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Doctrine of Separation of Power: An Indian Experience

The doctrine of separation of powers is included by following a somewhat modern approach in our Indian Constitution. In simpler words, there is no explicit division of powers enshrined in our constitution, both in principle and exercise. In India, there are 3 separate divisions of the government through which the country is governed.

The legislative branch of the state has law-making power, the executive has to enforce these laws and the judiciary has to apply these laws to the specific incidents arising out of the breach of these enacted and enforced laws. Activities of each branch while exercising its function tend to overlap with each other as an explicit separation of powers is not practical as well as possible while dealing with the general public. Therefore, when any functionary tries to act within its sphere, the act seems to be interfering with some other functionaries' powers.

The interesting question which appears in this situation is that what should be the ideal relation among these 3 divisions of the government, i.e., should the boundaries between the powers of each branch are explicitly drawn or there should be some sort of coordination between them all?

So far as the courts are concerned, the application of the doctrine (the theory of separation of powers) may involve two propositions: namely, a) that none of the three organs of Government, Legislative Executive, and Judicial, can exercise any power which properly belongs to either of the other two; b) that the legislature cannot delegate its powers.- Dr. D.D. Basu [1]

Separation of Powers

Indian Constitution follows the doctrine of separation of powers amongst different divisions of state in an indirect manner. Although there is no direct provision identifying the doctrine of separation of powers, the Constitution does make provisions signifying for a reasonable division of powers and functions among the 3 divisions of government.

A close look into various provisions of the constitution affirms this further that the makers of the Constitution intended that the power of law-making (legislating) shall be exclusively exercised by the legislature. The executive shall have the role of implementing these legislated laws. In the same way, the judicial powers can be said to be given to the judiciary.

The judiciary is sovereign in its arena and there can be no intrusion with its judicial roles either by the Executive or by the Legislature. Also, the executive authorities of the Union and the State are bestowed in the hands of the President and the Governor separately.

The Constitution of India lays down a practical separation of the organs of the State in the following manner:

  • Article 50:

    It is among one of the Directive Principles of State Policy. It says, �The state shall take measures to isolate the judiciary from the executive.� The purpose behind this is to ensure the independence of the judiciary.[2]
  • Article 122 and 212:

    Legitimacy of proceedings in the Parliament and the Legislatures cannot be called into inquiry in any Court. The purpose for this is the division and immunity of the legislatures from judicial interference on the charges of procedural irregularity. [3]
  • Article 121 and 211:

    Judicial behavior of a judge of the Supreme Court and the High Courts cannot be debated in the Parliament and the State Legislatures. [4]
  • Articles 53 and 154:

    Respectively, ensures that the executive power of the Union and the State shall be bestowed with the President and the Governor and they enjoy protection from criminal and civil liability. [5]
  • Article 361:

    The President or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office. [6]

Functional overlap
The legislature apart from exercising legislating powers exercises judicial powers in cases of breach of its privilege, removal of judges, and the impeachment of the President.

The executive interferes with the functioning of the judiciary by making appointments to the office of Chief Justice and other judges by approving the recommendations send by the Collegium. Legislature exercises judicial powers in the instances of amending a law stated unconstitutional by the Court and revalidating it. While exercising the function of impeachment of the judges and disqualifying its members, the legislature steps in discharging the functions of the judiciary.

The legislature can also impose punishment for over-exercising the freedom of speech and expression on the floors of the Parliament; this comes under the privileges and powers of the parliament. But while the legislature exercises such power it is always required that it should be in consonance with due process. The heads of every governmental ministry are active members of the legislature, thus making the executive an inseparable part of the legislature.

The President and the Governor act on the aid and advice of the council of ministers who are elected members of the legislature. In certain situations, the law-making powers which are vested with the legislature are exercised by the executive, i.e.; delegated legislation. When the legislature is not in session, and the President or governor is satisfied that the situation calls for an immediate formulation of law may promulgate ordinances which has the same value as if the act was passed by the legislature.

The Constitution allows, through Article 208 and Article 118, the Legislature at the States and in the Centre respectively, the power of making rules for regulating their respective practice and conduct of business subject to the provisions of this Constitution. The executive also exercises legislating power under deputized legislation.

The tribunals and other quasi-judicial bodies which are also part of the second organ of state i.e., executive also does judicial functions. Administrative tribunals which are a part of the executive also discharge judicial functions. Higher administrative tribunals should always have a member of the judiciary. The higher judiciary is conferred with the power of supervising the functioning of subordinate courts. It also acts as a legislature while making laws regulating its conduct and rules regarding disposal of cases. [7]

Apart from the overlapping of the powers amongst themselves, the Indian system also lacks in separating the personnel in between the three organs. For example- Some M.Ps who are part of legislature is also part of the executive as ministers.

Applying the principles of trust and constitutional restriction in the Indian set-up, a system is created where none of the divisions can seize the powers or functions which are attributed to another branch by an express or necessary provision, neither can they separate themselves of the essential functions which belong to them as per the Constitution.

Further, the Indian Constitution expressly provides for a system of checks and balances for the prevention of the capricious or arbitrary use of power given by the said supreme document. Though this system appears to dilute the principle of separation of powers, it is must in order to enable the fair and impartial functioning of such a constitutional system in practicality.

By giving such powers of one to another, a device for the check and balance over the exercise of constitutional powers by the respective organs is established. This clearly shows that the Constitution in its document does not call for a stringent separation of powers. Instead, it calls for a system consisting of the 3 divisions of state and gives them both special and overlapping functions and powers. Thus, there is no absolute, discrete separation of powers amongst the 3 divisions of Government.

  1. D D Basu Memorial Lecture - Speech Delivered by Shri K K Venugopal | United States Constitution | Separation Of Powers, n.d. Retrieved December 19,2020, from
  2. Concept Behind Securing The Independence Of Judiciary Vis-�-vis Article 50 Of Constitution Of India, n.d.
  3. [pg.256]
  4. AK Subbiah And Another, v. The Chairman, Karnataka Legislative Council, Bangalore And Another. Karnataka High Court (18 Aug, 1978)
  5. S.R. Bommai vs Union of India on 11 March 1994 AIR 1918, 1994 SCC (3) 1
  6. 361, 361a Constitution| Protection of President and Governors and Rajpramukhs Protection of Publication of Proceedings of Parliament and State Legislature, n.d.
  7. Application Of Theory Of Separation Of Powers In India, n.d. Retrieved December 19,2020, from

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