INDIAN CONSTITUTION AND DOCTRINE OF

SEPARATION OF POWER
SUBMITTED BY-

SAJAL SANATAN, B.A.LL.B.(HONS.)

(6th Semester), (Roll No.- 2149)

SUBMITTED TO-

DR. FR. PETER. LADIS F

(Assistant professor of law)

This rough draft is submitted in partial fulfilment in Administrative Law for the
completion of B.A.LL.B.(Hons.) course.

FEBRUARY, 2022
CHANAKYA NATIONAL LAW UNIVERSITY,
PATNA

INTRODUCTION
 Power corrupts and absolute Power tends to corrupt absolutely”.

It is widely accepted that for a political system to be stable, the holders of power need to be
balanced off against each other. The principle of separation of powers deals with the
mutualrelations among the three organs of the government, namely legislature, executive and
judiciary. This doctrine tries to bring exclusiveness in the functioning of the three organs
andhence a strict demarcation of power is the aim sought to be achieved by this principle.
Thisdoctrine signifies the fact that one person or body of persons should not exercise all the
three powers of the government.The three organs of the government which we know as the
executive, the judiciary andlegislature represent the people and their will in our country and
are responsible for the smoothrunning of a democratic government in our society. The
legislature is the law-making body, the executive is responsible for the enforcement of all
such laws and the judiciary deals withthe cases that arise from a breach of law. Thus they are
all interlinked organs of the governmentand their roles and functions tend to overlap with
each other, as it isn’t possible to separate the three from each other completely. This has been
the cause for not only serious political debatein our country but has raised many philosophic
and jurisprudential debates among legalscholars and the law fraternity. Whether there should
be a complete separation of powers or awell co-ordinated system of distribution of powers
thus becomes the focal point ofcontemplation.To analyse the separation of powers doctrine,
the theory aspect will be dealt with, and acomprehensive understanding of the doctrine as
used in our country under our parliamentarysystem of governance will be made. Landmark
cases will also be discussed to understand the progression of this debate, and the basic
structure doctrine will be used to emphasize this point.

The separation of powers, also known as trias politica, was coined by Charles-Louis de
Secondat. The Doctrine of Separation of Power is the forerunner to all the constitutions of the
world which came into existence since the days of the “Magna Carta”.

The doctrine of the separation of powers divides the institutions of government into three
branches: legislative, executive and judicial: the legislature makes the laws; the executive put
the laws into operation; and the judiciary interprets the laws. The powers and functions of
each are separate and carried out by separate personnel. No single agency is able to exercise
complete authority, each being interdependent on the other. Power thus divided should
prevent absolutism (as in monarchies or dictatorships where all branches are concentrated in
a single authority) or corruption arising from the opportunities that unchecked power offers.
The doctrine can be extended to enable the three branches to act as checks and balances on
each other. Each branch’s independence helps keep the others from exceeding their power,
thus ensuring the rule of law and protecting individual rights

The doctrine of separation of power in its true sense is very rigid and this is one of the
reasons of why it is not accepted by a large number of countries in the world. The main
object as per Montesquieu in the Doctrine of separation of power is that there should be
government of law rather than having will and whims of the official. Also another most
important feature of the above said doctrine is that there should be independence of judiciary
i.e. it should be free from the other organs of the state and if it is so then justice would be
delivered properly.

The Constitution of India has been founded upon the fundamental principle of Rule of law. It
must be remembered that the quality of excellence of governance is evaluated on the
touchstone of efficacy and the strength of Judicial mechanism.

AIM AND OBJECTIVE

1) Analyze the scheme of separation of powers as envisaged under the Indian constitution .
2) To go depth about the separation of powers in India .
3) To study judicial view of separation of powers .

HYPOTHESIS

1) The principle of doctrine of separation of power implies that each organ should be
independent of each other
2) There should not be any intervention when it comes to performing their function

RESEARCH QUESTION

1) The concept of doctrine of separation of power given by Montesquieu has its

relevancy in constitution of India .
2) No democracy indeed contemplates conferment of absolute power in any single
authority .
3) How the separation of power is an important principle of the constitution.

RESEARCH METHODOLOGY

 The researcher has relied upon the Doctrinal method of research for the completion of
this project.

SOURCES OF DATA

 Primary and secondary sources have helped gather relevant information regarding
project . Secondary sources like books and articles which are available online have
been used .

TENTAIVE CHAPTERISATION

1) INTRODUCTION
2) MONTESQUIEU THEORY OF SEPARATION OF POWER
3) MEANING OF SEPARATION OF POWER
A) THE LEGISLATURE
B) THE EXECUTIVE
 C) THE LUDICIARY
4) CONSTITUTIONAL POSITION OF THE DOCTRINE
5) JUDICIAL VIEW ON THE DOCTRINE OF SEPARATION OF POWER
6) CONCLUSION

BIBLIOGRAPHY

BOOKS :

1) Administrative law by prof. U.P.D. Kesari

2) Administrative law by S.P.Sathe
3) Indian constitution law by M.P. jain
4) The constitution of India by P.M. bakshi

SITES :

1) Massey, I.P., ‘Administrative Law’, EBC publication.,9th edition,2020.

2) Jain, M.P., ‘Indian Constitutional Law’, Wadhwa and Company, Nagpur,

3) Shukla V.N., Constitutional Law of India, Fifth Edition, vol. 11.