"Power tends to corrupt, and absolute power corrupts absolutely
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.
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:
According to Wade and Phillips this doctrine could mean any of the following
- 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.
- 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.
Separation Of Power And The Debates In Constituent Assembly
- 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.
- 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.
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.
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.
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
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
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
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
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 , 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 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
The President and Governors enjoy immunity from court proceedings
Constitutionality Of The Doctrine Of Separation Of Power
In re Delhi Law Act case
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
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
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
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
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
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
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
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
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
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, 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
And as Chief Justice Neely of the West Virginia State Supreme Court
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
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
Madhu Holmagi v. Union of India (2008)
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
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 .
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
Provisions In The Constitution Which Dilutes The Doctrine Of Separation Of
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. 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. 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.
It expressly provides the pardoning power to the president which is a judicial
The executive power of the union is vested in the president expressly, 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
In UN Rao vs. Indira Gandhi, 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)  Article 75(2) and Article 75(3) it becomes
evident that the president cannot exercise executive powers without the aid and
advice of the council of ministers.
It provides for the ordinance making power of the President which is a
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.
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.
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.
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. 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
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.
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
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.
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
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
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
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
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
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
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
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.
Statutes and Legislations
- Parliamentary Reports/Constituent Assembly Debates
- Constituent Assembly of India Debates, Vol VIII (Pt II 24 May 1949 Tuesday)
- Constituent Assembly of India Debates, Vol VII (Pt II 4 November 1948 Thursday)
- Constituent Assembly of India Debates, Vol VIII (Pt II 24 May 1949 Tuesday)
- The Constitution of India, 1950
- United States Constitution, 1787
- Bakshi, P.M., The Constitution of India, Universal Law Publishing, New Delhi,
- Dhavan, Rajeev, Sudarshan, R. and Khursheed Salman (eds.), Judges and Judicial
Power, Sweet & Maxwell, Tripathi Delhi, 1985.
- Pandey, J.N., Constitutional Law of India, Central Law Agency, Allahabad, 1991.
- Gary Jeffrey Jacobsohn, 'An Unconstitutional Constitution? A Comparative
Perspective' (2006) 4 IJCL 460, 483.
- Vasujith Ram, 'Judicial Appointments Commission: Who will Guard the
Guardians?' (2013) JILS.
- Santosh Paul, 'Fading judicial independence' The Hindu (26 October 2013)
- Markandey Katju, 'Lessons in judicial restraint'', The Hindu (July 20,
- Suhrith Parthasarathy, 'An anti-constitutional judgment', The Hindu,
October 30, 2015.
Written By: Anis Ahmad
- Constituent Assembly of India Debates, Vol IVI (Pt II Friday, the 10th
- H M Seervai, Constitutional Law of India, vol 3 (4th edn, Universal
Publication 2003) p 3119.
- 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.
- 1951 AIR 332, 1951 SCR 747.
- AIR 1955 SC 549, 1955 2 SCR 225.
- 1967 AIR 1643, 1967 SCR (2) 762.
- AIR 1973 SC.
- AIR 1975 SC
- Markandey Katju, ''Lessons in judicial restraint'', July 20, 2012, The
- AIR( 2007 )6 SCC 586.
- 2007(14) SCALE1, (2008)1SCC683.
- 381 U.S. 479. 1964.
- AIR 2008 SC.
- AIR 2010 SC.
- Article 79 of the Constitution of India.
- Article 74 (1) of the Constitution of India.
- Article 75(3) of the Constitution of India.
- Article 53 of the Constitution of India.
- 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
- AIR 1971 SC 1002
- 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.
- The ministers shall hold office during the pleasure of the president.
- The council of ministers shall be collectively responsible to the house
of the people.
- L Chandra Kumar vs. Union of India, (1995) 1 SCC 400
- Available at: https://www.britannica.com/topic/separation-of-powers
- Pandit M S M Sharma vs. Sri Krishna Sinha, AIR 1960 SC 1186
- Available at: https://www.scconline.com/blog/post/tag/separation-of-powers/
- Available at: www.socialissuesindia.wordpress.com
- B.A. LL.B. (3rd Semester) (Regular), Faculty
of Law, Jamia Millia Islamia