JAMIA MILLIA ISLAMIA

Faculty of law

Project

Separation of Powers in India

Administrative Law

Submitted to: Bhavna Sharma

Submitted by: Shashank Shekhar

BA.LLB (Regular) 6th Semester

Batch: 2017 - 2022

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 ACKNOWLEDGEMENT

With great pleasure and privilege, I present here with full satisfaction, my project work titled

Separation of Powers

First, I express my sincere and heartfelt thanks to Almighty God for his blessings to complete my project
work successfully.

I wish to acknowledge my profound gratitude to our Vice Chancellor Dr. Najma Akhtar and our Dean for
his valuable support and guidance. I thank our Librarian for the help he rendered for the successful
completion of this project. I also wish to express my indebtedness to all my teachers for their guidance
for the successful completion of my project. Lastly I would like to thank Madam Bhavna Sharma for her
guidance in completing this project

Words are inadequate to express my thankfulness to my parents and friends whose moral support and
co-operation enabled me to complete this project.

I once again express my gratitude to all those who have enabled me to complete this report.

X
Shashank Shekhar
Student, Jamia Millia Islamia, New Delhi

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 TABLE OF CONTENT

1. Introduction………………………………………………………………………05
2. Doctrine of Separation of power in different countries……………………….07
A. United States……………………………………………………………07
B. United Kingdom……………………………………………………….08
C. France…………………………………………………………………..09
3. Doctrine of Separation of Power in India……………………………………...10
 Constituent Assembly debate on Separation of Power…………….….10
 Present Position……………………………………………………….….12
 Judicial Opinion on Separation of Power in India…………………....13
4. Conclusion………………………………………………………………………..16

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 LIST OF CASES

1. Ramdas Athawale v Union Of India, AIR 2010 SC 1310.

2. Satish Chandra v Speaker, Lok Sabha, 2014) 2 SCC178.
3. P.V. Narasimha Rao v State (CBI/SPE), AIR1998 SC 2120.
4. Raja Ram Pal v Hon’ble Speaker, Lok Sabha, (2007) 3 SCC 184.
5. Manohar Lal Sharma v Principal Secretary, (2014) 2 SCC 532.
6. Kachchh Jal Sankat Nivaran Samiti v State of Gujarat, AIR 2013 SC 2657.
7. Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
8. Smt. Indira Nehru Gandhi v Raj Narain AIR 1975 SC 2299.
9. Minerva Mills v Union of India, AIR 1980 SC 1798.
10. Devender Pal Singh Bhullar v State of N.C.T of Delhi, AIR 2013 SC 1975.
11. Shatrughan Chauhan v Union of India, (2014) 3 SCC 1.
12. AK Roy v Union of India, AIR 1981SC 2138.
13. DC Wadhwa v State of Bihar, AIR 1987 SC 579.
14. Rai Sahib Ram Jawaya v State of Punjab, AIR 1955 SC 549.
15. Ram Krishna Dalmia v Justice Tendolkar, AIR 1958 SC 538.
16. Kesavananda Bharti v State of Kerala, AIR 1973 SC 1461.
17. Smt. Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2299.
18. Shri Sitaram Sugar Company v Union Of India, AIR 1990 SC 1277.
19. Kanhaiya Lal Sethia v Union of India, (1997) 6 SCC 573.
20. Almitra H. Patel v Union of India, AIR 1998 SC 993.

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 INTRODUCTION

The doctrine of Separation of Powers governs the mutual relations among the three organs of
the Government i.e., legislature, executive and judiciary. Aristotle for the first time
differentiated the functions of the Government into three categories viz.1,
1) deliberative,

2) magisterial and

3) judicial

Similarly, Locke2 gave a threefold classification of the power of the Government namely:
1) continuous executive power (implies executive and judicial power)

2) discontinuous legislative power (implies rule making power ) and

3) federative power (signifies the power of regulating the foreign affairs)

“Continuous executive power” refers to the executive and the judicial power, “discontinuous
legislative power‟ implies the rule making power and federative power‟ signifies the power
regulating the foreign affairs.3
The term ‘Separation of power’ or ‘trias politica’ was coined by a French scholar
Montesquieu in 1947 in his book ‘Espirit des Louis’ (The spirit of the laws). According to
him, no one person or body should exercise all the three functions of the government namely,
the legislative, the executive and the judiciary. This doctrine stipulates that limits should be
laid on the functions and powers of every branch of the government so that each branch
functions within its own sphere without transgressing into the domain of other. This doctrine
seeks to prevent concentration of power by providing checks and balances. According to
Montesquieu:

“When the legislative and executive powers are united in the same person, or in the

same body or Magistrate, there can be no liberty. Again, there is no liberty if the judicial

1
I.P. Massey, Administrative Law, (7th ed., Eastern Book Company, 2008) at 38.
2
Ibid.
3
Ibid.

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 power is not separated from the Legislative and Executive power. Where it joined with
the legislative power, the life and liberty of the subject would be exposed to arbitrary
control, for the judge would then be the legislator. Where it joined with the executive
power, the judge might behave with violence and oppression. There would be an end of
everything were the same man or the same body to exercise these three powers.”4

Thus the theory of separation of power can be explained in the following way5:

 That the same person should not form part of more than one of the three organs of the
government;
 That one organ of the government should not interfere with any other organ of the
government; and
 That one organ of the government should not exercise the functions assigned to any
other organ.

4
Charles de second at, Baron de Montesquieu, The Spirit Of Laws [Excerpts] (1748) available at
http://www.ucs.louisiana.edu/~ras2777/conlaw/montesq.html, last accessed on April 01, 2020.
5
A. John, Constitutional and Administrative Law,( 8th ed., Palgrave Macmillan, 2011) at 43.

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 DOCTRINE OF SEPARATION OF POWER IN
DIFFERENT COUNTRIES

A. United Kingdom

This doctrine was derived by Lock and Montesquieu from the 18 th century British
constitutional history. In England, legislative supremacy of the Parliament came after a long
war between the Parliament and the King. Ultimately, legislative and tax powers of the
Parliament and the judicial powers of the court were recognised. Thus, while the legislative
and judicial power resided with the Parliament and the judiciary respectively, the executive
power resided with the King.6 However, later on, Parliamentary form of government was
adopted in England. Consequently, England does not conform strictly to the doctrine of
separation of power as there are visible overlaps between the legislature, executive and the
judiciary.

In UK, the Crown and the Government, including the Prime Minister and Cabinet ministers
forms the executive. The executive formulates and implements policy. The legislature i.e. the
Parliament comprises of the Crown, the House of Commons and the House of Lords. The
judges in the courts of law form the judiciary. The Prime Minister and the Cabinet are part of
the executive as well as the legislature as they are members of the House of Commons.
Though there are certain overlaps, efforts are made to provide appropriate checks and
balances.
Abolition of the office of Lord Chancellor indicates that this doctrine does hold relevance in
United Kingdom. Earlier in UK, the post of Lord Chancellor combined in it powers of all three
organs of the State and was, thus, an exception to the doctrine of separation of power. He was
the head of the judiciary of England and Wales, a member of the Cabinet, and the speaker of
the House of Lords. However this post was abolished by the Constitutional Reforms Act,
2005. This Act removed the judicial functions of the Lord Chancellor. His judicial functions
are now performed by Lord Chief Justice. Also, the Lord Chancellor no longer acts as the
Speaker of the House of Lords as the House elects its own speaker. Thus, the Act created a
6
See supra n. 1 at 38.

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 more formal separation of powers.7
While there is no strict compartmentalization of the powers and functions of executive,
legislature and the judiciary in UK, efforts are made to prevent concentration of powers of all
three wings in one person or office. This signifies that this doctrine does hold relevance in
there.

B. United States
United States Constitution closely follows the concept of separation of powers. The
legislative, executive and the judicial powers reside in separate organs in the American
Constitution.
Section 1 of Article 1 declares: “All legislative powers herein granted shall be vested in a
Congress of the United State”.
Section 1 of Article II says: “The executive power shall be vested in a President of the United
States of America.”
Section 1 of Article III reads: “The judicial power of the United States shall be vested in one
Supreme Court and in such inferior courts as the Congress may from time to time ordain and
establish…”

Despite such segregation of function by the Constitution, United States does not adhere to the
concept of separation of powers completely. The complexity of the modern day government
has shown that strict structural classifications are not possible.8 For example,
1) Legislative power of the President (Executive) - the (President) possesses the power to
veto bills passed by the Congress. Such bills cannot become law unless they are
subsequently passed again with a two thirds majority by each House. The President
also exercises legislative power in making of treaties.
2) Judicial power of the President (Executive) - The President also appoints the judges of
the Supreme Court.
3) Power of the legislature over the executive- The Congress interferes with the power of
the President by casting vote on the budget. The Budget and Accounting Act, 1921

7
R.Benwell and O. Gay, ‘The Separation of Powers’, available at www.parliament.uk/briefing- papers/sn06053.pdf ,
last accessed on October 5, 2014.
8
Supra n.1 at 40

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 established the principle and practice of the executive budget, under which the
President is responsible for formulating and presenting to Congress a complete and
detailed expenditure plan for the following fiscal year.9
4) Judicial power of the Congress- Congress approves the appointment of the judges and
can also remove judges by impeachment process.
5) The judiciary through its power of judicial review interferes with the power of the
Congress and the President.
In both United Kingdom and United States, the doctrine as propounded by Montesquieu is not
strictly adhered to even though difference in the constitutional set up of both the countries.
While the former is Parliamentary democracy, the later follows a Presidential system. Given
the difference in the government set up and existence of explicit constitutional provision, it
may seem that this doctrine operates in its strict form in United States However, this is not the
case. This is because the modern day government is too complex to allow strict segregation of
powers and functions. Thus despite the difference in the government setup of the two
countries, we find that there is considerable overlapping of functions in both.

C. France
Montesquieu doctrine of separation of powers was incorporated in Article 16 of the French
Declaration of Rights of the Man. It stipulated that there could be no constitutional or
democratic government without separation of powers.10
Under the influence of this doctrine, the ordinary courts were prevented from reviewing the
validity of the legislative enactments and administrative actions. Separate administrative
courts were formed for adjudicating disputes between the citizens and the administration.
However, there is no strict adherence to this doctrine in France.

DOCTRINE OF SEPARATION OF POWERS IN INDIA

9
T.B. Singh, ‘Principle Of Separation Of Powers And Concentration Of Authority’, available at
http://www.ijtr.nic.in/articles/art35.pdf ., last accessed on April 06, 2020.
10
Article 16- “ Any society in which no provision is made for guaranteeing rights or for the separation of powers,
has no Constitution.”- Declaration of Human and Civic Rights of 26 August 1769, available at http://www.conseil-
constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/cst2.pdf., last accessesd on April 06, 2020.

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 Article 50 of the Constitution provides that ‘the State should take steps to separate the

judiciary from the executive in the public services of the State’. However, this Directive

Principle does not embody any formalistic or dogmatic division

of powers.11 There is no
formal separation of powers in the Indian Constitution, rather a ‘parallelism of power, with
hierarchies between the three organs in particular fields’12

 Constituent Assembly Debate on adoption of separation of powers

In the Constituent Assembly Debates suggestion was made by Prof. K.T. Shah a member of
Constituent Assembly to insert by amendment a new Article 40-A concerned with doctrine of
separation of powers. This amendment was supported by Kazi Syed Karimuddin. This
suggested Article read as follows:
“There shall be complete separation of powers as between the principal organs of the
State, viz; the legislative, the executive, and the judicial.”13

K.T. Shah remarked:

“If you maintain the complete independence of all the three, you will secure a measure
of independence between the Judiciary, for example, and the Executive, or between the
Judiciary and the Legislature. This, in my view, is of the highest importance in
maintaining the liberty of the subject, the Civil Liberties and the rule of law. If there was
contract between the Judiciary and the Legislature, for instance, if it was possible to
interchange between the highest judicial officers and the membership of the legislature,
then, I am afraid, the interpretation of the law will be guided much more by Party
influence than by the intrinsic merits of each case. The Legislature in a democratic
assembly is bound to be influenced by Party reasons rather than by reasons of
principle”14

However, Shri K. Hanumanthiya, a member of Constituent Assembly dissented with the

11
See supra n.1 at 41.
12
M.P Jain, Indian Constitutional Law( 6th ed., Lexis Nexis Butterworths, 2010) at 195
13
Constituent Assembly Debates, Book No.2, Vol.. VII at 959.
14
Constituent assemble debates(proceedings) Vol. VII at para 20

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 proposal of Prof. K.T. Shah as he considered this article to sponsor Presidential form of
Government whereas the Drafting Committee had approved Parliamentary system of
Government to be suitable to this country. He remarked that:
“Instead of having a conflicting trinity it is better to have a harmonious governmental
structure. If we completely separate the executive, judiciary and the legislature conflicts
are bound to arise between these three departments of Government. In any country or in
any government, conflicts are suicidal to the peace and progress of the country.
Therefore in a governmental structure it is necessary to have what is called “harmony”
and not this three-fold conflict.”15

Dr. B.R. Ambedkar also disagreed with the suggestion forwarded by K.T. Shah. He opined
that:
“There is no dispute whatsoever that the executive should be separated from the
judiciary. With regard to the separation of the executive from the legislature, it is true
that such a separation does exist in the Constitution of United States; but many
Americans themselves were quite dissatisfied with the rigid separation embodied in the
American Constitution between the executive and legislature… There is not slightest
doubt in my mind and in the minds of many students of Political Science, that the work
of Parliament is so complicated, so vast that unless and until the members of the
Legislature receive direct guidance and initiative from the members of the Executive,
sitting in Parliament, it would be very difficult for Members of Parliament to carry on
the work of the Legislature. I personally therefore, do not think that there is any very
great loss that is likely to occur if we do not adopt the American method of separating
the Executive from the Legislature.”16

Consequently, the motion a new Article 40-dealing with the separation of powers was
dismissed by the Constituent Assembly. This discussion signifies that the framers of the
Constitution never wanted to adopt the doctrine of separation of powers in its rigid form. They
foresaw that the functioning of government was a complex process and such a rigorous
adoption would impediment the smooth functioning of the government.
15
Constituent Assembly Debates Book No.2, Vol. VII at. 962.
16
Constituent Assembly Debates Book No.2, Vol. VII at 967, 968.

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  Present position

Thus, there are significant overlaps between the powers and functions of the three wings of the
government in India. However these overlaps serve as a check on the unwarranted use of
power by one branch of the government.
The overlap between the three branches of the government can be illustrated by the following
examples:
1) The executive, i.e., the Prime Minister and the Council of Ministers is part of the
legislature.
2) President’s/ Governor’s assent is required to transform a legislative bill into an Act.
3) The President/ Governor have the power to promulgate ordinances when both the
Houses are not in session. The ordinances have the status of law of the land.
4) The Parliament has the power to punish for contempt those who commit breach of
privilege or defy its order. Thus the Parliament (legislature) has been vested with
judicial power in this regard.
5) Judges can be removed by the President on an address by both the houses of
Parliament presented in the same session. The address must be supported by a majority
of the total membership in each house, and also by majority of not less than two thirds
of the members of each House present and voting.
6) The judiciary through its power of judicial review can void any Act passed by the
legislature if it violates the Constitution. Also, the judiciary can void any executive
action if it is found violative of the Constitution or any other law passed by the
legislature.
An analysis of the provisions of the constitution indicates that every organ is vested with all
three functions, legislative, executive and judiciary and is dependent on others organs in some
respect which check and balance it.17

 Judicial opinion on doctrine of separation of powers in India

17
S.P Sathe, Administrative Law (7th edition, Lexis Nexis Butterworths, 2010) at 22.

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The Supreme Court in Ram Jawaya v. State of Punjab18 opined that:

“The 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 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.”19

Similarly, in Indira Gandhi v. Raj Narain20, this doctrine was upheld as a basic structure of
the constitution. In this case Prime Minister Indira Gandhi’s election to Lok Sabha had been
held invalid on the grounds that she violated section 8A of the Representation of the People
Act, 1951. The appeal against this decision was admitted by the Supreme Court and the High
court decision was stayed. While the appeal was pending, Constitution (Thirty Ninth
Amendment) Act, 1975 was passed which stipulated that no election to either House of the
Parliament of a person who held the office of the Prime Minister at the time of such election
shall be called into question, except before such an authority or body and in such a manner as
might be provided for by or under any law made by the Parliament. It also provided that
notwithstanding any order made by any court before the commencement of the thirty-ninth
constitutional amendment, declaring such election to be void, such election shall continue to
be valid in all respects and any such order or any finding on which such order was based shall
be and shall be deemed always to have been void and of no effect. 21 The Apex Court held that
the above provisions violated the basic structure of the constitution. It opined that ‘Separation
of powers is a basic feature of the Constitution and therefore every dispute involving the
adjudication of legal rights must be left to the decision of the Judiciary’.22
Similarly, in In re Delhi Law Act case 23 the Hon’ble Chief Justice of India, Kania J.
observed:

18
(1955) 2 SCR 225.
19
Ibid at para 12.

20
Indira Gandhi v. Raj Narain , AIR 1975 SC 2299.
21
S.4(4), Constitution (Thirty Ninth Amendmenet) Act 1975.
22
Supra n. 20 at para 652.
23
In re Delhi Laws Act 1912, AIR 1951 SC 332

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 “Although in the Constitution of India there is no express separation of powers, it is
clear that a legislature is created by the Constitution and detailed provisions are made
for making that legislature pass laws. It is then too much to say that under the
Constitution the duty to make laws, the duty to exercise its own wisdom, judgment and
patriotism in making law is primarily cast on the legislature? Does it not imply that
unless it can be gathered from other provisions of the Constitution, other bodies

executive or judicial are not intended to discharge legislative functions”24

The doctrine of separation of powers has strong footing in the constitutional jurisprudence in
India.25 The Apex court in State of West Bengal & Ors. v. Committee for protection of
Democratic Rights, West Bengal & Ors.,26remarked that;

“It is trite that in the constitutional scheme adopted in India, besides supremacy of the
constitution, the separation of powers between the legislature, the executive and the
judiciary constitutes the basic features of the Constitution.”27

However the Indian concept of separation of powers comes with requisite checks and
balances. India has not adopted this doctrine in its rigidity but it has indeed adopted the
essence of this doctrine. The concept of checks and balances ensures transparency in the
government. With regard to this concept the Supreme Court has opined that:
“Where an Act made by a State Legislature is invalidated by the courts on the ground
that the State Legislature was not competent to enact it, the State Legislature cannot
enact a law declaring that the judgment of the court shall not operate; it cannot
overrule or annul the decision of the court. But this does not mean that the other
legislature which is competent to enact that law cannot enact that law. It can. Similarly,
it is open to a legislature to alter the basis of the judgment … while adhering to the
constitutional limitations; in such a case, the decision of the court becomes ineffective in

24
Ibid at p.346.
25
See Dr. Justice B.S. Chauhan, ‘The Legislative Aspect of the Judiciary: Judicial Activism and Judicial Restraint’,
available at http://www.hcmadras.tn.nic.in/jacademy/Article/BS%20Chauhan%20Speech-%20Lucknow.pdf , last
accessed on April 07, 2020.
26
State of West Bengal & Ors. v.Committee for protection of Democratic Rights, West Bengal & Ors., AIR 2010 SC
1476
27
Ibid at para 39

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 the sense that the basis upon which it is rendered, is changed. The new law or the
amended law so made can be challenged on other grounds but not on the ground that it
seeks to in effectuate or circumvent the decision of the court. This is what is meant by
“checks and balances” inherent in a system of government incorporating the concept of
separation of powers.”28

Chandrachud J. elaborated the concept further in Indira Nehru Gandhi v. Raj Narain

while observing that :

“No Constitution can survive without a conscious adherence to its fine checks and
balances. Just as Courts ought not to enter into problems entwined in the "political
thicket", Parliament must also respect the preserve of the courts. The principle of
separation of powers is a principle of restraint which "has in it the precept, inmate in
the prudence of self-preservation (even if history has not repeatedly brought it home),
that discretion is the better part of valour.”29

CONCLUSION
28
P. Kannadasan & Ors. v. State of Tamil Nadu, (1996) 5 SCC 670 at 685.
29
Supra n.20 at para 688.

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 Though this doctrine cannot be applied in the strict sense to any modern government, it still
serves as a guiding principle for the three wings of the government. The powers and functions
of the executive, legislature and the judiciary cannot be restricted by water tight
compartments. However, this doctrine precludes unwarranted incursions by one organ of the
government into the domain of another.
While strict application of this doctrine might lead to inefficient governance, a modified
application of the same with appropriate checks and balances ensures that no organ is given
unbridled power and each functions cooperatively with the other. In today’s context, this
doctrine can be interpreted as principle of community of powers exercised in the spirit of
cooperation by various organs of the state in the best interest of the people.30

30
I.P. Massey, Administrative Law, (7th ed., Eastern Book Company, 2008) at 45.

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