The separation of powers refers to the division of responsibilities into
three branches of government i.e. executive, legislative and judiciary. It
established the system of checks and balances. Independence of judiciary in the
hands of the executive and the legislative is prerequiite for the establishment
of rule of law.
Separation of Powers
The doctrine of separation of powers can be defined as a doctrine of
constitutional law under which the three branches of Government, I.e. Executive
, legislative and judicial are kept separate. This doctrine is also referred as
the system of checks and balances. The name checks and balances is given because
each branch of government has the authority to check the misuse of powers by
other and therefore, none of them can become so powerful, to behave in an
autocratic manner. Each branch has district powers, and generally each branch is
not allowed to exercise the powers of the other branches.
Separation of Powers in India
In India separation of powers is followed the way it is followed in USA, However
separation of functions is followed. The Indian system is quite different from
that of USA system, which follows separation of powers in true sense.
Furthermore it is stated that India has adopted a system of checks and balances
has been established so that there is balance of power between branches of
government and none of them become so powerful to dictate others.
System Of Checks And Balances In India
The separation of powers in India is in such a way that it establishes a system
of checks and balances between an executive legislative and judiciary. Some of
them are discussed below.
Legislature and Judiciary
- The judiciary can strike down the laws which are unconstitutional or
arbitrary in nature.
- The court many a times have made laws and policies through judgements. The
judgment of August 1997 given by a bench of J. S. Verma (then C.J.I)., Sujata
Manohar and B. N. Kirpal, provided the basic definitions of sexual harassment at
the workplace and provided guidelines to deal with it. It is seen as a
significant legal victory for women's groups in India.
- Parliament can amend a large chunk of the constitution using its
- The supreme court can declare the parliamentary enactments as
unconstitutional using its power of judicial review.
Legislature and Executive
- The executive/council of minister’s is dismissed if it loses the
legislature’s confidence before its tenure is over. So, the legislature
controls the executive through a vote of no-confidence.
- The Parliament makes laws in general board terms and delegates the power
to the executive to formulate detailed policy and implement them.
- In presidential form of government , the executive is not accountable to
the legislature. President is the head of both the state as well as the
government. A minister need not be form the legislature.
Executive and Judiciary
Constitution of India has several provisions which makes judiciary
independent. This is because it is believed that for a democracy to remain
efficient and effective, the judiciary must be independent. The judiciary is
the guardian of the constitution of India if the executive assumes judicial
powers that sort of a government tends to become oppressive.
However, there are some judicial functions which are performed by the executives
as well I.e. the appointment of judges is done by executives. The President and
the governors also enjoy the power to pardon, reprieve etc. these are all direct
judicial functions. Under the system of administrative adjudication, the
executive agencies have the power to hear and decide the matters involving
particular field of administrative activities.
Separation of Powers in USA
The doctrine of separation of powers has been truly implemented in the USA,
though some minor overlapping which exits between them. The American
Constitution is largely based on this doctrine. Article I, II and II of the
Constitution delegate and separate powers between the branches of the
These articles are as follows:
- It establishes the legislative branch, which consists of Congress.
- It establishes the executive branch, which consists of the President.
- It establishes the judicial branch, which consists of United states
Branch, which consists of the united states courts.
It is a nodal unit for formulating legislation for the US. The Congress does not
has power to delegate its law-making responsibilities to any other agencies,
thus boosting doctrine of separation of powers. This is referred as a non-
delegation doctrine. In a famous case, A LA Schechter, 295 US 495, Supreme Court
held the delegation of authority unconstitutional by
stating that Congress could not authorize the President to formulate the codes
of fair competition.
The President is vested with executive power, he is the head of both i.e. the
State Government as well as country. According to Article II, the President
becomes the Commander in Chief of the Army and Navy, and many other services.
The executive have responsibility of faithfully execution of Law made by the
Congress and approved by the President.
The section 7, under Article 1, requires that every bill passed by the house and
us senate ,before becoming a law is to be presented to the president and if he
disapproves the bill then is Repassed by the House and US Senate, before
becoming a law is to be presented to the President, and, if he disapproves the
bill then it is to be re-passed by two third of the senate and house.
The concept of judicial activism was originated in the US in 1947. It can be
defined as a philosophy of judicial decision:
Making whereby judges allow their personal view
regarding a public policy instead of constitutionalism. The main objective of
judicial activism is to uphold and promote the rights of citizen in a Country.
In the process of judicial activism, when judiciary trespasses into territory
executive, then it is referred as judicial overreach. The Public Interest
Litigation' is most important instrument of judicial activism. The Black's law
dictionary defines judicial activism as:
Judicial philosophy which motivate
judges to depart fromthe traditional precedents in favour of progressive and new
Judicial Activism in India
In India, the Supreme and High court are utilizing judicial activism for the
welfare of people. They do it under the Constitutional Articles 13, 19, 21, 32,
142 and 226.
Some cases are listed below in which Court have showcased its power of judicial
In Golaknath Case
, Supreme Court declared that Fundamental Rights enshrined in
Part 3 are immutable and cannot be amended.
.In Kesavananda Bharati case, Supreme Court introduced doctrine of basic
structure, ie. Parliament has power to amend, without altering basic structure
of the Constitution.
In Maneka Gandhi V. Union of India
case, the court Recited the term procedure
established by law under Article 21 of the Constitution by repositioning it as
due process of law, which means the procedure that is established by the law,
must be just, tair and reasonable.
In Vishakha V. State of Rajasthan
case, the court laid down guidelines for
protection of women from sexual harassment at workplace.
In Olga Tells V. Union of India case
, the Court said that the outlines of
Article 21, which provides right to life, also include the right to livelihood
as well as shelter.
The Supreme Court ordered the UPA government to set up Special Investigation
Team (SIT) to investigate black money. Though, the OPA government did not take
action on this judgement, the NDA government has now fulfilled the task.
The Supreme Court is trying its best to restructure the Board for the Control of
Cricket in India (BCCI). This is surprising. since the BCCl is a private body.
The Supreme Court had set up Mudgal committee and the Lodha Panel to investigate
the betting charges and suggest reforms.
Later, the Supreme Court has dismissed BCCI officials for not adhering to the suggested reforms. The Supreme Court had
issued a notice to Arunachal Pradesh Governor Jyoti Prasad Rajkhowa, which was
recalled later. This decision was taken under Article 361, according to which
the Governor and the President are not answerable to any Court in the exercise
of powers and duties of the office. However, their conduct can still be reviewed
by the Court.
In Al Skeini V. UK case
, the court had changed the wave the European Convention
on Human Kights (ECHR) was to be applied extra-territorially.
In R Hodkin V. Registrar General of Births, Deaths and Marriages case
, the leaptrog appeal mechanism was used to allow the Supreme Court to consider the
Court of Appeal's 1970 decision in R V. Registrar General, ex parte Segerdal,
where the Judges effectively held that:
Scientology was not a religion.
By 2013, the Supreme Court had become more broad-minded. It overruled the
earlier case and found that Scientology was a religion because it could be
described as a belief system which goes beyond sensory perception or scientific
data and claims to explain mankind's place in the universe and relationship with
the infinite and to provide a guide for its adherents as to how
to live their lives in conformity with the spiritual understanding associated
with the belief system.
Judicial Activism in USA
The concept of judicial activism has been originated in USA in the decade of
1940's. In 1947, fortune magazine article, Schlesinger, used the term judicial
In reference to the justices of Supreme Court. According to him, a judicial
activist views the law as malleable on believe that law is meant to do the
greatest possible social goods.
Several important judgements related with judicial are as follows:
In Brown V. Board of Education Case, 1954, ls Court ruling ordered the
desegregation of public schools. Justice Warren delivered the majority opinion,
which found that segregated schools violated the Equal Protection clause of the
14th amendment . The ruling effectively struck down down segregation, finding
that students by race has created inherently separating stude unequal learning
environment This is an example of judicial activism because the ruling
overturned Plessy V. Ferguson in which the court had reasoned that facilities
could be segregated as long as they were equal.
In Roe V. Wade Case, 1973,
Supreme Court ruling created the Constitutional right
to an abortion.
In Bush V. Gore Case
, the justices voted 5-4 to halt the recount of ballots in
Florida and, as a result, George Bush was chosen as President. This was the
United States Supreme Court case between the major-party candidates in the 2000
presidential election, George W.
Bush and AI Gore.
In District of Columbia V. Heller Case
, 2008, Supreme Court decision affirmed
that the Second Amendment protects an individual right, unrelated to military
Service, to keep and bear arms.
In Citizens United V. Federal Election Commission Case, 2010,
decision declared congressionally enacted limitations on corporate political
Restrictions on free speech.
Written By: Jasdip Kaur
– Ex Law officer Govt of Delhi
Advocate Delhi High Court,
LLM 2016-17(USLLS IP university
Delhi Dwarka) -
Ph.d Research Scholar Law (
Email: [email protected]