Doctrine of separation of powers in the Indian Constitution

Doctrine of separation of powers in the Indian Constitution

Author: Archit Uniyal,
BBA LLB (Hons) 3rd-year,
O.P Jindal Global University.

INTRODUCTION -Doctrine of separation of powers

“Power corrupts and absolute Power tends to corrupt absolutely”. Every democratic country has a system of government where the powers are divided among the branches which control different facet of government called the legislature, executive and the judiciary because for a political system to be stable the powers should be balanced off among the holders of power. According to the doctrine of separation of powers, in a free democracy the powers and the functions of these branches of government must be distinct and separated and one person or body of persons should not exercise all the three powers of the government. These organs shouldn’t interfere in the working of one another i.e., the executive cannot exercise legislative and judicial powers, the legislature cannot exercise executive and judicial powers and the judiciary cannot exercise legislative and executive powers. All these organs should work independently in order to avoid any kind of conflict. This doctrine aims at achieving strict demarcation of power by trying to bring exclusiveness in the functioning of the three organs.[1]

Origin of the doctrine of separation of powers

The idea that powers of the state should be divided amongst separate and distinct authorities emerged in the ancient era and western constitutionalism. Aristotle, discussed the concept of separation of powers in his book ‘Politics’.  He stated that every constitution should have a heterogeneous form of government consisting of mainly three branches: the deliberative, public officials and the judiciary.[2] The Roman Republic observed a similar structure of government setting off the principle of checks and balances in the country. John Locke observed the need for Separation of Powers in 1690 recognizing the danger of vesting the power absolutely in one person or institution. Locke had a different view and believed that the three branches should neither have equal power nor work independently. In his book ‘Two Treatises of Government’  he stated that the legislative branch must be supreme out of all the three and other branches should be controlled by the monarch.[3] A French scholar named Montesquieu further developed the theory on Doctrine of Separation of Power in 1747. Montesquieu suggested that to check the arbitrariness of the government, the power should not be concentrated in a single person’s hand or a group of people and there should be division of power between the three organs of the state i.e. Executive, Legislative and the Judiciary to avoid a tyrannical form of government.[4] 

Doctrine of separation of powers – position in India :


The doctrine of separation of powers forms a part of the basic feature of the Indian Constitution. This doctrine forms one of the bedrocks on which the Indian Constitutional setup is built. In India, separation of functions is followed and not Separation of powers. In India the doctrine of separation of powers is not implemented in its strict sense as it practices the parliamentary form of government in which executive and legislature are linked to each other. Some jurists are of the opinion that the doctrine of Separation of Powers has been accepted in the Indian Constitution taking into account factors like – there is no other limitation on its legislative power of the parliament and i
t is competent to make any law subject to the provisions of the Constitution. The Judiciary is independent in its field and neither the Executive nor the Legislature can interfere with the judicial functions. The Supreme Court and High Courts have the power of judicial review and can declare any law passed by the Parliament or the Legislature unconstitutional.

    These are some of the Provisions in our constitution that overlap each other –

    • Article 72 of the Indian Constitution empowers President to grant a pardon or suspend the sentence of any person who is convicted by the Supreme Court of India.[5]
    • Article 73 of the Indian Constitution specifies that the powers of the executive shall be co-extensive with that of the legislature.[6]
    • Article 123 of the Indian Constitution allows the President to issue ordinance when both the houses are not in session.[7]
    • Article 124 of the Indian Constitution gives the President the power to appoint the judges of the Supreme Court.[8]
    • Article 32,[9] Article 226[10] and Article 136[11] of the Indian Constitution provide the power of judicial review to the Supreme Court to strike down any law made by the Parliament or any administrative action which is found to be unconstitutional.

      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.

      • In the case Ram Jawaya Kapur v. State of Punjab[12] it was concluded that the doctrine of separation is not acknowledged in the Constitution of India but in order to ensure that no organ should exercise its power beyond the provision of the constitution the powers of all the organs have been sufficiently differentiated. 
      • In the case of Indira Nehru Gandhi v. Raj Narain,[13] the court said that The separation of power is a part of the basic structure of the constitution even though it doesn’t apply. It said that even after restoring article 368 of the constitution the scheme of the constitution cannot be changed. 
      • The Supreme Court in Keshavnanda Bharti v Union of India[14] further confirmed the opinion of the court in relation to the doctrine of separation of power saying that either of the three separate organs can’t take over the functions assigned to the other. 
      • In Golak Nath v. State of Punjab,[15] it was observed that the three organs of the government are expected to exercise their functions within their limits and keeping in mind certain encroachments assigned by the constitution. 
      • Das J. talked about separation of powers in the case of A. K. Gopalan v. State of Madras[16] – “it says that the constitution has preferred the supremacy of legislature to that of the judiciary. It claims that the court has no authority to question the wisdom or policy of the law duly made by the appropriate legislature and the court must not outlook this basic fact.” 
      • In Asif Hameed v. State of Jammu and Kashmir,[17] the Supreme Court observed that:- “Though the constitution has not recognized the doctrine of separation of powers in its absolute rigidity, the powers and functions of various organs the have been diligently defined by the drafters of the constitution. The legislature, executive and judiciary may not arrogate the functions allotted to another. 
      • In Kartar Singh v. State of Punjab[18] the judge stated: it’s the function of 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.” 
      • The Supreme Court’s in the case of Anil Kumar Jha v. Union of India[19] had issued directives on the manner in which trust vote in the Jharkhand Assembly should be conducted and brought forth the simmering tension between the Legislature and the Judiciary, which had been brewing for some time. The increasingly activist role of the Supreme Court has brought it into hitherto uncharted territory in and so it was argued that the principle of Separation of Powers, was breached by the Supreme Court, as it had over-stepped its limits and encroached upon the powers of the Leg
        islature.

      CONCLUSION :

      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. This theory is undesirable and unpractical and has many drawbacks and limitations but is very advantageous if applied correlatively.  The main objective of the doctrine of separation of powers is avoidance of concentration of powers to a specific person or a body and to keep checks and balances among the three organs of the government which is an essential factor to run a government dynamically. 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. The question which arises is that what are the boundaries which separate these respective powers coz from time to time, a dispute arises whether one organ of the State has exceeded the boundaries assigned to it under the Constitution. Fusions of the legislative and the executive functions is considered necessary for the harmonious working of the parliament. Judicial Review is also part of the basic structure of the society. Therefore, the Court should not give the doctrine of separation a primacy over judicial review for denying just and equitable relief to the citizens and the court must act as an institution for the people. 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.


      [1] Bakshi, P. M. “Comparative Law: Separation of Powers in India.” American Bar Association Journal 42, no. 6 (1956): 553-95. http://www.jstor.org/stable/25719656.

      [2] Aristotle and Reeve CDC, Politics (Hackett Publishing Company, Inc 2017)

      [3] Locke J and Laslett P, Two Treatises of Government: a Critical Edition (Cambridge University Press 1988)

      [4] Montesquieu Cde S and others, The Spirit of the Laws (Cambridge University Press 1989)

      [5] Constitution of India 1950, s 72

      [6] Constitution of India 1950, s 73

      [7] Constitution of India 1950, s 123

      [8] Constitution of India 1950, s 124

      [9] Constitution of India 1950, s 32

      [10] Constitution of India 1950, s 226

      [11] Constitution of India 1950, s 136

      [12] Ram Jawaya Kapur v. State of Punjab (1955) AIR SC 549.

      [13] Indira Nehru Gandhi v. Raj Narain (1975) AIR SC 2299.

      [14] Keshavnanda Bharti v Union of India (1973) 4 SCC 225.

      [15] Golak Nath v State of Punjab (1967) AIR SC 1643.

      [16] A. K. Gopalan v State of Madras (1950) AIR 27.

      [17] Asif Hameed v State of Jammu and Kashmir (1989) AIR SC 1899.

      [18] Kartar Singh v State of Punjab (1994) SCC (3) 569.

      [19] Anil Kumar Jha v Union of India (2005) 3 SCC 150.
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