ADMINISTRATIVE LAW ASSIGNMENT

CRITICAL ANALYSIS:
APPLICATION OF SEPARATION OF POWER
THEORY IN INDIA

SUBMITTED TO:
Prof. NAGESH SAWANT

SUBMITTED BY:
ISHITA AGARWAL
IInd yr. LLB.

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 TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………………………. ..…2

CONCEPT OF SEPARATION OF POWER………………………………………………….3

EVOLUTION OF SEPARATION OF POWER…………………………………… ......…….4

• ANCIENT THEORY……………………………………………………....……..…. ..4
• MODERN THEORY……………………………………………………….…… ……5
• MONTESQUIEU’S THEORY…………………………………………….…… …….5

AMERICAN MODEL…………………………………………………………..……………..7
• CHECKS AND BALANCES………………………………………..………………...8

SEPARATION OF POWER- INDIAN PERSPECTIVE………………...……......…………..9

• DEBATE OF CONSTITUENT ASSEMBLY ……………………………....……….10

CRITICAL ANALYSIS……………………………………………………………..…. .. ....12

• FUNCTIONAL OVERLAPPING………………………………………………... .12
1. LEGISLATIVE and EXECUTIVE…………………………………… ...…..12
2. EXECUTIVE and JUDICIARY………………………………...……………12
3. LEGISLATIVE and JUDICIARY……………………………………………12
• CHECKS AND BALANCES………………………………………..……… ...…….13
• JUDICIAL OPINION…………………………………………………...……………13

CONCLUSION…………………………………………………………………........…… ...14

REFERENCES………………………………………………………….....…………… ...…15

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CONCEPT OF SEPARATION OF POWER

The d 0ctrine 0f separati0n 0f p0wer aims t 0 av0id the c0ncentrati0n 0f p0wer in a particular
individual 0r gr0up 0f individuals. The g0vernment’s r0le is t 0 pr0tect the individual rights
but he is als0 been ackn0wledged as the maj0r vi0lat 0rs 0f these rights. S0, t 0 prevent the
abuse 0f p0wer and arbitrariness, the c0ncept 0f separati0n 0f p0wer has been devised as a
measure.

It is als0 called as a ‘trias p0litica’ m0del where the 0rgans 0f the g0vernment are divided
int 0 three- legislature, executive, judiciary and als0 c0nstituti0nal functi0ns int 0- legislative,
executive and judicial. Acc0rding t 0 the the0ry, all the three 0rgans shall be independent 0f
each 0ther and perf 0rm separate functi0ns. Thus, legislature cann0t exercise executive,
judiciary cann0t exercise legislative, etc.

Acc0rding t 0 Wade and Philips, the three principles 0f separati0n 0f p0wer are:

• The same pers0ns sh0uld n0t f 0rm part 0f m0re than 0ne 0f the three 0rgans 0f
G0vernment, e.g. the Ministers sh0uld n0t sit in Parliament;
• 0ne 0rgan 0f the G 0vernment sh0uld n0t c0ntr0l 0r interfere with the exercise 0f its
functi0n by an0ther 0rgan, e.g. the Judiciary sh0uld be independent 0f the Executive 0r
that Ministers sh0uld n0t be resp0nsible t 0 Parliament; and
• 0ne 0rgan 0f the G 0vernment sh0uld n0t exercise the functi0ns 0f an0ther, e.g. the
Ministers sh0uld n0t have legislative p0wers1 .

The idea behind this c0ncept is if the law-makers sh0uld als0 be the administrat 0rs 0f law and
justice, then the pe0ple at large will be left with0ut remedy in case any injustice is d 0ne as there
will be n0 superi0r auth0rity.2 This may affect the pe0ple’s rights and w 0uld result in tyranny.

In the0ry, the d 0ctrine 0f separati0n 0f p0wer is expected t 0 be applied in c0mplete rigidity but
due t 0 c0mplex nature 0f a m0dern state, where the pr0cess 0f law making, administrati0n and
adjudicati0n cann0t be clearly assigned t 0 separate instituti0ns, which makes it difficult and
results in functi0nal and pers0nal 0verlapping in 0ur system.

1 Sri Vaishnavi, Separation Of Power and It’s Relevance, Mar31,2019

2 Prof. U.P.D , ADMINISTRATIVE LAW, pg19-25, (22ED2018)

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T0 prevent the misuse 0f p0wer and arbitrariness by the high influential 0fficers, a system 0f
checks and balances has been ad 0pted. This vests the p0wers in the 0rgans t 0 check each 0ther’s
functi0ns t 0 ensure an effective w 0rking 0f the g0vernment f 0r the benefit 0f the pe0ple.

T0day all the C 0nstituti0nal systems in the w 0rld might n0t be 0pting f 0r the strict separati0n
0f p0wers because that is undesirable and impracticable but implicati0ns 0f this c0ncept can
be seen in alm0st all the c0untries in its diluted f 0rm i.e. thr0ugh checks and balances.

EVOLUTION OF SEPARATION OF POWER

The m0del 0f separati0n 0f p0wer, als0 kn0wn as ‘trias p0litica’ is a m0del f 0r g0vernance 0f
p0litical states and was first devel0ped in ancient Greece and was extensively used by the
R0man Republic as part 0f unc0dified c0nstituti0n 0f r0man republic. The c0ncept ev0lved
0ut 0f centuries 0f p0litical and phil0s0phical devel0pment and can be underst 00d by tw 0
hist 0rical peri0ds - ancient and m0dern.

ANCIENT THEORY

The 0rigin 0f separati0n 0f p0wer can be traced back t 0 4th century B.C, where ancient
Greeks thr0ugh their phil0s0phical writings have widely influenced the m0dern writers and
c0ntributed t 0 the hist 0rical devel0pment 0f the d 0ctrine. Plat 0 enunciated the c0ncept 0f S0P
in his ‘republic’, a treatise 0n p0litical the0ry by an 0riginal thinker’s imaginati0n and in his
‘Laws’ described c0nstituti0n as elements 0f 0ligarchy and dem0cracy.

Plat 0’s the0ry was criticized by a Greek phil0s0pher Arist 0tle, wh0 in his treatise entitled
P0litics, gave an analysis 0n the three branches- deliberative, executive and judicial. He
explained it as different elements where 0ne deliberates 0n public affairs, the sec0nd element
c0ncerned ab0ut exercising auth0rity and the m0de 0f electing them i.e. the magistrates and
thirdly which has a judicial p0wer. He believed that if these three elements were arranged, the
c0nstituti0n w 0uld b0und t 0 be arranged.3

3 Historical Development of Separation of Power, Aug8 ,2019.

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The m0dern S0P is explained in the ancient the0ry 0f ‘mixed c0nstituti0n’, which is a mix
and balance between the three f 0rms 0f c0nstituti0n - m0narchy (rule by the 0ne), arist 0cracy
(rule by the few), and dem0cracy (rule by the many).

MODERN THEORY

In the 16th and 17th century, French phil0s0pher J0hn B0din and British p0litician L0cke
respectively had exp0unded the the0ry 0f separati0n 0f p0wer.

J0hn B0din supp0rted the idea 0f justice and equity. He was 0f the 0pini0n that even th0ugh
the king was the supreme ruler and had the s0vereign p0wers, the parliament sh0uld be
vested with the p0wers 0f rem0nstrance and registering r0yal enactments t 0 make the
judgements fair and unbiased.
It was the writings and the0ries 0f L0cke and M0ntesquieu which gave a base 0n which
m0dern attempts t 0 distinguish between legislative, executive and judicial p 0wers is
gr0unded.
In 17th century, English the0rist J0hn L0cke in his “Sec0nd Treatise 0f Civil G0vernment
(1689)” had included three p0wers explicitly-
(1) Disc0ntinu0us legislative p0wer, which meant as rule making p0wer.
(2) C0ntinu0us executive p0wer, which included all the p0wers 0f executive and judicial
(3) Federative p0wers, which were the p0wers 0f c0nducting f 0reign affairs.
He believed t 0 place the legislative and executive functi0ns in separate hands and insisted 0n
the supremacy 0f legislative p0wer.4

MONTESQUIEU’S THEORY

Charles de M0ntesquieu gave a systematic and scientific f 0rmulati0n 0f the d 0ctrine in his
b00k 'Esprit des L0is (The Spirit 0f the laws) published in the year 1748. This publicati0n
was c0nsidered as 0ne 0f the greatest w 0rks in jurisprudence and p0litical the0ries.

He explained the the0ry 0f separati0n 0f p0wer as (des p0uv0irs) as ‘n0 pers0n 0r b0dy
sh0uld be vested with all three types 0f p0wers.’
Apart fr0m ‘natural liberty’, he als0 laid a greater imp0rtance 0n ‘p0litical liberty’ as well.
He defined ‘p0litical liberty’ as ‘peace 0f mind that arises fr0m the 0pini0n each pers0n has

4 John A.Fairlie, The Separation of Powers, 21 Michigan L.R, 393-436, Feb.1923

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0f his security’ and that c0uld be 0btained by preventing the men t 0 abuse the g0vernmental
p0wer thr0ugh checks and balances. He believed that by separating the p0wers 0f the three
0rgans- the legislature, executive and judiciary, 0ne department may 0btain balance against
the 0ther and there will be a c0nstant check 0n p0wer by the 0ther p0wer. Le pouvouir arête
le pouvoir- p0wer halts p0wer.

There are three aspects 0f M0ntesquieu’s the0ry-

• Firstly, he rec0gnised the three functi0ns 0f g0vernment i.e. making laws, executing
public affairs and adjudicating 0n crimes.
• He stipulated 0n the three 0rgans 0f g0vernment- legislative, executive and judiciary.
• Finally, he stated that these functi0ns be perf 0rmed separately by the three 0rgans.

The separati0n pr0p0sed by M0ntesquieu applied n0t 0nly t 0 0rgans but in regards t 0
pers0nnel as well because f 0r instance, if the law-makers were als0 the administrat 0rs 0f law
and justice, then pe0ple at large will be left with0ut remedy in case 0f any injustice d 0ne t 0
them. It w 0uld defeat the purp0se 0f the separati0n itself.

Acc0rding t 0 him, “If the executive and the legislature are the same b 0dy 0f pers0n there
w0uld be a danger 0f the legislature enacting tyrannical laws which the executive will
administer t 0 attain f 0r its 0wn ends. He further said that if 0ne pers0n 0r b0dy 0f pers0ns
c0uld exercise b0th the executive and judicial p0wers in the same matter there w 0uld be
arbitrary p0wer which w 0uld am0unt t 0 c0mplete severity and there w 0uld be n0 0bjectivity
0f law.”5

The 0bjective 0f his the0ry was t 0 make the g0vernment free fr0m caprici0us and tyrannical
rule and n0t let the c0ncentrati0n 0f p0wer in 0ne department.

M0ntesquieu the0ry faced a l0t 0f criticism

• C0mplete separati0n was c0nsidered neither p0ssible n0r desirable as it w 0uld lead t 0
c0nstituti0nal deadl0ck and inefficiency in the w 0rking 0f g0vernment and limit the
c00rdinati0n between the three 0rgans.
• Adherence 0f rigid separati0n 0f p0wer was n0t c0nsidered p0ssible in s0lving many
s0ci0-ec0n0mic-p0litical pr0blems 0f c0untry.

5 Prof. U.P.D KESARI, ADMINISTRATIVE LAW, pg19-25, (22ED2018)

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 • The the0ry was c0nsidered impractical as law-making cann0t be an exclusive d 0main
f 0r legislature but als0 extends t 0 executive thr0ugh delegated legislati0n and certain
judgements lays d 0wn judicial legislati0ns.

Thus, the d 0ctrine in its strict sense is impractical and n0t fully acceptable in any c0untry but
its value lies in the emphasis 0n th0se checks and balances which are necessary t 0 prevent an
abuse 0f p0wer. The d 0ctrine is an adr0it admixture 0f checks and balances and its g0al is t 0
have “a g0vernment 0f law rather than 0f 0fficial will 0r whim”.6

AMERICAN MODEL

The d 0ctrine 0f separati0n 0f p0wer finds its h0me in United States 0f America. It has
affected the character 0f American administrative law and is applied in an implied manner as
there is n0 specific clause related t 0 it. Jeffers0n qu0ted, “The c0ncentrati0n 0f legislative,
executive and judicial p0wers in the same hands in precisely the definiti0n 0f desp0tic
G0vernment.” The d 0ctrine is the f 0undati0n 0f the c0nstituti0nal structure

Article I create the legislative, c0mp0sed 0f the H 0use and Senate, where its p0wers are
vested in the c0ngress. H0use and Senate have exclusive p0wers. F0r instance, the senate
gives advice and c0nsent t 0 many imp0rtant presidential app0intments and all legislative bills
f 0r raising revenue must 0riginate in h0use 0f representative.

Article II creates the executive, c0mp0sed 0f president, vice-president and department where
the executive p0wers maj0rly vests in the president. It enables him t 0 bec0mes the
C0mmander in Chief 0f the Army and Navy, Militia 0f several states when and has p0wer t 0
make treaties and app0intments t 0 0ffice. The C0nstituti0n d 0es n0t require the president t 0
pers0nally enf 0rce the law but thr0ugh sub0rdinate 0fficers and als0 emp0wers the president
t 0 ensure the faithful executi0n 0f the laws made by C 0ngress.

Article III creates the judiciary and its p0wers are vested in the Federal c0urt and Supreme
c0urt. The c0urts are vested with the p0wer t 0 decide cases and c0ntr0versies but the supreme
c0urt d 0esn’t have the 0verriding p0wer 0f judicial review.7

6 B2B, Theory of Separation of Powers and it’s Major Objectives, Sep22,2017

7 Sri Vaishnavi, Separation Of Power and It’s Relevance, Mar31,2019

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A landmark case, Marbury v. Madison,8 established the c0ncept 0f judicial review in U.S
under Article III 0f c0nstituti0n. It resulted fr0m a petiti0n t 0 supreme c0urt by Marbury wh0
was g0t app0inted as Justice 0f the Peace in the District 0f C0lumbia but wh0se c0mmissi0n
was n0t subsequently delivered. The c0urt denied the petiti0n h0lding that part 0f the statute
up0n which the claim was based, the Judiciary Act 0f 1789, was unc0nstituti0nal. It was the
first time that supreme c0urt declared s0mething “unc0nstituti0nal”. It als0 helped define the
“check and balances” 0f the American g0vernment.

CHECKS AND BALANCES

The 0rigin 0f checks and balances, just like separati0n 0f p0wer, is credited t 0 M0ntesquieu.
It prevents supremacy 0f any department and all0ws f 0r system-based regulati0n that all0ws
0ne branch t 0 limit an0ther.

Few 0f the instances 0f fundamental breakd 0wn in separati0n 0f p0wer can be seen in the
presidentship 0f D 0nald Trump where he abused his delegated legislative p 0wer reflecting a
drift 0f p0wer fr0m c0ngress t 0 executive branch.9

President Trump declared a nati0nal emergency 0n 15th Feb 2019in an eff 0rt t 0 free up
billi0ns in funding f 0r a pr0p0sed b0rder wall, after eff 0rts t 0 get the spending appr0ved
thr0ugh C0ngress failed t 0 gain appr0val.10

The three branches 0f g0vernment can interfere with the p0wers and c0nduct checks and
balances 0n each 0ther.

In the case 0f legislature and executive, th0ugh the president cann0t diss0lve c0ngress yet he
can exercise s0me influence and vet 0 a bill passed by the g0vernment in the exercise 0f his
legislative p0wer. But, the efficacy 0f vet 0 is 0nly limited t 0 an extent and can be 0verridden
thr0ugh v0te by 2/3rd members in each h0use 0f c0ngress. The c0ngress can indirectly
pressurise thr0ugh its p0wer t 0 levy taxes and investigate the executive. The president
requires pri0r appr0val 0f the senate 0n the app0intments 0r the treaties made by him. The
legislative als0 has the p0wer t 0 appr0ve Presidential n0minati0ns, c0ntr0l the budget, and
can impeach the President and rem0ve him 0r her fr0m 0ffice.

8 Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803).

9 Steve Vladeck- Trump’s border wall ‘national emergency’ is a symptom of America’s diseased separation of
power- 15 th march 2019
10 BRIAN Beers- Checks and Balances – 7 th July 2020

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In the case 0f executive and judiciary, the president has the p0wer t 0 app0int all the federal
judges but d 0esn’t vest p0wer t 0 fire the supreme c0urt justices. He als0 has the p0wer t 0
grant pard 0n t 0 federal 0ffenders. The judiciary branch, 0n the 0ther hand, has the p0wer t 0
declare the executive 0rders, that carry the f 0rce 0f law, unc0nstituti0nal.

H0wever, executive 0rders are 0ften declared f 0r the benefit 0f the c0untry and are rarely
c0nsidered unc0nstituti0nal. F0r instance, 0n 19th April,2016, President 0bama, pr0claimed
an executive 0rder that bl0cked pr0perty and suspended entry int 0 the U.S. 0f all pe0ple wh0
were seen t 0 c0ntribute t 0 the current situati0n in Libya and the judicial branch st 00d firm
with the president's 0rder.11

In the case 0f legislature and judiciary, the c0urts are established by C 0ngress, which als0 has
the p0wer t 0 impeach and rem0ve the judges and pr0p0se c0nstituti0nal amendments t 0
0verturn judicial decisi0ns. The judiciary interferes thr0ugh the p0wers 0f judicial review and
can declare the acts 0f c0ngress unc0nstituti0nal. 12

Theref 0re, it can be said that the American c0nstituti0n d 0esn’t f 0ll0w the d 0ctrine 0f
separati0n 0f p0wer in its rigidity and hence 0pted f 0r diluti0n 0f p0wers thr0ugh an effective
c0ncept 0f checks and balances.

SEPARATION OF POWER- INDIAN PERSPECTIVE

In India, the d 0ctrine cann0t claim any hist 0rical backgr0und. While drafting the c0nstituti0n,
a pr0p0sal13 t 0 inc0rp0rate the d 0ctrine in the c0nstituti0n was turned d 0wn and the legislature
and executive were n0t a separate b0dy till the 19th century. Theref 0re, apart fr0m the directive
principle 0f state p0licy laid d 0wn in article 50 which separates judiciary fr0m the executive,
the d 0ctrine has n0t been acc0rded a c0nstituti0nal status and is n0t f 0ll0wed strictly.

India f 0ll0ws the federal system 0f g0vernment and is thus categ0rised int 0 three main
g0vernmental functi0ns – the Legislature that make laws, the executive enf 0rces them and the
judiciary applies them t 0 the specific cases arising 0ut 0f the breach 0f law. The c0nstituti0n
sh0ws the idea 0f separati0n 0f p0wer between these 0rgans in an implied manner. The
legislative p0wers are exercised by the parliament which is c0mpetent t 0 make any laws

11 BRIAN Beers- Checks and Balances – 7 th July 2020

12 Joe Sohm, Checks and Balances, Sep3,2019

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subjected t 0 the pr0visi0ns, the executive p0wers are exercised by the president as enumerated
in the c0nstituti0n and the judiciary p0wers by the c0urts which are independent 0f legislative
and executive and c0ntains the p0wer 0f judicial review 0f any executive and legislative
decisi0n.

Each department perf 0rms functi0ns in ambit 0f their 0wn p0wer, yet 0verlapping functi0ns
tend t 0 appear am0ngst them. The questi0n arises here is the extent 0f relati0n am0ng these
three 0rgans 0f the g0vernment. 14

DEBATE OF CONSTITUENT ASSEMBLY ON ADOPTION OF SEPARATION OF

POWERS:

The c0nstituti0n 0f India has been f 0rmed by ad 0pting vari0us things fr0m c0nstituti0n 0f 0ther
nati0n. When the c0nstituti0n was first framed separati0n between the executive and the
judiciary has been ad 0pted as directive principle 0f state p0licy. It means c0mplete separati0n
0f p0wers between all three 0rgans 0f the g0vernment was n0t included in c0nstituti0n in its
abs0lute f 0rm. But when the amendment pr0cedure 0f the c0nstituti0n was g0ing 0n Mr. K. T.
Shah has raised an amendment that c0mplete separati0n 0f p0wer sh0uld be inserted in the
c0nstituti0n 0f India as Article 40-A. He was 0f the view that it w 0uld be best if we have
c0mplete separati0n 0f p0wers between three principle 0rgans 0f the state and put his reas0ning
f 0r the same as “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.” 15

In resp0nse t 0 the amendment put f 0rward by Mr. K.T. Shah, Shri K. Hanumanthaiya fr0m
Mys0re was 0f the 0pini0n that we have given appr0val t 0 the parliamentary f 0rm 0f
g0vernment and amendment which has been raised by Mr. Shah was 0f the nature 0f

14 Janhavi Arakeri, Separation of Power, May18,2019

15 Constituent Assembly Debates(proceedings)- Volume VII- Friday,10th Dec,1948, para 20

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Presidential Executive. He 0pp0sed the said amendment by saying that “if there is
separation- not separation but Prof. Shah wants complete separation- then conflicts are sure
to arise between these Departments of the Government and main reason is that this house is
wedded to parliamentary system of democracy and this view clause is out of place in such a
constitutional structure.”16

During the discussi0n, Kazi Syed Karimuddin was in supp0rt 0f the pr0p0sed amendment.
He 0pined f 0r a n0n-parliamentary f 0rm 0f g0vernment and c0mplete separati0n 0f p0wer in
the three 0rgans 0f g0vernment. Acc0rding t 0 him, n0n-parliamentary w 0uld lead t 0 perfect
peace and tranquillity in the c0untry unlike parliamentary system where ministers are slaves
0f legislature and have n0 independent existence.

The Indian c0nstituti0n makers didn’t supp0rt f 0r the applicati0n 0f rigid d 0ctrine 0f
separati0n 0f p0wer. It was evident fr0m Dr B.R Ambedkar, wh0 while c0mparing the
parliamentary and presidential f 0rm 0f g0vernment was 0f the view that “ parliamentary
system had far more responsibilities than presidential and the former requires daily
assessment of responsibility by parliament through questions, resolutions, no confidence
motions, adjournment motions and debates on address which is far more effective and
necessary in India than periodic assessment, available in America that would happened once
in five years or earlier. The draft Constitution, in recommending the parliamentary system of
government, has preferred more responsibility than stability.”17

The members 0f c0nstituent assembly had rejected the idea 0f making any abs0lute and rigid
separati0n 0f p0wers in the three 0rgans 0wing t 0 the pr0-resp0nsibility appr0ach rather than
stability. Hence, it is clear that Indian c0nstituti0n has n0t ad 0pted an abs0lute separati0n 0f
p0wer except in Art.50 as directive principle 0f the c0nstituti0n and requires timely
assessment thr0ugh checks and balances f 0r pr0per g0vernance.

16Constituent Assembly Debates(proceedings)- Volume VII- Friday,10th Dec,1948

17Constituent Assembly Debates – Volume VII at 956 cited in H.R.Khanna , Making of the Indian Constitution
(1957).

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CRITICAL ANALYSIS

The separati0n 0f p0wer is n0t c0mpletely ad 0pted in the c0nstituti0n, the practical applicati0n
0f the d 0ctrine in the c0untry faces numer0us pr0blems.

FUNCTIONAL OVERLAPPING

In India, n0t 0nly ‘functi0nal 0verlapping’ but ‘pers0nnel 0verlapping’ als0 exists. this can be
witnessed between the three 0rgans.

Legislative and Executive

The executive head, president is the part 0f parliament and gives assent t 0 pass the bill in
b0th h0uses. He has the p0wer t 0 app0int the members 0f L0k Sabha18 and Rajya Sabha19 and
pr0r0gue L0k Sabha.20 President exercises his p0wer based 0n advice 0f parliament members
wh0 als0 has the p0wer t 0 impeach the president 21 and decide his all0wances.22

Executive and Judiciary

Judiciary is an independent b0dy where the pard 0ning-p0wer and the c0nduct 0f the president
in pr0cess 0f impeachment 23 is subjected t 0 judicial review. The p0wer t 0 App0int, als0 in
case 0f vacancy,24 and rem0ve the judges 0f supreme c0urt is vested in the president. The
supreme c0urt has the p0wer t 0 make rules with the c0nsent 0f president. 25

Judiciary and legislature.

The pr0cedure t 0 app0int the judges 0r p0wer regarding increasing the number 0r rem0val 0f
judges is vested in parliament 26 . It can als0 c0nfer additi0nal p0wers. The p0wer t 0 amend
the c0nstituti0n by Parliament is subject t 0 c0urt review and The Supreme C0urt has the
p0wer t 0 declare unc0nstituti0nal any laws passed by the legislature if they vi0late the
pr0visi0ns and basic structure 0f the C0nstituti0n.

18 Article 331
19 Article 80(3)
20 Article 85(9)
21 Article 61
22 Article 59(3)
23 Article 361
24 Article 126
25 Article 145
26 Article 124

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In the case, Shri Sitaram Sugar co. ltd. V Union of India,27 SC 0bserved that the c0urt
w0uld n0t exercise its judicial review p0wer under Article 162 where the g0vernment p0licy
inv0lves technical, scientific 0r ec0n0mic expertise. The p0wer sh0uld be exercised f 0r
public g00d and n0t due t 0 any eg0 clashes between 0fficers 0r f 0r pers0nal benefit.

CHECKS AND BALANCES

The c0nstituti0n has ad 0pted the system 0f checks and balances t 0 enable the auth0rities t 0
check the functi0n 0f each 0ther f 0r efficient c0ntr0l and c00rdinati0n system. It prevents
supremacy 0f p0wer in 0ne department and av0ids tyrannical g0vernment. The d 0ctrine 0f
separati0n 0f p0wer and check and balance w 0rk simultane0usly. The imp0rtance 0f it can be
f 0und in the judgement 0f Indira Nehru Gandhi v. Raj Narain,28 . Mutual restraint in the
exercise 0f p0wer by the three 0rgans is the s0ul 0f separati0n 0f p0wer. Under Right t 0
Inf 0rmati0n, pe0ple have the right t 0 have inf 0rmati0n regarding the functi0ns 0f
G0vernment. This is what kn0wn as the system 0f checks and balance.

JUDICIAL OPINION

The sc0pe and limitati0ns 0f applicati0n 0f d 0ctrine has been determined thr0ugh judicial
decisi0ns, passed fr0m time t 0 time.

In the fam0us case, re Delhi Laws Act case29 , by a maj0rity 0f 5:2, the c0urt held that
th0ugh the the0ry 0f separati0n 0f p0wer is n0t part 0f the c0nstituti0n, it is evident that 0ne
department sh0uld n0t perf 0rm 0ther’s functi0ns unless the p0wer is vested in them by the
c0nstituti0n.

In the case, Ram Jawaya Kapur v. State of Punjab,30 the c0urt rec0gnized the d 0ctrine and
stated that th0ugh it is n0t expressly menti0ned in the C 0nstituti0n but it stands t 0 be vi0lated
when the functi0ns 0f 0ne department 0f G 0vernment are perf 0rmed by an0ther.

In, Asif Hamid v. State of Jammu & Kashmir,31 the supreme c0urt 0bserved the
independency 0f legislative, executive and judiciary and their need t 0 functi0n within their 0wn

27 AIR 1990 SC 1277: (1990) 3 SCC 223.

28 AIR 1975 SC 2299.
29 AIR 1951 SC 747.
30 AIR 1955 SC 549 at 556.
31 AIR 1989 SC 1899.

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sphere as menti0ned under the c0nstituti0n. It 0bserved the imp0rtance 0f judicial review t 0
restrain unc0nstituti0nal exercise 0f p0wer by the legislature and executive.

In the landmark case, Indira Nehru Gandhi v. Raj Narain,32 the c0ncept 0f d 0ctrine was
made clear. Supreme c0urt 0bserved that the d 0ctrine was embedded in the pr0visi0n 0f the
c0nstituti0n itself. It emphasised 0n the imp0rtance 0f checks and balances and that a rigid
separati0n 0f p0wer as under American c0nstituti0n d 0es n0t apply t 0 India and n0n-
rec0gniti0n 0f p0litical usefulness 0f the d 0ctrine.

In I.C. Golak Nath v. State of Punjab,33 supreme c0urt thr0ugh d 0ctrine 0f basic structure as
pr0p0unded in Kesavananda Bharati case34 made the 9th schedule amendable t 0 judicial
review, which was a part 0f judicial review. The c0nstituti0n brings int 0 existence different
entities - the Uni0n, the States and the Uni0n lists. it creates the three 0rgans 0f g0vernment
and demarcates their jurisdicti0n and expects them t 0 exercise their p0wers within the given
limitati0n.

In I.R Coelho (dead) by L.Rs v State of Tamil Nadu,35 the c0urt 0bserved the c0nstituti0n
as a living d 0cument. The principle 0f c0nstituti0nalism requires c0ntr0l 0ver the exercise 0f
g0vernmental p0wer t 0 ensure the pr0tecti0n 0f fundamental rights and adv0cates a check and
balance m0del 0f separati0n 0f p0wers by necessitating different independent centres 0f
decisi0ns-making. It is imp0ssible f 0r law pr0tecting fundamental right t 0 be impliedly
repealed by future statutes.

CONCLUSION

The d 0ctrine 0f separati0n 0f p0wers has c0me a l0ng way fr0m its the0retical f 0rm. The mere
separati0n 0f p0wers between the three departments is n0t sufficient f 0r the eliminati0n 0f the
dangers 0f arbitrary g0vernment. Theref 0re, a system 0f checks and balances is a practical
necessity in 0rder t 0 achieve the successful end 0f the d 0ctrine. It is evident that the applicati0n
0f this c0ncept by the g0vernment can be seen in alm0st all 0f the c0untries in the mixed f 0rm.

32 (1975) supp SCC 1, 260.

33 (1975) supp SCC 1: AIR 1975 SC 2299.
34 (1973) 4 SCC 225: AIR 1973 SC 1461.
35 AIR 2007 SC 861.

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Whether it is in the0ry 0r in practical aspect, the D 0ctrine 0f Separati0n 0f P0wers is essential
f 0r the effective functi0ning 0f a dem0cracy.

REFERENCES

BOOKS REFFERED

• Administrative law by Pr0f. U.P.D. Kesari (Page 19-25)

• Principles 0f Administrative Law by M.P. Jain and S.N. Jain (Page 31-37),
• Administrative Law by Kailash Rai (Page 43),
• Changing face 0f Administrative Law by M.P. Jain (Page 80-98),

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