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Doctrine Of Separation Of Power

"Power tends to corrupt, and absolute power corrupts absolutely-Lord Acton

The separation of power is also known as Trans Politica. The doctrine of separation of power is the forerunner to all the constitutions of the world which came into existence since the days of the Magna carta. The theory of doctrine of separation of power was first propounded by Montesquieu in as early as in 1747 published in his book namely 'Espirit des Louis' (The spirit of the laws) Montesquieu found that if the power is concentrated in a single person's hand or a group of people then it results in a tyrannical form of government.

As per Montesquieu liberty cannot be protected unless and until there is a separation of power. To avoid this situation with a view to checking the arbitrariness of the government he suggested that in the power of governance there should clear cut division of power between the three organs of the state i.e. executive, legislature and the judiciary.

Further, Montesquieu explained the doctrine in his own words:
  1. When the legislature and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty if the judicial power is not separate.
  2. Form the legislature and executive power. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control. For the judge would then be the legislator where it joined with the executive power, the judge might behave with violence and oppression. There would be an end of everything where the same man or the same body to exercise these three powers.

According to Wade and Phillips this doctrine could mean any of the following meanings:
  1. The same person should not compose more than one of the three organs of the government. E.g. the minister should not sit in the parliament.
  2. One the organ should not control or interfere with the exercise of its function by other organs. E.g. the judiciary should be independent of the executive or the ministers should not be responsible to parliament.

Separation Of Power And The Debates In Constituent Assembly
In Constituent Assembly Debates Prof. K.T. Shah a member of Constituent Assembly laid emphasis to insert by amendment a new Article 40-A concerned with the doctrine of separation of powers. This article reads:
There shall be a complete separation of powers as between the principal organs of the State, viz; the legislative, the executive, and the judicial.[1]

The amendment was rejected but article 50 was inserted in the directive principles of state policy on suggestions of Dr B.R Ambedkar. It provides the separation of judiciary from the executive.

The doctrine of separation of powers in its rigid form is not to be found in the Indian Constitution. In the United States, all legislative power is vested in Congress. The executive power is vested in the President and the judicial power is vested in the Supreme Court. It means that there ought to be separate organs for each, working together, but none of them should be dependent on, and discharge the function belonging to the other.

Although the Indian Constitution does not recognize the doctrine of separation of powers in its absolute form, the functions of the different parts of privileges of Government are sufficiently differentiated and hence it can be said that the Indian Constitution does not contemplate the assumption by one organ or part of the state, of functions that essentially belong to another. However, the executive can exercise the powers of subordinate legislation and those powers are delegated to it by the legislature, it can also exercise judicial function in a limited way.[2]

On a casual glance on Indian constitution one maybe of the opinion that India has accepted the doctrine of separation of power but in reality on no grounds does this doctrine has a strict application on governance. Though the functions of the different organs of the government have been sufficiently differentiated but in no sense does this differentiation relates to the application of the doctrine in 'strict sense'.

Objective Behind The Doctrine Of Separation Of Power
Our constitution only has separation of functions but not separation of power because we opted for parliamentary democracy and in it, the executive is part of the legislature. In theory, we say that legislature is expected to control executive but in reality, it is executive that controls legislature through majority on the floor of the house.

The essence of our constitution is constitutionalism i.e. ensuring inherent checks and balances within the system. On the other hand, in the USA, they have proper separation of power between the executive, legislature and the judiciary as president is not the part of the legislature. In the UK, parliament is supreme as well as sovereign because they do not have any written constitution whereas in India entire affair is based on constitutionalism.

Our constitutional forefathers did not give importance to the strict separation of power because it is not possible in parliamentary democracy and that is why they focused more on proper checks and balances in the system wherein with many instruments legislature can control executive and judiciary can control both legislature and executive. This is inherent checks and balances and principle behind this is that constitution is supreme and sovereign whereas organs of the state are supreme in their domain but they are not sovereign.

Utility Of The Doctrine Of Separation Of Power
The doctrine of Separation of power emphasizes the mutual exclusiveness of the three organs of the state. The basic premise behind the doctrine of separation of powers is that when power gets concentrated in a single person or a group of persons, they can be dangerous to the citizens. Hence, the principle of separation of powers aims at removing the concentrated power and preventing abuse.

Separation Of Powers In Practice
The doctrine of separation of power is accepted by most jurists across the world and also by some countries but yet there are exceptions to its acceptance which are going to be discussed below. To name a few USA, Britain and India are some examples which are discussed in this project and also how the practice is different in each of these nations.

Although Montesquieu based his doctrine of separation of powers taking into account the British constitution as a matter of fact at no point of time was this doctrine accepted by the British constitution in Strict Sense. On contrary, in reality, it is the theory of integration of powers that has been adopted in England. Though the three powers are vested in three organs and each of the organs has it's own a particular feature, it can't be said that there is no 'sharing out' of the powers of the government.

In England, the King being the executive head is also an integral part of the legislature. His ministers are also members of one or other Houses of the Parliament. This concept goes against the idea that the same person should not form part of more than one organ of the Government. Also, the Lord Chancellor is the head of the judiciary, chairman of House of Lords (legislature) and member of the executive and often a member of the cabinet.

Judges exercise the executive control under Trust Act and also legislative functions in making rules of the courts regulating their own procedures. Members of the cabinet also have legislative powers. Powers are conferred on them to make subordinate legislation. They also exercise judicial powers in different forms of administrative tribunals. Therefore in a clear sense, the doctrine is not followed by the British constitution.

Now in case of states, Americans were very unhappy with experience with the British parliament. They considered it evil to combine the legislative and executive powers of the organs of the government. Therefore, the doctrine of separation of powers has been strictly accepted and adopted by the founding fathers of the constitution and is also considered to be the heart of the constitution.

They are legislative powers are vested in the Congress (Article I), executive powers in the president (Article II), and judicial powers in the Supreme Court (Article III) and courts subordinate thereto. However, the American constitutional developments have shown that in the face of the complexity of modern government, strict structural classification of the powers of the government is not possible. Therefore, in America, a system of 'checks and balances' has been accepted and through this one department controls the other two. In theory, no one organ of the government can encroach on the power of the other.

With the growth of administrative law in America, the rigours of the doctrine have been relaxed to a large extent. The president now exercises the legislative functions by sending messages to the congress and by the exercise of the right to veto. The congress has the judicial power of the impeachment and senate exercises executive powers in considering treaties and in making certain appointments. Thus a single agency acts successfully as a legislator, investigator, prosecutor, jury, judge and appellate tribunal' .And supreme court has never held that the combination of all the powers in one hand of the agency as unconstitutional.

Therefore it is clear that though America in a strict sense does follow the doctrine but has relaxed its jurisdiction on certain circumstances for better functioning of the government and democracy.

On a casual glance on Indian constitution one may be of the opinion that India has accepted the doctrine of separation of power but in reality, on no grounds does this doctrine has a strict application on governance. Though the functions of the different organs of the government have been sufficiently differentiated but in no sense does this differentiation relates to the application of the doctrine in 'strict sense'.

Tracing the background of India's history of framing of the constitution there was a proposal in constitutional assembly to incorporate the doctrine into the constitution but it was knowingly not accepted and as such turned down because it was found unfit with the constitutional framework embodies with the draft constitution, which was based on the parliamentary government[3] , Thus, it is partially incorporated the doctrine of separation of powers.

Constitution Of India And Separation Of Power
In India, separation of functions is followed and not of powers and hence, the principle is not abided in its rigidity. In India, strict separation of powers is not followed as it is followed in the U.S. But a system of checks and balance has been embedded so much so that the courts are competent to strike down the unconstitutional amendments made by the legislature. The constitution-makers have also meticulously defined the functions of various organs of the state.

Legislative and executive, which acts the two facets of people's will have all the powers including that of finance. There exists a clear division between the head of the state and the head of the government. The executive is president; the legislature is Parliament (Lok Sabha and Rajya Sabha) and the judiciary contains Supreme Court, High Courts and other lower courts.

Relevant Constitutional Provisions

Article 50
Article 50 puts an obligation over the state to separate the judiciary from the executive. However, Article 50 falls under the Directive Principles of State Policy (DPSP) and hence is not enforceable.

Articles 121 and 211
The legislatures cannot discuss the conduct of a judge of the High Court or Supreme Court. They can do so only in matters of impeachment.

Articles 122 and 212
The courts cannot inquire about the validity of the proceedings of the legislatures.

Article 361
The President and Governors enjoy immunity from court proceedings

Constitutionality Of The Doctrine Of Separation Of Power
In re Delhi Law Act case[4]
Hon'ble Chief Justice Kania observed that, 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 implies that unless it can be gathered from other provisions of the Constitution, other bodies executive or judicial is not intended to discharge legislative functions.

Rai Sahib Ram Jawaya v. State of Punjab[5]
Hon'ble Chief Justice B.K. Mukherjee observed that, The Indian Constitution has not indeed recognized the doctrine of separation of powers in the 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 the functions that essentially belong to another.

I.C.Golak Nath v State of Punjab[6]
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 power, namely The legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function with the spheres allotted to them.

Kesavananda Bharti v. State of Kerala[7]
In practice, from time to time, disputes continued to arise as to whether one organ of the State had exceeded the boundaries assigned to it under the Constitution. This question of what amounts to excess was the basis for action in the landmark Kesavananda Bharti Case of 1973. The question placed before the Supreme Court, in this case, was in regard to the extent of the power of the legislature to amend the Constitution as provided for under the Constitution itself.

It was argued that Parliament was supreme and represented the sovereign will of the people. As such, if the people's representatives in Parliament decided to change a particular law to curb individual freedom or limit the scope of judicial scrutiny, the judiciary had no right to question whether it was constitutional or not. However, the Court did not allow this argument and instead found in favour of the appellant on the grounds that the doctrine of separation of powers was a part of the basic structure of our Constitution. Thus, the doctrine of separation of powers is acknowledged as an integral part of the basic features of our Constitution.

Indira Nehru Gandhi v. Raj Narain[8]
It was after the landmark case of Indira Nehru Gandhi v. Raj Narain that the place of this doctrine in the Indian context was made clearer. It was observed by Chandrachud J.:
That is the Indian Constitution, there is the 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.

Judicial Activism- Whether Overriding Parliamentary Supremacy In India
It is often found that courts do not realize their limits. Courts must realize that there are many problems before the country, which courts cannot solve however much they like. What stands out is his firm belief that courts cannot interfere with the government policy as a matter of routine. Judicial Activism does not mean judicial adventurism. Judges should never be activist as sometimes judicial activism is a useful adjunct to democracy.-Justice Markandey Katju[9]

The judiciary plays an important role in ensure the constitutional checks and balances and to adjudicate disputes touching the limits on the power of the respective branches of the government. Of late the Indian judiciary appears to have become overactive and is often accused of judicial overreach.

State of U.P v. Jeet Singh Bisht[10]
Justice Markandey Katju observed that The supreme court of India cannot direct legislation. The judiciary must exercise self-restraint and eschew the temptation to encroach into the domain of the legislature or the administrative authorities. By exercising self-restraint it will enhance its own respect and prestige. When courts encroach into the legislative or administrative fields almost inevitably voters, legislators and the other elected officials will conclude that the activities of the judges should be closely monitored. If judges cat-like legislators or administrators, it follows that the judges should be elected like legislators or trained like administrators.

This would be counter �productive
Thus courts have to maintain judicial self-restraint and they should not try to take over the functions of the executive and legislature.
Divisional Manager, Aravalli Golf Club v. Chander Hass[11]
The Supreme Court held that Under the constitution, the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily, it is not proper for any of these three organs of the state to encroach upon the domain of the other, otherwise, the delicate balance in the constitution will be upset and there will be a reaction. Judges must know their limits and must not try to ruin the government. They must have modesty and humility and not behave like emperors.

If the legislature or the executive is not functioning properly it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfil their expectations, or by other lawful methods e.g. peaceful demonstrations. The remedy is not in the judiciary taking over the legislative or executive functions, because that will not only violate the delicate balance of power enshrined in the constitution, but also the judiciary neither the expertise nor the resources to perform the functions

The Need For Judicial Restraint
The recent trend in the Supreme Court is to rely more on the sociological school of jurisprudence and less on the positivist school. In other words, the court is resorting more to judicial activism rather than judicial restraint, which is problematic. This is seen in its recent judgment on ordering time limits to burst firecrackers on Diwali, which is a function of the legislature; its judgment on linking rivers, for which there is no parliamentary legislation; and in its unpredictable decisions in cases relating to freedom of speech and expression, such as the recent one in which a BJP Yuva Morcha leader was asked in the bail order to apologise for sharing a meme, despite the guarantee in Article 19(1) (a) of the Constitution.

In Griswold v. Connecticut[12], Justice Hugo Black of the U.S. Supreme Court warned that unbounded judicial creativity would make this Court into a day-to-day Constitutional Convention. In his book, Nature of the Judicial Process, Justice Cardozo of the U.S. Supreme Court wrote, The Judge is not a knight errant roaming at will in the pursuit of his own ideal of beauty or of goodness.

And as Chief Justice Neely of the West Virginia State Supreme Court observed:
I have very few illusions about my own limitations as a Judge. I am not an accountant, electrical engineer, financier, banker, stockbroker, or systems management analyst. It is the height of folly to expect judges to intelligently review a 5000-page record addressing the intricacies of a public utility operation. It is not the function of a judge to sit as a super board or with the zeal of a pedantic schoolmaster substituting his own judgment for that of an administrator.

The Supreme Court should limit its usage of the sociological school of jurisprudence to only the most exceptional situations, and employ the positivist school as far as possible.
In recent times, the Supreme Court has increasingly adopted the sociological school of jurisprudence in an aggressive manner. In a parliamentary democracy, the buck ultimately stops with the citizens, who are represented by Members of Parliament. The Supreme Court was never envisaged performing the role of an unelected, third legislative chamber. Yet it is performing this role not in exceptional circumstances, but in its everyday functioning. Of all the three organs of the state, it is only the judiciary that can define the limits of all the three organs. This great power must therefore be exercised with humility and self-restraint.

Madhu Holmagi v. Union of India (2008)[13]
In the instant case, one advocate filed a public interest litigation challenging the Agreement 123 i.e. Indo-US nuclear the treaty proposed to be entered by the Indian government, petitioner contended that court must have to scrutinize all documents relating to the agreement 123 and must have to prevent the Indian government from entering into the nuclear deal. In this case, the court dismissed the petition and also imposed a cost of Rs. 5000 on the petitioner stating that it is an abuse of court proceeding because the question raised by the petitioner is a question of policy decision, which is to be decided by the parliament and not by the judiciary.

The University of Kerala v. Council, Principals, Colleges, Kerala[14]
The question of great constitutional the importance which has risen is  whether after getting the recommendations of some expertise body by court order, the court itself can implement the said recommendations by passing a judicial order or whether the court can only send it to the legislature or its delegate to consider making a law for implementation of these recommendations .

The court observed that There is a broad separation of powers under the constitution, and hence one organ of the state should not encroach into the domain of another organ. The judiciary should not, therefore, seek to perform legislative or executive functions.

Provisions In The Constitution Which Dilutes The Doctrine Of Separation Of Power
Despite every, an attempt of separation of power in the Indian Constitution there exist enough overlapping. In India, the parliament consists of the president, the house of the people and the council of the states.[15] Thus the theory of separation of powers breaks down here because the executive head is a part of the legislature.

The president is the head of the executive but the real executive powers are vested in the cabinet. There is a council of ministers to aid or advice the president in exercise his functions.[16] It is further prescribed that the president shall act in accordance with such advice.

The prime minister being head of the council of ministers is the real head of the executive. Ministers are essential to be appointed from amongst members of either house of the parliament. The union council of ministers is collectively responsible to the house of the people.[17]

Article 72
It expressly provides the pardoning power to the president which is a judicial function.

Article 75
The executive power of the union is vested in the president expressly[18], but there is no corresponding provision in the constitution vesting legislative and judicial power in a particular organ of the state. Legislative power is primarily vested in a legislature in the union parliament and in the State Legislatures.[19]

In UN Rao vs. Indira Gandhi,[20] the Supreme Court laid down that the council of ministers is in actual control of both executive and legislative functions. By reading Article 74(1) [21] Article 75(2)[22] and Article 75(3)[23] it becomes evident that the president cannot exercise executive powers without the aid and advice of the council of ministers.

Article 123
It provides for the ordinance making power of the President which is a legislative function.

Article 357
When Proclamation of emergency has been declared by the President due to failure of Constitutional machinery the President has been given legislative power under Article 357 of our Constitution to make any law in order to meet the situations.

Article 372 and 372-A
Power has also been conferred on the President of India under Article 372 and 372-A to adopt any law in-country by making such adaptations and modifications.

Article 103
The President of India also exercises judicial function. Article 103(1) of the Constitution is notable in this connection. According to this Article If any question arises as to whether a member of either of House of Parliament has become subject to disqualification mentioned in clause (1) of Article 102, the questions hall be referred for the decision of the President and his decision shall be final.

Articles 124, 126 & Article 127
Article 50 lays emphasis to separate the judiciary from the executive. But in practice, we find that the executive also exercises the powers of the judiciary as in the appointment of judges (Articles 124, 126 & Article 127).

Relationship Among The Various Organs Of Government
When talking of the relationship between the legislature, executive and judiciary the first thing that one can say in context to India is that judiciary exercises completely independent functioning Article 50 clearly states that the state shall take steps to separate the judiciary from the executive in the public services of the state. Article 122 and 212 provide validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court. This ensures the separation and immunity of the legislatures from judicial intervention on the allegation of procedural irregularity[24].

Judicial conduct of a judge of the Supreme Court and the High Courts' cannot be discussed in the Parliament and the State The legislature, according to Article 121 and 211 of the Constitution[25].

The legislature besides exercising law-making powers exercise judicial powers in cases of breach of its privilege, impeachment of the President and the removal of the judges. The executive may further affect the functioning of the judiciary by making appointments to the office of Chief Justice and other judges. Legislature exercising judicial powers in the case of amending a law declared ultra vires by the Court and revalidating it.

While discharging the function of disqualifying its members and impeachment of the judges, the legislature discharges the functions of the judiciary[26]. The legislature can impose punishment for exceeding freedom of speech in the Parliament; this comes under the powers and privileges of the parliament. But while exercising such power it is always necessary that it should be in conformity with due process.

System Of Checks And Balances
Indian constitution provides checks and balances by defining clearly demarcated functions to all the organs of the state. The principle of constitutionalism is followed and as S N Sen observe 'The power diffused to different organs reinforces the limited powers and avoid concentration of power'.

Article 50 of the constitution says, The state shall take steps to separate the judiciary from the executive in the public services of the state. Accordingly, separation of powers is established between executive and judiciary through a system of checks and balances so that none of them has absolute powers.

The system of checks and balances is essential for the proper functioning of three organs of the government. Different organs of the state impose checks and balances on the other. The following examples illustrate the checks and balances:
Judiciary exercises judicial review over legislative and executive actions. Judiciary has the power to void laws passed by the Parliament. Similarly, it can declare unconstitutional executive actions as void.
Legislatures review the functioning of the executive.
Executive appoints the judges.
Legislative branch removes the judges. It can also alter the basis of the judgment while adhering to the constitutional limitation.
Checks and balances act in such a way that no organ of the state becomes too powerful. The constitution of India makes sure that the discretionary power bestowed upon any organ of the state does not breach the principles of democracy. For instance, the legislature can impeach judges but as per the condition i.e. two-third majority[27].

Checks And Balances On Executive By The Judiciary
Judicial review: Judiciary interpret the laws and rules formulated by the executive and passed by the legislature. It checks for the constitutionality of the laws and has the power to declare them void and unconstitutional. E.g. Checks on excesses in Aadhar act declaring certain provisions as unconstitutional.

Judicial Independence: Supreme Court has declared Independence of judiciary as the basic structure and any changes by the executive to affect the same is unconstitutional. The salary, terms of conditions, tenure etc., are secured to ensure the same. E.g. the 99th constitutional amendment act establishing National Judicial appointment commission was declared unconstitutional as it affected the independence of the judiciary.

Federal cases: Supreme Court has the exclusive and original jurisdiction in the interpretation of division of power (federal provisions) and hence avoids unilateral decisions by the Central government affecting the same. The doctrine of colourable legislation, pith and substance etc., are developed by the judiciary to interpret the same. E.g. Supreme Court recently defined the powers of Lt. Governor of Delhi vis a vis the state Government[28].

Disqualification of candidates: Judiciary is the ultimate authority to decide on questions of disqualifications of the executive including ministers. It can disqualify the executive members illegitimately holding the offices and declare the election void. E.g. High court of Allahabad declared the election of Indira Gandhi as void as it involved electoral malpractice.

Directives: Supreme court issues directives to the executive on matters of national importance under the special powers inferred on it by article 142. E.g. recently supreme court issued directions to the executive to take steps to curb mob lynching.

Judicial activism: Judiciary by inventing PIL take up the issues of public interest and nudge the executive or itself take decisions. E.g. Appointment of Lodha panel to look into the BCCI affairs, orders on the national anthem, highway liquor ban etc.

Appointment of judges of the high court and Supreme Court: Article 124 reads- Every judge of the Supreme Court shall be appointed by the President after consultation with such judges of the Supreme Court and of the High Courts in the States. Executive can send back the recommendations of the judiciary for reconsideration.

Removal of judges: Executive can initiate proceedings for the judge removal for proved misbehaviour or incapacity. A judge of the Supreme Court and high courts can be removed from his office by an order of the President. E.g. in 1990, a motion was moved to remove the then judge of Supreme Court.

Strength of the judges: An executive with the help of the parliament can increase the strength of the Supreme Court judges. Recently, the cabinet approved for the same.

Challenges To The System Of Checks And Balances
Appointment procedure: Collegium system is seen as opaque by the executive and as necessary for judicial independence by the judiciary. Even today, an established procedure for a judicial appointment is not present.

Judicial overreach: many Supreme Court judgements are seen by the executive as an encroachment on its powers. For instance, judgements on dilution of SC/ST (prevention of atrocities) act provisions, cancellation of licenses of 2G spectrum etc.

Power tussle: on an interpretation of executive powers especially vis a vis constitutional amendment. It was seen in a series of cases in the 1970s.

Impact of judicial pronouncement on executive: The judgement of the Supreme Court has large scale impact and repercussions affecting the functions of the executive. E.g. Cancellation of coal blocks allotment affected coal PSU's. The economic survey notes that the judicial costs due to delays in business are a major constraint on ease of doing business.

Tribunalization of judiciary: the tribunals being appointed by the executive action is seen as an encroachment on judicial area undermining the court jurisdiction.

Recent developments like, executive withholding the elevation of Chief justice of Uttarakhand high court as SC judge, delaying the appointment of a recommendation of collegium is seen as an executive attempt by the executive to place judges of interest in the supreme court � An attempt for the committed judiciary.

Checks and balances are necessary for the democratic functioning of the nation as envisaged by the Indian constitution. Judiciary has to understand the operational freedom need by the executive to be effective. Also, it should avoid entering into areas where it doesn't have the technical capability. On the other hand, the Executive has to understand the importance of the independent judiciary and should not take steps to dilute the same.

Recent Case Laws On Separation Of Power

Kantaru Rajeevaru v.​​ Indian Young Lawyers Association​​ (2019)
Justice Indu Malhotra in the Sabrimala Verdict opined that Judges should not impose their personal views, morality or rationality with respect to the form of worship of a deity. She further observed that A pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion. It is irrelevant whether the practice is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts.

Anuradha Bhasin v. Union of India (2020)
The court stated that an order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Supreme Court refused to restore 4G internet services in the Union Territory of Jammu and Kashmir (UT) and issued an order stated that the executive will make a decision on this matter. It was criticised on the ground that safeguarding the right to internet and profession by restoring the internet was the task best suited to Supreme Court but it failed to protect the same.

Tribunal on its own Motion v. Ministry of Environment, Forest & Climate Change (2020)
The National Green Tribunal imposed a total ban on sale/ use of all kinds of firecrackers in Delhi NCR from the midnight of November 9-10, 2020 to the midnight of November 30 - December 1, 2020. It was argued by some experts that NGT did not take into consideration the other aspects such as financial loss or loss of employment. It would have been better if the government came up with a detailed strategy along with the rehabilitation policy.

After considering all the aspects of separation of power, it needs to be remembered that complete separation of power is possible neither in theory nor in practice. Indian Constitution had not indeed 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 belongs to another.

Thus as per the discussions made above it is clear that under the Indian Constitution, the doctrine of separation of power is not accepted in strict use but based upon the system of checks and balances. In a democratic state the people having some expectations from the three organs of the government for the governance of the country but unfortunately these expectations have been turned down.

So when the constitutional goal is not espoused, it is the inherent duty of the supreme court of the country to protect the constitution but at the same time every organ including the Supreme Court must show some restraint and should not overstep and all the three organs of the government must work together to meet people's expectations.

Primary Sources
  1. Parliamentary Reports/Constituent Assembly Debates
  2. Constituent Assembly of India Debates, Vol VIII (Pt II 24 May 1949 Tuesday)
  3. Constituent Assembly of India Debates, Vol VII (Pt II 4 November 1948 Thursday)
  4. Constituent Assembly of India Debates, Vol VIII (Pt II 24 May 1949 Tuesday)
Statutes and Legislations
  1. The Constitution of India, 1950
  2. United States Constitution, 1787

Secondary Sources
  1. Books
    1. Bakshi, P.M., The Constitution of India, Universal Law Publishing, New Delhi, 2005.
    2. Dhavan, Rajeev, Sudarshan, R. and Khursheed Salman (eds.), Judges and Judicial Power, Sweet & Maxwell, Tripathi Delhi, 1985.
    3. Pandey, J.N., Constitutional Law of India, Central Law Agency, Allahabad, 1991.
  2. Journals
    1. Gary Jeffrey Jacobsohn, 'An Unconstitutional Constitution? A Comparative Perspective' (2006) 4 IJCL 460, 483.
    2. Vasujith Ram, 'Judicial Appointments Commission: Who will Guard the Guardians?' (2013) JILS.
  3. Articles
    1. Santosh Paul, 'Fading judicial independence' The Hindu (26 October 2013)
    2. Markandey Katju, 'Lessons in judicial restraint'', The Hindu (July 20, 2012)
    3. Suhrith Parthasarathy, 'An anti-constitutional judgment', The Hindu, October 30, 2015.
  4. Websites

  1. Constituent Assembly of India Debates, Vol IVI (Pt II Friday, the 10th December 1948)
  2. H M Seervai, Constitutional Law of India, vol 3 (4th edn, Universal Publication 2003) p 3119.
  3. In Constituent Assembly Debates Prof. K.T. Shah a member of Constituent Assembly laid emphasis to insert by amendment a new Article 40-A concerned with the doctrine of separation of powers. This article reads:
    There shall be a complete separation of powers as between the principal organs of the State, viz; the legislative, the executive, and the judicial. Quoted in Devinder Singh, administrative law, 19 (2007). The amendment was rejected but article 50 was inserted in the directive principles of state policy on suggestions of Dr B.R Ambedkar. It provides the separation of judiciary from the executive.
  4. 1951 AIR 332, 1951 SCR 747.
  5. AIR 1955 SC 549, 1955 2 SCR 225.
  6. 1967 AIR 1643, 1967 SCR (2) 762.
  7. AIR 1973 SC.
  8. AIR 1975 SC
  9. Markandey Katju, ''Lessons in judicial restraint'', July 20, 2012, The Hindu.
  10. AIR( 2007 )6 SCC 586.
  11. 2007(14) SCALE1, (2008)1SCC683.
  12. 381 U.S. 479. 1964.
  13. AIR 2008 SC.
  14. AIR 2010 SC.
  15. Article 79 of the Constitution of India.
  16. Article 74 (1) of the Constitution of India.
  17. Article 75(3) of the Constitution of India.
  18. Article 53 of the Constitution of India.
  19. Article 245(1)- subject to the provisions of this constitution, parliament may make law for the whole or any part of the territory of India, and the legislature of a State may make laws for the whole or any part of the state
  20. AIR 1971 SC 1002
  21. There shall be a council of ministers with the prime ministers at the head to aid or advice the president who shall, in the exercise of his functions, act in accordance with such advice.
  22. The ministers shall hold office during the pleasure of the president.
  23. The council of ministers shall be collectively responsible to the house of the people.
  24. L Chandra Kumar vs. Union of India, (1995) 1 SCC 400
  25. Available at:
  26. Pandit M S M Sharma vs. Sri Krishna Sinha, AIR 1960 SC 1186
  27. Available at:
  28. Available at:
Written By: Anis Ahmad - B.A. LL.B. (3rd Semester) (Regular), Faculty of Law, Jamia Millia Islamia

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