The doctrine of separation of powers is a fundamental principle in the Indian constitutional framework, ensuring a system of checks and balances among the three organs of government—the Legislature, the Executive, and the Judiciary. While the Indian Constitution does not explicitly enforce a rigid separation, it incorporates the doctrine through various provisions and judicial interpretations. This research article examines the historical evolution, constitutional provisions, and practical application of the separation of powers in India.

It explores the role of judicial review, the overlap of functions, and the instances of encroachment among the three organs. Additionally, the article discusses contemporary challenges, such as judicial activism and executive overreach, assessing their impact on democratic governance. The research concludes by emphasizing the necessity of maintaining a balanced separation of powers to uphold constitutional democracy and the rule of law in India.

Introduction
In the Democratic System of Government, various functions of the government are performed by its three different organs - legislature, executive and judiciary. The legislature makes law. The executive, practically known as government, implements law, maintains law and order and makes policies. The judiciary settles dispute in accordance with law and interprets the law. The Doctrine of Separation of Powers was evolved to avoid concentration of powers in one organ of the government that brings arbitrariness resulting in anarchy.

This doctrine envisages that one organ of the government should not perform the functions of other organs and should not interfere with jurisdiction of other organs.With the emergence of the concept of Welfare State, the functions of the executive increased unprecedently and certain power of the legislature was delegated to it so that it can successfully discharge its responsibility. By exercising delegated power, delegated legislation in the form of rules, regulations, notifications, by laws etc. are made by it in order to fulfill the multi facet responsibility delegated to it.

The executive also performs judicial function while deciding departmental matters which is known as its quasi-judicial function. Hence, the Doctrine of Separation of Powers is not applicable in its strict sense in the age of Welfare State. Today, itis relevant only as a mechanism of checks and balances in the functioning of government.

History
The separation of powers is the idea that political authority should be divided into three branches: legislative, executive, and judicial. This system of checks and balances prevents any one branch from becoming too powerful.

• Ancient origins
  • Aristotle: In the 4th century BCE, Aristotle described the three branches of government as the general assembly, public officials, and judiciary.
  • Ancient Roman Republic: The Roman Republic followed a similar concept to Aristotle's.
• Modern origins
  • Charles de Montesquieu: In 1748, Montesquieu published The Spirit of Laws, which is considered the foundation of modern legal theory. Montesquieu argued that separating powers was the most effective way to protect liberty.
  • John Locke: Locke studied the English constitutional system and deduced that dividing political power was advantageous.
• United States Constitution
  • Article I: Grants powers to the legislature.
  • Article II: Gives executive power to the President.
  • Article III: Creates an independent judiciary.

Indian Constitution

• The Constituent Assembly debated including a provision for the separation of powers in the Indian Constitution.
• Article 50 of the Indian Constitution states that the state should take steps to separate the judiciary from the executive in public services.

Doctrine Of Separation Of Power

• Separation of powers is the division of the legislative, executive, and judicial functions of government among separate and independent bodies.
• The Legislature makes laws, the Executive puts those laws into effect, and the Judiciary administers justice by interpreting the law and ensuring that the law is upheld.
• The purpose of separation is to limit the possibility of arbitrary excesses by the government.
• Separation of powers also prevents misuse of power or accumulation of power in a few hands, which thereby safeguards society from arbitrary and irrational power of the state.
• Provisions pertaining to the separation of powers between the three organs of state in India.
• The Constitution of India has various implicit provisions for the separation of powers among the legislature, the executive, and the judiciary. However, in most cases, the separation is not water-tight, and there are instances of overlap in functions to ensure checks and balances.

 

1. Legislature and Executive
   • Separation of Power
   • Constitution has separate provisions for establishing:
   • Article 79: The Parliament as the legislative body.
   • Article 74: The council of ministers with the Prime Minister as head of the Real Executive.
   • Also, there are distinct provisions for their functioning:
   • Parliament: (Article 107-117)
   • Council of Ministers: (Article 74 read with Article 53)
      
   • Functional Overlap
   • Article 75: India has a Parliamentary form of government, and every Minister should be a member of the Parliament.
   • Article 53 and Article 79: The President is vested with the executive power of the union and is also an integral part of Parliament.
   • Article 123: The President may promulgate ordinances when Parliament is not in session, allowing the executive to legislate through ordinances in India.
   • In India, delegated legislation is allowed, where Parliament can delegate its legislative powers to the Central or State Governments for rule-making.
      
2. Judiciary and Executive
   • Separation of Power
   • Article 50: The State shall take steps to separate the judiciary from the executive in public services.
   • Accordingly, the Parliament enacted the Criminal Procedure Code 1973, which separated the judiciary and the executive.
   • Article 361: The President and the Governor enjoy immunity from court proceedings.
      
   • Functional Overlap
   • Article 72: The President's clemency powers overlap with judicial functions.
   • Article 323A and Article 323B: Tribunals dispense justice in India and consist of both judicial and executive members.
   • The District Magistrate, while acting as a Returning Officer, acts in a quasi-judicial capacity by scrutinizing nomination papers.
      
3. Judiciary and Legislature
   • Separation of Power
   • Article 121: No discussions shall take place in Parliament regarding the conduct of any Supreme Court or High Court Judge in their duties.
   • Article 122: Courts shall not inquire into parliamentary proceedings.
      
   • Functional Overlap
   • Article 61: The Parliament has quasi-judicial powers during the Presidential Impeachment process.
   • The judiciary may assume legislative functions in certain situations, known as judicial activism or judicial overreach.
   • Examples:
   • The Vishaka Guidelines on sexual harassment in the workplace.
   • People's Union for Democratic Rights v. Union of India (1982): Led to the development of Public Interest Litigation (PIL).

Judicial Pronouncements on the Doctrine of Separation of Powers in India

• Ram Jawaya Kapoor vs State of Punjab (1955): It was held that the Indian Constitution has not recognized 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.
   
• Golak Nath vs State of Punjab (1967): The judges observed that the three organs of the government are expected to exercise their functions within their limits and keep in mind certain encroachments assigned by the Constitution.
   
• Indira Gandhi vs Raj Narain (1975): The Supreme Court invalidated a clause of Article 329A inserted to immunize the election dispute to the Office of the Prime Minister from any kind of judicial review. It was held that the separation of powers is a part of the Basic Structure doctrine.
   
• Kartar Singh vs State of Punjab (1994): It was stated that the function of the legislature is to make the law, the executive is to implement the law, and the judiciary is to interpret the law within limits set down by the Constitution.

Significance of the Doctrine of Separation of Powers

The separation of powers is a key principle in Indian governance that prevents the concentration of power in one branch of government. It is important because it:

• Protects individual liberties
• Prevents autocracy
• Ensures that the government functions efficiently

Why is Separation of Powers Important?

• Prevents abuse of power: It prevents any one branch of government from becoming too powerful, reducing the risk of arbitrary laws and corruption.
• Protects individual liberties: It safeguards citizens from the arbitrary power of the state.
• Maintains checks and balances: It establishes a system where the powers of one branch are limited by another.
• Ensures efficient administration: It ensures that each branch of government operates independently but collaboratively.

How Does Separation of Powers Work?

• The legislative branch makes laws.
• The executive branch enforces laws.
• The judicial branch interprets laws and ensures they are upheld.

Issues Associated with Judicial Legislation in India

• The term "judicial legislation" refers to laws pronounced, proclaimed, and declared by the judiciary, specifically the Supreme Court. This type of law is sometimes called "judicial law" or "judge-made law."
• In Rattan Chand Hira Chand v. Askar Nawaz Jung (1991), the Supreme Court stated: "The legislature often fails to keep pace with changing needs and values. It is, therefore, necessary for courts to step in to fill the lacuna."
• Examples of judicial legislation:
  • The Collegium system from the Second Judges Case (1993) and Third Judges Case (1998).
  • Legalizing passive euthanasia in Aruna Shanbaug v. Union of India (2011).
  • 'None Of The Above' (NOTA) as a right in elections in the People's Union for Civil Liberties (PUCL) case (2013).
• The Indian Constitution does not strictly follow the doctrine of separation of powers, but the functions of different branches have been differentiated.
• The judiciary is not supposed to indulge in lawmaking, but there are instances where judicial legislation is justified.
• Judicial creativity can be justified in cases where:
  • There is a legal vacuum or no express principles of law.
  • A peculiar issue arises that requires intervention.
  • Enacted laws fail to meet the needs of the people.
• Judge-made law can enhance credibility and reliability, but it may also create uncertainty and unwanted strife between the organs of the State.

Conclusion
The Indian Constitution is a comprehensive document that establishes a framework of governance for the Republic of India. A key feature of this framework is the doctrine of separation of powers, which divides the government into three branches: the Legislature, the Executive, and the Judiciary. While the Indian Constitution does not explicitly state the doctrine of separation of powers, its provisions and structure reflect this principle, with a system of checks and balances to maintain harmony and prevent theabuseofpower.

References:

• Montesquieu's "The Spirit of the Laws" (1748): Montesquieu is widely credited with formalizing the theory of separation of powers. In his work, he argued that political power should not be concentrated in one body, but divided into distinct branches: the executive, the legislature, and the judiciary. He believed this division would prevent any one branch from becoming tyrannical.
• The U.S. Constitution (1787): The U.S. Constitution embodies the principle of separation of powers. Articles I, II, and III outline the powers and responsibilities of the legislative, executive, and judicial branches, respectively. The framers of the Constitution were heavily influenced by Montesquieu's idea.
• John Locke's "Second Treatise of Government" (1689): Locke also influenced the idea of separation of powers, though in a somewhat different form. He proposed dividing government into the legislative and executive powers, with the legislative power being supreme. However, Locke's ideas are often viewed as a precursor to Montesquieu's more detailed formulation.
• The French Constitution of 1791: During the French Revolution, the idea of separation of powers was enshrined in the first French constitution. The French Revolutionaries were influenced by Montesquieu's ideas to limit the powers of the monarchy and create a more balanced political system.
• Judicial Opinions and Case Law: Marbury v. Madison (1803) is a landmark U.S. Supreme Court case that affirmed the principle of judicial review and clarified the judiciary's role in ensuring that the other branches of government do not exceed their constitutional limits. This case is an example of how judicial independence plays a role in the separation of powers.

Bibliography
Primary Sources

• Constitution of India (1949)
• The Indian Constitution explicitly provides for the separation of powers across the legislature, executive, and judiciary. Relevant sections include:
• Article 50: Directs the separation of the judiciary from the executive in states.
• Article 123 and Article 213: Vests the executive with legislative power under certain conditions.
• Article 14, Article 32, and Article 136: Ensure judicial independence and its relationship with the other branches.

The Government of India Act, 1935 (Pre-Independence)
This Act was an important precursor to the Indian Constitution. It provided for a quasi-federal structure and influenced the separation of powers that India inherited after independence. Indian Judicial Pronouncements

• Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225.
• The Supreme Court of India, in this landmark judgment, laid down the "Basic Structure Doctrine" and emphasized that the separation of powers is part of the Constitution's basic structure.
• S.R. Bommai v. Union of India (1994) 3 SCC 1.
• The Supreme Court ruled on the dissolution of state assemblies, reinforcing the balance between the legislature and executive, and providing an interpretation of the federal structure in relation to the separation of powers.
• Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625.
• This case further elaborated on the relationship between fundamental rights and the separation of powers, stressing the importance of judicial review.
• Union of India v. Association for Democratic Reforms (2002) 5 SCC 294.
• The Supreme Court discussed the role of the judiciary in upholding constitutional principles, particularly in cases related to electoral reforms.
• Special Reference No. 1 of 1964 (Union Government v. Special Court).
• This case dealt with the conflict between the executive and judiciary in the matter of the appointment of judges.

Books and Academic Works

• Austin, Granville. The Indian Constitution: Cornerstone of a Nation (1966).
• Chaudhuri, S.C. Constitutional Development in India (2012).
• M.P. Jain. Indian Constitutional Law (8th Edition, 2020).
• Basu, D.D. Introduction to the Constitution of India (23rd Edition, 2018).
• H.M. Seervai. Constitutional Law of India (4th Edition, 2002).
• Bhatia, G. The Separation of Powers in India: A Constitutional Perspective (2020).
• Pande, S. Indian Constitutional Law (2013).

Articles and Journal Papers

• Desai, Dinesh. "Judicial Review and the Separation of Powers in India," Journal of the Indian Law Institute, vol. 47, no. 3, 2005.
• Kumar, Rajeev. "The Doctrine of Separation of Powers and its Application in India," Indian Journal of Constitutional Law, vol. 2, no. 1, 2011.
• Bhat, Nishant. "The Separation of Powers and Its Challenges in India," Constitutional Review, vol. 21, no. 2, 2013.
• Tushnet, Mark. "The Separation of Powers and the Indian Constitution," Asia-Pacific Law Review, vol. 10, 2012.

Citations

• I.C. Golak Nath & Ors. v. State of Punjab & Anr., AIR 1967 SC 1643, (1967) 2 SCR 762.
• Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, (1975) Supp SCC 1.
• Kartar Singh v. State of Punjab, AIR 1994 SC 1538, (1994) 3 SCC 569.

Reports and Documents

• Report of the National Commission to Review the Working of the Constitution (2002) (Justice Venkatachaliah Commission Report).
• Second Administrative Reforms Commission Report (2005).
• The Law Commission of India, 245th Report: The Separation of Powers (2014).

Other Notable Works

• K.K. Aziz. The Indian Executive and the Separation of Powers (1999).
• Patel, M. The Judiciary and Separation of Powers in India (2010).

End Notes

• [1] https://vajiramandravi.com/quest-upsc-notes/separation-of-powers/
• [2] I.C. Golak Nath & Ors. v. State of Punjab & Anr., AIR 1967 SC 1643
• Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.
• Kartar Singh v. State of Punjab, AIR 1994 SC 1538.