session by a day and conduct a floor test between the contending political
alliances. In light of the court’s verdict, the earlier government decided to tender its
resignation on the advice of the central government. An alternative government was
set-up by the other parties who were able to prove their majority in the Assembly.
The directions of the Supreme Court to the Speaker of Jharkhand Assembly raised a
legal storm, as these were interpreted by several experts as intruding into an area which
was within the jurisdiction of the legislature. This view was also endorsed by an
Emergent Conference of the Presiding Officers of Legislative Bodies of India which
was convened at short notice on 20 March 2005 to deliberate on the Constitutional
issue arising from the verdict of the Supreme Court. In no uncertain terms, the
Presiding Officers expressed their concern over “such orders passed by the courts
repeatedly which tend to disturb the delicate balance of power between Judiciary and
Legislature and appear to be a transgression into the independence of the Parliamentary
System of our Country”.37
On 23rd May 2005, the controversy relating to the Supreme Court directions in the
Jharkhand case acquired a new dimension. This time, it related to the action taken by
the President of India to dissolve the Bihar assembly on the recommendation of the

37
http://www.pucl.org/Topics/Law/2006/seperation-of-powers.html.

22
Governor of the state, and the advice of the Union Cabinet. Over the previous few
months, the state was under President’s rule, and the Assembly was in suspended
animation as no party or combination of parties had emerged with a clear majority in
the earlier elections in February 2005. The legislators belonging to some minority
parties had become restive, and there were strong rumours that some of them were
likely to join a coalition of parties which were opposed to the previous ruling party (the
Rashtriya Janata Dal) in the state, which was a member of the ruling coalition at the
center. On grounds of alleged “horse-trading” among legislators, the Governor
suddenly decided to recommend dissolution of the assembly to the Union Cabinet, and
through it, to the President, who was then on a state visit to Moscow. The
recommendation was duly accepted late at night in Moscow and the assembly was
dissolved. Some of the affected legislators filed a case against the action taken by the
executive branch.
The centre’s legal position in this case, as filed in an affidavit before the Supreme
Court was that “the Court is not to inquire – it is not concerned with – whether any
advice was tendered by any minister or council of Ministers to the President, and if so,
what was that advice. That is a matter between the President and his council of
Ministers”. In other words, according to the government’s view, the Council of
Ministers could advise the President to pass any order (irrespective of its merits); the
President had no option but to accept that advice under the Constitution; and the Court
had no right to examine whether the action of the executive was legal or not.
After hearing the arguments, in October 2005, the Supreme Court gave a summary
verdict declaring the action of the government to dissolve the Bihar assembly as being
“unconstitutional” and unreasonable. The Court, however, did not order the revival of
the old assembly as fresh elections had already been announced by the Election
Commission and were scheduled to take place after a few days. The Court’s verdict
caused considerable public embarrassment to the government since the decision to
dissolve the Assembly was taken by the President at a very short notice on the advice
of the Union Cabinet.38

38
http://www.pucl.org/Topics/Law/2006/seperation-of-powers.html.

23
One of the recent judgments, in which the doctrine of basic structure was once again in
question, is I.R. Coelho v. State of Tamil Nadu39 wherein it was held that the validity of
any Ninth Schedule Law which has already been upheld by the Apex Court would not
be open to challenge again, but if a law is held to be violative of fundamental rights
incorporated in the Ninth Schedule after the date of the judgment in the Keshvananda
Bharti40 case, then such violation would be open to challenge that it destroys the basic
structure of the Constitution. Thereby, this previously protected portion of the
Constitution was also brought under the ambit of the Basic structure theory and the
Golden triangle comprising of Art.14, 19 and 21, making laws placed under it
amenable to judicial review.

39
AIR 2007 SC 8617.
40
AIR 1973 SC 1461.

24
Chapter: IV
OUTCOME OF HYPOTHESIS

 The Doctrine of Separation of Powers suffers from inherent and not absolute
limitations. The theory has not been codified as such and the only defects that
can be drawn, are the ones which have been experienced, after its practical
application.

 Ram Jawaya Kapur v. State of Punjab41 does not recognize the principle fully
but makes only a reference to it. The theory was given full recognition in a
plethora of cases after the judgment in this case.

 It can be said, that application of the doctrine in its strictest sense is not only
undesirable but also impracticable and considering the situation as it exists
today, the system of checks and balances has become a practical necessity for
better functioning of the Government.

41
AIR 1955 SC 549.

25
Chapter: V
CONCLUSION

It can be concluded that the Doctrine of Separation of Powers if applied in its rigidity
or absolutely, will lead to inefficiency in the functioning of the government. This is
because there has been a shift in the status of the state today. With the passage of time,
States have evolved from being minimal and non-interventionist to being welfare
oriented by playing the multifarious roles of protector, arbiter, controller and provider
to the people. In its omnipresent role, the functions of the State have become diverse
and its problems interdependent hence, any serious attempt to define and separate the
functions would only cause more complexity and difficulty in the system.42
The modern day interpretation of the doctrine provides for a distinction to be drawn
between ‘essential’ and ‘incidental’ powers and one organ of the Government cannot
usurp or encroach upon the essential functions of another organ, but may exercise the
incidental functions thereof.43
Further it is not possible to have water-tight compartments between the functions and
organs of the state rather, the system of checks and balances wherein duties and rights
are crossed over, has been established.
The system of checks and balances (as mentioned above) does not dilute the doctrine
but rather helps to achieve the desired ends of the doctrine of Separation of Powers.
Though its application in the fullest sense is not possible, many constitutions around
the world have drawn upon it and a modified form of the doctrine exists today.
The value of the doctrine lies in its object i.e. “a Government of Law than of official
will or whim.”44
To conclude it can be said that whether theoretically or practically, the Doctrine of
Separation of Powers is essential for the functioning of the democracy. It provides the
crutches on which our fragile democracy can balance itself.

42
http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html
43
Justice, Thakker, C.K. (Takwani) & Mrs. Thakker, M.C. Lectures on Administrative Law.
Eastern Book Company. Lucknow. 4th Edition (Reprinted). 2010.
44
Ibid.

26
Chapter: VI
BIBLIOGRAPHY

Books Referred:

1. Asirvatham, Eddy. Political Theory. The Upper India Publishing House Pvt.
Ltd. Lucknow. 11th Ed. 1980.

2. Bakshi, P.M. The Constitution of India. Universal Law Publishing Co. Pvt. Ltd.
10th Edition. 2010.

3. Dr. Pandey, J.N. Constitutional Law of India. Central Law Agency. Allahabad.
47th Edition. 2010.

4. Jain, M.P. Indian Constitutional Law. Lexis Nexis Butterworths Wadhwa

Nagpur. Haryana. 6th Edition (Reprinted). 2010.

5. Jain, M.P & Jain, S.P. Principles of Administrative Law. Lexis Nexis
Butterworths Wadhwa Nagpur. Haryana. 6th Edition. 2010.

6. Justice, Thakker, C.K. (Takwani) & Mrs. Thakker, M.C. Lectures on

Administrative Law. Eastern Book Company. Lucknow. 4th Edition (Reprinted).
2010.

7. Sathe, S.P. Administrative Law. Lexis Nexis Butterworths Wadhwa Nagpur.

Haryana. 7th Edition. (Fourth Reprint). 2009.

Articles Referred:

1. The Doctrine of Separation of Powers, its values and limitations, By Veritas.

Available at:
http://www.thezimbabwean.co.uk/news/35650/the-doctrine-of-separation-of-
powers--its-values-and-limitations.html

27
 2. Separation of Powers: Its Scope and Limitations, By Aman Chhibber.
Available at:
http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html

3. Separation of Powers: The myth and reality, The Third Nani A. Palkhivala
Memorial Lecture By Bimal Jalan. Available at:

http://www.pucl.org/Topics/Law/2006/seperation-of-powers.html

4. Constitutionalism & Separation of Powers, By M.J.C. Vile. Available at:

http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=6
77&chapter=122670&layout=html&Itemid=27

5. The Basic Structure of the Constitution, By Venkatesh Nayak. Available at:

http://www.humanrightsinitiative.org/publications/const/the_basic_structure_of
_the_indian_constitution.pdf

6. Judicial Review: Nuisance or Absolute Necessity, By Praveen Dalal. Available

at:
http://www.naavi.org/cl_editorial_04/praveen_dalal/judicial_review_aug06_04.
htm

7. Critical Analysis of the Doctrine of Separation of Powers, By Siddhart Sinha &

Yash Kothari. Available at:

http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf

8. Separation of Powers: Constituional Plan and Practice, By Siddhant.

Available at: http://jurisonline.in/2010/09/separation-of-powers-constitutional-
plan-and-practice/

Authorities Referred:

1. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.

2. Re, Delhi Laws Act, AIR 1951 SC 32.

3. Motilal v. The Government of the State of Uttar Pradesh, AIR 1951 All 257.

28
 4. The Commonwealth and the Central Wool Committee v. The Colonial Combing,
Spinning and Weaving Co. Ltd. 31 C.L.R. 421.
5. Attorney-General for Victoria v. The Commonwealth, 52 C.L.R. 533.

6. Golaknath v. State of Punjab, AIR 1967 SC 1643.

7. Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461.

8. Indira Gandhi Nehru v. Raj Narain, AIR 1975 SC 2299.

9. B.R. Enterprises v. State of U.P., (1999) 9 SCC 700.

10. Union Of India v. K.M. Shankarappa, (2001) 1 SCC 582
11. P.U.C.L v. Union of India, 2003 (3) SCALE 263.
12. J.P.Bansal v. State of Rajasthan, 2003(3) SCALE 154.

13. Delhi Development Authority v. M/S UEE Electricals Engineering. P. Ltd, 2004
(3) SCALE 565.
14. I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 8617

Websites Referred:

 http://econ.upm.edu.my/researchbulletin/artikel/Vol%204%20March%202009/
19-24%20Adilah.pdf

 www.google.com

 www.indiankanoon.org

 www.manupatra.com

 http://www.calstatela.edu/library/guides/pswhat.htm

 http://profj.us/24sp/law34/primary.htm

 http://www.uta.fi/FAST/FIN/RESEARCH/sources.html

 http://currentgk.com/india/polity/major_constitutional_amendments.html

29