CASE LAWS ON DOCTRINE OF

SEPARATION OF POWERS

In India, the doctrine of separation of powers has not been

accorded a constitutional status. Apart from the directive
principle laid down in Article 50 which enjoins separation of
judiciary from the executive, the constitutional scheme does not
embody any formalistic and dogmatic division of powers.

Professor K.T. Shah on 10th December 1948 proposed in the

Constituent Assembly for the insertion of Article 40-A in the
Constitution of India. The said Article stated-
“40-A. There shall be complete separation of powers as between
the principal organs' of the State, viz, the Legislative, the
Executive, and the Judicial.”

However, this proposal was rejected by the other members of the

Constituent Assembly including Dr. B.R. Ambedkar.
 Re Delhi Law Act case
AIR 1951 S.C. 332

Chief Justice Kania observed:

“Although in the Constitution of India there is no express

separation of powers, it is clear that a legislature is created
by the Constitution and detailed provisions are made for
making that legislature pass laws. It is then too much to say
that under the Constitution the duty to make laws, the duty
to exercise its own wisdom, judgment and patriotism in
making law is primarily cast on the legislature? Does it not
imply that unless it can be gathered from other provisions of
the Constitution, other bodies executive or judicial are not
intended to discharge legislative functions?”
 Ram Jawaya Kapur v. State of Punjab
(AIR 1955 SC 549)

 This was a petition under Article 32 of the Constitution,

preferred by six persons, who purported to carry on the
business of preparing, printing publishing and selling text
books for different classes in the schools of Punjab, particularly
for the primary and middle classes, under the name and style
"Uttar Chand Kapur & Sons.“
 It was alleged that the Education Department of the Punjab
Government had in pursuance of their so-called policy of
nationalisation of text books, issued a series of notifications
since 1950 regarding the printing, publication and sale of these
books which had not only placed unwarrantable restrictions
upon the rights of the petitioners to carry on their business but
had practically ousted them and other fellow-traders from the
business altogether.
 It was said that no restrictions could be imposed upon the petitioners'
right to carry on the trade which is guaranteed under Article 19(1)
(g) of the Constitution by mere executive orders without proper
legislation and that the legislation, if any, must conform to the
requirements of clause (6) of Article 19 of the Constitution.
 Accordingly, the petitioners prayed for writs in the nature of
mandamus directing the Punjab Government to withdraw the
notifications which had affected their rights.
 The contentions raised by Mr. Pathak, who appeared in support of the
petitioners, were three fold
 In the first place it was contended that the executive Government of
a State is wholly incompetent, without any legislative sanction, to
engage in any trade or business activity and that the acts of the
Government in carrying out their policy of establishing monopoly in
the business of printing and publishing text books for school students
is wholly without jurisdiction and illegal.
 His second contention was, that assuming that the State could create
a monopoly in its favour in respect of a particular trade or business,
that could be done not by any executive act but by means of a proper
legislation which should conform to the requirements of Article 19(6)
of the Constitution.
 Lastly, it was argued that it was not open to the Government to
deprive the petitioners of their interest in any business or
undertaking which amounts to property without authority of law
and without payment of compensation as is required under Article
31 of the Constitution.
 In this case the question that arose was what an executive function
means and it was held that-

“It may not be possible to frame an exhaustive definition of what

executive function means and implies. Ordinarily the executive
power connotes the residue of governmental functions that remain
after legislative and judicial functions are taken away. The Indian
Constitution has not indeed recognised the doctrine of separation of
powers in its absolute rigidity but the functions of the different parts
or branches of the Government have been sufficiently differentiated
and consequently it can very well be said that our Constitution does
not contemplate assumption, by one organ or part of the State, of
functions that essentially belong to another. ….”
“….The executive indeed can exercise the powers of departmental or
subordinate legislation when such powers are delegated to it by the
legislature. It can also, when so empowered, exercise judicial
functions in a limited way. The executive Government, however, can
never go against the provisions of the Constitution or of any law. This
is clear from the provisions of Article 154 of the Constitution but, as
we have already stated, it does not follow from this that in order to
enable the executive to function there must be a law already in
existence and that the powers of executive are limited merely to the
carrying out of these laws.”

Dr. Ambedkar opined that Indian Constitution does not make any
absolute or rigid separation of powers of the three organs owing to its
pro-responsibility approach rather than having stability at the centre
stage. This has however been further supplemented and reiterated by
the Indian Supreme Court in this case by Mukherjea J. in this case.
Thus, this case is an authority which presents a clear picture that
our Constitution does not embody the full separation-of-powers
doctrine, only a separation-of-functions principle.

Chief Justice Mukherjea while referring to the proper attribution

from Walter Bagehot's The English Constitution held-
“In the Indian Constitution, therefore, we have the same system of
parliamentary executive as in England and the council of
ministers, consisting, as it does, of the members of the legislature t,

is, like the British Cabinet, “a hyphen, which joins, a buckle,

which fastens the legislature part of the State of the executive
part.” The Cabinet enjoying, as it does, a majority in the
legislature concentrates in itself the virtual control of both
legislative
and executive functions; and as the Ministers constituting the
Cabinet are presumably agreed on fundamentals and act on the
principle of collective responsibility, the most important questions
of policy are all formulated by them.”
 Kartar Singh v. State of Punjab
AIR 1967 SC 1643

The Indian Constitution has indeed not recognized the doctrine of

separation of powers in its absolute rigidity, but the functions of

different parts or branches of the government have been sufficiently

differentiated and consequently it can very well be said that our

Constitution does not contemplate assumption, by one organ or part

of the state, of functions that essentially belong to another.

A more refined and clarified view taken in Ram Jawaya‘s case can be

found in this case where Ramaswamy J. held-

It is the basic postulate under the Indian Constitution that the legal

sovereign power has been distributed between the legislature to

make the law, the executive to

implement the law and the judiciary to interpret the law within the

limits set down by

the Constitution.
Kesavananda Bharti v.
State of Kerala,
AIR 1973 SC 1461

Chief Justice Sikri observed:

“Separation of powers between the

legislature, the executive and the

judiciary is a part of the basic

structure of the Constitution; this
structure cannot be destroyed by
any form of amendment.”
 Indira Nehru Gandhi v. Raj Narain
AIR 1975 SC 865

Ray C.J. observed that in the Indian Constitution there is

separation of powers in a broad sense only. A rigid separation of
powers as under the American Constitution or under the
Australian Constitution does not apply to India.

However, the Court held that though the constituent power is

independent of the doctrine of separation of powers to implant
the story of basic structure as developed in the case of
Kesavananda Bharati v. State of Kerela, on the ordinary
legislative powers will be an encroachment on the theory of
separation of powers.
Nevertheless, Beg, J. added that separation of powers is a part
of the basic structure of the Constitution. None of the three
separate organs of the Republic can take over the functions
assigned to the other. This scheme of the Constitution cannot be
changed even by resorting to Article 368 of the Constitution.
 This case was heard by the Allahabad High Court that found the
then-Prime Minister of India Indira Gandhi was guilty of electoral
malpractices.
 Ruling on the case that had been filed by the defeated opposition
candidate, Raj Narain, Justice Jagmohanlal Sinha invalidated
Gandhi's win and barred her from holding elected office for six
years.
 The decision caused a political crisis in India that led to the
imposition of a state of emergency by Gandhi's government from
1975 to 1977.

FACTS-

 Raj Narain had contested the Indian general election

1971 against Indira Gandhi, who represented the constituency
of Rae Bareilly in the Lok Sabha, the lower house of the Indian
Parliament.
 Gandhi was re-elected from Rae Bareilly by a two-to-one margin
of the popular vote, and her Indian National Congress (R) party
won a sweeping majority in the Indian Parliament.
Narain filed a petition to appeal the verdict, alleging that Indira Gandhi
used bribery, government machinery and resources to gain an unfair
advantage in contesting the election. Raj Narain's primary contention
was that Indira Gandhi had infringed the provisions of the
Representation of People‟s Act, 1951 during her campaign as she had
been assisted by a Gazetted government officer who was on duty, the
police, the armed forces, used government vehicles, exceeded the
prescribed limit on campaign expenditure and had also distributed
liquor and clothing to the voters in the constituency.
 Narain specifically charged Gandhi of using government employees
as election agents and of organising campaign activities in the
constituency while still on the payroll of the government.
 Mrs Gandhi was represented by the noted lawyer Nani Palkhiwala
Raj Narayan by Shanti Bhushan After Mrs Gandhi imposed
emergency on 26-June-1975, Palakhiwala resigned as her lawyer to
protest against the decision.
 When Janata Party came to power in 1977, Palakhiwala was
appointed Ambassador to US. Shanti Bhushan became a minister in
the Janata Party government.
 On 12 June 1975, Justice Jagmohanlal Sinha found Indira Gandhi
guilty of electoral malpractices. Sinha declared the election verdict in
the Rae Bareilly constituency "null and void", and barred Indira from
holding elected office for six years.
 While Sinha had dismissed charges of bribery, he had found Indira
guilty of misusing government machinery as a government employee
herself.
 The court order gave the Congress (R) twenty days to make
arrangements to replace Indira in her official posts. This was
unprecedented. Its impact finally led to the fall of Congress regime at
the centre immediately after emergency. 
 Raj Narain became a national hero for overthrowing Indira's and
Congress regime after 30 years of independence, initially by
trouncing Indira in judicial battle and later in 1977 Lok Sabha
elections.
  The Parliament in exercise of its constituent power brought about
the Constitution (Thirty Ninth Amendment) Act, 1975, which
brought changes in Art. 71 of the constitution by substituting a new
article which said that parliament shall by law decide the matters
relating to the election of the President and the Vice- President
the amendment further inserted Art.324A which made special provisions
relating to the election of the Prime Minister and the Speaker. Sub
clause (4) of the article stated that no law made by parliament before the
commencement of the constitutional Amendment Act,
in so far as it relates to election petitions and matters connected
therewith can apply or ever have been deemed to apply to or in relation
with the election of the Prime Minister, the speaker of either house of
the Parliament and such election shall not be deemed to be void under
any such law notwithstanding any judgment of any court.
 The Constitutional validity of Clause (4) of Article 329-A falls for
consideration. Clause (4) of Article 329-A is challenged on two
grounds:
(a) First, it destroys or damages the basic features or basic structure of
the Constitution. Reliance is placed in support of the contention on the
majority view of 7 learned Judges in Kesavananda Bharati v. State of
Kerala. The Constitution Amendment affects the basic structure of
institutional pattern adopted by the Constitution. The basic feature of
separation of powers with the role of independence of judiciary is
changed by denying jurisdiction of this Court to test the validity of the
election. judicial review is an essential feature of basic structure because
of the doctrine of separation of powers for these reasons
(a)Judicial review is basic structure in the matter of election to ensure
free, fair and pure election. If under Clause (4) of the Thirty-ninth
Amendment the power of judicial review is taken away it amounts to
destruction of basic structure.

(b) The second ground was that the Constitution of the House which
passed the Constitution (Thirty-ninth Amendment) Act is illegal. It is
said that a number of members of Parliament of the two Houses were
detained by executive order after 26 June, 1975.
These persons were not supplied any grounds of detention or given any
opportunity of making a representation against their detention. Unless
the President convenes a session of the full Parliament by giving to all
members thereof an opportunity to attend the session and exercise their
right of speech and vote, the convening of the session will suffer from
illegality and un-constitutionality and cannot be regarded as a session of
the two Houses of Parliament.
The mere fact that a person may be deprived of his right to move any
court to secure his release from such illegal detention by means of a
presidential order under Article 359 does not render the detention itself
either legal or Constitutional.
The important leaders of the House have been prevented from
participation. Holding of the session and transacting business are
unconstitutional.
The amendment destroyed the election and the law relating to it; it took
away a remedy from the defeated party in the election and was as many
call it a legislative judgment to the Indira Election case and a direction
to the Supreme Court to allow the appeal. Raj Narain filed a cross
appeal and challenged both the amendment to Representation of people
Act and also the Thirty Ninth Constitutional Amendment Act, 1975. The
appeal was argued by both sides on the basis that the case was governed
by the majority in Keshavananda case i.e. the amendment power of the
government did not extend to the altering the Basic Structure of the
constitution. The grounds on which the challenge was based are as
follows:
It is well known that Art. 329-A was added to the Constitution by 29th
Amendment which made the election of a person holding office of the
Prime Minister to the Lok Sabha beyond the authority of a law court
including the Supreme Court and thereby aimed at providing. protection
to Mrs. Indira Gandhi, the then Prime Minister whose election had been
set-aside by Allahabad High Court on a finding of prohibited corrupt
practice committed by her.
The amendment was passed when several members of the Parliament
were absent due to their arrest under preventive detention. The
amendment destroys Judicial Review, and also Separation of Powers
both of which form a part of the basic structure of the Constitution.
Art.368 does not give the parliament the power to decide a private
dispute through an amendment. Clause (4) of Art.324A is said to be in
the exclusive domain of the Judiciary and which is not included in the
constituent power under Art.368. The amendment destroys the notion of
equality; there is no rational differentiation between persons holding
high office and persons elected to the Parliament. The ground of the
constitution amendment being passed without the presence of a lot of
opposition members was not accepted by any of the judges.
The court through a majority i.e. Justice Khanna, Mathew, and
Chandrachud held that Art. 324(4) struck the Basic Structure and hence
is liable to be struck down; the reasons on which the judges reached this
conclusion are varied. The court through majority also held the
amendment in election laws to be valid, and allowed the appeal of Mrs.
Gandhi. Justice Chandrachud in his judgment emphasised on the theory
of Separation of Powers being a part of the Basic Structure of the
Constitution, he held that the amending power under Art.368 does not
include legislative executive and judicial powers
Justice Mathew held that without a judicial remedy elections
would become a mockery. It would be difficult to decide as to who
has been legitimately elected and who has usurped power. For the
latter could then trample upon the privileges and liberties of people.
Justice Khanna held that free and fair elections are an integral part
of the Basic Structure of the Constitution and Art.324 (A) goes
against the Basic Structure, furthermore as Art. 324(A) is not
severable from the main Article the whole article is to be struck
down. Justice Beg and Chief Justice Ray did not categorically hold
Art. 324(A) to be violative of the basic structure, but they disagreed
with the amendment in spirit. They held that free and fair elections
did not form a part of the Basic Structure and that constituent
power given to the Parliament by Art.368 included legislative,
executive and judicial power. The case has the distinction of being
the first case which is said to have been decided using the newly
propounded doctrine of Basic Structure. The case is also credited to
have broken new ground and had its effect on Keshavananda itself.
 GolakNath v State of Punjab
AIR 1967 SC 1643
There were times where the judiciary has faced tough
challenges in maintaining and preserving the Doctrine of
separation of power and it has in the process of preservation
of the above said Doctrine delivered landmark judgments
which clearly talks about the independence of judiciary as
well as the success of judiciary in India for the last six
decades.

Subba Rao C.J. in this case opined -

“The constitution brings into existence different
constitutional entitles, namely the union, the state and the
union territories. It creates three major instruments of
power, namely the Legislature, the Executive and the
Judiciary. It demarcates their jurisdiction minutely and
expects them to exercise their respective powers without
overstepping there limits. They should function with the
spheres allotted to them Some powers overlap and some are
superseded during emergencies. ….
The mode of resolution of conflicts and conditions for
supersession are also prescribed. In short, the scope of the
power and the-manner of its exercise are regulated by law.
No authority created under the Constitution is supreme; the
Constitution is supreme; and all the authorities function
under the supreme law of the land.”
FACTS-
 The family of Henry and William Golak Nath held over
500 acres of farmland in Jalandhar. In the phase of the 1953
Punjab Security and Land Tenures Act, the state
government held that the brothers could keep only thirty
acres each, a few acres would go to tenants and the rest was
declared 'surplus'.
 This was challenged by the Golak Nath family in the courts
and the case was referred to the Supreme Court in 1965.
The family filed a petition under Article 32 challenging the
1953 Punjab Act on the ground that it denied them their
constitutional rights to acquire and hold property and
practice any profession (Articles 19(f) and (g)) and to
equality before and equal protection of the law (Article 14).
 They also sought to have the Seventeenth Amendment –
which had placed the Punjab Act in the Ninth Schedule –
declared ultra vires.
 The issues involved were whether Amendment is a “law”
under the meaning of Article 13(2), and whether Fundamental
Rights can be amended or not.
 Bandhua Mukti Morcha v. Union of
India (1984 3 S.C.C. 161)

Justice Pathak in this case held-

“It is a common place that while the Legislature enacts the law
the Executive implements it and the Court interpret it and, in
doing so, adjudicates on the validity of executive action and,
under our Constitution, even judges the validity of the legislation
itself. And yet it is well recognized that in a certain sphere the
Legislature is possessed of judicial power, the executive possesses
a measure of both legislative and judicial functions, and the
Court, in its duty of interpreting the law, accomplishes in its
perfect action in a marginal degree of legislative exercise.
Nonetheless a fine and delicate balance is envisaged under our
Constitution between these primary institutions of the State”.
Facts-
 The Petitioner was an ‘an organisation dedicated to the cause of
release of bonded labourers’. It conducted a survey in stone
quarries and mines in Faridabad district.
 It found that several workmen in these mines were migrant
workers from other States in India who were ‘bonded labourers.’
They were living in conditions of abject poverty.
 The mine owners did not provide them with shelter, clean
drinking water, latrines or medical facilities, among other things.
The workers were also subject to respiratory infections due to
the pollution generated by stone crushers.
 There also existed an illegal system of thekedars or middlemen
who extracted a large percentage of wages from the workmen as
commission.
 The Petitioner, on behalf of these workmen, addressed a letter to
the Court invoking the jurisdiction of Article 32 of the
Constitution and sought reliefs for, among other things,
reduction in air pollution, clean and potable drinking water,
conservancy facilities, medical facilities and compensation.
 The Supreme Court treated it as public interest litigation and
appointed a commission for inquiry into the Petitioner’s
allegations. The Respondent-Government challenged the
petition on the ground that it was not procedurally in
accordance with the Rules of the Supreme Court and the Code
of Civil Procedure.
Decision-
 On the issue of procedural infirmities, the Court held that in
the instant case, a letter could be treated as a writ petition
under Article 32. The Court held that in matters of public
interest, when the oppressed are unablecto afford legal aid,
procedural flexibility should be permitted.

 On the issue of air pollution at the mines the Court held that
the Central Government and the State of Haryana should take
steps to ensure that it is reduced. The Court took note of the
fact that workmen were subjected to infections like
tuberculosis due to the constant presence of dust. Thus the
Court suggested one of two measures to be adopted in this
regard-a continuous spraying of water over the stone crusher
or the installation of a dust sucking machine.
 The Court directed the Central Government and the State of
Haryana to comply with these suggestions and submit a
report.

Public Interest Litigation and Article 32 was discussed in this

case-
Article 32 confers the widest amplitude of power of this Court
in the matter of granting relief. It has power to issue
"directions or orders of writs", and there is no specific
indication, no express language, limiting or circumscribing
that power. Yet, the power is limited by the very nature, that its
judicial power. It is power which pertains to the judicial organ
of the State, identified by the very nature of the judicial
institution. There are certain fundamental constitutional
concepts which, although elementary, need to be recalled at
times….
The constitution envisages a broad division of the power of
the State between the legislature, the executive and the
judiciary. Although the division is not precisely demarcated,
there is general acknowledgement of its limits. The limits can
be gathered from the written text of the Constitution, from
conventions and constitutional practice, and from an entire
array of judicial decisions. The constitutional lawyer
concedes a certain measure of overlapping in functional
action among the three organs of the State. But there is no
warrant for assuming geometrical congruence.
 Asif Hameed v. State of Jammu and
Kashmir
AIR 1989 SC 1899

In this case it was held that-

“Although the doctrine of separation of powers has not been

recognized under the constitution in its absolute rigidity but
the constitution makers have meticulously defined the
functions of various organs of the state. Legislative,
Executive and Judiciary have to function within their
respective spheres demarcated under the constitution. No
organ can usurp the functions assigned to another.
Legislative and executive organs, the two facets of the
people‘s will, have all the powers including that of finance.
Judiciary has no power over sword or the purse. Nonetheless
it has power to ensure that the aforesaid two main organs of
the state function within the constitutional limits. It is the
sentinel of democracy.”
 IR. Coelho v. State of Tamil Nadu
2007 (1) SC 137.

In this case the Supreme Court took the help of

doctrine of basic structure as propounded in
Keshavanand Bharti case and said that Ninth
Schedule is violative of this doctrine and hence
from now on the Ninth Schedule will be
amenable to judicial review and the Golden
triangle comprising of Art.14, 19 and 21, will
now be the criterion in scrutiny of the Ninth
Schedule.
 Sita Ram v. State of U.P.,
AIR 1972 S.C. 1168. 1169

Honorable Hegde J. in this case expressed the attitude of

the Court regarding delegation of legislative power in
following words:
“However much one might deplore the New Despotism of
the executive, the very complexity of the modern society
and the demand it makes on its Government have set in
motion forces which have made it absolutely necessary
for the legislatures to entrust more and more powers to
the executive. Text book doctrines evolved in the 19th
century have become out of date. Present position as
regards delegation of legislative power may not be ideal,
but in the absence of any better alternative, there is no
escape from it.”
 Chandra Mohan v. State of
U.P., AIR 1966 SC 1987
The Supreme Court held:
“The Indian Constitution, though it does not accept the
strict doctrine of separation of powers, provides for an
independent judiciary in the States....... But at the time
the direct control of the executive. Indeed it is common
knowledge that in pre-independence India there was a
strong agitation that the judiciary should be separated
from the executive and that the agitation that the
judiciary should be separated from the executive and
that the agitation was based upon the assumption that
unless they were separated, the independence of the
judiciary at the power levels would be a mockery.”