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Encroaching the Boundaries of The Doctrine of Separation of Powers

By: Divya J Moses


Power Corrupts And Absolute Power Corrupts Absolutely.


In every State there are three organs; the legislature, the executive and the judiciary, functioning in relation to each other at the same time functioning independently of each other.  The doctrine of separation of powers propounded by Montesquieu says that if the power is vested with one authority it will lead to a situation of no liberty and there would be an end of everything, where the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of exacting laws, that of executing the public resolutions and of trying the causes of the individuals.[1] Thus, the  doctrine of separation of powers idealizes situation wherein one person or a single authority is not wheeling the whole power.

The origin of separation of powers is found in the American Constitution. The framers believed that vesting of power in one authority would lead to tyranny. The legislative power is vested with the Congress under Article 1, executive power with the President under Article II and the Judicial power with the Supreme Court under Article III. Thus the Constitution of America provides for an express separation of powers.


Moreover, there are other provisions which provides for a check and balance mechanism.  Marbury v. Madison[2], first case in which the power of judiciary to review legislative actions was laid down. At the very same time the system of government in United Kingdom, under whom India was a colony and later adopted governmental system their, doesnot flow the separation of powers.


While the US Constitution lays down a rigid separation of powers, but the Indian constitution doesnot provide for an express separation of powers. Separations of powers is clearly derivable from the Constitution of India  as the provisions relating to executive, legislature and the judiciary are dealt within separate chapters in Part V and Part VI  of the Constitution. The provisions relating to legislature, executive, judiciary are given in different parts in our constitution, thus providing for an implied separation of powers. [3] The only provision expressly providing for the separation of judiciary from the executive, is not enforceable through the Courts as it is laid down under the Directive Principles of State Policy.[4] Apart from this the constitutional scheme doesnot embody a the separation of power in its strict and clear sense. This implied separation of powers has been recognized as part of the basic structure of the Constitution through various judicial interpretations.[5]  The legislature performs the law making function, the executive the


function of implementing law and the judiciary functions as a means of censor of both legislature and executive, subject to restrictions. The Hon’ble Supreme court has laid down that we follow a separation of functions and not powers and hence it is not rigid.[6] But it is essential to say that the every organ in certain circumstances discharges the functions of the other and others functions are monitored by each organ. Thus this doctrine in the Indian scenario also functions as a doctrine of check and balance.


            In this article, the author is trying to discuss how the Constitution has separated  branches of the State  from the other, how they perform each others function, how they act as a check on the other and in the second part, in the light of the recent political and legal developments the  practice of the branches of the State in making inroads into the functioning of the other branch is discussed.




The constitution of India lays down a functional separation of the organs of the State. Article 50 lays down that State shall take steps to separate the judiciary from the executive. This is for the purpose of ensuring the independence of judiciary.  Article 122 and 212 provides 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.[7] Judicial conduct of a judge of the Supreme Court and the High Courts cannot be discussed in the Parliament and the State Legislature, according to Article 121 and 211 of the Constitution. Articles 53 and 154 respectively, provides that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.



The legislature besides exercising law making powers exercises 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.[8] While discharging the function of disqualifying its members and impeachment of the judges, the legislature discharges the functions of the judiciary.  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.[9]  The 


heads of each governmental ministry is a member of the legislature, thus making the executive an integral part of the legislature. The council of ministers on whose advise the President and the Governor acts are elected members of the legislature. Legislative power that is being vested with the legislature in certain circumstances can be exercised by the executive.[10] If the President or the Governor, when the legislature or is not in session and is satisfied that circumstances exist that necessitate immediate action may promulagate ordinance which has the same force of the an act made by the Parliament or the State legislature. The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre and in the States respectively, the authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution. The executive also exercises law making power under delegated legislation.  The tribunals and other quasi-judicial  bodies, which are part of the executive discharges judicial functions. Administrative tribunals which are part of the executive discharge judicial functions.[11] Higher administrative tribunals should always have a member of the judiciary.[12] The higher judiciary is conferred with the power of supervising the functioning of subordinate courts[13]. It also acts as a legislature while making laws regulating its conduct and rules regarding disposal of cases.



The organs of the State while being separated also discharges each others function. The powers and functions of each organ is subject to restrictions which would be the function of another organ. The laws made by the parliament and State legislatures are subject to judicial review. Any law that is contravention to Part III ; Fundamental Rights, would be declared ultra vires by the Supreme Court and High Courts in exercise of power of judicial review, as laid down in article 13 of the Constitution.

The supreme court has the power to declare void the laws passed by the legislature and the actions taken by the executive if they violate any provision of the constitution or the law passed by the legislature in case of executive actions. Even the power to amend the constitution by the parliament is subject to the scrutiny of the court. The court can declare any law void it affects the basic structure of the Constitution.[14]

The constitution has invested the constitutional courts with the power to invalidate laws made by the Parliament and State Legislature transgressing constitutional limitations. Where an Act made by the legislature is invalidated by the courts on the ground of legislative incompetence, the legislature cannot enact a law declaring that the judgment of the Court shall not operate; it cannot overrule or annual the decision of the Court. but this does not mean that the legislature which is competent to legislate that law cannot re enact it. It is open to the legislature to alter the basis of the judgment. The new law or the amendment law so made can be challenged on other grounds but not on the


ground that it seeks to in effectuate or circumvent the decision of the court. It necessary that each organ functions with in its well settled limits of authority. The check and balance mechanism would make sure that the actions of the each organ is within its well defined limits. The doctrine of ultra vires lies down that any law that is in contravention of Part III of the constitution is void and hence ultra vires.

The judicial review power of the higher judiciary under Article 32 and 226, empowers the Courts to check the constitutionality of every law made by the Parliament and the Legislatures.  This is a check on the legislative act. Judicial review is also applicable to executive actions. The grounds on which a legislative or executive action can be challenged is the golden trilogy of Article 14, 19 and 21. Judicial review in india is based on the assumption that the Constitution is the supreme law of the land, and all governmental organs, which owe their origin to the Constitution and derive their powers from its provisions, must function within the frame work of the Constitution.[15]

It is also necessary to state that the legislative power of the Parliament and the State legislature are laid down in Article 245. Article 254, along with VII Schedule any law which is repugnant to VII schedule will be void to that extent. The control of the executive is ensured by making it, accountable to the Parliament. The legislative power of the executive under ordinance is limited. There can be judicial review of Presidents



satisfaction of the necessity to promulgate an ordinance.[16] The supremacy in appointment of judges to the higher judiciary is with the Executive with the consultation of the Chief Justice, this is while ensuring the independence of judiciary.


“In our country, the “Constitution is supreme lex, the paramount law of the land and there is no authority, no department or branch of the State, which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution. The Constitution has devised a structure of power relationship with checks and balances and limits are placed on the powers of every authority or instrumentality under the Constitution.   Every organ of the State, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of such authority.  Parliament too, is a creature of the Constitution and it can only have such powers as are given to it under the Constitution”[17]



            The Constitutional provisions relating to separation of powers, as discussed above has in the actual practice been made flexible to benefit the supremacy of each organ, leading to a situation wherein each organ has infringed into the functional sphere of the



other. The judicial interference in the power of executive and the legislature in exercise of judicial review should always necessarily be with the constitutional bounds. [18]


            The dispute regarding the election of the Prime Minister, the Court held that the when a constituent body declared that the election is not void, it was discharging a judicial function, is the first instance in which the position of doctrine separation of power was challenged and clarified. . The adjudication of a specific dispute is a judicial function, which cannot be exercised by the Parliament even by using the amending powers.[19] Separation pf power is a method of avoiding concentration of power in a group’s hand, making it difficult to abuse.


The appointment of the judges to the Supreme Court, according to Article 124(2), is to be made by the President in consultation with such of the judges of the Supreme Court and the High Court as the President may deem fit. The consultation with Chief Justice of India is mandatory in case of appointment of a judge other than the Chief Justice. This had created a balance of power in appointment of judges to the higher judiciary The Hon’ble Supreme Court has through a series of judicial interpretations have shifted the supremacy from the President to itself. The Hon’ble Court has created an extra- constitutional body called collegium[20], and vested with the power of appointment


of judges. The Court has held that the word ‘consultation’ means concurrence and the opinion of the collegium is binding on the President and the consultation is by the Chief justice with other judges[21]. It is also noteworthy that the provision for consultation with the judges of the High Courts have been conveniently ignored. As the position stands currently a collegium consisting of the Chief Justice of  India and four senior most judges of the Supreme Court and their opinion is binding on the President. In the recent issue of appointment of Judges the President had returned the opinion rendered by the collegium for reconsideration, which was send back with out any change being made. The appointment was made according to the ‘concurrent opinion’ of the collegium.


            The interference of judiciary in legislative matters was legislature is also seen in the issue of disqualification of members of Parliament on account of  taking money for raising questions in the question hour and the subsequent intervention of the supreme court in the matter[22].  The Court in the instant case held that legislature cannot claim immunity from judicial scrutiny in their internal proceedings, raising the question of the existence of Article 121 and 211 in the constitution, thus the Court has assumed the  power of over viewing legislature as it  is managed by the legislators. The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre and in the States respectively, the authority to make rules for regulating their respective procedure and conduct of business "subject to the provisions of this Constitution". As the acts of the legislature was not in accordance with the provisions of the Constitution it can be subject to judicial review, was the stand taken by the Hon’ble Court in the instant case.


            The Article 212 and 122 makes the legislatures supreme in its own sphere and any interference by the judiciary would be clear defiance of the separation of powers. The Supreme Court in the Jharkhand Assembly issue ordered the protem speaker to conduct a floor test and submit a video copy of the same.[23] This case is different from the Meghalaya issue wherein the Court has made it clear that it is not over viewing the proceedings of the legislature. no officer of the legislature is subject tot the jurisdiction of the Court. The order of the Court was not enforced because of the subsequent resignation of Shibu Soren. This also arises the question as who would be held liable for contempt of court; is it the speaker or the members of the legislature.         


The Bihar Assembly was dissolved by a notification dated 24 May 2005, even before its first meeting on the ground that attempts are being made to cobble a majority by illegal means and lay claim to form the Government in the State and if these attempts continue, it would amount to tampering with constitutional provisions. This is an instance of the executive acting on the interests of the ruling political party. Article 356(1) empowers the President to assume charges of the State Government on grounds of failure of constitutional machinery and dissolve the Assembly.  But this cannot be presumed to include the ground of dissolution on the ground of mal administration.  The court in appropriate cases will not only be justified in preventing the holding of fresh elections but would be duty-bound to do so by granting suitable interim relief to make effective the constitutional remedy of judicial review and to prevent the overshadowing  of the Constitution.[24] The power under Article 256 is not to preserve the interest political party in power nor a weapon to strike at the political opponent.In the Bihar Assembly dissolution case the Supreme Court has held that the order for dissolution was unconstitutional.[25]


The Article 31B of the Constitution provides that any Act or regulation placed in IXth schedule shall be deemed to be void or ever to become void on the ground that it is inconsistent with the fundamental rights and any judgment, regulation or order   of any Court shall have no effect, it only the power of the competent legislature to repeal or amend it and till then it shall continue in force. It is  a constitutional device to place certain specific statues beyond the attack on the ground that they infringe Part III of the Constitution.[26] The decision of the  Supreme Court I R Coelho’s case[27] has laid down that all those Acts inserted in  IX Schedule after 24 April 1973 would be subject to judicial review. The decision of the apex court is in the light of increasing number of repressive legislations being protected under this provision.  But this judgment is an encroachment on the power of the legislature to repeal, amend the laws placed under the IX schedule.


The member of parliament local area development fund is a clear violation of executive authority.[28] The first report of the parliamentary committee on MPLADs stated that the MP’s are mere spectators in their respective constituencies and but is necessary to note that it is the fixing up of the executive and legislative powers, thus compromising separation of powers. HD Shaourie's petition challenging MPLAD is pending in Supreme Court since 1994.

            In the matter of reservation to private educational institutions the Supreme Court thorough its judgment has laid down that the private educational institutions has been guarded against the reservation policy of the State. The Parliament brought out the nonty third constitutional amendment, 2005 and inserted clause (5) to Article 15 of the Constitution reservation would be available to socially and educationally backward class, scheduled caste and scheduled tribes in matters to admission to educational institutions including the private educational institutions. The minority educational institutions has been spared.  The action of the legislature even though legitimate, raised certain eyebrows as to on whose interested they have acted. The Supreme Court has asked the government to provide with the data relating to the actual population of OBC’s , so that their reservation quota may be fixed. In this regard it is to be asked as to whose functions the Hon’ble Supreme Court is trying to discharge.


Another incident of judicial over-activism is seem in setting aside of a a remission granted by the then Andhra Pradesh Governor Sushil Kumar Shinde, to a convict belonging to the Congress party and whose wife happened to be a sitting MLA.. The power to grant pardon under Article 72 and the 161  are at the absolute discretion of the executive head of the Union and the State in relation to any matter in which the executive power of the Union  and the State respectively  extends. The Hon’ble Supreme Court in its recent judgment has held that the Executive heads ought to give reasons for granting such pardons. The Governor has made his attempt to hold the Constitutional position clear by stating that it is the power of the executive to grant pardon. The Court has held that the power to grant pardon  can no longer be said that prerogative power is ipso facto immune from judicial review. An undue exercise of this power is to be deplored.[29] Thus the judiciary has brought the power to grant pardon under judicial review. In this instant case of judicial interference on the executive power, the public at large can be satisfied that a decision of the executive head merely on narrow political grounds  rather than on rule of law has been overturned. 


The purpose of separation of powers, to retain the autonomy of the organs without compromising the functional zone of the other organs, remains only in theory. Separation of powers, quintessential in a democratic country with a parliamentary form of government, has to be recognized and enforced in its true sense. The judiciary in exercise of judicial review and in the tag of judicial independence has to some legitimate extend  defeated the very purpose of the doctrine. The constitutional trade off for independence is that Judges must restrain themselves from the areas reserved to the other separate branches.[30]

The basic structure of the constitution which was laid down in Keshavananda Bharati case, was the need of the hour, to ensure that the very intend of the constitutional framers is not lost by the legislative or executive action. Basic structure plays a useful role in our constitutional jurisprudence. The basic structure being an innovation of the court, it is not defined anywhere, it is those parts of the constitution with out which it will loose its fundamental character.[31] But the constant expansion of the concept and bringing in anything under the sun under the basic structure has lead to a judicial absolutism,



[1] Administrative Law, I P Massey, Eastern Book Company, edn. 6, 2005, p.34

[2] (1803) 1 Cranch 137

[3] Delhi Laws : In Re 1951 SCR 747

[4] Article 50 of the Constitution of India

[5] Kesavananda Bharathi v. State of Kerala, (1973) 4 SCC 225

[6] Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549

[7] Pandit M S M Sharma v. Sri Krishna Sinha AIR 1960 SC 1186, Powers, Privileges and Immunities of State Legislatures, Re, AIR 1965 SC 745

[8] L Chandra Kumar v. Union of India, (1995) 1 SCC 400.

[9] Keshav Singh  v. Speaker, Legislative Assembly (1965) 1 SCR 413

[10] Article 123, 213 of the Constitution of India

[11] Shiv Kumar Chadha v. MCD, 1993 (3) SCC 161

[12] S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 125;  Brahm Dutt v. Union of India, 2002 (5) SCC 431.

[13] Article 235 of the Indian Constitution.

[14] Keshavanada Bharati v. State of Kerala (1973) 4 SCC 225

[15] V N Shukla, Constitution of India, Eastern Book Company, edn.10, p. A-52

[16] R C Cooper  v. Union of India (1970) 1 SCC 248, A K Roy v. Union of India (1982) 1 SCC 271

[17] Minerva Mills Ltd v. Union of India, (1980) 3 SCC 625

[18] M. P. Oil Extraction v State of M. P. AIR 1998 SC 145

[19] Indira  Gandhi Nehru  v. Raj Narain AIR 1975 SC 2299

[20] S P Gupta v. Union of India  AIR 1982 SC 149

[21] Supreme Court Advocates on Record v. , In Re Presidential Reference, 1998

[22] Raja Ram Pal v. Hon’ble Speaker, Lok Sabha Writ Petition (Civil) No. 1 of 2006, Transferred Case Nos. 82 to 90 of 2006 and Writ Petition (C) No. 129 of 2006

[23] Arjun Munda v. Speaker, Legislative Assembly

[24] S.R. Bommai v. Union of India (1994) 3 SCC 1

[25] Rameshwar Prasad v. Union of India AIR 2006 SC 980

[26] Attorney General For India v. Amratlal Prajivandas (1994) 5 SCC 54

[27] I. R. Coelho v. State of Tamil Nadu 2007 (2) SCC 1

[28] Raja Ram Pal v. Hon’ble Speaker, Lok Sabha Writ Petition (Civil) No. 1 of 2006, Transferred Case Nos. 82 to 90 of 2006 and Writ Petition (C) No. 129 of 2006

[29] Epuru Sudhakar and Anr. v Government of Andhra Pradesh and Ors

[30] Pushpak Jyoti v State Of U.P. And Ors

[31] The Basic Structure of the Constitution and the Will of the People, Mr. T.Mathivanan, 

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