PROJЕCT OF POLITICAL SCIENCE

TOPIC: - ANALYSING INFRINGEMENT OF SEPERATION OF POWER IN INDIAN

POLITICS

SUBMITTЕD BY:- SUBMITTЕD TO :-

K. Dеvkaran Mr. Amit Kumar Mishra

TEACHING ASSOCIATE

B.A LL.B (HONS) SЕMЕSTЕR X

ЕNROLLMЕNT NO-: BAL/044/18

CONTЕNTS

ACKNOWLЕDGЕMЕNT………………………………………………………….…......3

CHAPTЕR- 1………………………………………………………………………........4-5

TITLЕ OF RЕSЕARCH WORK……………………………………………………...........4

ABSTRACT………………………………………………………………..……………....4

RЕSЕARCH OBJЕCTIVЕS ……………………………………………………………....4

RЕSЕARCH QUЕSTIONS…………………………………………………………….......4

SCOPЕ & LIMITATION………………………………………………………………......5

MODЕ OF CITATION...................................................................................................5

CHAPTЕR- 2………………………………………………………………………........5-7

INTRODUCTION........................................................................................................5-6

CLASSIFICATION OF VICTIMISATIONS……………………………….….…..….…6-7

CHAPTЕR-3……………………………………………………………………....…....7-15

IMPACT OF VICTIMISATION ON A PЕRSON……………….…………….…….…..7-9

STAGЕS OF RЕACTION TO A CRIMЕ…………………………...............................9-10

THЕ PЕRIOD OF RЕCONSTRUCTION…………………………………………..…11-15

CHAPTЕR-4…………………………………………………………………….…....15-17

CONCLUSION……………………………………………………………………...........16

BIBLIOGRAPHY …………………………………………………………………..….....17
 ACKNOWLЕDGЕMЕNT

I would like to express my special thanks of gratitude to our Hon’ble Vice Chancellor Prof.
(Dr.) V. Nagaraj sir and my subject teacher Mr. Amit Kumar Mishra who gave me the golden
opportunity to work on this great and wonderful project of the subject Political Science on topic
“Analyzing infringement of separation of power in Indian politics” and its only just because of
this project I got the opportunity to understand how to do the research on a topic and how to
collect the data and how to arrange the data in a research.
Chapter-1

Analyzing infringement of separation of power in Indian politics

Abstract
The doctrine of Separation of Powers deals with the mutual relations among the three organs of
the Government namely legislature, executive and judiciary. The origin of this principle goes
back to the period of Plato and Aristotle. It was Aristotle who for the first time classified the
functions of the Government into three categories viz., deliberative, magisterial and judicial and
Locks categorized the powers of the Government into three parts namely: continuous executive
power, discontinuous legislative power and federative power. “Continuous executive power”
implies the executive and the judicial power, “discontinuous legislative power” implies the rule
making power, and “federative power” signifies the power regulating the foreign affairs. The
French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) published in 1748, for
the first time enunciated the principle of separation of powers.

2. Research Objectives

The researcher has undertaken this topic to understand the infringement of separation of power in
Indian politics. The main objectives of the present study are under as follows:-

 To know how separation of power is ensured in India through the Constitution.

 To know how politics interfere with other pillars of democracy.
 To know the admissibility of forensic evidence in court.
3. Research Questions

Q1. How far separation of powers is maintainable in accordance with intermingle of powers
among the legislative, executive and judiciary?

Q2. Whether in a rigid sense separation of powers is possible in a country like India?

Q3.How far is it correct that separation of powers is a myth rather than reality?

4. Research Methodology

The research is doctrinal in nature. The research uses analytical and descriptive research
methodology. The researcher has made use of facts on information already available and has
analysed those facts to make a comparative evaluation of the material. Analytical research
involves secondary data from various articles and journals. The research also includes case laws
to validate and substantiate arguments.

5. Mode of citation

This research project follows Blue Book 20th edition citation style.
Chapter- 2

Introduction

Separation of powers is a key feature of any democratic system of government. This system
divides state into three core branches the legislature, the executive and the judicial branch, these
branches have powers to fulfill different tasks assigned to them. These branches are also known
as organs of the government. Tasks assigned to each organ and their institutions are in such way
that each of them can check the exercise of power by the others as result no one branch or
institution can become so powerful to control the system completely. Before starting the analysis
it is very important to understand the meaning of three organs of the government. Legislative
organ makes laws, executive organ carries out laws and judicial organ interprets laws1.

Evolution of Doctrine of Separation of Powers

History of human kind has witnessed the bad consequences of concentration of power in one
hand. Many times kings misused their powers to oppress the people. Magna Carta is the
milestone in human history where a limit was placed on the power of King John. People were so
oppressed by cruelty of king john they decided to do something about it and they came up with
the first historical document called Magna Carta which contained some basic rules and
regulations to protect the interest of people as well as king, Magna Carta was signed in front of
witnesses by King John on 15th June 1215 and Magna Carta was considered as law of land and it
was the first document in the history of mankind which stated that king and his government was
not above the law and it was designed to prevent king from exploiting his powers and it also
placed a limit on king’s powers by establishing law as power itself2.

The concept of separation of power was introduced by Aristotle. Aristotle was the first person
who categorized functions of government into three elements first deliberative, second officials
and third judicial3 . Viscount Henry St. John Bolinbroke advanced Aristotle’s idea of separation
of powers, he argued that the protection of security, liberty within the state totally depends upon
1
Benwell Richard and Oonagh Gay. The Separation of Powers - Parliament And Constitution Centre. . Available at
http://www.parliament.uk/briefing-papers/sn06053.pdf
2
UK Parliament. N.d. Magna Carta. [online] Available at: https://www.parliament.uk/magnacarta/
3
.Separation.Of.Powers-.Historical.Development.Available.at:
http://www3.lancashire.gov.uk/corporate/web/viewdoc.asp?id=101712
achieving and maintaining an equilibrium (a state in which opposing forces or influences are
balanced) between the people, crown and parliament).

Separation of Powers in other countries

United Kingdom

The United Kingdom practices the unitary parliamentary constitutional monarchy. The concept
of separation of powers is applied in the UK but not in its rigid sense because the UK has an
unwritten constitution. The Crown is the head of the state whereas the Prime Minister is
recognised as the head of the government. The executive and the legislature are somehow
interconnected to one another. The executive powers are exercised by the Crown through his
government. Thus, the Crown is the nominal head and the real executive powers vest in the
Prime Minister and the other Cabinet Ministers. The UK parliament is bicameral and divided
into two houses – The House of Commons and House of Lords. The Parliament is the sovereign
rule-making body in the UK. The Prime Minister and the other cabinet ministers are also a part
of The House of Commons. The government is answerable to the Parliament. Practically, the
executive is controlled by the House of Commons. The Judiciary, however, is independent of
executive control. But the judges of the Supreme Court can be removed on the address of both
the houses if found with any charge of corruption4.Thus, we can conclude that the UK
constitution has incorporated the separation of powers just to keep checks and balances among
the three organs of the government but there exist some kind of interference of one organ in the
other.

United States of America

The US has a written constitution and governed by the Presidential form of government. The
cornerstone of the Constitution of the United States is the doctrine of separation of powers. This
concept is well-defined and clear under the American Constitution.Article 1of the American
Constitution states that “All the legislative powers are vested in Congress” 5. Article II of the

4
Handel, Charles Evants Hughes and the Supreme Court (1951), II quoted by Bernard Schwartz in American
Constitutional Law 1955 page 130
5
“Article 1” American Constitution
American Constitution states that –“All the executive powers are vested in the President” 6.
Article III of the American Constitution states that “All the judicial powers are vested in the
federal courts and the Supreme Court7.”The President and his ministers are the executive
authority and they are not members of the Congress. The ministers are accountable to the
President only and not to the Congress. The tenure of the President is fixed and independent of
the majority in Congress.

Congress is the sovereign legislative authority. It consists of two houses- Senate and House of
Representative. The impeachment of the President can be done by Congress. The treaties entered
by the President are to be approved by the Senate. The Supreme Court of the USA is
independent. It may declare any action of the executive as well as the legislature as
unconstitutional if found so. Thus, it appears as if the powers of the three organs exist in a
watertight compartment but actually it is not so. President interferes in the functioning of
Congress by exercising his veto power. He also makes the appointment of the Judges thus,
interfering in judicial powers. Similarly, Congress interferes in the powers of the Courts by
passing procedural laws, making special courts and by approving the appointment of the judges.
The judiciary, by exercising the power of judicial review interferes in the powers of Congress
and the President. In Panama Refining Company v. Ryan, Justice Cardozo observed that:-“the
doctrine of separation of power is not a dogmatic concept. It cannot be imposed with strictness.
There must be elasticity in its application with respect to the needs of the government. Therefore,
a practical approach to this theory is required8”.

Australia

Australia is governed by a federal parliamentary constitutional monarchy system. The Australian

Constitution had borrowed the concept of separation of power from the U.S. Constitution. The
first three chapters of the Australian Constitution defines the three different organs of the
government- the legislative, the executive and the judiciary. The legislative branch includes the
Parliament of Australia, the executive comprises of the Queen, Governor-General, Prime
Minister and other ministers.
6
“Article 2” American Constitution
7
“Article 3” American Constitution
8
Panama Refining Company v. Ryan 293 U.S. 388
Australia has a bicameral parliament consisting of the Queen (represented by the governor-
general), the Senate and the House of Representatives. The executive powers vest in the
Governor-General who is advised by the Federal Executive Council. The judicial power lies in
the hands of the federal courts and the High Court of Australia which is the supreme judicial
authority. Like the U.S. and U.K., Australia also does not have complete separation of powers.
Though, a system of checks and balances has been evolved. Some roles and powers of the three
organs overlap-The judges, Prime Minister and other ministers are appointed by the Governor-
General.The Prime Minister and other ministers are members of the parliament as well as the
executive. It was held by the High Court of Australia in the case of Victorian Stevedoring v.
Dignan [2] that-“ It was not at all possible to maintain the consistency of the British tradition of
strict classification of the organs of the government. The legislative and the executive branch
cannot work independently. A responsible government can’t be established by the strict
separation of legislature and executive. The legislature can delegate its lawmaking power to the
executive whenever required9.”

Indian Constitution and Separation of Power

Like the United Kingdom, India also practices the parliamentary form of government in which
executive and legislature are linked to each other. So, the doctrine of separation of powers is not
implemented in its strict sense. However, the composition of our constitution creates no doubt
that the Indian Constitution is bound by the separation of powers. There are various provisions
under the Indian Constitution that clearly demonstrate the existence of the doctrine of separation
of powers. This principle is followed both at the centre and the state level. Article
53(1) and Article 15410 of the Indian Constitution clearly say that the Executive powers of the
Union and the States are vest in the President and Governor respectively and shall only be
exercised directly by him or through his subordinate officers11.

 Article 122 and Article 212 of the Indian Constitution state that the courts

cannot inquire in the proceedings of Parliament and the State Legislature.
This ensures that there will be no interference of the judiciary in the
legislature.

9
(1931) 46 CLR 73.
10
“Article 154” of Indian Constitution
11
“Article 53(1)” of Indian Constitution
  Article 105 and Article 194  of the Indian Constitution specify that the MPs
and MLAs cannot be called by the court for whatever they speak in the
session.
 Article 50 of the Indian Constitution encourages the separation of judiciary
from the executive in the states.
 Article 245 of the Indian Constitution gives authority to Parliament and
State Legislature for making laws for the whole country and the states
respectively.
 Article 121 and Article 211 of the Indian Constitution state that the judicial
conduct of any judge of the Supreme Court or High Court shall not be
discussed in Parliament or State Legislature.
 Article 361 of the Indian Constitution specifies that the President and the
Governor are not accountable to any court for exercising their powers and
performance of duties in his office.
Judicial Approach towards Separation of Power in India

The court has interpreted the applicability of the doctrine of separation of power in India in many
case laws. The very first judgment with relation to the separation of powers was given by
Mukherjee J. in the case of Ram Jawaya Kapur v. State of Punjab. He concluded that-“The
Constitution of India has not acknowledged the doctrine of separation of power emphatically but
the functions and powers of all the organs have been adequately distinguished. Thus it would not
be wrong to say that Indian constitution does not behold assumptions rather it works in a flexible
manner considering the needs of the country. So, the executive can exercise the law-making
power only when delegated by the legislature and it is also empowered to exercise judicial
powers within the limits. But on an all, no organ should exercise its power beyond the provision
of the constitution12.”

 In the case of Indira Nehru Gandhi v. Raj Narain[4], Ray C. J. said:-

“ A rigid sense of separation of powers which has been given under the American and Australian
constitution does not apply to India.”

Beg J. further added that:-

12
“ The separation of power is a part of the basic structure of the constitution. So, the schemes of
the constitution cannot be changed even after restoring Article 368 of the Indian Constitution.”

 In Golak Nath v. State of Punjab[5], it was observed by Subba Rao C.J. that:-
“ The three organs of the government have to exercise their functions keeping in mind certain
encroachments assigned by the constitution. The constitution demarcates the jurisdiction of the
three organs minutely and expects them to be exercised within their respective powers without
overstepping their limits. All the organs must function within the spheres allotted to them by the
constitution. No authority which is created by the constitution is supreme. The constitution of
India is sovereign and all the authorities must function under the supreme law of the land i.e. the
Constitution.”

 Das J. talked about separation of powers in the case of A. K. Gopalan v. State of
Madras[6]:-
“ Although the constitution has imposed some limitations on the three organs of the government,
it has left our parliament and state legislature supreme in their respective fields. In the main,
subject to the limitations, our constitution has preferred the supremacy of legislature to that of
the judiciary and the court has no authority to question the wisdom or policy of the law duly
made by the appropriate legislature and this is the basic fact which the court must not outlook.”

 In Asif Hameed v. State of Jammu and Kashmir[7], the Supreme Court observed that:-
“ Though the constitution has not recognized the doctrine of separation of powers in its absolute
rigidity, the drafters of the constitution have diligently defined the powers and functions of
various organs. The legislature, executive and judiciary have to function within their own
domain prescribed by the constitution. No organ may arrogate the functions allotted to
another.”

Separation of Powers: A Barrier to Administrative Law

Administrative law is a branch of public law that determines the organisation, powers and duties
of administrative authorities. The principle of separation of power creates a demarcation among
the three organs of the government. But in the present scenario, administrative law is antithetical
to this principle. With the emerging pattern of globalized interdependence, the administrative
agencies are not just exercising the administrative functions but also
practises quasi-legislative and quasi-judicial powers, thus, violating the
principle of separation of powers.

Contemporarily, it is a compulsive necessity to delegate the additional

legislative and judicial powers to the administrative agencies to establish
efficient and adroit governance and to ensure proper enforcement of the
laws. The creation of administrative tribunals and delegation legislation took
place with the aim to reduce the load of the legislation and judiciary and to
expedite the lawmaking and justice giving process with expertise. This
cannot be achieved with strict implementation of the doctrine of separation
of powers. Therefore, the separation of powers acts as a limitation on
administrative law.

The relevance of separation of powers in the Modern Era

Although, the doctrine of separation of powers does not have the rigid
applicability that does not imply that it has no relevance in the current
scenario. The core objective of the doctrine of separation of powers is to
keep checks and balances among the three organs of the government which
is an essential factor to run a government dynamically. The logic behind this
doctrine is not the strict classification rather it is the avoidance of
concentration of powers to a specific person or a body. This theory is not
operative in its absolute sense but yes, it is very advantageous if applied
correlatively. Thus, not impenetrable barriers and unalterable frontiers but
mutual curtailment in the exercise of powers by the three organs of the state
is the spirit of the doctrine of separation of powers.

Criticism

Every doctrine has some effects and defects. The separation of powers might have proved to be
flawless theoretically but it cannot be applied comprehensively in real life situations. There are
certain drawbacks and limitations to it.

1. It is extraordinarily difficult to distinguish the powers of the legislature, executive and

judiciary precisely. A smooth and stable government can exist only if there is
 cooperation among the three organs. Any attempt made to separate these organs into
watertight compartments may lead to failure and inefficiency in the government.

2. If this concept is adopted in its totality, then it will become impossible to take certain
actions. Consequently, neither the legislature can delegate the law making power to
the executive which may have expertise in the subject matter, nor the courts can make
laws related to the functioning of courts and proceedings.

3. In the present scenario, a state works for the welfare and prosperity of the people. It
has to resolve the complex issues of society. In such circumstances, the principle of
separation of power seems to be impossible. The imposition of this doctrine in its
rigid conception will not lead to the effectuation of the objectives of the modern state.
Thus, separation of power is theoretically improbable and practically impossible.

4. Montesquieu, by propounding this theory aimed to protect and safeguard the freedom
and liberty of the individuals which is impossible by the strict enforcement of
separation of powers.