SEPARATION

OF POWERS

JUSTICE (RETD) RUMA PAL

I. INTRODUCTION
LATELY the issue of separation of powers has become increasingly the subject matter of debate—
whether it is the Government’s move to protect convicted Members of Parliament, or in the matter of
appointment of Supreme Court judges, or indeed a difference of opinion within the judiciary itself.1
Much of the turf war stems from a confusion as to the meaning of ‘power ’ and, as Seervai put it, to
the ‘mistaken belief that power is property’. Power in fact ‘is a means to an end, and it must be
conferred on that authority which can best achieve that end’.2 In other words, the separation is of
functions and the classical theory of separation of powers is nothing more than a ‘doctrine of
functional specialization’.3 But no one who values political freedom can dispute Montesquieu’s idea
that monopoly of powers, however defined, by any one of the different organs created and
functioning under a Constitution, written or unwritten, leads to tyranny,4 and that separation of
powers of governance in some form is necessary with each of the separate authorities acting as a
check and balance on the exercise of power of the others. The questions that then arise are: (a)
whether the separation of powers is a principle in Indian constitutional law; and (b) if so, what sort of
doctrine of separation of powers the Indian Constitution embraces.
Generally speaking the areas of governance have been classified into the executive or the
administrative branch (including the enforcement of laws); the legislative or the enactment of laws;
and the judicial or the resolution of disputes relating to the enactment, enforcement, and application
of laws. Of the two models of separation commonly followed, one provides for a rigid separation of
powers between these three authorities following Montesquieu’s dictum. An example of this is the
American Constitution under which:
Separate departments … [are] created for the exercise of legislative, executive and judicial power, and care taken to keep the three
as separate and distinct as possible, except so far as each is made a check upon the other to keep it within proper bounds, or to
prevent hasty and improvident action. The executive is a check upon the legislature in the veto power … the legislature is a check
upon both the other departments through its power to prescribe rules for the exercise of their authority, and through its power to
impeach their officers; and the judiciary is a check upon the legislature by means of its authority to annul unconstitutional laws.5

The second model is of a looser separation or the Westminster model, which is based on the principle
of the supremacy of Parliament. This model, though unwritten, was followed by England prior to its
joining the European Union, allowing Parliament ‘to change the law in any way it pleases. No statute
can be attacked on the ground that it trespasses on a field reserved to another organ of the State.’6 The
power of judicial review of legislative action was consequently limited to questioning delegated
legislation to the extent that the delegation is excessive, beyond the scope of the statute seeking to
delegate the power of legislation to the executive, or unreasonable.7 A distinction was made between
the legislative and executive wings ‘[b]ut behind this façade lay the “efficient secret” of the English
Constitution’,8 the close association of these two wings. The earlier concept of parliamentary
sovereignty and the scope of judicial review of legislative action have undergone changes subsequent
to the acceptance by Britain of the European Communities Act 1972. Now ‘under the terms of the
1972 Act it has always been clear that it [is] the duty of a United Kingdom Court, when delivering
final judgment, to override any rule of national law found to be in conflict with any directly
enforceable rule of Community law’.9 Executive and legislative powers, however, continue to be
interlinked, and the British cabinet is a ‘hyphen which joins, a buckle which fastens, the legislative
part of the State to the executive part’.10
The Indian Constitution provides a third model of separation of powers. While there is recognition
of legislative, executive, and judicial bodies, it does not expressly vest the different kinds of power in
the different organs of the State11 (except the executive powers in the President and governors),12 nor
is there any exclusivity in the nature of functions to be performed by them. Unlike Westminster,
Parliament in India being limited by a written constitution is not supreme and it does not possess the
sovereign character of the British Parliament.13 In India the Constitution is supreme and legislation
contrary to constitutional provisions is void. Despite the Supreme Court’s observations to the
contrary,14 separation of powers under the Constitution between the three organs of the State is not
equal and the executive has been given dominant powers. The constitutional allocation of powers
must be seen in the background of the Constituent Assembly debates where the discussion on
separation of powers was limited to separation of the executive from the judiciary because, in a
parliamentary democracy as sought to be set up by the framers of the constitution, those who form the
majority in the legislative bodies necessarily govern the country. As Acharya Kripalani stated during
the early years of the Lok Sabha:
Let there be no camouflage. Legislature practically means the executive. It is absurd to say that the Legislature is a free body of
persons. Today the Executive is the legislature but the legislature may not be the Executive. The executive is the legislature in a
party system democracy. In a centralized democracy there is no difference.15

Like the Westminster model, there is no real ‘separation’ as such between the executive and legislative
authorities under our Constitution. But it has gone further in providing for a functional overlap
between the legislative, executive, and judicial wings of government,16 so that there is in fact no strict
separation of powers with each of these organs empowered to carry out functions which would
generally be considered within the purview of the other. For example, since the Constitution provides
wide powers of judicial review of administrative, legislative, and judicial action, the judiciary is often
called upon to discharge what may be termed as quasi-legislative or executive actions. Again,
executive functions have been distributed to authorities that are required to function independently of
all three organs of governance such as the Election Commission and the Comptroller and Auditor
General,17 and legislative functions have been granted to independent statutory bodies. The present
chapter is limited to expounding this lack of separation and the functional overlap in the Indian
constitutional context. The issue of separation of powers has received a somewhat erratic
interpretation by courts in India.18 This chapter therefore begins with the constitutional provisions
showing the functional overlap before considering the judicial approach.

II. THE LEGISLATURE

As stated earlier, unlike England, the Indian Constitution, by virtue of being written, has firmly
rejected the theory of parliamentary sovereignty. However, subject to abiding by constitutional
limitations enforced through judicial review, the powers of Parliament and State legislatures to enact
laws are plenary. Parliament has the right to legislate on the constitution, organisation, jurisdiction,
and powers of the Supreme Court and High Courts.19 State legislatures have a similar power with
regard to the District and Subordinate Judiciary,20 as well as the power to determine the jurisdiction
of all courts within its territory.21 Parliament can also determine the number of judges to be appointed
in the Supreme Court,22 and has the power to remove judges of the Supreme and High Courts by
impeachment.23 Terms and conditions of service, including salaries of judges, are also subject to
legislative control.24

1. Judicial Powers
Legislatures exercise judicial powers under the Constitution. Examples include the case of
impeachment of judges25 and contempt of legislatures.26 Further, the Speakers/Chairmen, while
exercising powers and discharging functions under the Tenth Schedule to the Constitution, act as a
tribunal.27 Legislatures can also change the basis on which a decision is given by a court and thus in
effect nullify the impact of a judicial decision. Such retrospective validation of a law declared by a
court to be invalid is usually resorted to after a tax is declared as illegally collected under an
ineffective or an invalid law.28 However, the cause for ineffectiveness or invalidity must be removed
before validation can be said to take place effectively:
The most important condition, of course, is that the Legislature must possess the power to impose the tax, for, if it does not, the
action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the
decision of the court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature
does not possess or exercise.29

Also, no legislature can set aside an individual decision inter partes and affect their rights and
liabilities alone. ‘Such an act on the part of the legislature’ has been held by the Supreme Court to
amount to ‘exercising the judicial power by the State and to function as an appellate court or tribunal,
which is against the concept of separation of power ’.30

2. Legislative Control of the Judiciary

To counter early successful legal challenges to land reform measure and to limit the power of
judicial review, the Constitution was amended by the Constitution (First Amendment) Act 1951.
Article 31B, which was added to the Constitution, along with the Ninth Schedule, provides that none
of the Acts and Regulations specified in the Ninth Schedule can be challenged on the grounds that they
are inconsistent with or abridge the rights conferred by Part III, notwithstanding any judgment or
decree of any court or tribunal to the contrary. This allows statutes in violation of fundamental rights
and held to be void by a court to continue in force by the simple expedient of being included in the
Ninth Schedule by way of a constitutional amendment.31
Another important example of the legislature holding powers traditionally reserved for the
judiciary came by way of the Forty-second Amendment, enacted in 1976. The Amendment introduced
Articles 323A and 323B, which authorise Parliament and the State legislatures, respectively, to create
tribunals to which the power of adjudication of disputes on various subjects can be transferred while
excluding the jurisdiction of the courts in respect of those subjects. Both Articles also made it
possible to totally exclude the powers of judicial review under Articles 32 and 226 and vest such
powers in tribunals legislatively. Finally, the power of impeachment of judges is reserved to
Parliament, although it ultimately depends on parliamentary majorities to determine the outcome of
the procedure.32

III. THE EXECUTIVE

Theoretically, under a strict separation of powers the executive should only carry out administrative
functions including the implementation of laws and maintenance of law and order. However, the
‘functional overlap’ prevailing under the Indian Constitution allows the executive to perform, in
addition to administration, key legislative and judicial functions.

1. Legislative Powers
While Article 245 empowers Parliament and State legislatures to make laws for the whole of the
territory of India and of a State, respectively, the executive has the primary responsibility for the
formulation of governmental policy and its transmission into law. Bills originate with the executive
and with a majority in Parliament or the State legislatures, it follows that the executive predominates
in the legislative process.33 Additionally, Article 245 does not provide or prohibit legislation by the
executive. In fact, the powers of the executive at the Centre on matters in respect of which Parliament
has the power to make laws are, under Article 73, coextensive with Parliament. The power is
exercised in the name of the President, who is to act on the advice of his ministers. A similar power is
given under Article 162 to the Governor, coextensive with the State legislature. Executive orders
under either of these Articles have an equal efficacy as an Act of the Parliament or State legislature,
as the case may be.34 Executive legislation consequently covers a broad spectrum and is extensively
used. The executive exercises such power when there is no legislation covering the field or as a
delegate of the legislative bodies.35
As far as delegated legislation is concerned, there are mainly two checks in this country on the
power of the legislature to delegate. There can be no delegation which amounts to ‘abdication and
self-effacement’ by the concerned legislative body.36 Judicial determination of the line beyond which
the legislative power cannot be delegated has wavered, but rarely have the courts struck down an
executive order on the ground that there exists excessive delegation.37 In order to make the power
valid, courts have generally construed the power, where possible, in such manner that it does not
suffer from the vice of delegation of excessive legislative authority.38 The position has been further
complicated by the judicially evolved doctrine of ‘conditional legislation’. Thus, the decision of the
executive for extension of laws to areas not covered by a law ‘with such restrictions and
modifications as it thinks fit’ by notification in the Official Gazette has been termed to be conditional
legislation and not delegated legislation and held to be valid.39 Other instances of the exercise of
delegated legislative power by the executive include the imposition of tax,40 extending the coverage
of statutes,41 fixing the maximum price for drugs,42 deciding when a statute, including a
constitutional amendment, will become enforceable,43 banning the import or export of essential
commodities—for example, control orders made under the Essential Supplies (Temporary Powers)
Act 1946 regulating sale of iron and steel44—or the export and movement of rice and of rice and
paddy products,45 to name a few. As the Supreme Court once noted, ‘with the proliferation of
delegated legislation, there is a tendency for the line between legislation and administration to vanish
into an illusion’.46
The Constitution also expressly recognises the legislative powers of the executive in Chapter III of
Part V the heading of which is ‘Legislative Powers of the President’. Clause (2) of Article 123 in that
chapter provides that an ordinance promulgated under Article 123 ‘shall have the same force and
effect as an Act of Parliament’. Similarly Chapter IV’s heading refers to ‘The Legislative Powers of
the Governor ’ and Article 213 has granted power to the Governor to promulgate ordinances when the
Legislative Assembly is not in session. There is no limit on the subjects on which such ordinances
may not be issued, nor is the prior approval of the concerned legislature required.47 Governance by
ordinance has been often resorted to by the executive as a means of bypassing the normal process of
legislation.48 The executive, through the President, also determines whether a State law will prevail in
case of inconsistency between laws made by Parliament and laws made by the legislature of a State.49
But perhaps the most egregious form of legislative power granted under the Constitution to the
executive are those listed under emergency provisions. This is the subject of a separate chapter in this
Handbook, and I will restrict myself for the present purposes to what is commonly termed as
President’s Rule declared under Article 356. Article 356 provides that when the President on receipt
of a report from the Governor of the State or otherwise is satisfied that the government of that State
cannot be carried on in accordance with the provisions of the Constitution, she may by Proclamation
not only dissolve the State Assembly by assuming all the functions of the government of that State, but
may also declare that the powers of the legislature of the State shall be exercisable by or under the
authority of Parliament.50 When a declaration is made to this effect by the President, it shall be
competent for Parliament to direct that the legislative power of the State legislature shall be exercised
by the President himself or by any other authority to whom such power may be delegated by the
President under Article 357(1).51 Laws so made by Parliament or the President continue even after the
Proclamation under Article 356 has ceased to operate until it is altered, repealed, or amended by a
competent legislature or authority.52 In making the report to the President the Governor acts
according to his discretion.53
Given the wide powers of the executive, a leading commentator has remarked that parliamentary
supremacy, in the context of the practical working of the parliamentary system, is:
[O]nly a ‘myth’ or ‘fiction’ which ‘actually boils down to supremacy of the executive government of the day’ and ‘[w]hen a
government shouts from the housetop to uphold ‘sovereignty of Parliament’, what, in effect, it is seeking is to have complete,
uncontrolled, freedom of action itself to do what it likes as it knows the majority in Parliament would always support it.54

2. Judicial Powers
The executive exercises judicial powers under several provisions. For instance, it has the ability (in
the name of the President) to decide whether a Member of a House of Parliament has become
disqualified to continue as such.55 It has the right to advise the President/Governor, advice he is bound
to accept, to grant pardon to or modify the punishment of a convicted person.56 Article 311 allows the
executive to hold an inquiry into charges against any person holding a civil post under the Union or
the State and to award punishment. Besides, several statutes—for example, laws dealing with
licensing, levy of taxes, or imposition of duties—give the administrative authority the power to
decide rights affecting a claimant or competing claims.57 The executive also staffs administrative
tribunals set up under Article 323A as well as other tribunals set up under Article 323B to discharge
functions earlier carried on by courts.58

3. Executive Control of the Judiciary

Under the Constitution, it is ostensibly left to the President to decide the number of judges to be
appointed to the High Courts,59 as well as to decide finally on who is to be appointed as a judge,
whether of the Supreme Court or the High Courts.60 Regulations also empower the executive to
control the appointment and service conditions of the District Judiciary.61 Further, the executive has
the power to prosecute judges for offences under the Prevention of Corruption Act 1947.62

IV. THE JUDICIARY

1. Judicial Power and Independence

As a check on the seemingly unbridled power of the other two organs, the Supreme Court and the
High Courts have been given wide powers of judicial review by the Constitution to test whether
legislative or executive action is contrary to the provisions of the Constitution.63 Part III of the
Constitution, which contains the fundamental rights, also contains a prohibition on all authorities
within the territory of India from making any law which takes away or abridges rights conferred by
Part III. Any law in contravention of this is void to the extent of such contravention.64 The right to
move the Supreme Court to enforce all rights in Part III is contained in Part III and is itself also a
fundamental right. Another constitutional limitation of the power of legislation arises out of the
delineation of legislative powers between Parliament and the State legislatures.65 As the Supreme
Court once observed, ‘In this regard, the courts in India possess a power not known to the English
Courts … The range of judicial review recognized in the superior judiciary of India is perhaps the
widest and the most extensive known to the world of law.’66
However, the position of the judiciary was, until 1993, seen as being subject to extensive legislative
and executive control and as constitutionally weak. It is also clear from the earlier discussion that the
only effective constitutional balance to executive dominance with parliamentary or legislative
majorities can and has been the judiciary. The two-fold consequence of this has been, first, an assault
on the functioning of the judiciary by the executive–legislative,67 and, secondly, an assertion of
judicial independence by the judiciary—the former being destructive of, and the latter being
indispensable to, the separation of powers. Independence was asserted by the judiciary functionally
(used in the sense of freedom from legislative and executive interference) and administratively (used
in the sense of jurisdictional and organisational independence of the judicial set-up). Perhaps the
earliest case of assertion of functional independence came in 1965, with a serious conflict between a
High Court and a State legislature when the Supreme Court said that legislatures could not interfere in
any manner with the discharge of functions by the judiciary and ‘that provisions of the Constitution 
… are intended to safeguard the independence of the Judicature in this country’.68
Administrative independence of the judiciary was under threat from the executive because it had the
final say in the appointment,69 transfer,70 and promotion of a judge71 after consultation with the Chief
Justice and such judges of the Supreme Court or High Courts as the President thinks necessary.72 In
1993, the Supreme Court secured the independence of the judiciary from executive control or
interference by judicially prescribing procedural norms for transfer and appointment of judges by a
collegium of senior judges together with the Chief Justice of the High Court or Supreme Court, as the
case may be.73 ‘From being a mere consultant, the Chief Justice of India and the Supreme Court
collegium now have the final word.’74 As far as the District Judiciary is concerned, administrative
separation of the judiciary from the executive was secured by interpreting Article 233(1) and striking
down Rules framed by the Governor which allowed the Governor to appoint persons outside the
judicial service as District Judges. One of the reasons for holding that the Rules framed were
unconstitutional was the concept of an independent judiciary under the doctrine of separation of
powers.75 This was followed by a series of judgments by which the administrative functioning of the
judicial system at all levels of the judiciary was ensured.76 In recent years, judicial independence has
been heavily debated in the context of tribunals and their composition, a topic covered by a different
chapter in this Handbook.

2. Judicial Control of the Legislature

‘Control’ by the judiciary of the other organs follows from the existence of a written constitution and
the judicial review, interpretation, and application of constitutional provisions. Courts have not taken
kindly to statutory provisions limiting the jurisdiction of courts to decide disputes and a provision
that seeks to exclude the jurisdiction of courts is strictly construed. This principle is equally
applicable to constitutional provisions. Thus, in Kihoto Hollohan v Zachillhu,77 the Supreme Court
construed Paragraph 6(1) of the Tenth Schedule to the Constitution, which seeks to impart finality to
the decision of the Speakers/Chairmen as to whether a member of a House has become subject to
disqualification on the ground of defection, to mean that the finality ‘[did] not detract from or
abrogate judicial review of the decision under Articles 136, 226, and 227 of the Constitution insofar
as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules
of Natural Justice and perversity, are concerned’.78
Decisions that have set aside legislation (both Central and State) on the ground of a lack of
jurisdiction are legion. The Supreme Court’s control has not been restricted to the law-making
powers of legislatures and has extended to judicial overview of actions within the legislative bodies.
The recent decision, Raja Ram Pal v Speaker, Lok Sabha, is illustrative of this:
[W]henever Parliament, or for that matter any State Legislature, claims any power or privilege in terms of the provisions contained
in Article 105(3), or Article 194(3), as the case may be, it is the Court which has the authority and the jurisdiction to examine, on
grievance being brought before it, to find out if the particular power or privilege that has been claimed or asserted by the
legislature is one that was contemplated by the said constitutional provisions.79

Constitutional concepts judicially developed by a process of interpretive evolution have also

circumscribed legislative powers. On 24 April 1973, the Supreme Court held in Kesavananda Bharati
that the power to amend the Constitution under Article 368 did not extend to amending the ‘basic
structure’ of the Constitution, though it was not unanimous in defining what the ‘basic structure’
was.80 The theory of the basic structure applies only to constitutional amendments and not to ordinary
legislation.81 In 1981, Waman Rao v Union of India held that amendments to the Constitution made on
or after 24 April 1973, by which time the Ninth Schedule was amended from time to time by inclusion
of various statutes, were open to challenge on the ground that they damage the basic or essential
features of the Constitution.82 The key question whether the basic structure test would include judicial
review of the Ninth Schedule laws on the touchstone of fundamental rights was considered
exhaustively by a recent nine-judge decision of the Supreme Court.83 The issue was answered in the
affirmative.84
A second concept that has served this role is ‘due process of law’, introduced into Articles 14 and
21. As an important commentator remarks with regard to due process, ‘The judiciary in India has
thereby acquired vast power to supervise and invalidate any union or state action … perceived by the
Court to be “arbitrary” or “unreasonable”.’85 While Article 21 has been stretched to cover every
possible situation relating to human existence, Article 14 has been more restrictively applied to strike
down legislation. Neither has the Court ‘at any time set aside economic and business regulations by
recourse to substantive due process’, nor has ‘primary legislation been invalidated merely on the
ground of arbitrariness or unreasonableness’.86
Decisions/Directions have also been given by Courts in the recent past affecting prospective and
sitting members of legislatures. The following decision will serve by way of illustration. In 2002, the
Supreme Court held in Union of India v Association for Democratic Reforms that voters had a right to
know who they were electing.87 The outcome of this decision was that detailed information relating to
a candidate as prescribed by the Supreme Court must be given to every voter. More recently, the
Supreme Court was called upon to consider when a Member of Parliament or the State Assembly
would be disqualified from continuing as such under Articles 102 and 191, respectively.88 The Court
held that the disqualification would take effect immediately upon conviction but cease to operate from
the date of order of stay of conviction passed by the appellate court under Section 389 of the Code of
Criminal Procedure 1973 or the High Court under Section 482 of the Code.89 In an attempt to
overturn this decision, the Government sought to pass a Representation of the People (Second
Amendment and Validation) Bill 2013 and an ordinance. Neither attempt was, however, proceeded
with.90
Finally, where there is a legislative vacuum, on occasion binding directives have also been issued
under Article 142 until appropriate legislation has been made,91 although courts have generally been
reluctant to use this power.92 The directives, when given, have rarely been overturned by legislation
to the contrary. On the other hand, judicial directions have often been incorporated in subsequent
statutes,93 unless they otherwise affected executive powers.94

3. Judicial Control of the Executive

In exercise of the powers of judicial review, the judiciary has given directions to the executive to
implement constitutional, statutory, or policy measures but has generally been reluctant to interfere in
matters of policy.95 Occasionally it has set up committees to monitor and oversee the implementation
of such directions.96

V. AUTONOMOUS BODIES
Fortifying the definition of ‘power ’ in the phrase ‘separation of powers’ as a division along
functional lines, and contrary to the traditional concept of such separation being amongst only three
organs of governance, the Indian Constitution has provided for the allocation of powers relating to
governance to authorities who are required to be independent of the legislatures and the executive.

1. The Election Commission

While under the Government of India Act 1935, the conduct of elections was vested in an executive
authority, under the Constitution of India, an autonomous constitutional authority was created under
Article 324 for the superintendence, direction, and conduct of elections. This body is called the
Election Commission, and is ‘totally independent and impartial, and is free from any interference of
the executive’.97 Parliament is empowered to make law as regards matters relating to conduct of
election of either Parliament or State legislatures, without affecting the plenary powers of the
Election Commission under Article 324.98 There is also a ‘blanket ban on litigative interference
during the process of the election, clamped down by Article 329(b) of the Constitution’.99 The
Election Commission is, for the purposes of discharging its functions, invested with executive, quasi-
judicial, and legislative powers.100 Article 243K has vested similar powers in the State Election
Commissioner in respect of Panchayat elections.101 These plenary powers include the power of
postponing an election if the circumstances warrant.102 However, in practical terms the independent
action of the Election Commission is frequently thwarted by the executive. Although Clause (6) of
Article 324 mandates that the President or the Governor of a State, shall, when so requested by the
Election Commission, make available to the Election Commission or to a Regional Commissioner
such staff as may be necessary for the discharge of the functions conferred on the Election
Commission, such requests are often sought to be obstructed by governments both in the Centre and
States, leading to a deadlock. The judiciary has generally upheld the plenary powers of the Election
Commission in the resultant litigation.

2. Comptroller and Auditor General

Described ‘as the most important officer in the Constitution of India’ with duties ‘far more important
than the duties even of the judiciary’ by BR Ambedkar,103 the Comptroller and Auditor General
(CAG) is required:
[T]o audit all receipts which are payable into the Consolidated Fund of India and of each State and of each Union Territory having
a Legislative Assembly and to satisfy himself that the rules and procedures in that behalf are designed to secure an effective check
on the assessment, collection and proper allocation of revenue and are being duly observed and to make for this purpose such
examination of the accounts as he thinks fit and report thereon.104

However, the CAG is not required to examine expenditures even before they are deployed. So when
political parties in their manifestos promised various free gifts to the electorate if they were voted
into power, the Supreme Court held that the CAG had no role to play at that juncture.105 The powers
of auditing the receipts and expenditure of the Union and the States are subject to the CAG’s
independent authority, although the office has not been given the same independence as the judiciary.
For one, there is no constitutionally prescribed criterion for selection of a candidate for appointment
as CAG who is appointed by the President on the ‘recommendation’ of the Prime Minister. Secondly,
the Supreme Court has the exclusive powers to appoint its officers and servants,106 while the CAG
heads the Indian Audit and Accounts Department but does not have such powers.107 The conditions of
service of persons serving in the Indian Audit and Accounts Department and the administrative
powers of the CAG are prescribed by rules made by the President after consultation with the CAG.108
Finally, the independence of the CAG is seriously impaired, as the CAG is not assured of tenure
unlike the judiciary where the age of retirement is provided for in the Constitution.109
The CAG also has no power to take action on its own report. All that is constitutionally required is
the placing of the report before Parliament110 or the State Assembly,111 as the case may be. It is
therefore possible for the executive commanding a majority to disregard the CAG’s objections to
unjustified expenditure. Recently, however, on the basis of the adverse report of the CAG, the
Supreme Court in exercise of its powers of judicial review directed investigation into grant of unified
access service licence with 2G spectrum and ultimately set it aside.
Executive functions have also been constitutionally farmed out to other autonomous bodies, more
as facilitating executive functioning rather than as independent centres. For instance, the Union Public
Service Commission acts in an advisory capacity as to service matters of central civil servants,
including recruitment and disciplinary matters.112 While the President is, by Article 320 of the
Constitution, required to consult the Public Service Commission (except in certain cases), the
President is not bound by the advice of the Commission.113 Similarly, provision has also been made
by Article 280 for the appointment by the President of a Finance Commission to make
recommendations to the President as to the distribution amongst the Union and the States of the net
proceeds of taxes and duties and as to the principles which should govern the grants-in-aid of the
revenue of the States out of the Consolidated Fund of India.114 Courts have rarely interfered with such
recommendations.115

VI. CONCLUSION

Despite such overlap, until today a broad ‘constitutional organization of legal powers’116 continues to
be generally maintained by the legislature, executive, and judiciary with the recognition of the need
for checks and balances to ensure that the constitutional objectives as delineated in the Directive
Principles are achieved. However, Montesquieu’s theory of an equal Trinitarian separation of powers
has been expressly rejected by the Constitution, most importantly by conceding the powers of judicial
review over legislative and executive action.117 There has been a discernible move towards the
creation of more autonomous bodies both legislatively (such as the National Judicial Appointments
Commission Bill 2014) and judicially (such as directions for setting up of a State Security
Commission, a Police Establishment Board, and Police Complaints Authorities)118 towards ensuring
checks on the exercise of power. As Ackerman observes, ‘A better understanding of the separation of
powers would recognize that [autonomous] agencies … deserve special recognition as a distinct part
of the system of checks and balances.’119
The advantages of a written constitution with its prescription of the objectives, the ambit of
functions, and fetters on the exercise of such functions by different authorities for attaining these
objectives cannot be overemphasised in a country like ours. However, although the Indian model of
distribution of functions is still at the evolutionary stage, if we are to remain true to the Constitution
in the evolutionary process, the judiciary as an independent interpreter of the Constitution must
remain the keystone.
 1
State of Uttar Pradesh v Jeet S Bisht (2007) 6 SCC 586.
2
HM Seervai, The Position of the Judiciary under the Constitution of India (Sir Chimanlal Setalvad Lectures) (University of
Bombay 1970).
3
Bruce Ackerman, ‘The New Separation of Powers’ (2000) 113(3) Harvard Law Review 633, 688.
4
Re Delhi Laws Act 1912 AIR 1951 SC 332 [64], citing Montesquieu, The Spirit of Laws, trans Thoma Nugent and JV Prichard, vol
1 (G Bell & Sons 1914) 162–63:

When the legislative and the executive powers are united in the same person, or in the same body of Magistrates, there can
be no liberty; because apprehensions may rise, lest the same monarch or senate should enact tyrannical laws, to execute
them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separated from the legislative and the
executive.
5
Thomas Cooley, A Treatise on the Constitutional Limitations (Da Capo Press 1972) 35.
6
George Paton, A Textbook of Jurisprudence (4th edn, Oxford University Press 2004) 332.
7
Kruse v Johnson [1898] 2 QB 91 (HCJ).
8
Jeffrey Jowell and Dawn Oliver, The Changing Constitution (7th edn, Oxford University Press 2011) 191.
9
R v Secretary of State for Transport [1991] 1 AC 603, 658–59 (Bridge LJ). See also Jowell and Oliver (n 8) 115.
10
Re Delhi Laws Act 1912 (n 4) [285].
11
Re Delhi Laws Act 1912 (n 4) [285]: ‘the Indian Constitution does not expressly vest the different sets of powers in the different
organs of the State.’
12
Constitution of India 1950, arts 53 and 154.
13
Re Delhi Laws Act 1912 (n 4) [133].
14
Jeet S Bisht (n 1) [49].
15
Parliamentary Debates, vol 3 (Lok Sabha Secretariat 1955) 4990, 1955.
16
Seervai (n 2) 81: ‘I may say at once that our Constitution is not based on the separation of powers.’
17
Bruce Ackerman has called such separation of powers ‘constrained parliamentarism’ and has lauded it ‘as the most promising
framework for future development of the separation of powers’. Ackerman (n 3) 640.
18
In 1951 the Supreme Court said: ‘It does not admit of any serious dispute that the doctrine of separation of powers has, strictly
speaking, no place in the system of government that India has at the present day under her own Constitution or which she had during the
British rule’ (Re Delhi Laws Act 1912 (n 4) [285]). In 2011 the Supreme Court said: ‘There is distinct and rigid separation of powers under
the Indian Constitution’ (State of Uttar Pradesh v Sanjay Kumar (2012) 8 SCC 537 [16]).
19
Constitution of India 1950, sch 7, List 1, Entries 77–79.
20
Constitution of India 1950, sch 7, List 2, Entries 3, 65; List 3, Entries 11-A, 14, and 46.
21
Jamshed N Guzdar v State of Maharashtra (2005) 2 SCC 591 [39]; Nahar Industrial Enterprises Ltd v Hong Kong and
Shanghai Banking Corporation (2009) 8 SCC 646 [115].
22
Constitution of India 1950, art 124.
23
Constitution of India 1950, arts 124(4), 124(5), and 218.
24
Constitution of India 1950, arts 125 and 221; The Supreme Court Judges (Salaries and Conditions of Service) Act 1958; The High
Court Judges (Salaries and Conditions of Service) Act 1954.
29
Shri Prithvi Cotton Mills Ltd v Broach Borough Municipality (1969) 2 SCC 283 [4].
25
Constitution of India 1950, arts 124(5) and 217.
26
Constitution of India 1950, art 194(3). See also Special Reference No 1 of 1964 AIR 1965 SC 745 [133].
27
Kihoto Hollohan v Zachillhu (1992) Supp (2) SCC 651 [111].
28
The recent resolution of a tax dispute in favour of the Vodafone Group by the Supreme Court in Vodafone International Holdings
BV v Union of India (2012) 6 SCC 613 and the subsequent retrospective change of the law by Parliament is an example of this.
30
State Bank’s Staff Union (Madras Circle) v Union of India (2005) 7 SCC 584 [31].
31
There are at present 284 Statutes included in the Ninth Schedule.
32
When Ramaswamy J of the Supreme Court was sought to be impeached in 1993, the Congress Party, which commanded a majority
in Parliament, abstained from voting, thus defeating the motion of impeachment. This after three senior judges appointed by the Ninth Lok
Sabha had found him guilty of misconduct on eleven counts and ‘misbehaviour’ was ‘proved’ within the meaning of art 124(4).
33
Ram Jawaya Kapur v State of Punjab AIR 1955 SC 549 [14]: ‘The Cabinet enjoying, as it does, a majority in the legislature
concentrates in itself the virtual control of both legislative and executive functions.’
34
Indra Sawhney v Union of India (1992) Supp (3) SCC 217 [526]. The earlier understanding of the scope of art 162 in GJ
Fernandez v State of Mysore AIR 1967 SC 1753 [12] was that:

Article 162 does not confer any power on the State Government to frame rules and it only indicates the scope of the
executive power of the State. Of course, under such executive power, the State can give administrative instructions to its
servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in
certain circumstances. In order that such executive instructions have the force of statutory rules it must be shown that they
have been issued either under the authority conferred on the State Government by some statute or under some provision of
the Constitution providing therefor.
 35
Ram Jawaya Kapur (n 33) [7]: ‘the language of Article 172 clearly indicates that the powers of the State executive do extend to
matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed
already. The same principle underlies Article 73 of the Constitution.’
36
Re Delhi Laws Act 1912 (n 4) [93].
37
‘Guidelines’ justifying delegated legislation have been found by courts even from the preamble of a statute. See Pannalal Binjraj v
Union of India AIR 1957 SC 397 [25]: ‘No rules or directions having been laid down in regard to the exercise of that power in particular
cases, the appropriate authority has to determine what are the proper cases in which such power should be exercised having regard to the
object of the Act and the ends to be achieved.’
38
Ajoy Kumar Banerjee v Union of India (1984) 3 SCC 127 [27].
39
Re Delhi Laws Act 1912 (n 4) [93]. It has been later held by the Supreme Court that the distinction between the two is without a
difference and that conditional legislation is delegated legislation: Lachmi Narain v Union of India (1976) 2 SCC 953 [49].
40
Banarsi Das Bhanot v State of Madhya Pradesh AIR 1958 SC 909; Narinder Chand Hem Raj v Lt Governor, Union Territory,
Himachal Pradesh (1971) 2 SCC 747; cf Bimal Chandra Banerjee v State of Madhya Pradesh (1970) 2 SCC 467.
41
Edward Mills Co Ltd v State of Ajmer AIR 1955 SC 25: The Minimum Wages Act 1948 (although the statute did not provide for
any criterion to do so).
42
Union of India v Cynamide India Ltd (1987) 2 SCC 720.
43
AK Roy v Union of India (1982) 1 SCC 271 [45].
44
Union of India v Bhanamal Gulzarimal Ltd AIR 1960 SC 475.
45
Chinta Lingam v Govt of India (1970) 3 SCC 768 [3].
46
Cynamide India Ltd (n 42) [7].
47
T Venkata Reddy v State of Andhra Pradesh (1985) 3 SCC 198 [9].
48
This was noted by the Supreme Court in AK Roy (n 43) [8]:

In India, that power [of the executive to issue ordinances] has a historical origin and the executive, at all times, has resorted
to it freely as and when it considered it necessary to do so. One of the larger States in India has manifested its addiction to
that power by making an overgenerous use of it—so generous indeed, that ordinances which lapsed by efflux of time were
renewed successively by a chain of kindred creatures, one after another. And, the ordinances embrace everything under the
sun, from Prince to pauper and crimes to contracts. The Union Government too, so we are informed, passed about 200
ordinances between 1960 and 1980, out of which 19 were passed in 1980.

Between 2000 and 2011 the Union government promulgated 75 ordinances. See List of Ordinances issued by Government of India
(Legislative I Section, Legislative Department, Ministry of Law and Justice 2012) <lawmin.nic.in/ld/folder1/listord.doc>, accessed
October 2015.
49
Constitution of India 1950, art 254.
50
Constitution of India 1950, art 356(1)(b).
51
Ram Prasad v State of Punjab AIR 1966 SC 1607.
52
Constitution of India 1950, art 357(2).
53
Since a practice has developed of the Centre appointing a person with a political background as a governor, the discretion has on
occasion been used for political reasons (SR Bommai v Union of India (1994) 3 SCC 1) and occasionally governors and the State
executive have come into conflict (State of Gujarat v RA Mehta (2013) 3 SCC 1).
54
MP Jain, Indian Constitutional Law (5th edn, Wadhwa & Co 2003) 1635.
55
Constitution of India 1950, art 103.
56
Constitution of India 1950, arts 72 and 161.
57
East India Commercial Co Ltd v Collector of Customs AIR 1962 SC 1893.
58
This is discussed in greater detail below.
59
Constitution of India 1950, art 216.
60
Constitution of India 1950, arts 124(2) and 217(1).
61
Constitution of India 1950, art 233.
62
K Veeraswami v Union of India (1991) 3 SCC 655 [61].
63
Constitution of India 1950, arts 32 and 226.
64
Constitution of India 1950, arts 12 and 13(2).
65
Constitution of India 1950, arts 245 and 246.
66
Union of India v Raghubir Singh (1989) 2 SCC 754 [7].
67
The discharge of judicial functions by the executive when India was under British administration of the Constitution perhaps
historically accounts for the persistent efforts of the political executive to curb the judiciary.
68
Special Reference No 1 of 1964 (n 26) [67]. The power of courts to judicially review parliamentary privileges and powers has been
reiterated subsequently in Kihoto Hollohan (n 27); Raja Ram Pal v Speaker, Lok Sabha (2007) 3 SCC 184; Amarinder Singh v Punjab
Vidhan Sabha (2010) 6 SCC 113.
69
Constitution of India 1950, art 124(2) in the case of Supreme Court judges and art 217 in the case of High Court judges.
70
Constitution of India 1950, art 222.
71
As the Chief Justice of a State High Court or as the Chief Justice of India.
72
See Justice Ruma Pal, ‘An Independent Judiciary: Fifth Tarkunde Memorial Lecture’ (New Delhi, 10 November 2011):