Separation of Powers under

the Indian Constitution

 Summary of the concept
• What is meant by “separation of powers”?
• How have leading thinkers conceptualized the theory of separation of powers?
• What do the framers of the constitution have to say about the theory?
• What does the Supreme Court of India have to say about the theory?
• Are there problems with the Supreme Court’s understanding of the theory?
• The National Judicial Appointments Commission caused the judiciary and the
executive to compete for the process of appointment of judges to the higher
judiciary. How did the Supreme Court resolve this issue, and to what extent did
the Supreme Court find the theory of the separation of powers relevant to the
case?
What is meant by “Separation of powers”?
• The term “separation of powers” refers to a division of powers
between the three branches of the government- the legislature, the
executive, and the judiciary.
• This theory defines the limits of each branch of the government in
their interaction inter se.
• To be defining the limits of each branch of the government the
branches of the governments themselves must first be defined.
• This is the process by which leading thinkers formulated their ideas of
the theory.
Who are the leading thinkers on the theory,
and how have they conceptualized it?
• Aristotle, a Greek philosopher described the three branches of the government as
follows:
• The General Assembly
• The Public Officials
• The Judiciary

• John Locke, an English thinker, classified the branches of the government as follows:
• The Legislature
• The Executive
• The Federative
• It must be noted that Locke’s classification departs from the
traditional classification- the judiciary has not been classified as a
distinct branch of the government.
• The executive’s primary function was to take care of the internal
administration of the state.
• The federative’s primary function, was to taker care of the
external/international functions of the state.
• Therefore, this division could be seen as a parallel to the division of
powers between the union and the provincial governments in
modern governance.
• Such a division is called the vertical theory of the separation of
powers, since the federative and the executive branches are not co-
equals.
• The traditional division of powers between the legislature, the
executive and the judiciary is called the horizontal theory of the
separation of powers, since the branches are co-equals.
• The vertical division of powers that Locke had in mind is evident in the
three lists of our constitution, specified in the Seventh Schedule:
• Montesquieu’s theory:
• Montesquieu’s theory of the separation of powers is the one that has
received the most attention over the years.
• In his book Esprit Des Lois (The Spirit of the Laws), he classified the
three branches of the government as the legislature, the executive
and the judiciary, specifying the following functions for each:
• The Legislature would declare the general will of the people;
• The Executive would give effect to such declared will;
• The Judiciary would be tasked with deciding civil and criminal cases.
• Montesquieu had in mind an absolute, rigid division of powers
between the three branches of government.
What do the framers of the constitution have
to say about the theory?
• There were two opposing views amongst the members of the Constituent Assembly
regarding the theory. One view was that India needed to incorporate the theory as
conceptualized by Montesquieu. This can be found in K.T. Shah’s views, expressed on
the 10th of December 1948, while proposing the insertion of Draft Article 40-A.
• The Draft Article reads as follows:
• “There shall be complete separation of powers as between the principal organs' of
the State, viz, the Legislative, the Executive, and the Judicial.”
• However, Hanuamanthaiya expressed his disagreement to this idea in the following
terms:
• “if there is separation--not separation but Prof. Shah wants complete separation--
then conflicts are sure to arise between these three Departments of Government.
Therefore, I say that in a Governmental structure it is necessary to have what is called
"harmony" and not this three-fold conflict.”
• Dr. Ambedkar was also of the opinion that a complete separation of powers
wasn’t possible. He felt that since the American experience of the rigid
separation of powers had left them complaining about its incorporation into
the constitution, India needed to learn, and provide for more flexibility
between the three branches of the government. This is reflected in the fact
that the only express provision relating to the separation of powers is that
between the executive and the judiciary, which, being a Directive Principle
of State Policy under Article 50, is not enforceable.
• Therefore, once the Constitution came into force, it was the judiciary’s task
to interpret and understand the theory of separation of powers from the
scheme of the constitution.
What does the Supreme Court have to say
about the theory?
• The Supreme Court, in Udai Ram Sharma v. Union of India (AIR 1968 SC 1138), has held
that “the American doctrine of well-defined separation of legislative and judicial powers
has no application to India.”

• In Indira Gandhi v. Raj Narain (AIR 1975 SC 2299), the Supreme Court held that “the
principle of separation of powers is not a magic formula for keeping the three organs of
the State within the strict confines of their functions.” Quoting liberally from the United
States Supreme Court’s ruling in Panama Refining Company v. Ryan (1934) 293 US 388,
440, the following opinion rendered by Justice Cardozo was relied upon:
• “the principle of separation of powers is not a doctrinaire concept to be made use of with
pedantic rigour. There must be sensible approximation, there must be elasticity of
adjustment in response to the practical necessities of government, which cannot foresee
today the developments of tomorrow in their nearly infinite variety".
Are there problems with Supreme Court’s
understanding of the theory?
• The Supreme Court, in the judgments referred to above, has only
been reiterating the Constituent Assembly’s stand on the theory of
separation of powers. In this process, the Court only complicates
matters with the wording it uses to describe the theory- for instance,
relying on phrases such as “elasticity of adjustment” and sensible
approximation” does not in any way clarify or add to what the
framers of the constitution have already said. Therefore, the Supreme
Court had to use more accurate terms to understand the theory. As
will be examined next, such accuracy was achieved in later
judgments.
The National Judicial Appointments Commission and
its relevance to the theory of separation of powers
• The National Judicial Appointments Commission (NJAC) was a body
tasked with appointing judges to the higher judiciary in India. Article 124
of the Constitution was amended through the 99th Amendment to reflect
the change in the system of appointments from the collegium system, in
which a body of judges would be consulted by the President to appoint
the judges, with the judiciary’s opinion being final- to the NJAC.
• The composition of the NJAC was as follows:
• The Chief Justice of India, the two senior most judges of the Supreme
Court, the Law Minister and two “eminent persons”. A sub-committee
was further constituted to appoint the “eminent persons”. The
composition of the sub-committee was as follows:
• The Prime Minister, the Chief Justice, and the Leader of the Opposition.
• The composition of the NJAC, therefore, presents a problem:
• It allows excessive executive interference in the appointment of judges.
• More specifically, the term “eminent persons” has not been defined
with clarity, leaving a lot to the discretion of the executive.
• Therefore, it was natural for the judiciary to fear the abuse of such
discretion by the executive, resulting in political appointments to the
Supreme Court and the High Courts.
• Petitions were filed before the Supreme Court to strike down the 99th
Amendment as being unconstitutional.
• The Court reasoned that the 99th Amendment was unconstitutional.
• In arriving at this conclusion, the Court evaluated the theory of separation of
powers and held that the interference of the executive in the appointment of
judges to the higher judiciary was a violation of the theory.
• How was this interference a violation of the theory?
• The Court relied on the reasoning laid down by the Supreme Court in Bhim
Singh v. Union of India ((2010) 5 SCC 538):
“The Constitution does not prohibit overlap of functions, but in fact provides
for some overlap as a parliamentary democracy. But what it prohibits is such
exercise of function of the other branch which results in wresting away of the
regime of constitutional accountability.Thus, the test for the violation of
separation of powers must be precisely this:
A law would be violative of separation of powers not if it results in some
overlap of functions of different branches of the State, but if it takes over an
essential function of the other branch leading to lapse in constitutional
accountability.”
• Therefore, the most important issue related to the theory of the
separation of powers in the judgment was framed as follows:
• “As has been repeatedly held, the theory of separation of powers is not
rigidly implemented in our Constitution, but if there is an overlap in the
form of a check with reference to an essential or a basic function or
element of one organ of State as against another, a constitutional issue
does arise. It is in this context that the 99th Constitution Amendment
Act has to be viewed – whether it impacts on a basic or an essential
element of the independence of the judiciary, namely, its decisional
independence. “

• The respondent contended that the appointment of judges was an

executive function.
• However, the Court reasoned that the constitutional convention is that
a judge to the higher judiciary is appointed only if the Chief Justice of the
respective court agrees with the appointment.
• The Court enumerated the constitutional convention, borrowing the facts from
Supreme Court Advocates On Record Association v. Union of India ((1993) 4 SCC 441)
(known as the Second Judges Case), as follows:
• “(i) The executive had absolute power to appoint the Judges under the Government
of India Act, 1935. Despite that all the appointments made thereunder were made
with the concurrence of the Chief Justice of India.
• (ii) A convention had come to be established by the year 1948 that appointment of a
Judge could only be made with the concurrence of the Chief Justice of India.
• (iii) All the appointments to the Supreme Court from 1950 to 1959 were made with
the concurrence of the Chief Justice of India. 210 out of 211 appointments made to
the High Courts during that period were also with the concurrence of the Chief
Justice of India.
• (iv) Mr Gobind Ballabh Pant, Home Minister of India, declared on the floor of the
Parliament on November 24, 1959 that appointment of Judges were virtually being
made by the Chief Justice of India and the executive was only an order-issuing
authority.
• (iv) Out of 547 appointments of Judges made during the period January 1, 1983 to
April 10, 1993 only 7 were not in consonance with the views expressed by the Chief
Justice of India.”
• The Court then went on to state:
• “ These facts and figures clearly indicate that at least since 1935, if
not earlier, the appointment of judges was made in accordance with
the view of the Chief Justice of India or the Chief Justice of the High
Court as the case may be. There were aberrations but these appear
to have mainly taken place only after Independence, as mentioned
above. But even in those cases where there were aberrations pre-
1959 (with the Chief Justice of the High Court having been by-passed)
the concurrence of the Chief Justice of India was taken. The executive,
therefore, never had real primacy in the matter of appointment of
judges. “
• Further, the Court held:
• “The Chief Justice of India and other judges are undoubtedly well qualified to give
proper advice with regard to the knowledge, ability, competence and suitability
of a person to be appointed as a judge of a High Court of the Supreme Court.
There is no reason, therefore, why the opinion of the Chief Justice of India taken
along with the opinion of other judges should not be accepted by the executive,
which is certainly not better qualified to make an assessment in this regard. “

Further, the Court held:

“Separation of powers or say distribution of powers, is the tectonic structure of the
Constitution of India. The various checks and balances are provided only for
maintaining a proper equilibrium amongst the structures and that is the supreme
beauty of our Constitution. Under our constitutional scheme, one branch does not
interfere impermissibly with the constitutionally assigned powers and functions of
another branch. The permissible areas of interference are the checks and balances.
But there are certain exclusive areas for each branch which Khehar, J. has stated as
‘core functions’, and which I would describe as powers central. There shall be no
interference on powers central of each branch.”
• Further, the Court held:
• “Direct participation of the Executive or other non-judicial elements
would ultimately lead to structured bargaining in appointments, if
not, anything worse.”
• Also, the Court held:
• “The Constitution 99th amendment impairs the structural
distribution of powers, and hence, it is impermissible. “
• Further, the Court held:
• “If primacy of judiciary in the appointment of judges is held to be not a
part of basic feature, the Parliament may be free to confer the said
power on the Executive or the Legislature or to any other authority which
can certainly compromise the independence of judiciary. It will also in
turn disturb the doctrine of separation of powers and other basic
features like rule of law, democracy and federalism and working of the
Constitution as a whole. Independence of judiciary is key element in the
entire functioning of the Constitution and such independence is integrally
linked with the appointment of judges free from Executive interference“
• Therefore, for these reasons, the 99th Amendment was perceived to
be violating the theory of separation of powers, and the theory being
a part of the basic structure of the Constitution, the Amendment was
violative of the basic structure. Thus, it was struck down as
unconstitutional and declared void.
• Thus, in the manner illustrated above, the Supreme Court, while
dealing with the issue of appointment of judges by the NJAC, clarified
its stand on the theory of separation of powers.