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Doctrine of Separation of Powers and its relevance in Contemporary Times

Historical development of Separation of power.

The doctrine of the separation of powers has its root in ancient period. The history of the doctrine's genesis is traceable to Aristotle[1] of Greek. In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke expounded the theory of the division of powers, respectively. But it was Montesquieu who, in his book ' Esprit des Lois,' in the year 1748, for the first time gave it a systematic and empirical formulation.


The separation of powers is a model for the governance of democratic states. The model was first developed in ancient Greece and was widely used by the Roman Republic as part of the uncodified Constitution of the Roman Republic. Under this model, the State is divided into branches, each with separate and independent powers and areas of responsibility, so that no branch has more powers than the other branches. The normal division of branches is between the

· executive,

· the legislature and

· the judiciary


Separation of Power in INDIAN context

After independence, the Constituent Assembly was set up to make our own Indian constitution. The Indian constitution has adopted different things from the constitutions of different nations.


The Constitution of India, does not contain any provision for an absolute or rigid division of the functions of the three organs of government. Legislative and judicial powers are often entrusted to the executive, but the functional separation of powers has nevertheless been emphasized. The analysis shows that, pursuant to the various provisions of our Constitution, Like Articles 53(1) and 154(1), the executive powers of the Union and the States are conferred on the President and the Governors. According to this scheme, the President is the Chief Executive Officer of the Indian Union, who exercises his powers constitutionally on aid and advice The Council of Ministers referred to in Article 74(1). The three-fold division of powers is partially recognized and no unbridled legislative powers have been conferred on the Parliament and the State legislatures and on the judiciary of the Supreme Court and other courts. The Constitution of India has taken a middle course in this matter. Article 50 of the Constitution provides that the State shall take steps to separate the judiciary from the judiciary. This is to ensure that the parliamentary form of government is functional as well as the rule of law.


The Constitution also empowers the President to issue ordinances in the exercise of his legislative powers, which extend to all matters within the legislative competence of the Parliament. Pursuant to Article 123, during the recess of both Houses of Parliament, the President shall have the power to promulgate an ordinance, as the case may be[2].


The President also performs the judicial functions and, in this process, is empowered to decide on a disputed question concerning the age of the High Court and the judges of the Supreme Court for the purpose of retiring from the judicial office.13 In this regard, as has been established by the Supreme Court, the President must consult only the Chief Justice. Since, in such a case, he performs judicial functions of serious importance, he can not act on ministerial advice in this matter. Pursuant to Article 60, the President is bound by an oath to preserve, protect and defend the Constitution and may be charged with violating the provisions of Article 61 of the Constitution.


In the event of an indictment by the President, one of the Houses shall act as the Prosecutor and the other House shall investigate the charges and declare whether or not such charges have been upheld. As regards the Council of Ministers, pursuant to Article 75(5) No individual may be a member of the Council of Ministers for more than six months unless he is a member of either House of Parliament. There is no specific provision or convention that prevents a member of the Rajya Sabha from becoming Prime Minister of India, as clearly demonstrated by the appointment of Mrs. Indira Gandhi as Prime Minister of India in 1966. The Council of Ministers is jointly responsible to the People's House[3] and ministers, including the Prime Minister, must sit in one of the houses to which they belong, by virtue of their membership, and vote in passing bills of law and other motions. The principle of collective responsibility to the People's House is a direct negation of the doctrine of the separation of powers. It creates intergovernmental responsibility and collective accountability under the control of the People's House.[4]

Development on Separation of Power

Observation of Justice Das in Ram Krishna Dalmia v. Justice Tendolkar when he said, "The Constitution does not express the existence of a separation of powers, and it is true that the division of powers of government into legislative, executive and judicial powers is implicit in the Constitution, but the doctrine does not constitute a fundamental foundation stone of the constitutional framework as such. In Chandra Mohan v. State of U.P It was held that, although our Constitution does not accept the strict doctrine of the separation of powers, but provides for an independent judiciary in the State, it constitutes a High Court for each State to lay down the institutional conditions for the service of its judges, confers extensive jurisdiction on it to issue writs to keep all courts, including, where appropriate, the Government. Again in Udai Ram Sharma v. Union of India, the Court categorically held that this doctrine had not been accepted by our Constitution. The Court expressed its opinion that the American doctrine of separation of powers has no application in India.


The landmark judgment came in the case of Ram Jawaya v State of Punjab. The court held that Doctrine of separation of powers was not fully accepted in India. Mukherjee J adds that:


"The Indian constitution has not indeed recognize the doctrine of separation of powersing 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".


Later in I.G. Golak Nath v State of Punjab, Subha Rao, C.J opined that:

"The constitution brings into existence different constitutional entitles, namely the union, the state and the union territories. It creates three major instruments of powers, 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."


The above opinion of the court clearly states the change in the courts view pertaining to the opinion in the case of Ram Jawaya v. state of Punjab related to the doctrine of separation of powers.


The landmark judgments delivered by the Supreme Court in Keshvananda Bharti v Union of India the court was of the view that amending powers was now subject to the basic features of the constitution. And hence, any amendment tampering these essential features will be struck down as unconstitutional.


Then in Indira Gandhi Nehru v. Raj Narain, where the dispute regarding P.M. election was pending before the Supreme Court, opined that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending powers, cannot exercise i.e. the parliament does not have the jurisdiction to perform a function which the other organ is responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions of the three organs of the state.

All these

[1] Vanderbilt, The Doctrine of separation of powers and its Present Day Significance, 38-45 (1953). [2] http://www.raijmr.com/ijrhs/wp-content/uploads/2017/11/IJRHS_2014_vol02_issue_04_07.pdf [3] The Constitution of India, Article 75(2). [4] M.C.J. Kagzi, The Indian Administrative Law, p. 20



Author Details: Rajat Gautam

The views of the author are personal only. (if any)




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