What is the doctrine of separation of powers?
eparation of powers is the division of the legislative, executive, and judicial functions of
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government among separate and independent bodies.
● T heLegislaturemakeslaws,theExecutiveputsthoselawsintoeffect,andtheJudiciary
administers justice by interpreting the law and ensuring that the law is upheld.
● T he purpose of separation is to limit the possibility of arbitrary excesses by the
government.
● S eparationofpowersalsopreventsmisuseofpoweroraccumulationofpowerinafew
hands, which thereby safeguards the society from arbitrary andirrationalpowerofthe
state.
hat is the origin and evolution of the
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doctrine of separation of powers?
● T he first modern formulation of the doctrine of separation of power was given by the
French political philosopher Montesquieu in The Spirit of Laws, 1748. Inspired by the
Englishconstitution,Montesquieuarguedthatlibertyismosteffectivelysafeguardedby
the separation of powers.
● L ater, The United States Constitution gave the doctrine of separation of powers in
substance for the very first time where its provisions
○ Article Igranted powers to the legislature.
○ Article IIgave executive power to thePresident.
○ Article IIIcreated an independent judiciary.
● In this spirit, the ConstituentAssembly,whiledraftingtheIndianConstitution,debated
oninsertingtheprovision‘Thereshallbecompleteseparationofpowersasbetweenthe
principal organs oftheState-theLegislative,theExecutive,andtheJudiciary’asoneof
theDirective Principles of the State Policies.
● F inally, Article 50 was inserted, which gave for the Statetotakestepstoseparatethe
Judiciary from the Executive in the public services of the State.
hat are the provisions pertaining to the
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separation of powers between the three
organs of state in India?
heConstitutionofIndiahasvariousimplicitprovisionsfortheseparationofpowersamongthe
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legislature, the executive, and the judiciary. However, in most cases, the separation is not
water-tight,and there are instances ofoverlapinfunctions to ensurechecks and balances.
Legislature and Executive
Separation of powers Functional overlap
● C
onstitution has separate ● A
rticle75:IndiahasaParliamentaryformof
provisions for establishing: government, and every Minister should be a
member of the Parliament.
○ A
rticle 79: The
Parliament as the ● A
rticle 53 and Article 79:The President is
legislative body. vestedwiththeexecutivepoweroftheunion,
and also, he/she is an integral part of
○ A
rticle 74: Article The Parliament.
council of ministerswith
the Prime Minister as ● A
rticle 123: The President may promulgate
head of the Real ordinances when the Parliament is not in
Executive. session. Thus, even the executive can
legislate in the form of an ordinance in India.
● A
lso, there are distinct
provisions for their functioning: ● In India, delegated legislation is allowed,
where the Parliament can delegate its
○ P
arliament (Article legislative powerstotheCentralortheState
107-117) Governments for the purpose of making
rules.
○ C
ouncil of Ministers
(Article 74 read with
Article 53)
Table on separation of powers between Legislature and Executive
Judiciary and Executive
Separation of powers Functional overlap
● A
rticle 50: State shall take ● A
rticle 72: In India, the President's clemency
steps to separate the powersoverlap with the judicial functions.
judiciary from the executive
in the public services of the ● A
rticle 323a and Article 323b: Tribunals
state. established dispensejusticeinIndia.Tribunals
consist of both judicial as well as executive
● A
ccordingly, the Parliament members.
enacted the Criminal
Procedure Code1973,which ● T
he District Magistrate, while acting as a
separated the judiciary and Returning officer, acts in a quasi-judicial
the executive. capacity where he/she must scrutinize the
nominationpapersandthendecidewhetherthe
● A
rticle 361: The President candidate is fit to contest.
and the Governor enjoy
immunity from court
proceedings.
Table on separation of powers between Judiciary and Executive
Judiciary and Legislature
Separation of powers Functional overlap
● A
rticle 121: No discussions shall ● A
rticle 61: The parliament h as
takeplaceinParliamentwithrespect quasi-judicial powers during the
to the conduct of any Judge of the Presidential Impeachment process.
Supreme Court or ofaHighCourtin
the discharge of his/her duties. ● T
he judiciary may take legislative
functions under certain circumstances,
● A
rticle122:Courtsnottoinquireinto which are dubbed as Judicial activism
proceedings of the Parliament. orJudicial overreach.
○ E
xample: The Vishaka
Guidelinesonsexualharassment
in the workplace.
○ P
eople’s Union for Democratic
Rights v. Union of India (1982)
case, which gave for Public
Interest Litigation( PIL).
Table on separation of powers between Judiciary and Legislature
hatarethevariousjudicialpronouncements
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on the doctrine of separation of powers in
India?
● R amJawayaKapoorvsStateofPunjab(1955):ItwasheldthattheIndianConstitution
has not indeed recognized the doctrineofseparationofpowersinitsabsoluterigidity,
but the functions of the different parts or branches of the government have been
sufficiently differentiated.
● G olak Nath vs State of Punjab (1967):Inthiscase,thejudgesobservedthatthethree
organsofthegovernmentareexpectedtoexercisetheirfunctionswithintheirlimitsand
keeping in mind certain encroachments assigned by the Constitution.
● I ndira Gandhi vs Raj Narain (1975): The Supreme court invalidated aclauseofArticle
329AinsertedtoimmunizetheelectiondisputetotheOfficeofthePrimeMinisterfrom
anykindofjudicialreview.Inthiscase,Itisheldthattheseparationofpowersisapart
of theBasic structure.
● K artarSinghvsStateofPunjab(1994):Itwasstatedthatthefunctionofthelegislature
is to make the law, the executive is toimplementthelaw,andthejudiciarytointerpret
the law within limits set down by the Constitution.
hat are the issues associated with judicial
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legislation in India?
he term "judicial legislation" refers to the law pronounced, proclaimed, and declared by the
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judiciary, specifically the Supreme Court.Thistypeoflawissometimescalled"judiciallaw"or
"Judge-made law."
● T he Supreme Court in Rattan Chand Hira Chand v. Askar Nawaz Jung (1991) stated,
“The legislature often fails to keep pace with the changing needs and values nor is it
realistic to expectthatitwillhaveprovidedforallcontingenciesandeventualities.Itis,
therefore, not only necessary but obligatory on the courts to step in to fill the lacuna”.
● Some of the instances of judicial legislation include-
○ T
he collegium system out of The Second Judges case (1993) and the Third
Judges case (1998).
○ Legalizingpassiveeuthanasiain Aruna Shanbaug v.Union of India, (2011).
○ ‘None Of The Above’ (NOTA) in elections as a Right in People’s Union for Civil
Liberties (PUCL) case 2013.
● T heIndianConstitutiondoesnotstrictlyfollowthedoctrineofseparationofpowers,but
the functions of different parts of the government have been differentiated.
● T he judiciary is not supposed to indulge in lawmaking, but there are instances where
judicial legislation is justified.
● J udicialcreativitycanbejustifiedincertainsituations,suchaswhenthereisapeculiar
issue at hand or when laws enacted need to fulfill the needs of the people.
● J udgesmakethelawwhenthereisalegalvacuumornoexpressprinciplesoflaw.The
impact of judge-made law can create credibility and reliability, but it canalsocreatea
sense of uncertainty and unwanted strife between the organs of the State.
Previous Year Questions
Mains
) Judicial Legislation is antithetical to the doctrine of separation of powers as envisaged in
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the Indian Constitution. In this context justify the filing of large number of public interest
petitions praying for issuing guidelines to executive authorities. (2020)
Q) Do you think thatthe constitution of India does not accept the principle of strict separation
f powers rather it is based on the principle of ‘checks and balance’? Explain. (2019)
o
) From the resolutionof contentious issues regarding distribution of legislative powers by
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the courts, ‘Principle of Federal Supremacy’ and ‘Harmonious Construction’ have emerged.
Explain. (2019)
Q) Resorting to ordinanceshas always raised concern on violation of the spirit of separation
f powers doctrine. While noting the rationales justifying the power to promulgate ordinances,
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analyze whether the decisions of the Supreme Court on the issue have further facilitated
resorting to this power. Should the power to promulgate ordinances be repealed? (2015)
Prelims
Q) In India, separation of judiciary from the executive is enjoined by (2020)
(a)The Preamble of the Constitution
(b) A Directive Principle of State Policy
(c) The Seventh schedule
(d) The conventional practice
