Indian Constitution And Separation Of Powers

2483 words (10 pages) Essay in Constitutional Law

02/02/18 Constitutional Law Reference this

Last modified: 02/02/18 Author: Law student

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The three organs of the government which we know as the executive, the judiciary and legislature represent the people and their will in our country and are responsible for the smooth running 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 with the cases that arise from a breach of law. Thus they are all interlinked organs of the government and 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 debate in our country but has raised many philosophic and jurisprudential debates among legal scholars and the law fraternity. Whether there should be a complete separation of powers or a well co-ordinated system of distribution of powers thus becomes the focal point of contemplation.

To analyse the separation of powers doctrine, the theory aspect will be dealt with, and a comprehensive understanding of the doctrine as used in our country under our parliamentary system 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 French scholar Montesquieu pointed out as early as in the sixteenth century that placing power in the hands of only one organ or group in a government entails tyranny. Thus to check this problem he felt that the solution would be to vest power in three distinct organs of the government, namely, the legislature, the executive and the judiciary. This would allow each organ to be independent of the other such that no encroachment or overlapping of powers may exist and a harmony may be reached which would aid the smooth running of the government.

These words state the Doctrine of Separation of Powers as given by Montesquieu, “There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing laws, that of executing public resolutions, and of trying the causes of individuals.” [1]

This doctrine stands testimony to Montesquieus belief that powers of the executive and the legislature if vested in the same hands would result in a situation of arbitrariness and despotism, for the executive will be enabled with the power of having any laws it wishes, to be passed, alternatively if the judiciary and legislature or executive were not separated then the common man would have no defence against the state. These Montesquieu saw as a serious threat to the liberty of the people and in order to preserve them extolled the theory of separation of powers.

The American politician. James Madison, better known as the ‘Father of the American Constitution’ also believed the same and articulated the following, “The accumulation of all powers, legislative, executive and judicial, in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.” [2]

Therefore, the separation of powers doctrine, in theory, aims at separating power and disseminating it such that tyranny by the government may be prevented entirely as equal power vests in three separate organs which act as a check and balance for each other. Thus assigning a different function to each organ and creating exclusive functions for them counters the concentration of powers and makes this doctrine a success. In fact this doctrine has been adopted around the world in many constitutions and in ours to an extent as well. It is a remarkable way of protecting human liberty and creating a system of governance which is responsible and fair.


It is often understood that in our country the debate about the separation of powers dates as long back as the Constitution itself. It was extensively debated in the Constituent Assembly. [3] It was not given constitutional status in our Constitution finally but it does clearly seem that the constitution of India has been made keeping the separation of powers doctrine in mind, but nowhere is this explicitly stated or embraced by the constitution itself. Since ours is a parliamentary system (insert def on parl sys of gov here)of governance, though an effort has been made by the framers of the constitution to keep the organs of the government separated from each other, but a lot of overlapping and combination of powers has been given to each organ.

The legislative and executive wings are closely connected with each other due to this, the executive is responsible to the legislature for its actions and derives its powers from the legistlature. The head of the executive is the president, but a closer look shows that he is only a nominal head and the real power rests with the Prime Minister and his Cabinet of ministers as in Article 74(1). In certain situations the President has the capacity to exercise judicial and legislative functions. For example, while issuing ordinances Art? The judiciary too performs administrative and legislative functions. The parliament too may perform judicial functions, for example if a president is to be impeached both houses of Parliament are to take an active participatory role. Thus all three organs act as a check and balance to each other and work in coordination and cooperation to make our parliamentary system of governance work. India being an extremely large and diverse country needs a system like this where all organs are responsible to each other as well as coordinated to each other, otherwise making governance possible becomes a very rigid and difficult task.

It is important to note that the separation of powers is still an important guiding principle of the constitution. Most noteworthy is our judicial system which is completely independant from the executive and the legislature. According to Article ? the High Courts and Supreme Courts have the power of judicial review which empowers them to declare any law passed by the parliament unconstitutional if it so decides. As in regard to the judges, they are extremely well protected by the Constituition, their conduct is not open to discussion in the Parliament and their appointment can only be made by the President in consultation with the Chief Justice of India and the judges of the Supreme court.

Here a discussion on judicial activism is apt, the debate about judicial activism contemplates judges assuming legislative or executive functions [4] and there is much concern among the protagonists of the activism debate about judges taking over and intruding upon the functions of the legislature and executive. A reference to Montesquieu’s passage in his book Separation of Powers may be made, “Again there is no liberty, if the power of judgment be not separated from the legislative and executive powers. Were it joined with the legislative the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor. Miserable indeed would be the case, where the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, of enacting laws, that of executing the public resolutions and that of judging the crimes or differences of individuals.” [5] Montesquieu’s concern raised in the passage extends to the combination of powers exercised by all three organs, and though there is severe debate regarding judges intruding over the functions of the legislative and the executive, it must be kept in mind that the other two organs must also them maintain a safe distance from the workings of the judiciary.

It can be understood thus that there is a difference when there are ‘essential’ powers of one of the organs of the government and the ‘incidental’ powers of the organs. Hence, though one organ cannot usurp the ‘essential’ powers of an organ, it can exercise its powers on the ‘incidental’ powers for smooth cooperative running of the nation. This distinction clearly demarcates the the amount of power one organ can wield over the activities of another. For example, though the judiciary has the right to judicial activism to check legislatures which maybe unconstitutional, it cannot usurp powers such as making laws themselves.

But it is clear that the Separation of Powers doctrine has not been implemented in its strictest format in our country nor been given Constitutional status but a diluted and modern approach is followed to aid and guide our parliamentary system of governance.


The debate continued through many landmark judgements which were made by the Supreme Court, especially about the ‘basic structure’ doctrine which takes up an important place in the history of this debate in our country.

The Kesavananda Bharati [6] case is most important in this context. The main question was whether the parliament had unrestricted amending powers due to article 368 over the constitution and how much could actually be amended. To this the judgement given by the supreme court held that the amending power of the parliament was subject to the basic structure of the Constitution, and any amendments which tampered with the basic structure would be unconstitutional [7] . In this judgement, the separation of powers doctrine was included in the basic structure of the constitution and thus any amendments which gave control of one organ over another would be unconstitutional, leaving the Executive, the Legislature and the Judiciary completely independent. It must be kept in mind though that in India the separation of powers doctrine is not followed extremely rigidly.

In Indira Gandhi Nehru v. Raj Narain, the Supreme court asserted the Kesavananda ruling and upheld the basic structure as well as the separation of powers doctrine, making it a landmark case our country. The dispute in this case was regarding the Prime Minister elections, where the constituent body had declared that the elections weren’t void, thus acting in a judicial capacity. This made the actions of the constituent body ultravires. It was thus held that a parliament cannot under any constitutional amending power or the like take on the role of the judiciary. Thus the position of separation of powers was upheld and asserted in this case.

A recent case, Delhi Development Authority v M/s UEE Electricals Engg. Pvt. Ltd [8] where the Supreme Court ruling has sought to clarify the meaning and objective of judicial review as a protection and not an instrument for undue interference in executive functions. The Supreme Court made the observation that, “One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is “illegality”, the second “irrationality” and the third “procedural impropriety”.

Therefore we see that the organs of the state remain separated and this position of separation of powers doctrine has been upheld by the rulings made by the courts. No organs can encroach upon the others ambit of powers, and incase an attempt is made even by was of an amendment it has been struck down to uphold the basic structure doctrine.


In the modern world, the Separation of Powers has come to not only mean organs such as the Executive, the legislature and the judiciary but also institutions such as the press and academic institutions. The organs of an open society which hold power have thus increased with the media playing a huge role. Thus, in a modern society, implementation of Separation of Powers doctrine in its strictest sense, the way Montesquieu envisaged it to be in his book The Spirit of laws is an extremely difficult task. Even civil institutions wield a lot of power in all spheres of governance.

In India, the separation of powers theory has been used as a guiding philosophy to separate powers as much as possible but not completely, so that the organs of government are alienated from each other. In our parliamentary form of governance a lot of cooperation is required and thus each organ must correspond to the other on some level so as to function smoothly. Since vesting any one organ with too much power maybe very dangerous, a system of checks and balances has been developed over the years, which has even been consistent with many rulings of the Supreme Court as has been discussed previously. Hence though the doctrine of separation of powers is a theoretical concept and may be very difficult to follow completely a compromised version of it is used in our country. For example the judicial review and activism functions of the judiciary is an important element of our system of justice to keep a check on the legislature who are the law makers of the land, so that they do not exceed their powers and work within the allowances that the constitution has made for them. the separation of the judiciary from the other organs though is taken very seriously so that the common man’s liberty can in no circumstances be compromised and a fair remedy be available to any individual citizen of the state.

Thus the Indian Constitution, which is an extremely carefully planned document designed to uphold the integrity and liberty of every citizen, has not in its entirety embraced the doctrine of separation of powers but has indeed drawn a lot from the concept and kept it as a guiding principle. But the doctrine of Separation of Powers has been included in our basic structure doctrine as has been ruled and upheld by the Supreme Court in a number of cases. Thus it holds a position of utmost importance, albeit has been modified to suit the needs of a modern all pervasive state.

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