CHAPTER 1 – INTRODUCTION

1.1. INTRODUCTION

The country's founders believed that only a democracy system based on a federal government
could effectively address the numerous socioeconomic issues the country faced at the time of
independence as well as the great diversity that exists across all facets of our national
existence. For this reason, they believed that parliamentary democracy was the ideal form of
government.

Many constitutionalism systems around the world share the concept of division of powers,
which maintains that the three main aspects of government—the legislative, executive, and
judicial branches—should be administered by distinct organisations. According to the
proposed system, there would be an elected Legislature that would establish laws, enforce
government responsibility, and represent the will of the people; the judiciary would handle
civil and criminal cases involving the government as well as private parties. It also means that
none of these three organs may be endowed with unchangeable or absolute authority,
meaning that neither an organ nor a person may take on unchangeable powers.1

Our founding fathers' basic legislation stipulated that each of the three divisions of
government—the legislative, judicial, and executive branch—had distinct responsibilities.
They eliminated any chance of uncertainty or ambiguity in their interactions with one another
by outlining their roles and responsibilities to function as the agents of national unity through
the provisions and acts of the Constitution. The idea of the separation of powers has been
crucial to democracy's development. The concept that establishes a system of checks and
balances between the several branches of government is one of the most distinctive aspects of
our constitution.

The great statesmen who drafted our Constitution understood that granting undue authority to
any one of the three arms of government would result in unjustified conflicts that could
jeopardise the fundamental tenets of our democracy. In light of this, they conceptualised that
peaceful coexistence in shared, participatory roles and mutual respect for the greater welfare
1
Sri Somnath Chatterjee, Former Speaker Loksaba, "Separation of Power and Judicial Activism", AIR, 2013
Journal p. 97.

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of the nation would be necessary for all State organs to function smoothly and cooperatively
in the domains that have been assigned to them.

As former Chief Justice of India J. S. Verma has observed, our Constitutional framework
does not support the sole supremacy of any division or grant any branch whole powers, which
is anathema to democratic form. Our Constitution states that the Parliament enacts laws, the
Executive carries them out, and the Court serves as an impartial body to interpret them. The
framers of our Constitution guarantee that the people's rights were sufficiently safeguarded
against abuses by the legislative or executive branches. The way our Constitution is written
gives the courts the authority to overturn both legislation approved by Parliament and
executive acts that they determine violate people's rights under the various articles of the
Constitution.

Our Constitution states that the courts have no authority to decide what laws should be
passed, what policies should be followed, or how best the executive branch should perform
its functions. Rather, they will construe the legislation and meticulously evaluate its
constitutionality and legitimacy. Numerous influential members of the Constituent Assembly
made it quite clear that the idea of judicial independence forbade the court from acting as a
"super Legislature" or "super Executive." It is crucial to bring Pandit Jawaharlal Nehru's
insightful and perceptive remarks from the Constituent Assembly to everyone's attention in
this situation.

"No court, not even the Indian Supreme Court, has the power to rule on the sovereign will of
Parliament, which speaks for the entire community. Ultimately, though, if we make errors
from time to time, it may draw attention to them. The Legislature must always be in charge
when it comes to the fate of the community; the Court of Law cannot get involved in social
reform efforts. No court may ever overturn the Legislature on this point.

According to our Constitution, the judiciary has no jurisdiction to determine what laws
should be passed, what rules should be observed, or how effectively the executive branch
should carry out its duties. Instead, they will interpret the law and carefully consider its
validity and legality. It was made very evident by a number of powerful members of the
Constituent Assembly that the concept of judicial independence prohibited the court from
functioning as a "super Legislature" or "super Executive." In this context, it is imperative that

2
everyone pay heed to Pandit Jawaharlal Nehru's incisive and insightful words from the
Constituent Assembly.

"No court, not even the Supreme Court of India, has the authority to decide against
Parliament's sovereign will, which speaks for the whole community. In the end, though, it
might highlight our mistakes if we commit them occasionally. When it comes to communal
destiny, the Legislature must always have the final say; the Court of Law cannot become
embroiled in social reform initiatives. On this matter, the Legislature cannot be overruled by
a court.

“Our Constitution does not contemplate assumption, by one organ or part of the State, of
functions that essentially belong to another.”

The Legislature is designated as the highest representative and legislative body in our
constitutional structure. The constituent powers, emergency powers, legislative authority,
financial management, accountability to the House of Representatives, involvement in the
election and impeachment of the Head of State, and removal authority from constitutionally
designated positions all serve to illustrate the supremacy of the Executive. However, the
Legislature must operate within the limitations set down in the Constitution.
Because it is so representative, the legislature is the body in a democracy most adapted to
understand the priorities of the people. Ultimately, it is required of the bodies that represent
the people to voice their concerns, wishes, and ambitions and, above all, to protect and
further their fundamental democratic rights.

The Legislature's unalienable constitutional right to scrutinise and oversee the Executive
branch is derived from this fundamental principle. It is explicitly declared that the House of
People, the directly elected legislature, will be the Council of Ministers' ultimate
accountability. Similar provisions in the Constitution state that the State Legislative
Assemblies have supervising authority over the State Government. Thus, our Founding
Fathers carefully delegated to our Parliament and State Legislatures, which represent the
people of India as a whole or the States, respectively, the responsibility of defining and
identifying people's rights, providing them with legal protection, and giving our democracy's
institutions the overall direction and impetus for social engineering.

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All governing bodies in a democracy are expected—and in fact required—to remain
responsive to the people, either directly or indirectly. Maintaining accountability to the
people is a fundamental principle of democracy. A thorough process has been established in
order for the legislature to fulfil its mandate, which states that the legislature, the people's
elected representatives, and ultimately the people themselves should be the Executive's
ultimate point of contact. But lawmakers are answerable to the public since the outcomes of
the elections they must hold every five years decide their periods of office. However, due to
their unique status, judges are not above the Constitution; rather, they are answerable to the
law, higher courts, the learned Judges of the Apex Court, and their own consciences. Any
statutory provision that serves as the foundation for a court's ruling cannot be changed or
removed by judges; only the legislature has this authority.

It is explicitly stated that the House of People, the directly elected legislature, will be the
Council of Ministers' ultimate accountability. This fundamental principle gives rise to the
Legislature's unalienable constitutional power to investigate and oversee the operation of the
Executive. The State Legislative Assemblies are the State Government's superiors, according
to similar provisions in the Constitution. Because our Parliament and State Legislatures
represent the people of India as a whole or the States, respectively, our Founding Fathers
carefully delegated to them the responsibility of defining and identifying people's rights,
providing them with legal protection, and giving our democracy's institutions the overall
direction and impetus for social engineering.

All governing bodies in a democracy are expected—and in fact required—to remain

responsive to the people, either directly or indirectly. Maintaining accountability to the
people is a fundamental principle of democracy. A thorough process has been established in
order for the Legislature to carry out its mandate, which is for the Executive to answer to the
Legislature, the elected representatives of the people, and eventually the people themselves.
Nevertheless, because the results of the elections they must run for every five years determine
their terms of office, legislators are answerable to the people. However, because of their
special standing, judges cannot be above the Constitution; instead, they must answer to
higher courts, the learned Judges of the Apex Court, their own consciences, and the law.
Judges are not authorised to amend or remove any law provision that forms the basis of a
court's decision; only the legislature possesses this power.

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Our court has proven throughout the years to be extremely capable of enforcing the Rule of
Law generally and giving the public socioeconomic justice. The framers carefully considered
the role of the independent and unbiased court as their source of interpretation of the
Constitution as well as their protection of people' rights. The Rule of Law in our nation has
been greatly strengthened by the numerous exceptional judges and illustrious members of the
legal community that we have had and will continue to have.

The Supreme Court's determination to construe locus standi in a flexible manner without
encroaching on the domains reserved for the legislative or executive branch was highly
respected. This was especially true for oppressed residents, especially those who belonged to
the most vulnerable sections in the community. When blatant unfairness and discrimination
occur, these people don't have the resources, facilities, or even the ability to go to court on
their own.

But it's been apparent for some time now that the boundaries between the many branches of
the State's authority are becoming more hazy. This is because, with all due respect, some
judges appear to believe that they have the right to engage in what is known as "judicial
activism" in order to carry out actions that are clearly beyond the purview of the judicial
branch's clearly defined duties and that are specifically reserved by the Constitution for the
legislative or executive branches.

It should be mentioned that the separation of powers is considered a "basic feature" of the
Constitution by the Honourable Supreme Court.

In order to avoid violating any of the "fundamental features" of our Constitution—which also
apply to the judiciary—each branch of government must inevitably have its own areas of
operation, into which no other branch may venture or interfere without permission from the
Constitution.

Our Constitution does not address "judicial activism," a phrase that was developed much later
and encompasses much more than review. Rather, it takes into account "judicial review." It
hasn't, however, allowed any organ to oversee the exercise of another's authority or function
unless specifically authorised.

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1.2. HISTORY OF SEPARATION OF POWER

The French enlightenment writer Baron de Montesquieu is credited with coining the sentance
"separation of powers." The division of powers between the different branches of the
government, however, actually dates back to ancient Greece. The concept of three distinct
parts of government—executive, judicial, and legislative—was chosen by the founders of the
Constitution to serve as the cornerstone of the American political system. As a check and
balance, each of the three branches operates separately from the others. This prevents any
branch from gaining complete control or abusing the power that has been bestowed upon
them.

The executive branch of the US government, which includes the bureaucracy, is headed by
the president. The two houses of Government that comprise the legislative branch are the
Senate and the House of Representatives. The judicial branch is composed of the federal
courts that are below the Supreme Court. The division of powers, sometimes wrongly used
synonymously with the trias politica principle, serves as a foundation for state governance.
The idea was initially developed in ancient Greece and was extensively embraced by the
Roman Republic before being incorporated into the uncodified Roman Republic Constitution.

Based on this concept, the state is split up into branches, each of which is given distinct
authority and a different sphere of influence, ensuring that no branch is given greater
authority than the others. The legislative, executive, and judicial branches are the three
branches that are typically involved. For similar reasons, many countries have adopted the
concept of the separation of church and state, albeit to varying degrees depending on the
applicable legal frameworks and prevalent ideas about the proper place of religion in society.
The term is given to the French Enlightenment political philosopher Baron de Montesquieu.
The distribution of political powers between the legislative, executive, and judicial branches
was explained by Montesquieu. The British Constitutional system, which he believed to have
a division of powers between the monarch, Parliament, and the legal system, served as the
model for this one.

Every government has three main functions that are used to express the desire of the people.
The judicial, executive, and legislative branches of government are these. These three
functions are represented by the legislative, executive, and judicial departments of
government. The legislative branch of the state makes laws, the executive branch enforces

6
them, and the judicial branch applies the laws to specific situations involving breaking the
law. Because it is impossible to assign specific functions to each organ in their dealings with
the public, the activities of one organ sometimes infringe upon the territory of another
functionary. As a result, these organs frequently perform overlapping activities, even when
operating within the bounds of their respective authorities.

The doctrine of the separation of powers has an almost unparalleled reputation worldwide as
a cornerstone of modern constitutionalism and liberal democracy. It is a well-established
historical and political theory that greatly influences the opinions, statements, and attitudes of
academics, public personalities, and everyday people.

A number of well-known English academics have recently expressed support for the idea,
which is a noteworthy shift in a jurisdiction where the notion was once widely derided as a
"rickety chariot" of improbable design and alien creation. Similar to this, the Irish Supreme
Court declared that the theory was "of itself, a high Constitutional value," using this as the
conceptual framework through which all other constitutional articles should be interpreted.

As difficult as it may be to admit that the roles of government are still threefold, as they were
in Aristotle's day: deliberative, magisterial, and judicial, it is impossible to attribute these
functions only to the three organs of a modern state: the Legislature, the Executive, and the
Judiciary. Stated differently, the functions of the three parts of government cannot be
accurately described as follows: the legislative branch makes laws, the executive branch
executes them, and the judicial branch interprets and applies the laws to particular
circumstances.

Functions that Parliament itself may have legislated for have been "allowed to courts," and
cases that were vested in the executive branch and required an executive decision on
extremely complex circumstances have been upheld. By using this method, Government has
been allowed to work freely in contemporary areas of legislation that require technical
expertise and administrative talent due to their extreme complexity and constantly changing
realities. It is impossible to enforce a strict separation of powers idea.

Every department needs to perform certain incidental abilities that are strictly distinct from its
primary tasks in order to operate effectively. For example, even though these powers may
resemble legislative powers, the Courts must have the ability to establish rules for upholding

7
discipline or controlling procedure in order to operate effectively. One does not consider the
ability to establish procedural rules for courts to be fundamental to the Legislature's role 2.

Once more, the courts do in reality carry out a role similar to that of establishing laws when
they interpret statutes and create case law.The idea of the separation of powers under Indian
Jurisprudence stems from constituent powers, which are an accumulation of all functions.
The legislative, executive, and judicial departments use their authority to construct
component powers. The separate ministries or heads receive all authority from the constituent
authorities pursuant to the Constitution. Within component authority, there is no division of
authorities. It is only when the constituent authority defines the authorities or sets boundaries
that the subject of separation of powers is brought up. The constituent powers are the
sovereign powers. It distributes the powers and forms the organs.3

1.3. SEPARATION OF POWER - MEANING

The three main types of governmental authority are as follows:

(i) Parliament is the legislative branch;

(ii) The cabinet secretar is the executive branch

(iii)The Supreme Court and the Judiciary

Three branches of government function concurrently in a state: the legislative, executive, and
judicial. Each of these three governmental responsibilities must always be maintained
separate and carried out by various government agencies in a free democracy, according to
the principle of separation of powers. Consequently, neither arm of government is able to
carry out its judicial, legislative, or executive duties; the legislature is unable to carry out its
judicial or legislative duties, and the executive branch is unable to carry out its legislative or
executive duties.

2
Wayman v. Southward. (1825) 19 Wh. 1 (42)

3
Ibid.

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1.4. WORLD WIDE ACCEPTANCE

Strong power divisions can be found in constitutions all around the world. The distinctive
interaction of powers is one feature of the UK system that makes it stand out. The U.S.A.'s
separation of powers is connected to a system of checks and balances. This is the view held
by Australia, Costa Rica, Germany, China, Russia, and Australia. The two countries with the
least amount of separation of powers are New Zealand and Canada. Although the separation
of powers is supposed to distinguish between the several parts of government, it is rarely used
in practice in Canada.4

Even though the council of ministers requires a vote of confidence from both chambers of
Parliament, which is composed of a large number of members (almost 1,000), the powers in
Italy are fully segregated.

In Britain, whose political system largely served as a template for the government established
by the U.S. Constitution, there was no strict division of powers. The supreme legislative
power under the British Westminster system, which was founded on parliamentary
sovereignty and responsible governance, was Parliament, which was made up of the House of
Commons, the House of Lords, and the Sovereign (King-in-Parliament). Both the judicial and
the executive branch operated under the name of the King ("His Majesty's Government").

A majority in the House of Commons was required for the Government to maintain power, as
the King's Ministers were typically members of one of the two Houses of Parliament. The
Lord Chancellor, a single minister, served as both the head of the House of Lords and the
only judge in the Court of Chancery. Consequently, even though there were several instances
in which the various departments of the British government clashed with one another, it can
be said that the three branches frequently disregarded the rigorous concept of the division of
powers.

Complete separation of powers systems almost always place the president in charge, though
this need not always be the case. There are a few historical outliers, including the
revolutionary Directoire system in France. Switzerland offers a contemporary illustration of

4
Separation of powers and the Madisonian Model : A Reply to the Critics— George W. Carey,In Defense of the
Constitution (1989).

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non-presidential division of powers: the executive branch is headed by the seven members of
the Federal Council. Some would respond that because the Federal Council is chosen by the
legislature even though it is independent of it and the court does not have review jurisdiction,
Switzerland does not have a robust separation of powers.

A few US states did not uphold a strict separation of powers during the 18th century. The
governor of New Jersey also served as a member of the state's highest court and presided
over one chamber of the legislature.

The president of Delaware served as a member of the Court of Appeals, while the vice
presidents of the two chambers of the state legislature oversaw the executive branch in their
capacities as vice presidents. Southern states expressly required the separation of powers. The
governments of North Carolina, Virginia, Maryland, Georgia, and North Carolina remained
"separate and distinct."

1.5. THE NEEDS OF SEPARATION OF POWERS

When Clement Walker served in the Long Parliament in 1648, he saw enough examples of
the kind of arbitrary, arbitrary power that the governed needed to be protected against. He
thought it would be better to divide up governmental duties into three categories: "the
Governing powers," "the Legislative powers," and "the Judicative powers."

Marchamont Nedham, writing under the Cromwellian Protectorate in 1656, believes that
separating the administrative and legislative branches into distinct "hands and persons" is
vital. In his application, the distinction bears similarities to the sharp demarcation between
the creation of policy and its implementation that American administrative theorists
supported in the middle of the twentieth century. Separation, in Nedham's opinion, is an
essential instrument for determining responsibility and placing blame.

An executive may be held accountable for carrying out or failing to carry out a policy that the
"Law-makers" have clearly assigned to them. Allow the boundaries between responsibility
and distinction to become less obvious, putting both the interests of the people and liberty at
danger. "The celebrated Montesquieu" was the most frequently mentioned political figure
among Americans considering new governmental structures in the later part of the eighteenth

10
century. The principle of the separation of powers is firmly linked to the name Montesquieu,
partly because of those Americans. But like most of the teachings of that subtle mind, this
one has ambiguities and leaves room for interpretation.

There isn't a clear one-to-one relationship between political authorities and functions since
Montesquieu did not insist on an absolute separation between the two. Therefore, the
executive has the right to engage in legislative activities, such as using the veto power, even
though it is a separate branch. This blending or overlapping of functions is partly required by
Montesquieu's goal of separation, which checks the excesses of one or the other branch. In
this case, balanced government is supported by the distribution of powers or even integrates
it.Excesses can come from almost any direction.

Bicameralism prevents both the invasion of the few and the licentiousness of the multitude.
The nobility act as a middleman between the administration and the lower house, which
could become oppressive. The veto and proroguing of the legislature are powers of the
executive.Its enactments are forms of self-defense, while the legislature’s powers to impeach
and try the agents or ministers of the executive is necessary and sufficient to hold the
executive accountable to examination without holding him hostage.12

1.6. THE IDENTIFICATION OF PROBLEM IN DIVISION OF POWERS :

A federal system of governance with a potent central authority is established under the Indian
Constitution. In matters of legislative relations between the union and the states, the union
holds supreme legislative authority over the states. Because the founding writers of the Indian
Constitution felt that a strong central authority was necessary to counter the threat posed by
fissiparous tendencies and the prospect of disintegration over time, they purposely shunned a
unitary leaning in favour of the federal system of government. As new party governments at
the centre emerged, states started to complain that their autonomy was being infringed upon
and demanded more autonomy. Due to the growing penality of regionalism, there is a dispute
between the union and the states; therefore, it is imperative that the problem be identified and
solutions found as soon as feasible. Because of this, the subject necessitates a study of both
the state demands and the requirements of the Constitution. Therefore, there is support for the
proposed research.

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In the United States of America, the concept of separation of powers is upheld, albeit not
rigorously. A system of checks and balances for the federal government is included in the
written Constitution of India.The founding fathers included the essential rights within the text
of the Constitution, and the court was tasked with upholding those rights. These fundamental
rights are immune to infringement by the government and effectively act as checks on state
power. A law can be ruled unlawful and unconstitutional by the courts if it infringes upon a
citizen's fundamental rights.

The concept of judicial review has become quite strong in our country and is set to soar,
despite the fact that the judiciary has preserved the rule of law, constitutionality, and the
democratic fabric of the Constitution during the exercise of judicial review. Its occasional
encroachment into other organs' domain, meanwhile, is worrisome for our democracy.
The most recent study will look at all these aspects of judicial activism, separation of powers,
and judicial review within the framework of global development.

1.7. THE DOCTRINE OF SEPARATION OF POWERS

The division of responsibilities among the legislative, executive, and judicial parts of
government is known as the doctrine of separation. The interactions between the legislative,
executive, and judicial departments of government are covered under the doctrine of
separation of powers. Aristotle, who derived from philosophers like Plato, divided the roles
of government into three categories: judicial, magisterial, and deliberative. Locke went on to
further divide the powers of the government into three categories: federative, discontinuous
legislative, and continuous executive. Rules are made by the legislative branch, foreign
policy is handled by the federative branch, and ongoing executive authority covers both
judicial and executive functions. By prohibiting the consolidation of power in a single
branch, this concept aims to preserve a system of checks and balances. Separation of powers
refers to how the legislative, executive, and judicial parts of government are assigned
different responsibilities. This theory reduces the possibility of arbitrary actions by the
governing government because most laws need approval from all three parts of government
in order to be drafted, implemented, and administered. This idea states that no one individual
or group of people should hold all three of the government's powers. It further suggests that
no one organ of government should perform duties that have been delegated to another.

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1.8. OBJECTIVES OF THE STUDY

1. To analyse about India's interpretation of the separation of powers.

2. To examine how the union and state governments are allocated legislative powers under
the Constitution.

3. To explain how a strong centre is provided for by the Constitution.

4. To talk about the latest developments in Indian judicial activism and review.

5. To talk about the idea of the separation of powers internationally.

6. To offer recommendations on how to settle these disputes and bring the union and state
governments together.

1.9. HYPOTHESIS OF STUDY

1. Are the Constitution's provisions on union and state legislative relations adequate, or do
they need to be amended?
2. The principle of separation of powers recognised in the Indian Constitution in a strong
and absolute sense.
3. A strong central government or the unitary raise of India's federal system of government.
4. Courts have various ideas produced to interpret the Union-State relations clauses of the
Constitution.
5. The Judicial system is the savior of the Division of Powers

1.10. RESEARCH METHODOLOGY

Exploring the idea of separation of powers in Indian law and practice is the goal of the
current study. The goal of the study project is to determine whether the idea of separation of
powers exists in India in a real or theoretical sense. This study will mostly focus on doctrine.
Statutes and the Constitution are the main sources. Textbooks, the internet, Supreme Court,
High Court, and foreign court case laws are examples of secondary sources that have been
consulted.

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1.11. LITERATURE REVIEW

In order to accomplish the aforementioned goal, it is imperative that the relevant provisions
of the Constitution, state memoranda, and commission findings has been reviewed.

1.12. SCHEME OF CHAPTERIZATION

Chapter – I Introduction: An analysis of the doctrine of separation of powers and the reasons
for the introduction of these notions has been attempted. This chapter explains the structure
of legislative relations in India as well as the allocation of legislative powers between the
Union and the States. The history and foundation of the principle of separation of powers
have been covered. The universal recognition of the Principle of Separation of Powers has
also been discussed.

Chapter – II It provides explanations of the ancient concept of the division of powers, its
historical background, and how it has changed with society. After that, we read about modern
philosophy and the work of Montesquieu, who was the first to propose the idea of the
separation of powers. Additionally discussed has been the historical development of India's
financial federal ties. I have also covered the current state of the separation of powers idea in
this chapter.

Chapter – III It provides an explanation of the robust power separation found in all
international constitutions. The distinctive interaction of powers is one feature of the UK
system that makes it stand out. The United States' usage of this kind of division of powers is
connected to a check and balance mechanism. This is the view held by Australia, Costa Rica,
Germany, China, Russia, and Australia.

Chapter – IV It It provides an explanation of the notion of separation of powers as it is

presented in the Indian Constitution, analyses it, and covers every facet of it. This chapter
looks at the provisions of the Indian Constitution and highlights how it creates a strong
central government. The theories that the courts have evolved to interpret the Constitution's
provisions on the distribution of legislative authority between the Union and the States are
also covered in this chapter. An alternative perspective on the conflict issue in union-state
relations is provided in this chapter.

14
Chapter – V It It provides an explanation of current judicial tendencies concerning the
concept of separation of powers. There has also been consideration given to using cases as
help. How the idea of separation of powers is included into the basic structure. There has also
been discussion of the limits of judicial legislation, the conflict between the judiciary and the
legislative, and the conflict between the judiciary and the government. In this chapter, we
have discussed the notion of checks and balances in the Indian system, with special emphasis
on court pronouncements.

Chapter – VI includes a conclusion and recommendations about the problems raised in the
previous chapters. This chapter has explored ways to improve the effectiveness of the
Separation of Powers, and conclusions have been drawn based on a compilation of resources
and situations.

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 CHAPTER – 2

THE ORIGIN OF SEPARATION OF POWERS

2.1. INTRODUCTION

The method of forming the Indian federation was protracted. Subdivisions served as a kind of
sub federation throughout her history. The ancient Indian monarchs recognised the authority
of the provinces to maintain the divides and intervened minimally as long as the status quo of
the power system was not gravely jeopardised. Local customs were preserved with care.
There have also been spiritual movements that highlight how India's rivers, mountains, flora,
fauna, and customs are all part of one nation.

India's past is filled with brief periods of both political stability and unrest interspersed with
periods of anarchy, division, and upheaval. The strongest kingdoms eventually expanded into
empires that essentially spanned the subcontinent's borders, enslaving the neighbouring
principalities and kingdoms. But later, over-centralization proved to be ineffective and set off
a series of divisive factors that grew stronger and ultimately caused the nation to fall apart,
periodically tempting foreign invaders to seize power.

During the Gupta and Mauryan periods, Muslim monarchs made an attempt to contain all of
India inside their borders. However, the central government has also realised how important
it is to provide the principalities that comprise its member states a great deal of autonomy.
Centralization was, of course, the prevailing trend during the Muslim era. Nevertheless, their
efforts were only partially successful. The British had roads, railways, and telegraphs when
they came. They were effective in bringing India together politically and socially. In order to
partially succeed in integrating India, they also employed a highly trained military, a
standardised civil service, and a single English educational system.

There is no universally accepted definition of a federal State, making discussions about

federalism challenging. The second challenge stems from the tendency among experts in the
field to begin with the United States model (1787), the oldest federal Constitution in the

16
world, and to omit any system that deviates from this model from the word "federation."
However, since 1787, a large number of other nations have adopted federally structured
constitutions; if the stringent historical criteria of the US are applied to all of these later
constitutions, then very few—possibly Switzerland and Australia among them—will pass the
federalism test.

It is not really advantageous to remove so many modern constitutions from the federal class,
nevertheless, as political scientists frequently categorise constitutions as either unitary or
federal. Consequently, even in cases when a constitution may differ slightly in terms of
subsidiarity, the only method to determine whether it is essentially unitary or federal is to
evaluate these characteristics. It is consequently unavoidable to take a liberal stance on the
federalism argument because contemporary constitutional experimentation is quickly moving
away from the "pure" form of either a unitary or a federal system.

5
Another American scholar has, noted in a similar vein that any theory claiming that a
system of politics cannot be federal without a few unchangeable traits ignores the reality that
"institutions are not the same things in different social and cultural environments."
Federalism is more of a "functional" than an "institutional" concept.

To anticipate the Author’s conclusion, the constitutional system of India is basically federal,
but, of course, with striking unitary features.6 To get to this conclusion, we first identify the
basic minimum characteristics of a federal system that most political scientists agree upon. In
the Montegue - Chamsfood study (1918), for example, it was noted that the absence of
sovereign states among the Indian provinces made a federation unfeasible, casting doubt on
the possibility of a federal solution to the problem of political independence for British India.
The federal government might get some power from it. According to the Simon Commission
report, this sentence was still relevant in 1929. Though it made no recommendations, the
Simon Commission considered federalization as a long-term goal.

Famous author H.M. Seervai: "Why then British Parliament provide a federal constitution for
India, disregarding the views expressed in two reports?" in relation to the Govt. of India Act,
1935, which saw the British seek a federal solution.
To begin with, the British never followed theories of administration; instead, they tried to

5
Federation and Constitutional Change, Livingstone
6
This view of the Author has been affirmed by the 9-judge Bench Supreme Court decision in S.R. Bommai v.
Union of India, AIR 1994 SC 1918, pp. 6-7.

17
establish effective political structures. Second, the need for substantial political advancement
in British India had become almost inevitable, and every political advance brought the
eventual full handover of authority to the Indians, or more broadly, to the British provinces.
In general, the British Indian provinces shared a common economic policy that applied to all
of the provinces, a common administrative system (many of the major executive offices were
staffed by members of the India services), and a common communication network that
included roads, railways, telephones, post offices, telegraphs, and other means.

Besides, the political struggle against the British had strengthened the sense of national unity
and solidified the desire to create a united India free from foreign rule. Racial, religious, and
linguistic differences were certainly there, but these differences would suggest that a federal
solution was clearly the best one. Consequently, the leaders of the political movement in
British India believed that a federal solution offered the best chance for an early achievement
of their goal. Political freedom exists across India. Thirdly, the Indian monarchs had ratified
treaties and covenants with the British Crown, acknowledging the monarchy's sovereignty in
return for the British powers' protection from outside threats and internal unrest. These rulers
welcomed a federated India as a part of the British Empire because it offered them the best
chance of retaining their autocratic powers, which they protected through their schemes with
the Scottish Crown.
Furthermore, the ruling class expected that their states would be shielded from the inexorable
wave of democratic movement emanating from British India if they accepted the federal
solution. In the end, the British concluded that a conservative faction aligned with their own
would provide the greatest opportunity to protect their substantial holdings in India. The
British had enormous interest in India, thus it seemed sense that they would want to safeguard
their substantial holdings there.

Thus the situation existed in which all the parties affected were interested in providing federal
solution.7

The Government of India Act, 1935 established a federal solution moving forward as a result
of the aforementioned causes. It became clear that a federal constitution would allow British
India to continue operating effectively. Moreover, a strong federation was favoured rather
than a loose one by the Second World War's conclusion and division. Without a question, the

7
H.M. Seervai, Constitutional Law of India, p. 284-285.

18
election of a constituent assembly in line with the cabinet mission position gave the Indian
political scene hope for a while.

Still, the Government of India Act, 1935 marks a momentous shift in the history of
constitutional devolution of powers, particularly from two angles. In line with the
constitution, it first delegated power to the provinces and the central.

Secondly, subject to certain safeguards, it introduced representative government at the

provincial level responsible to the provincial legislature.8

A federal alternative for the future was offered by the Government of India Act, 1935, albeit
it was never put into effect. In 1947 and 1949, there were more favourable conditions for a
federal solution than there had been in 1935. With Pakistan's establishment and the partial
dissolution of the Indian States, the two main barriers to a loose federal constitution in favour
of an effective one were eliminated.

The British Parliament established a federal system by the Act of 1935, "by creating
autonomous units and combining Government of them into a federation by one and the same
Act," just as it had done in the case of Canada.

All of the Crown's previous authority in India was reclaimed, and the newly found authority
was given directly to the Federation and the Provinces. Under this arrangement, the Provinces
exercised both executive and legislative authority, mainly free from intervention from the
central government, and were directly under the sovereignty of the Crown within certain
bounds. The Governor's "special responsibilities," however, allowed the Centre to maintain
control. These included the authority to command the Provinces from the Centre and the
necessity for him to use his own judgement and discretion in specific situations.
This unique aspect of the design of India's federal system must be kept in mind. In contrast to
the States of the American Union, the Provinces were not "sovereign" States prior to the Act
of 1935. It cannot be said that any agreement or contract between independent States
contributed to the creation of the Union of India; rather, the Constitution was drafted by the
"people of India" gathered in the Constituent Assembly. Even when the Provinces changed

8
Introduction to Sarkaria Commission Report on Centre-State Relations (Para 1.2.17).

19
from a unitary to a federal system, it was not because they wanted to stay independent states
inside a federal union, as their Canadian counterparts did.

The Government of India Act, 1935, as previously indicated, artificially provided the
Provinces autonomy within certain bounds. Even though the Indian States refused to join a
federal union in 1935, the framers of the Constitution nevertheless included these separate
Provinces and the Indian States into a federal union. A certain level of coherence amongst the
federating entities is necessary for their desire to form a federal union. But things haven't
been the same in India. Since ancient times, the Indian States have been independent political
entities with minimal similarities to the Provinces that made up the rest of India, even under
the 1935 federal government. The Indian States chose to enter the system voluntarily, but the
Provinces were forced to do so. The Indian States fell under the jurisdiction of the Federation
as defined by the Instruments of Accession. The leaders of the Indian States refused to accept
the 1935 federal structure as an optional answer. They were devoid of "federal sentiment,"
which is the desire to unite with the rest of India in a federal union (Dicey). As mentioned
before, however, the loss of power by the British Crown altered the political landscape, and
most Indian States became part of the Government of India just before India gained
independence.

2.2. PREVIOUS HISTORIC CONTEXT :

The separation of powers concept has a lengthy history. The doctrine's historical origins can
be traced back to Aristotle. French philosopher John Bodin and British politician Locke
developed the idea of the separation of powers in the sixteenth and seventeenth centuries,
respectively.
However, it was in Montesquieu's 1748 work "Esprit des Lois" (The Spiriti of the laws) that
it was first formulated in a methodical and scientific manner.

A democratic state government is based on the concept of separation of powers. The

paradigm was widely adopted into the Roman Republic's uncodified Constitution after it
originated in ancient Greece. In accordance with this paradigm, the state is split up into
several branches, each of which is given specific authority and responsibilities such that no

20
branch supersedes the others. Usually, there are three branches involved: the judicial,
legislative, and executive.

2.3. THEORIES OF SEPARATION OF POWERS

The ancient and modern eras are the two historical periods in which the idea of separation of
powers may be found. The ancient concept is derived from the writings of Plato, Aristotle,
and Polybuis in addition to two ancient Greek philosophical treatises. The writings of these
ancient philosophers have had a significant impact on contemporary authors. The writings of
Lock Montesquieu and the English Glorious Revolutions of 1688 are the origins of modern
thought.

I. Ancient Theory of Separation of Powers:

Three Greek philosophers who lived later are credited with the historical development of the
theory: Plato (427–347 BC), Aristotle (384–322 BC), and Polybius (205–123 BC). Aristotle
researched 158 Greek city-state constitutions before forming his theories, but Plato's
Republic is a work of political theory written by a creative and inventive mind (Fitzgerald
1080). Aristotle was more empirical in his approach to governing. The Constitution and Laws
are characterised by both democratic and oligarchy traits, with an oligarchy trend. In the
context of classical political philosophy, Aristotle recognised the judicial, magisterial, and
deliberative functions of government. The reason he criticises Plato's Laws is that they
support polity, a form of government halfway between democracy and oligarchy. In order to
settle disputes and rivalries between different groups, including the rich and the poor,
Aristotle recommended the "mixed rule," or "polity." Present-day division of powers is the
antiquated equivalent of the former "Mixed Constitution."

The antiquated concept of a "Mixed Constitution" blends and counterbalances three different
types of constitutions according to the size of its governing body. These were the many-
person democracy, the one-person monarchy, and the few-person aristocracy. These regimes,
in his opinion, occurred in cycles. Tyranny, oligarchy, and mob rule are the three corrupt
forms that these three constitutions gradually deteriorate into, according to the Greek
historian Polybius, as a result of this "political revolution" or "anacyclosis" process. Six

21
categories that Polybius attributes to "Plato and certain other philosophers" make up the three
basic forms of the Constitution and their corresponding perversions.

However, because he does not distinguish between democracy and mob rule, Plato (Laws
712c) only permits five of the six conceivable constitutional forms. However, Aristotle lists
all six and asserts that, depending on the self-interest or altruism of the ruling class, the
sovereignty of the one, the few, and the many divides into two subcategories: The aristocracy
is associated with oligarchy in the aforementioned constitutions, constitutional governance
(or polity) with democracy, and royalty with tyranny. This is due to the fact that none of these
types of government serve the interests of the community: despotism under a monarchy,
democracy for the poor, and oligarchy for the rich.

II. Modern Theory of Seperation of Powers :

The current redefinition of the idea of separation of powers as merely a system of checks and
balances results from glaring misinterpretations of key literature, especially the writings of
Locke (1690), Madison (1788), and Montesquieu (1748).This rereading also made it possible
to challenge the idea of the separation of powers (SOP) as a foundational principle of the
English Constitution.

1. Montesquieu: The founder

This idea distinguishes between three types of powers: legislative, executive, and judiciary.
Each of these functions should be attributed to a different organ because liberty cannot exist
if any two or all of these functions are combined into the hands of one organ or individual.
For example, there is a chance that the relevant organ would enact and carry out autocratic
laws if the legislative and executive branches come together. Once more, liberty is impossible
without maintaining the division of powers between the judicial, legislative, and executive
departments.

As soon as it merged with the legislative branch, the judge would become a legislator,
making the subject's life and liberty vulnerable to capricious control. When it collaborates
with the executive branch, the judge might act in an authoritarian and punitive manner. If a
single person or institution was in charge of all three functions—passing laws, upholding
public decrees, and managing specific cases—then everything would come to an abrupt end.

22
According to Wade and Philips, the phrase "separation of powers" has three distinct
meanings. believes a person should not be employed by more than one of the three branches
of government; ministers, for example, shouldn't be in parliament.that the judiciary should be
kept separate from the executive branch and that no branch of government should be able to
restrict or impede the work of another branch; for example, ministers should not be
answerable to parliament; furthermore, one government body should not perform the duties
of another, such as a minister's legislative authority.

Rebuttal to the Separation of Powers Theory:

In principle, the division of powers made sense. However, when it was applied to real-world
situations, numerous problems surfaced. When this idea was used, the majority of the
following shortcomings were found:

Historical discrepancy: From a historical perspective, the theory was wrong. His
interpretation of the British Constitution from the early eighteenth century serves as the basis
for his defence of this theory. The English Constitution did not, in reality, provide for the
division of powers. The British Constitution never included this concept. Prof. Ullman
correctly points out that "England was not the classic home of the separation of powers." The
observations of the Donoughmore Committee are consistent. "In British Parliament there was
no such thing as the absolute separation of the executive, legislative, and judicial powers."

Division of functions: The underlying tenet of the concept is that the executive, judicial, and
legislative branches of government function independently of one another. Things in real life,
however, are not exactly as they seem. Sections that are sealed do not exist. Certain domains
are overlapping.

As Friedmann and Benjafield explains that, "The truth is that each of the three
functions of the government contains elements of the other two and that any rigid
attempt to define and separate those functions must either fail or cause serious
inefficiency in government”9

Practical obstacles to its acceptance: Performing certain tasks will be difficult if this idea is
embraced in its totality. To be more precise, it hasn't been demonstrated that one type of force
can be concentrated in just one organ. The legislative arm of government is not only
9
Principles of Australian Administrative Law, 36 (1962).

23
responsible for passing laws but also for supervising the executive department. The court has
some limited rule-making authority in addition to its judicial duties.
Welfare states today cannot function as they are designed to handle the multitude of intricate
socio-political-economic issues that the nation faces. Under these circumstances, it is not
practical to adhere to this worldview. Strict interpretations of the separation of powers would
make modern administration impossible, according to Justice Frankfurter.
"Organic separation" is a reference to Basu's conviction that "in contemporary society, the
theory of the division of powers means a natural separation and that one organ of the state
cannot usurp or encroach upon the vital responsibilities belonging to another organ, also
known as but can perform some incidental function thereof." "Incidental" and "essential"
powers need to be distinguished.

Therefore, it's believed that it's undesirable and impractical to implement the principle of
division of powers strictly. As such, it is not entirely recognised in any nation on the planet.
Still, its significance comes from highlighting the measures required to keep the vast power
granted to the executive from being abused. The idea seeks to establish "an authority of law
rather than of official will or whim."

Marbury v. Madison Case10

Although Chief Justice Marshall's opinion in Marbury v. Madison, which was reached fifty-
five years later, contrasts with Montesquieu's vision of the judicial branch, the French
legislatures and their right to protest serving as balances on legislative authority abroad.

However, as we saw in the English concept of a balanced constitution, the ties between the
executive and legislative branches clearly demonstrate the features of the idea of checks and
balances. Although he shouldn't be able to actively participate in the drafting of new
legislation, the executive officer should be able to veto them. The legislative body's meetings
should be meticulously planned by the administration. This will enable the executive branch
to keep the legislative from usurping its power and from taking on an autocratic role.

Madison wrote that "The consolidation of all powers, executive, legislative, and judiciary, in
the same hands whether of one, a few, or many and whether hereditary, self-appointed or

10
68 (1803) 2 Law Ed 69: 1 Cranchl 38.

24
elective, can fairly be called the very definition of tyranny" . And the division of powers
principle is crucial in averting this despotism.

2.4. HISTORICAL DEVELOPMENT OF FINANCIAL FEDERAL RELATIONS IN

INDIA

It is important to examine the history and development of federal financial ties in India prior
to the writing of the current constitution before delving into the financial links between the
national government and the states that report to it. This is required by the current
constitution since it is the result of numerous financial developments that occurred before it
was drafted.11

The evolution of India's constitution is closely reflected in the history of the nation's federal
financial ties. This strategy was given top priority in all of the Indian Constitution's
modifications, and this was mirrored in the money allotted to the central government and the
states throughout this time. Except for a brief period in the early 1920s, when the provinces
were expected to contribute to the central government's fiscal deficits, the provinces' financial
demands were met by resources sent by the central government. This arrangement has not
been altered by post-independence amendments or the constitution itself, with the exception
that the budget commission's quantitative assessment has made the distribution of earnings a
core constitutional duty.

The following topics would be covered in this study:

(A) Development and evolution between 1850 and 1919

(B) Development and evolution between 1919 and 1935

(C) Development and evolution between 1935 and 1950

Evolution and Development From 1850 to 1919:

11
The financial arrangement's made under the present constitution is almost the game as it
was under the Government of India Act, 1935.

25
At first, the Central was in complete influence of the money that the various agencies
gathered and dispersed, as well as their earnings and expenses. These powers came from the
Activities of 1853 and 1858, which viewed the complete revenue of all of India as a single
entity and granted the Governor General in the authority of council to use it however the
body saw right12. The provinces' sole responsibility was to generate revenue and give it to the
federal government. Fixed grants were provided to local governments starting in 1870 to
support the operation of their specialised services, such as the police, jails, schools, and
medical facilities.

This system persisted until the era of Lord Lytton, at which point it was determined to assign
authority to the province government. This oversight of all the provincial service spending.
With Lord Mayo's financial reforms in 1871, the Central Control over the province finances
was somewhat loosened. These reforms assigned the Provinces administrative control over a
number of services, including registration, education, and medical establishment (with the
exception of modicinal establishment).

To assist its government in meeting its responsibilities, each province received a fixed
luspsum grant in addition to the receipts from the respective departments. "While it is true
that the federal government of India retained its statutory powers of oversight and control,
during the time a modest and restricted measure of centralization was significant as a first
step into altering the basis of central provincial relations in India," stated Bombwell in
reference to this arrangement.13 This specific arrangement lasted until the reign of Lord
Lytton (1976–1980). Lord Lytton attempted to expand the scope of mainly autonomous
provincial action and address some of Lord Mayo's shortcomings in 1877. For the remaining
provincial offerings, or those that did not immediately come under the purview of the
administrative services, such as administration in general, law and justice, and land income,
his government gave the provinces financial authority.

The following stage of the financial devolution to the provinces was initiated in 1882 by Lord
Cromer, the viceroy serving under Lord Rippon. By removing the yearly awards, his changes
went even farther in applying the core principles of Lytton's performance.
A new allocation scheme was made public. The primary issue with the quantitative settlement

12
A. Kriasawary: "The Indian Union and the States"
13
Raman Sombwall, 'Federal Financial Helaticns in India', 1968,p. 13.

26
system in use at the time was that the Government of India would reclaim the debt owing to a
province every five years.

As a result, provincial governments developed a fearful tendency to spend money foolishly or

needlessly in order to prevent their savings from going overboard.14

This setback was somewhat mitigated by the quasi-permanent settlement established by Lord
Curzon's Government, which gave the Provincial Governments more autonomy and a longer-
lasting involvement in resource management. The Provincial Settlements system was
declared "quasiparmanent" in 1912. As a result, the Provinces were less reliant on the
Center's erratic grants.15

Devolution of funds to the Provinces was thus accomplished piecemeal prior to the enactment
of the 1919 Mount-Ford Reforms Act. The allocation of a portion of various tax and other
revenue categories to the province administrations was the first move in this approach. The
states received all or a portion of the list of taxes in addition to excise, registration fees,
provincial rates, stamp duties, and registration. The provinces were compelled to add a
portion of federal taxes to their profits since the money they had claimed was not enough to
cover their demands. The new paradigm was then adopted as "split heads of revenue."
Land revenue, customs fees, opium revenues, and salt taxes were the primary sources of
funding for the central government prior to 1900. The central government was to provide
each province a portion of the money since the provinces were in responsibility of collecting
land revenues. Revenue streams like as income taxes, excise taxes, stamps, and irrigation
receipts were divided by the federal government and the provinces. The phrase "separated
needs of revenue" first used in reference to this division of income sources. Cash
reassignment was a typical practice in addition to the "divided heads of revenue" method. As
a result, the "Provincial Financial Settlements" pooling agreement was created.

Regarding the financial reforms, R. Coondoo has said that "the reforms undoubtedly failed to
assume a federal character, as the fundamental tenet of a centralised government remained
untouched.16

Evolution and Development from 1919 to 1935:

14
Report of the Royal Commission on decentralization in 1909 para 60.
15
P.B. Dhawans "Pvolution of Federal Financial Relations in India" Article Published in Journal of
Constitutional and Parliamentary Studies
16
R. Coondoo, "The Division of Powers in the Indian Constitution", 1964, p. 39

27
The Central province-financial connections saw more noteworthy advancements under the
Government of India Act, 1919. A greater degree of financial autonomy was granted to the
provinces. There were other developments in the financial domains. Prior to the Act of 1935
being enacted, under the numerous awards and committee findings.

(a) Government of India Act, 1919.

(b) Maston-Award.

(c) Taxation Inquiry Commission.

(d) Indian Statutory Commission 1930.

(e) Peel Committee Report.

(f) Percy Committee Report.

(g) Second Peel Committee.

(h) White Paper on Constitutional Reforms.

Evolution and Developments from 1935 to 1950:

The Government of India Act of 1935 brought about the most notable change in the financial
ties between the central government and the provinces. In India, the two-tier federal system
was implemented, completely dividing the provinces' and the Center's authorities and
responsibilities. The Act included the more important tools to increase coordination in the
financial sector between the provinces and the Centre. Following the Act of 1930, additional
advancements in the central province financial relations took place as a result of several
awards and committee reports addressing financial issues. The assessment and evolution of
the financial connections between the provinces and the centre from 1935 to 1950:

(a) Government of India Act, 1935.

(b) Niemeyer Inquiry Report

(c) C.D. Deshmukh Award

(d) Krishnamchari Inquiry Commission

28
(e) Sarkar Committee Report

2.5. APPLICATION OF THE DOCTRINE OF SEPARATION OF POWERS IN

MODERN TIME:

The principle of separation of powers is no longer just a theoretical idea held by philosophers
in the modern day. Determining the structure and organisation of governments' daily
operations is a useful notion. Starting the analysis with the doctrine's development and the
reasons for its formulation. A democracy is thought to require the separation of powers in
order for it to function effectively, if not in theory. Similar to the "rule of law," this concept
has both an apparent simplicity and a deeper intricacy. In general, it is predicated on the
notion that the three branches of government are the executive (which promulgates laws),
legislative (makes laws), and judicial (applies and interprets laws). The concept of the
separation of functions is based on the rational deduction that if legislators are also the ones
enforcing the law and administering justice, then there will be no higher authority and no
recourse for the general public in the event that injustice is committed.

English jurists developed the idea of separation of powers in the middle of the 19th century as
a means of preventing this kind of political power abuse. The French jurist Montesquieu
finally gave the principle of separation of powers a more systematic form in his book The
Spirit of Laws. John Locke later expanded on this idea in his Second Treatises. Like his
forebears, John Adams has emphasised this theory as a way to shield a country from the wide
range of negative effects of intense bias, irrational conclusions, and ambitious, self-serving
actions.

One can use the principle of separation of powers for a variety of objectives. It can be
employed to uphold the idea that duties should be delegated to the State's most suitable
entity, be it a court, an elected assembly, a tribunal, or a group of officials chosen by
appointment or election. However, in cases where public powers are divided among various
institutions so that each has the necessary freedom for its own actions and concurrently
possesses the capacity to check the actions of other powers-holding bodies in the event that
they misuse their powers, the separation of powers may also be invoked in support of
arrangements for preventing the abuse of powers. The concept makes it possible to create a
united, well-balanced government with measures in place to prevent abuses wherever they

29
may occur. According to Vile, this "diffusion of authority among different centres of
decision-making is the antithesis of totalitarianism and absolutism". The concept of
separation of powers, whether explicitly stated or implied when appropriate, has become a
fundamental component of many states' political systems.

However, the doctrine's actual implementation in a given country's government may vary
depending on the conditions and how it has been adopted. The idea behind the doctrine of
separation of powers is that institutions and functions should be categorised into three
categories. However, because modern states are diverse and complex, and because the
processes of making laws, administering justice, and making decisions are neither clearly
defined nor attributed to distinct institutions, even the boundaries that once separated them
are becoming increasingly hazy. The requirement for efficient, regulated, and non-arbitrary
governmental administration has superseded the need for complete separation of powers
since this is a matter of allocating functions and authorities in a way that maximises their
operational performance.

2.6. PRESENT SCENARIO OF DIVISION OF POWERS

The topic of separation of powers is being debated in relation to judicial independence,

political efforts to hold judges more accountable for their work, preventing conflicts of
interest, and allegations that certain judges disobey laws, rules of procedure, and higher court
precedents.
One argument for the division of powers is that it implies that the several branches share
authority. That is to say, all branches must agree on some matter before acting unilaterally,
with the possible exception of small matters. In other words, it is maintained that the Judicial
Branch is subject to the same "checks and balances" as the other branches.

On the other hand, some argue that the division of powers implies the judiciary's
independence and inviolability within its purview. According to this interpretation of the
separation of powers, the legislative and executive branches are not allowed to meddle in any
way with the Judicial Branch's operations and the Judiciary alone is endowed with all
authorities pertaining to the Judicial function.

The first viewpoint is exemplified by the Government and state legislatures' regulation of
lawyers and judges as well as the formulation of guidelines for courtroom behaviour. Despite
the fact that the Supreme Court handles these cases in practice, the Government retains these

30
rights and simply transfers them to the Court for convenience given the Court's experience.
The Government may revoke this delegation at any time.The Florida Supreme Court is one
example of the second state-level viewpoint. According to the court, only it has the authority
to licence, oversee, and control attorneys who appear in Florida courts and to establish
regulations governing court proceedings. The State of New Hampshire also follows this
system.17

The Lok Sabha (lower house of parliament), Rajya Sabha (upper house of Parliament), and
the President of India—who ignores autonomous governing organs like the Election
Commission and the Judiciary—provide a clear division of powers under India's democratic
system. Similar to the British system, the Indian constitution designates the Prime Minister as
the leader of the ruling party, who presides over a chosen cabinet of ministers. The Indian
Constitution's system of government both implicitly and explicitly expresses the theory of
separation of powers, further clarifying its meaning. By means of the functional or territorial
division of governmental duties and offices, the separation of powers implies constitutional
limitations on state authorities.

17
The Federalist (Hamilton, Madison and Jay 1982 (1788).

31
 CHAPTER 3

CONCEPT OF DIVISION OF POWERS IN INTERNATIONAL

PERSPECTIVE

3.1 INTRODUCTION

The main focus of this study is on the separation of powers, legislation, and practice in India.
However, a brief overview of the other federations—the United States, Canada, and Australia
—will be helpful as the Indian Constitution's framers gained valuable insights from their
experiences with similar problems and attempted solutions in those three countries.

First off, to differing degrees, all three federations have demonstrated a propensity for having
a strong centre, which among other things justifies the existence of a strong centre in India.18

Second, it has come to light that the three federations' constitutions are incredibly inflexible.

Thirdly, although though their position is currently considerably less significant than it once
was, the courts continue to play a crucial role as the federal system's balancing wheel by
enacting required modifications in response to shifting needs.19

Lastly, "cooperative federalism is currently the focus in every country."20

The concept of "separation of powers" states that no one should have authority over any of
the main state institutions and that they should all work independently of one another. The
executive, legislative, and judicial branches are typically considered to be the three main
institutions. According to early narratives, such The Spirit of the Laws by Montesquieu, the
purpose of the division of powers is to protect liberty and prevent tyranny. It was decided that
in order to prevent one power from surpassing the other two, the key institutions should be
split apart and reliant on one another. These days, it is more common to advocate for the

18
https://classic.austlii.edu.au/au/journals/MelbULawRw/1969/35.html
19
Mc Hulloch v. Maryland, 4 wheat 316 (1819), Case in U.S.A., D. Emden v. Pedder, (1904) (L. Rai, case in
Australia, and Bank of Toronto v. Lambe, 12 A.C. 575 (1878) Case in Canada.
20
https://www.scribd.com/document/430010650/India

32
division of powers as a means of fostering the checks and balances that are essential to
successful governance.

Strict separation is frequently a core constitutional precept in presidential systems like the
US. But the notion of separation has received far less attention in the UK and other common
law jurisdictions. The main positions and organizations in the UK have developed to strike a
balance between Parliament and the Crown (and, more recently, the Government). Instead of
the three departments being formally divided, the system is more like a balance of powers, or
what Walter Bagehot referred to as a "fusion of powers" in The English Constitution. The
idea of a division of powers has become apparent in several policy initiatives over the past
ten years. With the Constitutional Reform Act of 2005, the previous government made
suggestions that it was heading toward a more formal separation of powers through judicial
reforms. Some parts of the convergence of powers have been exposed by the establishment of
an independent Supreme Court and the dissolution of the multifaceted position of Lord
Chancellor. The Human Rights Act of 1998 has added to the complexity of the situation by
mandating that judges take into account rulings from the European Court of Human Rights in
Strasbourg as well as the European Convention on Human Rights. The use of parliamentary
privilege, the projected reduction in the number of members of Parliament, and the
participation of members in super injunctions have all brought up questions about how the
state's institutions work together more recently. This Standard Note considers the extent to
which;

1. The executive and

2. Legislature the executive and
3. Judiciary the judiciary and legislature now overlap and interact.

3.2 SEPARATION OF POWER IN THE UNITED STATES OF AMERICA

The voluntary agreement of 13 independent States led to the formation of the United States of
America federation. These States gave over some of their sovereign powers to the federal
government, but they kept the remaining portion for themselves. The United States of
America Constitution came into being in 1787. As a result, it is considered to be the
forerunner of contemporary federalism and the oldest and most revered member of the family
of current federal constitutions. The Centre-State division of powers is outlined in the U.S.
Constitution in a very straightforward manner. It only has one List that expressly lists all of

33
the Centre’s authority. Thus, the unpaid remaining authorities have been given to the States,
while a small number of specific and listed functions have been assigned to the Centre.

The federal government's powers are thus narrowly defined and organized into eighteen
heads. However, over time, the central government's authority has grown significantly due to
the creativity and activism of the judiciary. In 1920, the U.S. Supreme Court stated that "it is
not lightly to be assumed that in every civilized government is not to be found."21

Moreover, "usage may establish even constitutional powers." The Government is authorized
to enact any laws that it deems "necessary and proper" in order to carry out its specified
functions.22

In America, the entire framework of the Constitution is predicated on the idea of the
separation of powers. This "checks and balances" mechanism keeps any organ from rising to
the top. Therefore, the President has the executive branch authority, Government has the
legislative branch authority, and the Supreme Court has the judicial branch authority. This is
how the American Constitution establishes a system of "checks and balances," whereby the
powers granted to one branch of government are unassailable by any other branch. 23
According to the principle, no branch of government is allowed to intrude on or subjugate
another's authority. In America, the separation doctrine has the following characteristic
features:

Presidential form of government:

The United States currently has a presidential form of government that is predicated on a
division between the legislative and executive branches, thanks to the theory of separation of
powers. Head of state and head of government is the President. He is neither a
Governmentman nor does his term of office depend on the Government's faith in him.

Relaxation of rigours:

The strictures of the idea of separation of powers have been loosened throughout time due to
the expansion of administrative procedures. By utilizing his veto power and sending letters to
Government, the President now performs legislative duties. The Government is able to use its

21
Missauri v. Holland, 252 US 416, 433 (1920).
22
Inland Waterways Corp. v. Young, 309 US 517 (1940).15
23
https://constitution.Government.gov/constitution/article-2/

34
judicial authority to remove the President from office through impeachment. The Senate
carries out executive duties in relation to appointments and treaties. Many administrative
agencies have been given legislative authority by the Government, and these organizations
perform a wide range of duties. The Supreme Court has never ruled that it is unconstitutional
for one agency to have all the authority it does.

3.3. PRAGMATIC ASPECT OF SEPARATION DOCTRINE

In Panama Refining Company v. Ryan, Justice Cardozo correctly noted that the idea of
"separation of powers is not a doctrinaire concept to be used with pedantic rigor." It is
necessary to have reasonable approximations and flexibility in response to the pragmatic
requirements of government, which are unable to predict today's developments tomorrow due
to their almost endless diversity." In spite of the notion that the legislature cannot delegate its
jurisdiction to the Executive Branch, a number of laws and regulations in the United States
are actually created by non-legislative agencies and have been affirmed by the courts. 24

The fundamental American concept of separation of powers serves as the foundation for the
American constitutional system. The President has administrative authority under Article II,
the Government has legislative authority under Article I, and the Supreme Court has judicial
jurisdiction under Article III. The authors of the American Amendment believed that the
notion of separation of powers would offer protection against the development of a dictatorial
government by forbidding any one party from obtaining disproportionate power. They had an
idea of how the several branches of government would maintain the division of powers by
serving as checks and balances. This unique arrangement and the separation philosophy
prevent any one branch from being in control. Although the Constitution officially accepts
the notion of separation, the United States incorporates significant exceptions to the rule in
order to establish a system of checks and balances. For instance, the head of state may veto
an act passed by the Government in the course of legislative authority. Moreover, treaties
must be approved by the Senate in order for them to become operative, even if the President
is authorised to sign them. The Senate's use of its executive authority prevented the United
States from joining the League of Nations. Furthermore, the Supreme Court can rule that laws
enacted by the government are unconstitutional. Each branch also performs some duties that
have been shared by each other. Inspired by the US, India established a system of balance of
authority to ensure that no branch of government becomes unduly powerful.
24
Mukherjee, J. In Delhi Laws Act, 1912,

35
The interdependence of the government's organs is highlighted in order to guarantee good
operation and prevent any misuse of authority. While acknowledging this principle, the
constitution nevertheless allows for considerable discretion in the distribution of powers—a
tactic that is similar to that used by India. It's interesting to note that a division of powers
among the three federal departments is not mentioned in the Constitution.

James Madison's colleagues thought that the concept of separation of powers was already
ingrained in the governmental framework created by the Constitution, therefore they rejected
his attempt to include it in the Bill of Rights.25

Though Thomas Hobbes and other Enlightenment philosophers vehemently disagreed with
the idea, several philosophers, such as James Harrington, wrote about it. Montesquieu rose to
prominence as an advocate for the separation of powers and the division of the legislative,
executive, and judicial branches. His outstanding works had a major effect on the opinions of
the men who framed the United States Constitution. As for the separation of powers,
however, Britain—which frequently served as an inspiration for the American government—
did not adhere to this principle to the same extent as the US did. Parliament, which was
composed of the House of Commons, the House of Lords, and the Sovereign (King-in-
Parliament), had the final say over enacting legislation under the British Westminster system,
which was based on parliamentary sovereignty and responsible governance. The King
oversaw both the executive and judicial branches of government ("His Majesty's
Government"). The King's Secretaries were typically members of the House of Commons or
the House of Lords, and the Government was especially required to maintain a majority in the
Commons. Furthermore, the Lord Chancellor's ministerial responsibilities included leading
the House of Lords and serving as the sole judge in the Chancery Court. Thus, even while
disputes did arise from time to time among all three divisions of the British government, it
can be said that they consistently deviated from the strict interpretation of the principle of
separation of powers.
Throughout the eighteenth century, a few US states deviated from the strict separation of
powers. In New Jersey, the state governor presided over one legislative chamber and was a
member of the highest court in the state. Vice presidents of the executive branch oversaw the
two houses of the state legislature in Delaware, and the head of state presided over the Court
of Appeals. Moreover, executive council members held judicial positions in Delaware and
Pennsylvania. Several Southern states, on the other hand, like Georgia, Maryland, Virginia,
25
https://archive.org/details/americanconstitu0000bern

36
and North Carolina, emphasised the necessity of maintaining autonomous and distinct
departments of government.

The division of powers among individuals was the main emphasis of the original Separation
of Powers doctrine. In this regard, Montesquieu, the contemporary proponent of the theory,
asserted:26

"When the legislative and executive powers are united in the same person, or in the same
body or magistrates, there can be no liberty. Again, there is no liberty if the judicial powers is
not separated from the legislative and executive powers. Where it joined with the legislative
powers, 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 powers, the Judge might
behave with violence and oppression. There would be an end of everything was the same man
or the same body to exercise these three powers..."

A strict interpretation of the division of powers holds that no branch of government ought to
abuse the power of the other departments, and that no individual should hold more than one
position in the government. Instead, the distinct operations of each branch should provide a
system of checks and balances. The US Constitution, which provides the president with
administrative power in Article II, legislative authority in Article I, and an independent court
in Article III, all closely adhere to this principle. Even if the President and the Government
are elected at different times, the Supreme Court has the authority to declare that any
department of government's actions are unconstitutional.

In practice, however, many countries opt not to precisely follow the division of powers but
rather to strike an agreement where some responsibilities are split across the branches of
government. In the United Kingdom, for example, the power of Parliament, the Government,
and the court are closely intertwined. Walter Bagehot described the legislative and
administrative branches' "nearly complete fusion of powers" and "close union" as the
"efficient secret of the English constitution." The application of the division of powers varies
greatly around the globe. In parliamentary systems of government, both the executive and
legislative branches are sometimes united for efficiency's sake. Conversely, presidential
regimes usually maintain total separation between these branches.

3.4. THE INDIAN CONSTITUTIONAL PROVISIONS:

26
https://archive.org/details/MontesquieustheSpiritOfTheLaws/Lesprit29/

37
The US Constitution's framers acknowledged the three competing branches of administration
and their separate authorities.

There are three categories of authority: judicial, executive, and legislative. While the latter
are in charge of enforcing laws, the former are in charge of making them.

The US Constitution's authors established the first three articles, which continue to identify
the three divisions of the federal government that now share authority. "Balances" refers to
each branch's ability to use its constitutional authority to limit or restrain the powers of the
others; "checks" refers to each branch's ability, duty, and right to keep an eye on the actions
of the others.

•The Power of Legislative :

Article I of the United States Constitution grants the government of the United States
exclusive legislative authority. The two chambers that comprise the bicameral government
are the Senate and the House of Representatives. Currently, there are 100 senators in the
Senate, two from each state, and 435 members of the House of lawmakers, who are selected
based on population. For a measure to become law, it must be adopted by both chambers. The
Constitution grants the government the authority to supervise the administration of the US
budget and grants it the power to levy taxes, borrow money, allocate it, declare war, and raise
and maintain an armed forces. In addition, the government has the authority to grant patents
and copyrights, manage immigration, oversee state-to-state and federal authority-to-
international trade, and manage the mail service. Furthermore, federal courts that report to the
US Supreme Court may be established by the government. One of the most well-known
aspects of legislative authority is the ability of the government to enact laws that are deemed
to be "appropriate and necessary" to effectively carry out its tasks. But the Constitution's
checks and balances system places restrictions on the government's power. The President can
limit the authority of the Government by exercising his presidential veto power. If the
president vetoes a bill, it cannot become law unless a majority of the senators and members
of the house agree to override the president's veto. The Constitution also established a distinct
judiciary with the power to hear cases and resolve disputes on constitutional interpretation.
By using this authority, the courts have ruled that legislation enacted by the government are
unconstitutional.

38
Executive Authority: The Head of State :

The powers of the executive branch are outlined in depth in Article II of the US Constitution.
The President's executive powers are primarily in charge of ensuring that laws are properly
executed. Managing the government agencies tasked with enforcing laws established by the
government is part of this responsibility. In addition, the President serves as the nation's
commander in chief of military personnel. With the Senate's advise and consent, the President
can sign treaties, name public servants, and suggest judges for the judiciary. The President
also has the power to grant a pardon to anyone convicted of a federal offence.
By granting the judiciary and the government the power to oversee executive acts through
various statutes, a system of checks and balances is upheld. With a simple majority vote, the
House of Representatives can remove the President from office for misconduct. After an
impeachment trial, the Senate must vote with a two-thirds majority to remove the President
from office. Along with treaties that the President has negotiated, the Senate has the authority
to reject presidential candidates for the federal court and other government positions. Lastly,
the judiciary has the power to declare an executive action to be unconstitutional if it is
challenged in court.

 Power of the Judiciary: The Judges :

Article III of the Constitution establishes the United States Supreme Court and grants the
government the authority to establish subordinate courts if needed. The United States District
Courts, which are spread out across the nation and handle the majority of federal proceedings,
and the Circuit Courts of Appeal, which review appeals from District Court rulings, currently
make up these subordinate courts. On the other hand, the Supreme Court is the federal
judiciary's last arbiter of disputes pertaining to federal law and the Constitution.

The federal judiciary's autonomy from the executive and legislative branches is safeguarded
by the Constitution, which provides lifelong tenure to federal judges and preserves their
positions against removal for "good behaviour." In addition, the Constitution grants the court
the authority to hear cases and decide matters relating to federal law, state and federal
treaties, the Constitution, and other specialised subjects including disagreements between
states.
The power that serves as a check and balance on the court is shared by the President and the
Government. One such limitation is the government's control over the whole budget of the

39
courts. Furthermore, the Government may attempt to amend the statute if it disagrees with the
Supreme Court's interpretation of the Constitution. However, the process for amending the
Constitution is intentionally complex, requiring the approval of two thirds of the members in
both houses of Congress as well as the consent of three quarters of the states. Lastly, the
government has the authority to impeach and try federal judges who have acted improperly
while in office.

The President has the authority to name federal judges, which gives him or her control over
who gets to sit on the courts. The President is the head of the executive branch. However, the
Senate's constitutional prerogative to advice and consent gives it additional influence over the
nomination process. Not all power is vested in the President. The President's judicial
nominations cannot be taken up for consideration until a majority of the Senate votes in
favour of them.

The authority of the courts is also limited in a number of ways. Judges can only rule on issues
that are brought before them. Unless a party affected by the action specifically seeks it, they
are not allowed to declare a statute or government action to be unconstitutional on their own.
Moreover, the process of appellate review ensures that the conclusions of each judge will be
examined and scrutinised by other judges. Even at the highest level of government, the
Supreme Court, a justice must persuade the majority of their fellow judges to approve a
certain verdict.

The executive, legislative, and judicial departments of government were intentionally divided
into three separate jurisdictions by the founders of the American Constitution, as stated
explicitly in the instrument. The division of powers was intended to prevent any one branch
of the federal government from becoming overly powerful or assuming control of the others
by establishing a system of checks and balances.

Thus, Article I, Section 7 says that :

The House of Representatives is the only body that has the authority to introduce bills to raise
funds. However, as with other measures, the Senate may recommend modifications to these
revenue bills or may agree to amendments proposed by the House. A bill must pass both the
Senate and the House of Representatives in order to be presented to the President of the
United States before it can become law. The President may either sign the law, endorsing it,

40
or he may decide to send it back to the House with his objections included. In the latter case,
the House will need to formally record the full range of concerns raised by the President
before reexamining the bill. If two thirds of the House vote in favour of the bill after it has
been given another chance, it is submitted to the other House for review. If the bill is also
passed by that House with a two-thirds majority, it will become law.

However, if the President does not return the bill within ten days (excluding Sundays) after it
has been presented to him, it will automatically become a law, unless the government
prevents its return by adjourning, in which case it will not become a law.27

America has a presidential system of government, which is predicated on the notion of the
separation of powers between the legislative and executive departments. The executive
department is led by the President, and the government owns the legislative authorities.
Judicial authorities, on the other hand, are vested in a hierarchy of courts, headed by the
Supreme Court. On this interpretation, the Supreme Court cannot decide on matters of
politics in order to avoid meddling with the way the government makes use of its authority.
Interestingly, there is no superseding jurisdiction over judicial review granted to the Supreme
Court by the United States Constitution. Because this is an uncommon aspect of American
constitutional history, it is remarkable that the Court has taken on the role of judicial review.
The president serves as both the head of state and the chief executive. By selecting and
removing other executive officials, they have the power to dictate the rules and behaviour of
government agencies. The President is the ultimate decision-maker and the Secretary of State,
who is in charge of these divisions, reports to him. More like personal advisors, they assist
the President. It should not be forgotten that the President has the last word and is not
obligated to heed a Secretary's advice. The President and every employee of the executive
branch are not members of government, which ensures the separation of the legislative and
executive branches.

The entire cabinet answers to Parliament and is in place for as long as the majority of
lawmakers continue to have faith in it.28

3.5. THE PRACTICAL SCENARIO OF POWERS :

27
https://archive.org/details/americanconstitu0000bern
28
https://pdfdrive.to/dl/administrative-law-ip-massey-0

41
In reality, the President of the United States exercises his veto power in order to prevent the
Government from carrying out its mandate. The President also exercises legislative authority
by using his power to ratify treaties. Furthermore, the President meddles in the Supreme
Court's operations through the appointment of judges. In an attempt to secure the Court's
support for his New Deal legislation, President Roosevelt threatened to appoint new justices
to the Court. Ratifying treaties, passing budget votes, and confirming Senate nominations are
examples of how the government tampers with the President's authority. The government also
impedes the courts' capacity to carry out their duties by approving judicial nominees,
establishing special courts, and enacting procedural laws. However, the judiciary subverts the
power of the government and the president by exercising its jurisdiction over judicial review.
It is true that the US Supreme Court has changed the US Constitution more than the
government has.

However, the American Constitution demonstrates that a strict personal separation of powers
is not feasible. While the President has the authority to veto legislation and issue signals to
the government, the government has the judicial jurisdiction to try impeachments. The Senate
participates in treaty-making and appointment processes within the executive departments as
well. Consequently, the concept of separation of powers has evolved to signify an inherent
allocation of tasks in modern society.

This suggests that none of the government's branches should overlap or take over the duties
of another.

3.6. THE JUDICIAL VIEW:

“The American Supreme Court observed in 1881 in the case of Kilbourn v. Thompson:”29

It is imperative that no one in charge of any of these branches be permitted to usurp the
authority bestowed upon them. Rather, the laws governing each branch must limit its
jurisdiction to matters pertaining to its own department and not to those pertaining to other
departments. This is essential to the system's smooth functioning. To put it another way, the
legislature, the executive branch, and the judiciary are not allowed to wield the powers
granted to them, unless expressly specified otherwise or ancillary to the authority granted.
This is a basic principle ingrained in the US constitutional order.

29
Kilbourn v. Thomposon (1881) 103 U.S. 168 (190).

42
Marbury vs Madison30 is frequently refered as the case that established the courts' authority to
strike down laws. The question of whether judicial review of any kind may be properly
conducted was essentially resolved by the case. Chief Justice Marshall struck down a bill by
holding that Government could not extend the Supreme Court's original jurisdiction.

It was observed in the case of Satinger v. Philippine31 that: "It may be stated ...as a general
rule inherent in the American constitutional system, that, unless otherwise expressly provided
or incidental to the powers conferred, the legislature cannot exercise either executive or
judicial powers, the executive cannot exercise either legislative or judicial powers, the
judiciary cannot exercise either executive or legislative powers.

RECENT CHANGES

The executive's authority over the legislature is significantly influenced by its ability to
allocate time for debates. Traditionally, the Government has enjoyed considerable control
over the legislative agenda. However, in 2010, the Backbench Business Committee was
established to enhance the legislature's operational autonomy from the executive. The Wright
Committee, which advocated for its creation, believed that this committee would empower
Members of Parliament (MPs) by granting them greater control and ownership of the
Parliamentary agenda. Additionally, it was expected to make debates more pertinent to the
public and strengthen the scrutiny role of Select Committees. Through the Backbench
Business Committee, Select Committees would have the opportunity to request time on the
floor of the House. The Coalition Government's Programme for Government further pledged
to introduce a Business Committee encompassing all forms of business within the third year
of its tenure.

3.7. SEPARATION OF POWERS IN UK

In order to comprehend the position in India, it is imperative to first understand the

constitutional structure of the country's former colonial ruler, which ultimately influenced the
form of government adopted by India. The United Kingdom operates under a parliamentary
system of governance, wherein the Crown serves as a nominal figurehead while the actual
legislative functions are carried out by the Parliament. Notably, the presence of a cabinet
system completely disregards the doctrine of separation of powers. Instead, it is the Cabinet

30
(1803) 1 Craneh 137 (United States).
31
(1928) 103 U.S. 168(192)

43
that assumes the role of the executive's true leader, surpassing the authority of the Crown.
The Cabinet not only initiates legislative measures but also exercises control over the
legislature, and even possesses the power to dissolve the assembly. Consequently, the
amalgamation of these two powers within a single entity negates the existence of any form of
power separation in England.

The three branches of government, namely the executive, the legislature, and the judiciary,
must maintain a distinct, distinct, and equitable status. It is crucial to establish a clear
demarcation between the roles and responsibilities of the legislature, executive, and judiciary
to prevent the emergence of tyranny, as emphasized by Montesquieu. However, this does not
imply that these branches should have no authority over one another. Blackstone argued that
what is necessary is a system of checks and balances, wherein each branch can monitor and
limit the powers of the others. This concept is known as the theory of mixed government. If
the branches were completely independent and isolated, it would be impractical, especially
considering the supremacy of Parliament. Therefore, there should be a sufficient level of
interaction and cooperation between the branches. For instance, the executive branch
proposes legislation, which is then debated and passed by Parliament, and ultimately upheld
by the judiciary as an Act of Parliament. There is a purposeful system of checks and balances
that supports the official separation of powers in the United States. Although there isn't a
legal division of powers in the UK, the three branches can be distinguished. In the UK,
individuals and powers are largely, though not entirely, distinct. In actuality, the three
branches contain the Queen and the Lord Chancellor.

 The Queen appoints government ministers (the executive)

 The Queen appoints judges, and justice is dispensed in the name of the Queen.
 The Queen formally summons Parliament (the legislature) and must give the Royal
Assent to a Bill to make it into Law.
 The Lord Chancellor is a senior judge and head of the judiciary. As a member of the
HL appellate committee and Privy Council he will participate in decisions which
affect both common law and statutory interpretation. The requirements of judicial
impartiality have been questioned in McGonnell case.32
 He is also chair/speaker of the House of Lords (legislature)
 He is a member of the Government (executive) and appointed by the Prime Minister.

32
McGonnell v. UK 80 (2000)

44
The Lord Chancellor's position has drawn a lot of criticism. The job was supposed to be
abolished in the 2005 Constitutional Reform Act, but that hasn't happened yet. The Lord
Chancellor currently serves in all three branches, although the role of Secretary of State for
Constitutional Affairs has already been established and will take over many of the Lord
Chancellor's responsibilities upon its elimination. Nonetheless, the position has been upheld,
especially by former Lord Chancellors. According to Lord Hailsham, both the Cabinet and
Parliament should stand up for the independence of the court and the rule of law. "In the
British Constitution there is no such thing as the absolute separation of legislative, executive
and judicial powers; in practice it is inevitable that they should overlap"

In the 18th century, the theory of separation of powers faced opposition in England due to the
doctrine of the mixed or balanced constitution. This doctrine aimed to combine and maintain
a balance between monarchial, aristocratic, and democratic elements, rather than strictly
separating them. Consequently, the system of Parliamentary government that emerged in the
UK during the 19th century was not primarily founded on the theory of separation of powers.
In fact, the modern Constitution of the UK deviates from the traditional understanding of this
theory. However, it is important to note that the separation of powers still holds relevance to
the British Constitution, despite not being its fundamental basis. This model of government
significantly differs from the system observed in the United States. The British concept of
mixed government is rooted in the belief that the degree of connection, rather than separation,
provides checks and balances within the governmental system. Nevertheless, even this
system utilizes the language of separation of powers to shed light on certain crucial aspects,
such as the executive's dominance over Parliament. The doctrine of separation of powers was
explicitly acknowledged as a part of the British constitutional system in the 1930 report of the
Donoughmore Committee. This committee was established to investigate matters concerning
delegated legislation and administrative adjudication, and its report justified its provisions
based on the doctrine of separation of powers.

Additionally, in their court rulings from time to time, the British Courts have explicitly
acknowledged the notion. In situations when contentious political and social matters were
brought under the jurisdiction of the courts, the theory of separation of powers has been
invoked by the courts to assert their lack of authority and prevent confrontation between the
political and judicial branches of government. The 1980 steel strike case serves as an

45
example of how they use the language of the separation of powers to explain and defend their
rulings, particularly when it comes to statutory interpretation.

3.8. CLASSIFICATION OF POWERS

The theory of separation of powers signifies three formulations of structural classification of

governmental powers:

i. The same person should not form part of more than one of the three organs of the
government. For example ministers should not sit in Parliament.
ii. One organ of the government should not interfere with any other organ of the
government.
iii. One organ of the government should not exercise the functions assigned to any other
organ

It should be noted that England does not have a separation of powers in any of these senses.
Despite being the head of state, the King is also a vital member of the legislature, and each of
his ministers serves in one or more of the Houses of Parliament. In addition, the Lord
Chancellor has the position of senior member of the judiciary, a member of the government,
and a member of the House of Lords. As a result, the idea of the "parliamentary executive" in
England clearly contradicts the original idea that an individual should not serve in more than
one of the three branches of government.

The independence of the judiciary:

Senior judges are appointed by the Lord Chancellor, although a committee on judicial
appointments is suggested under the Constitutional Reform Act of 2005. Judges are
appointed for life and can only be removed for good behavior by the Queen in a speech to
both Houses of Parliament. The comparatively high wages of judges are meant to guarantee a
sufficient pool of candidates of suitable quality. He is not eligible to serve as a member of
Parliament and is not permitted to preside over cases in which he has a personal stake (Dr.
Bonham's Case, Dimes v. Grand Junction) or a bias (Re Pinochet Ugarte, 1998) or immunity
from lawsuits relating to their judicial duties.

Separation of executive and legislature:

46
In common law jurisdictions like the UK, the executive and legislature are closely
intertwined, creating a unique system. Unlike in the USA, where the President is elected
separately from Governmentional elections and may not be a member of the legislature, the
UK's Prime Minister and their ministers are Members of Parliament and sit in the House of
Commons. This arrangement places the executive branch at the core of Parliament. This
integration of executive and legislature in the UK is believed to foster stability and efficiency
in the functioning of the government. It prioritizes efficiency over abstract concerns about
tyranny, as it allows the Prime Minister, who is typically the head of the executive branch and
leader of the majority party in the legislature, to have more freedom of action compared to a
president in a presidential system. Moreover, Parliament has the ability to delegate law-
making powers to the Government, enabling them to draft secondary or delegated legislation.
This delegation relieves Parliament from the burden of scrutinizing minor technical details
while still maintaining the safeguard of Parliamentary approval.

In the United Kingdom, the separation of powers between the legislature and executive is not
clearly defined. However, the executive's presence in Parliament can potentially enhance the
process of scrutiny, provided that the necessary procedures are in place. When a government
holds a significant majority of seats in the House of Commons, the key concern is whether
the government can exert dominance over Parliament and assure the enactment of its
proposed legislation. Alternatively, it is crucial to determine if there are adequate procedures
in place to subject these proposals to thorough scrutiny and either gain endorsement or
rejection from Parliament. To prevent the executive from exerting excessive control over
Parliament, the House of Commons (Disqualification) Act of 1975 was enacted. This
legislation imposes limits on the number of salaried ministers who can hold seats in the
Commons. Furthermore, the legislative branch of government retains the formal authority to
dismiss executive officers from their positions. The convention of ministerial responsibility
further establishes the principle of government accountability to Parliament.

After the enactment of the Parliamentary Voting System and Constituencies Act in 2011,
which reduced the number of MPs in the House of Commons from 650 to 600, the Public
Administration Select Committee conducted an examination of the role and responsibilities
of ministers. The purpose was to determine if there was potential for reductions in their
numbers as well. Currently, approximately 20% of MPs serve as ministers or parliamentary
aides and are obligated to vote in alignment with the government or resign from their

47
positions. If this percentage remains unchanged while the number of MPs is reduced, it could
effectively strengthen the executive branch in relation to Parliament by increasing the
influence of the "payroll vote." Section 14 of the Parliamentary Voting System and
Constituencies Act, 2011 mandates a review to assess the impact of the reduction in the
number of MPs after the upcoming general election, expected to take place in 2015.

It is important to note that members of the government must be exclusively selected from the
Houses of Parliament. In other words, the executive branch is comprised entirely of
individuals who are already members of the legislative branch. Government ministers
continue to hold their positions as regular members of the legislature in addition to their
ministerial responsibilities. This arrangement clearly demonstrates the absence of a formal
separation of powers. By convention, the Prime Minister must be a member of the House of
Commons. The British electoral system, coupled with the party system, results in a dominant
executive that operates within the legislature itself. The legislature has delegated powers to
ministers, allowing them to create statutory instruments, also known as delegated legislation.
Consequently, individual members of the executive branch can effectively participate in the
legislative process. However, this authority is subject to scrutiny by Parliament. In the case of
ex parte Fire Brigade [1995], the court ruled that it was unlawful for the Home Secretary to
introduce changes to a scheme that were incompatible with an Act of Parliament.

Legislative and judiciary:

The division of the legislative and judicial branches constitutes the second component of the
separation of powers. Judges are not allowed to run for office in the UK under the House of
Commons (Disqualification) Act of 1975. In addition to being tasked with interpreting laws
in a way that aligns with Parliament's intent, judges also shape the common law, or judge-
made law. Higher court judges are protected by life tenure, which means that they cannot be
removed from office without the consent of both Houses. Lower court judges can only be
removed through disciplinary actions. Judges are further shielded by absolute privilege over
court proceedings and immunity from lawsuits pertaining to their official duties.

Lord Phillips of Worth Maltravers, President of the UK Supreme Court, explained that:

“The citizen must be able to challenge the legitimacy of executive action before an
independent judiciary. Because it is the executive that exercises the powers of the
State and because it is the executive, in one form or another, that is the most frequent

48
 litigator in the courts, it is from executive pressure or influence that judges require
particularly to be protected.”

Constitutionally, judges are subordinate to Parliament and may not challenge the validity of
Act, of Parliament.33 However, there remains a some leeway for judges to interpret statute
and this raises the question of whether the judges are able to "make law". There is an element
of judicial law-making in the evolution of common law.

The House of Lords made unique obita (remarks) in the Jackson case in 2005 regarding the
application of the Parliament Act to the Hunting Act of 2004. These remarks questioned the
relationship between parliamentary sovereignty and the rule of law and suggested that there
were limits to sovereignty where constitutional fundamentals were in jeopardy.34

The executive and the judiciary:

The division of the judiciary and the executive is the third component of separation.
Regarding the executive branch, the judicial scrutiny function's duties include verifying that
any legislation that is delegated to it is compliant with the authority granted by Parliament
and that the activities of the government and other public entities are lawful. Judicial review
is a process by which the public may challenge the legality of decisions taken by public
authorities on an individual basis. Judges must be free from the influence of the
administration and the legislature in order to do this.35

More recently, the Attorney General argued in 2004 in A v. Secretary of State for Home
Department that "it was not for the courts to usurp authority properly belonging elsewhere"
and that "these were matters of a political character calling for an exercise of political and not
judicial judgment" regarding the detention without charge of suspected international terrorists
in Bel Marsh Prison. The leading judge, Lord Bingham, rejected this argument, concluding
that the Attorney General was "wrong to stigmatize judicial decision-making as in some way
undemocratic" and that "the function of independent judges charged to interpret and apply the
law is universally recognised as a cardinal function of the modern democratic state."36

33
Pickin v. British Railways Board (1974) AC 765.
34
Jackson v. Her Majesty's Attomey General (2005)
35
http://www .judiciary.gov.uklyou- and- the-judiciary/Judicial-review.
36
A and others v. Secretary of State for the Home Department [2004] UKHL 56

49
 Parliamentary privilege:

The notion of the privilege of Parliamentary freedom of speech and debate was established in
Article 9 of the Bill of Rights 1689. Lord Neuberger, the Master of the Rolls, states that it is
"of the utmost constitutional importance and is an absolute privilege." It would be unlawful
for the courts to attempt to violate Parliamentary privilege in any way. Parliamentary debates
and proceedings are not restricted or prohibited by any court. On the other hand, it is
customary for lawmakers to refrain from objecting to court rulings. The Sub Juice Rule,
which prevents Parliament from interfering in cases that are pending in court, is a counterpart
to this.

Sub Judice: The sub judice rule is intended to defend the rule of law and citizens' right to fair
trial Where an issue is awaiting determination by the courts, that issue should not be
discussed in the House in any motion, debate or question in case that should affect decisions
in court. However, the sub judice rules are not absolute: the Chair of proceedings of the
House of Commons enjoys the discretion to permit such matters to be discussed. Moreover,
sub judice does not affect the right of Parliament to legislate on any matter. The 1999 Joint
Committee on Parliamentary Privilege explained that sub judice rules are intended "to strike a
balance between two sets of principles. On the one hand, the rights of parties in legal
proceedings should not be prejudiced by discussion of their case in Parliament, and
Parliament should not prevent the courts from exercising their functions. On the other hand,
Parliament has a constitutional right to discuss any matter it pleases". It went on to explain
that the rules strike the balance between Parliament's constitutional duty and role and the
constitutional role of the courts.

3.9. THE CONSTITUTIONAL REFORM ACT, 2005:

The Government and Parliament revised various areas in the UK where the "powers" had
been least divided in the Constitutional Reform Act, 2005. "We want to assure that we clearly
define the separation of powers, where it is appropriate, but that is not incompatible with
having a partnership between the different branches of the state," said Christopher Leslie, the
minister in charge of the bill in the Commons, in a statement to the House.37

The Act established a distinct Supreme Court and made the Lord Chief Justice the head of the
English and Welsh judiciaries, succeeding the Lord Chancellor. Additionally, it gave
37
John Hemming, HC Deb 26 Jan 2004 : c27

50
Ministers a legal obligation to protect judicial independence. 38 In the Lords, the Bill was
referred to a select committee. Background information on the debates over the division of
powers is included in the June 2004 report that the Select Committee on the Constitutional
Reform Bill issued. Another pertinent document is the 2004–2005 Commons Constitutional
Affairs Select Committee report.

The Lord Chancellor:

The role of the Lord Chancellor served as a link between the state's institutions prior to 2005.
In addition to being Speaker of the House of Lords and a member of the Cabinet, he oversaw
the nomination of judges as head of the judiciary. "The Lord Chancellor would never sit in
any case concerning legislation in the passage of which he had been directly involved, nor in
any case where the interests of the executive were directly engaged," as the then-Lord
Chancellor, Lord Irvine, made clear in McGonnell v. United Kingdom.

The Lord Chief Justice now serves as the head of the judiciary, replacing the prior position
held by the Lord Chancellor, which was eliminated by the Constitutional Reform Act of
2005. The House of Lords now elects its own Speaker; the Lord Chancellor no longer serves
in that capacity. The goal of this was to establish a more official division of authorities.
Some, on the other hand, contended that the Lord Chancellor could reduce hostilities between
the state's branches and that he served as a representative of the judiciary in Parliament. The
2007 study on the relationships between the government, judiciary, and Parliament by the
House of Lords Constitution Committee provides important background information.39

3.10. JUDICIAL APPOINMENTS

Prior to the Constitutional Reform Act of 2005, government minister Lord Chancellor
recommendations were used to select justices to the courts. An independent Judicial
Appointments Commission for England and Wales was established under the Act. Although
they are not a majority, judges are represented on the Commission, and a layperson must
serve as chair. The Lord Chancellor receives recommendations from the Commission and has
very little veto power. A explicit statutory obligation to "encourage diversity in the range of
persons available for selection for appointments" is imposed on the Commission under the

38
https://www.ucl.ac.uk/constitution-unit/sites/constitution-unit/files/jud-ind-case-for-support.pdf
39
https://publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15102.htm

51
Act.40 The nomination of Supreme Court judges is subject to different procedures that take
into consideration the Court's UK-wide jurisdiction.41

Since the establishment of the Supreme Court, there have been concerns raised regarding the
judiciary's reliance on the executive branch, specifically the Ministry of Justice, for financial
support. Lord Phillips of Worth Maltravers highlighted that the Court Service of England and
Wales was unable to provide their expected contribution, leading to the Lord Chancellor
having to fill the funding gap. This situation, according to Lord Phillips, does not guarantee
the stable funding envisioned by Parliament and exposes the Court to potential annual
negotiations that were meant to be avoided. He further warned that this financial reliance
could result in the Ministry of Justice attempting to exert control over the Supreme Court.
Lord Phillips emphasized the importance of independence, particularly as a significant
portion of the Court's workload involves public law cases challenging executive actions.42

3.11. THE DOCTRINE IN CANADA

The distribution of powers in Canada between the Centre and the Provinces is structured in a
threefold manner. According to Section 91 of the British North America Act, 1867, the
Centre is empowered to enact laws for the 'Peace, order, and good government of Canada' in
relation to subjects that are not exclusively assigned to the provinces. However, to provide
clarity and avoid any limitations on the aforementioned provision, the section itself specifies
thirty specific areas of authority. It is explicitly stated that any matter falling within this
enumeration cannot be considered as falling within the jurisdiction of the provinces. Some
examples of these specific areas include defence, postal service, currency and coinage,
taxation, criminal law, regulation of trade and commerce, and unemployment insurance. On
the other hand, Section 92 grants exclusive legislative authority to the provinces in sixteen
subjects. One of the areas listed under provincial jurisdiction is 'property and civil rights'.
Additionally, 'education' is a matter that falls exclusively within the purview of the provinces.
However, under Sections 94A and 95, certain subjects such as 'old age pension', 'agriculture',
and 'immigration' are considered concurrent, meaning both the Centre and the provinces have
the power to legislate on these matters. In case of a conflict between a law enacted by the
Centre and a law enacted by a province, the Centre holds supremacy.

40
https://www.supremecourt.uk/docs/speech_110208.pdf
41
https://www.supremecourt.uk/docs/procedure-for-appointing-a-justice-of-the-supreme-court.pdf
42
https://ukconstitutionallaw.org/2011/01/12/judicial-independence-accountability-a-view-from-the-
supreme-court/

52
It is important to note that the Centre does not possess the authority to regulate the supply and
price of essential goods. In the case of Att Gen. for British Columbia v. Att. Gen. for Canada,
the Privy Council invalidated a central agricultural marketing legislation and stated that the
'regulation of trade and commerce' does not extend to regulating individual forms of trade or
commerce that are confined to a specific province.

3.12. THE DOCTRINE IN FRANCE

During the seventeenth and eighteenth centuries, the pattern of mixed government and the
separation of powers closely mirrored the institutional developments in England and
America. These developments were a direct response to the challenges faced by these
countries, and they provided the necessary ideological foundation for formulating solutions.
In contrast, France followed a distinct path in its institutional development, drawing
inspiration from a different set of ideas regarding governance. This divergence in English and
French approaches to constitutional structure is evident in the work of Montesquieu, who
sought to integrate these differing perspectives into a unified theoretical framework.
However, the latter part of the eighteenth century in France presents a perplexing situation in
relation to Montesquieu and his ideas. On one hand, he holds greater significance in France
than in England and America, as he represents a pivotal moment in reevaluating the problems
of government and their resolution. On the other hand, the specific solutions he proposes in
his description of a constitution that upholds liberty appear ill-suited to the conditions and
prevailing thoughts in France. This predicament is clearly illustrated by the challenges faced
by Montesquieu's followers in 1789, when their proposals based on a mixed and balanced
constitution were rejected as foreign and irrelevant to the newly established France.

In France, the process of abandoning mixed government and embracing the separation of
powers as the foundation of a free constitution took a different path compared to America.
However, there was a crucial distinction between the two countries. In 1789, France either
rejected or accepted both the balanced constitution and the separation of powers as mere
theoretical principles, lacking any substantial presence in the pre-revolutionary era. On the
contrary, America viewed these doctrines as an evolution and reformulation of a system of
institutions that had been in operation, albeit becoming outdated and in need of
modernization. Consequently, the institutional changes in France were genuinely
revolutionary, surpassing the transformative nature of those in America.

53
The 1791 Constitution initiated a comprehensive elimination of privileges, noble titles, and
social hierarchies. It declared the absolute and non-transferable sovereignty of the people,
while specifying that the nation could only exercise its authority through delegation to the
National Assembly, the King, and the elected judiciary. The unicameral Assembly, elected
biennially, operated as a permanent institution beyond the King's authority to dissolve.
Although the King lacked the power to propose laws, he possessed a suspensive veto. The
concept of ministerial accountability was dismissed in favour of an impeachment process
before a National High Court. Members of the National Assembly were prohibited from
holding ministerial positions or accepting executive appointments or pensions during their
term and for two years thereafter. This strict separation of legislative and executive branches
allowed ministers to address the Assembly and participate in debates, while elevating the
judicial branch to an equal standing with the legislature and the executive.

3.13 . THE DOCTRINE IN AUSTRALIA:

The Commonwealth of Australia became a part of the federation in 1900 through the
enactment of the Commonwealth of Australia Constitution Act by the British Parliament.
Similar to the United States, Australia follows a model where specific powers are granted to
the central government. However, there are notable differences in the distribution of powers
between the central government and the states. Section 51 of the Commonwealth Act outlines
40 areas in which the central parliament has the authority to legislate. It is important to note
that these powers are not exclusive to the central government, as the states also have the
concurrent authority to legislate in these areas. Nevertheless, certain areas, either due to their
nature or other constitutional provisions, can only be legislated upon by the central
parliament. Examples of such areas include borrowing money on the public credit of the
Commonwealth, defence, and external affairs.

The Centre believes it has a great potential capacity to regulate economic affairs in the nation
through its powers on "inter-State commerce" and "arbitration of industrial disputes," as trade
and commerce are becoming less restricted within the borders of individual States and more
national in nature. Nonetheless, the High Court upheld the liberal interpretation of the
spending powers in Victoria v. Commonwealth & Hayden by a majority, holding that
Parliament may appropriate funds for any reasons it chooses.

54
3.14. SEPARATION OF POWER IN CHINA

In contrast to the legal systems of continental Europe, Chinese law does not have its origins
in the private-law system of Rome or any religious foundation. Traditional Chinese law
primarily focused on state matters, addressing private issues only incidentally. While
medieval European monarchs presented themselves as dispensers of justice to establish
legitimacy, the Kang xi Emperor (r. 1662-1722) expressed concerns about the potential rise
in lawsuits if people did not fear the tribunals and believed they would always receive fair
and prompt justice. Therefore, he advocated for a strict approach towards those seeking
recourse in the tribunals, aiming to in still fear and aversion towards the legal system.

TRADITIONAL CHINESE LAW:

Imperial China, known for its bureaucratic system, generated numerous rule-like documents.
However, the officials responsible for interpreting and applying these rules were scarce. Their
role was mainly limited to reviewing cases involving non-state actors as defendants. Unlike
European legal systems, there was no institution in Imperial China that could hold the state
accountable under the law. Instead, local magistrates had original jurisdiction over cases
involving individuals, encompassing various governmental responsibilities beyond legal
matters.

THE CHINESE LEGAL SYSTEM:

An examination of the legal system in the People's Republic of China necessitates a

cautionary note regarding the importance of distinguishing between the formal structure and
the practical implementation. Discrepancies between the two are inherent in most countries,
but are particularly pronounced in China. While it is feasible to provide a comprehensive
overview of Chinese law pertaining to a specific issue, this does not equate to an accurate
portrayal of how that issue is actually handled in practice within China.

MODERN CHINA:

In 1911, the Qing dynasty fell, marking the end of Imperial China. The People's Republic of
China (PRC) was then established in 1949, following years of civil war and invasion. The
legal history of the PRC started with the elimination of all laws from the Republic of China in
1949. This created a legal void that had to be filled with various authoritative sources such as

55
Party newspapers, policy documents, and leaders' speeches. Initially, a formal legal system
was not deemed necessary in many aspects of national life due to the centralized economy
and the ability to resolve conflicts without legal recourse. The legal system in the PRC saw
limited development in its early years due to political instability, but with the onset of
economic reforms in 1979, significant legislative changes were introduced, and the legal
institutions, including courts, judges, and lawyers, received more attention from the
government. Despite the inclusion of the principle of "rule according to law" in the national
constitution, its practical impact remains limited.

The People's Republic of China (PRC) operates as a unitary state, with all authority
emanating from the central government based in Beijing. Local governments possess only
those powers that the central government chooses to entrust to them. Consequently, the
central government cannot entirely avoid delegating powers, which often results in limited
oversight over the exercise of local government authority. This situation has led to significant
de facto autonomy for local governments in certain areas of operation. In addition to rejecting
the concept of vertical separation of powers, the PRC also dismisses the idea of horizontal
separation of powers among different branches of government, such as the traditional
tripartite division into legislative, executive, and judicial branches. While recognizing the
necessity of functional separation, the National People's Government, which formally serves
as the legislature, holds the highest position within China's political power structure
according to the constitution. However, in reality, this position is occupied by the Standing
Committee of the Politburo of the Chinese Communist Party. Despite the disparity between
form and reality, both emphasize the rejection of multiple centres of power. Due to the
mismatch between the centralized form of governance and the practical need for delegation,
the Chinese legal system does not adequately address the issue of defining the limits of
rulemaking authority for subordinate bodies. Although there are laws that establish legislative
hierarchies, there are limited institutional mechanisms to assure the meaningful
implementation of these rules.

As previously mentioned, the apex of China's formal constitutional structure of political

powers is the National People's Government (NPC). The NPC holds the authority to issue
laws that are binding over the entire nation. Additionally, it is responsible for appointing key
positions such as the Premier, who serves as the head of the State Council, akin to China's

56
cabinet or executive branch. The NPC also appoints the Presidents of the Supreme People's
Court and the Supreme People's Procuracy, which serves as the prosecutorial agency.

It is important to note that NPC delegates are not directly elected by the general public.
Instead, they are chosen by the people's Governmentes at the provincial level. Similarly,
provincial people's Government delegates are selected by the people's Governmentes below
them. Only the people's Governmentes at the lowest level have the privilege of directly
electing delegates.

The day-to-day operations of the government are carried out by the State Council, under the
leadership of the Premier. The State Council is further divided into various functional
ministries and commissions, each with specific responsibilities. This division between the
people's Government and the day-to-day government is replicated at multiple levels within
the local government structure. In each case, the government organization is accountable not
to the government organization at the next level above, but rather to the people's Government
at the same level. This is the formal structure that is in place.

However, in practice, the Communist Party organization holds a monopoly on political

powers at every level of government. It is important to understand that this monopoly does
not grant absolute power to the Party organization, as there are always constraints on its
capacity. These constraints can be economic, political, or social in nature.

China has a hierarchical court system consisting of four levels. At the top is the Supreme
People's Court, located at the center. Below that are the Higher Level People's Courts at the
provincial level, followed by the Intermediate Level and Basic Level People's Courts. These
courts play a crucial role in the formal constitutional structure of political powers in China.

The National People's Government (NPC) holds the highest authority in China's political
system. It has the power to issue laws that are binding across the entire country. Additionally,
the NPC appoints key positions such as the Premier, who leads the State Council (China's
executive branch or cabinet), as well as the Presidents of the Supreme People's Court and the
Supreme People's Procuracy (the prosecutorial agency). It is important to note that NPC
delegates are not directly elected. Instead, they are chosen by the people's Governmentes at
the provincial level. Similarly, provincial people's Government delegates are selected by the
people's Governmentes below them. Only the people's Governmentes at the lowest level have
directly-elected delegates.

57
The day-to-day operations of the government are carried out by the State Council under the
leadership of the Premier. The State Council is further divided into various functional
ministries and commissions. This division between the people's Government and the day-to-
day government is also reflected in local government structures, with each government
organization being accountable to the people's Government at the same level. However, it is
important to recognize that in practice, the Communist Party holds a monopoly on political
power at every level of government. This does not mean that the Party organization has
absolute power to do as it wishes. Various constraints, whether economic, political, or social,
limit the exercise of power.

There are four tiers of courts in China, each of which is accountable to local political
authorities at the same level. This accountability is further reinforced by local control over
court finances. The structure of the Supreme People's Procuracy, also known as the
procuratorate, follows a similar pattern. Although efforts are underway to enhance the quality
of the judiciary, China's current court system is characterized by judges with low levels of
education and relatively low status within the hierarchy of powers. Unlike many countries
with a continental legal system, a judgeship in China is not a fully professionalized civil
service position.

All of the aforementioned organizations, operating at different levels, possess the authority to
issue documents and regulations that claim to be binding on various parties to varying
extents. Even the Supreme People's Court, despite its self-perception as a court that solely
applies the law rather than creating it, regularly releases lengthy documents unrelated to
specific cases, in which it outlines detailed legal rules. Needless to say, such documents often
clash with one another, yet there seems to be no institution with the determination and
capability to authoritatively resolve such conflicts.

The prevailing perspective in China views law as a tool of governance, with citizens being
the subjects of legal regulation. Courts generally do not encourage litigation and often
attempt to discourage it. The concept of the private attorney-general, where the state seeks the
involvement of private citizens as plaintiffs to pursue its objectives, is largely rejected, except
in cases involving defective consumer products. Unlike many other legal systems, the
Chinese legal system is willing to forego the enforcement of rights when other significant

58
values are deemed to be at stake. To the extent that it might be more accurate to say that the
system prioritizes interests over rights.43

CHAPTER – 4

CONSTITUTIONAL PROVISIONS ON SEPARATION OF

POWERS

4.1. INTRODUCTION:

A state or other organisation is governed by a set of core principles or established precedents

found in its Constitution. The entity is comprised of these rules taken together. A written
Constitution may be said to be embodied by a single document or collection of legal papers
that contain these principles; a codified Constitution is said to be embodied by a single
complete document that contains these principles. Constitutions apply to several
organisational levels, including corporations, incorporated associations, and sovereign
governments. An international organization's constitution is a treaty that creates it since it
specifies how the organisation is put together. Whether a state is federated or sovereign, its
Constitution lays forth its guiding ideas as well as the process and people involved in the
making of legislation. Certain constitutions, particularly those that are codified, serve as
restraints on the authority of the state by drawing boundaries that its leaders are not permitted
to violate, such those pertaining to fundamental rights. The United States of America
Constitution serves as one illustration.

A combination of 444 articles divided into 22 parts, 12 schedules, 118 amendments, and
117,369 words in its English translation44, the Indian Constitution is the longest written
constitution of any sovereign nation in the world. In contrast, the United States Constitution
is the shortest written constitution, with only 27 amendments and 7 articles. The United
States Constitution, including all current amendments, is no longer than 7,000 words long.

43
https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?article=1359&context=cwilj
44
Dr. Durgadas Basu, Introduction to the Constitution of India, 20th Edition, p. 33

59
Not only are the rules pertaining to the Units and the Federation's interactions with the Units
intricately handled, but the Units themselves—whether legislative or administrative—are
likewise thoroughly codified in order to minimise problems. In addition to giving the
Constitution a unitary bias, the lessons learned from India's political history also led the
framers to include specific provisions "regarding the distribution of powers and functions
between the Union and the States in all aspects of their administrative and other activities," 45
as well as those pertaining to inter-State relations, coordination, and/or adjudication of
disputes among the States.

One of the possible purposes of the Indian Constitution is to give a federal system the power
of a unitary government. The Constitution allows the federation to become a unitary state,
even though the system of governance is generally federal with a unitary bias. through the
Union's emergency takeover of State authority. There is no other constitution in the world
that combines the federal and unitary systems in such a unique way. In order to fully
understand this special system, it is important to consider the context of India's introduction
of federalism in the context of other federal nations.

After falling off in the last ten years of the 20th century in the archives of India's
constitutional history, the discussion of the "basic structure" of the Constitution has
resurfaced in public discourse. The National Democratic Alliance government promised not
to alter the fundamental framework of the Constitution when it established the National
Commission to Review the Working of the Constitution (the Commission). The Chairman of
the Commission, Justice M.N. Venkatachalaiah, has repeatedly stated that the Commission is
not equipped to conduct an investigation into the fundamental framework of the Constitution.

4.2. CONSTITUTIONAL STATUS AND PRACTICE OF SEPARATION OF POWER

IN INDIA

On a casual glance at the provisions of the Constitution of India, one may be inclined to say
that the doctrine of separation of powers is accepted in India. Under the Indian Constitution,

45
Dr. Rajendra Prasad, C.A.D. Vol. X, p. 891

60
the executive powers are with the President, 46 the legislative powers with the Parliament 47 and
the judicial powers with the judiciary. 48The tenure of the President is set in stone. The
Constitution itself lists his duties and authority. The legislative authority of the Parliament is
unrestricted and it can enact any legislation, subject to the restrictions of the Constitution. In
a similar vein, neither the legislature nor the executive branch may interfere with the
judiciary's ability to carry out its autonomous duties. The judicial review powers granted to
the Supreme Court and High Courts allow them to declare any statute passed by the
Legislature or Parliament to be unconstitutional or exceeding its authority.

Taking into account these factors, Kania, C.J. and some jurists are of the opinion that the
doctrine of separation of powers has been accepted in the Constitution of India. In Golak
Nath v. State of Punjab49, Subba Rao, C.J. observed:

“The Constitution brings into existence different constitutional entities, namely, the Union,
the States, and the Union Territories. It creates three major instruments of powers, namely,
the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and
expects them to exercise their respective powers without over stepping their limits. They
should function within the spheres allotted to them.”

The State Government was instructed by the Andhra Pradesh Administrative Tribunal "to
evolve proper and rational method of determination of seniority among the veterinary
surgeons in the matter of promotions to the next higher rank of Assistant Director of
Veterinary Surgeons" in Mallikarjuna Rao v. State of A. P 50. The Supreme Court overturned
the aforementioned directive, noting that the President or the Governor of a State, as
applicable, must utilise the legislative authority granted by Article 309 of the Indian
Constitution to create regulations.

46
Art. 53 (1) ; Art. 154 (1) ; Delhi Laws Act, 1912 Re, AIR 1951 SC 332, (387, Mahajan, J.;395, Mukherjea,
J.); Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC1 : AIR 1975 SC 22999; Bandhua Muktri Morcha v.
Union of India, (1984) 3 SCC 161 (231-32): AIR 1984 SC 802: (1984) 2 SCR 67; State of H.P. v. Umed Ram
Sharma, (1986) 2 SCC 68 (80-81); AIR 1986 SC 847; Union of India v. Raghubir Singh, (1989), 2 SCC 754
(765-66): AIR 1989 SC
1933.
47
Delhi Laws Act, Re, 1912, i.d., pp. 346-47 (Kania, C.J.); p. 388 (Mahajan, J.), Indira Nehru Gandhi v. Raj
Narain, id., pp. 136, 190 (SCC).
48
Article 50 of the Constitution of India, which reads as under: Separation of Judiciary from Executive—The
State shall take steps to separate the judiciary from the executive in the public services of the State.
49
AIR 1967 SC 1643: (1967) 2 SCR 762.
50
1990) 2 SCC 707 : AIR 1990 SC 1251.

61
It is not possible for the Administrative Tribunals or the High Courts to order the State
Government to enact laws. The Court cannot take over the duties that the executive branch is
tasked with carrying out in accordance with the Constitution, nor can it in any way obliquely
compel the branch to carry out its rule-making authority. According to Article 309 of the
Indian Constitution, the Court is not permitted to take on the role of supervisor over the
executive's authority to make rules."

The Indian constitution does not acknowledge the concept of division of powers. The
constitutional structure lacks a rigid and inflexible division of powers, save for the directive
notion stated in Article 50, which requires the separation of the judiciary from the executive
branch.

The Constitution of India explicitly declares in several of its provisions that it does not intend
to establish a strict separation of powers. The Indian Constitution does not explicitly grant
any particular entity exclusive jurisdiction over the legislative or judiciary branches. Article
53(1) grants the President of India executive authority. Parliament has exclusive legislative
jurisdiction as stated in Article 246. However, Article 79 stipulates that the President is the
sole member of the Parliament, in addition to the Cabinet of States and the Assembly of
People. By examining Articles 53(1) and 79 in conjunction, it becomes evident that there is
no rigid separation of powers in India.

Similarly, at the state level, the governor is bestowed with executive power as outlined in
Article 154. Article 168(1) acknowledges the governor's status as a member of the state
legislature. Furthermore, the Indian Constitution's Chapter III of Part V has a provision called
"Legislative Powers of the President". During the adjournment of Parliament, the President
has the authority to issue ordinances in accordance with Article 123(1). The Governors of the
States has comparable authority as stipulated in Article 213. According to Article 309, the
President has the authority to establish regulations pertaining to matters concerning
services.In addition, he utilises this power to establish regulations in accordance with Articles
240, 318, 146(1), 77(2), 77(3), 148(5), 101(2), 118(3), and 98(2). The Governor has the
power to establish regulations in accordance with the proviso to Article 229(1), as well as
Articles 166(2), 166(3), 208(3), and 187(3). The President can utilise the legislative power
bestowed by Article 357 through a proclamation executed in conformity with Article 356.
The significant influence that state presidents and governors exert on the legislature's capacity

62
to pass laws should not be underestimated. Consequently, the executive possesses the
authority to enact legislation.

According to Article 103, the President has the power to make final decisions on
disqualifying a member of the House, which gives them judicial authority. The Governor of
States have comparable authority as outlined in Article 192(1). According to Articles 72 and
161, the President and the Governor have the authority to grant pardons, reprieves, respites,
and other similar actions, subject to certain conditions.

Articles 61(1), 124(4), and 124(5) of the Indian constitution confer judicial authority upon the
Indian legislature in relation to the removal of judges and the President. In accordance with
Article 3, the legislature also assumes executive responsibilities like as making new laws,
naming states, and modifying borders or regions.

The Judiciary establishes regulations for the several Courts in accordance with Section 227(2)
(b) and Article 145. Article 146 of the Constitution grants the Supreme Court the authority to
hire lower-ranking staff members.

Article 229 appoints subordinate officials to High Courts in a like manner. As a result, the
court also performs legislative and executive powers. Below are certain provisions of the
Indian Constitution that reflect the objectives of its framers. In the Constitutional Assembly
Debates, the majority rejected the proposal to incorporate explicit provisions about the
separation of powers in the Indian Constitution. This further substantiates the notion that the
founders of the Indian constitution did not want to maintain a rigid separation of powers.

It can be concluded that the strict implementation of the idea of separation of powers is
undesirable and impracticable, which is why no government has fully embraced it thus far.
The US Constitution has steadfastly upheld the concept of the separation of powers, however,
the Supreme Court is steadily easing its interpretation. Upon a cursory examination of the
Indian constitution, it becomes apparent that the notion of the separation of powers has been
embraced by the nation. However, this assertion is incorrect.

Each of these three organs carries out a unique and specific role. For instance, the executive
wields the power bestowed to it by the legislature in order to fulfil the responsibilities of the
legislative branch. Thus, the parliament can exercise its judicial authority to penalise
individuals for noncompliance, as well as to its legislative authority.

63
4.3. THE SCHEME OF DISTRIBUTION OF LEGISLATIVE POWERS

None of the national constitutions worldwide have a pre-established formula for the
allocation of responsibilities between the federal government and the States. The pattern
differs from one federation to another. Local issues are typically directed to the component
entities, whereas national issues are often dealt with by the Centre. This excessively
ambiguous and expansive methodology yields no consistent pattern of power allocation
between the national and provincial governments. Developing a reliable formula is
exceedingly challenging and impractical. Assessing the significance of a subject at a regional
or national scale is beyond the capabilities of an automated system.

However, due to their unique characteristics, many fields of study have become so important
that they are considered to be of national importance. The areas of focus include defence,
international policy, and money. The distributing process is influenced by the political and
social circumstances of each country, and often follows two pathways.

(a) The area that will be under the authority of both the Units and the Federation.
(b) Subjects are those that fall within their separate domains of control.

Union List:

The Seventh Schedule of the Indian Constitution comprises three lists delineating the
allocation of jurisdiction between the Union and States for specific subjects: the Union list,
state list, and concurrent list. The Union List has a total of 97 subjects, the State List
encompasses 66 subjects, and the Concurrent List encompasses 47 subjects. Currently, the
state list comprises sixty-one subjects, the union list encompasses one hundred subjects, and
the concurrent list includes fifty-two condensed subjects. Prior to delving deeper into the
content encompassed by these three lists, let us examine the prominent characteristics of the
union, state, and concurrent lists.The federal government, often known as the union
government, has the authority to pass legislation related to any of the subjects included in the
Indian Constitution's union list. The union list is considered to be more powerful and robust
than the state list due to its inclusion of a larger number of matters. Furthermore, the
concurrent list encompasses a wide range of significant themes, in addition to those already
listed. The union list comprises all the themes or matters that the laws of India ensures are
connected to the nation's security, social security, and uniform legislation. The Indian

64
constitution addresses the issue of topic overlap, with the union list consistently being
considered of more importance than the state list. The decision made by the union will be
honoured. The legislature has the power to establish a state agency and assign responsibilities
to it through the enactment of laws related to matters on the union list. Alternatively, it can
delegate this ability to the central government. The union list comprises fifteen distinct
subjects over which the Parliament have the power to levy taxes. The 88th Amendment
expanded the scope of unions to include taxes on services as a subject of coverage. The
Parliament possesses the authority to enhance the jurisdiction and authority of the Supreme
Court with regards to the matters encompassed in the union's list.

State List:

Upon the enactment of the 42nd Amendment in the year of 1976, five subjects were moved
from the state list to the concurrent list. These five subjects include education, forestry,
measurements and weights, the running of justice, the protection of birds and wildlife, the
constitution, and the arrangement of all courts, except for the supreme and high courts. Only
state legislatures, as specified by the Indian Constitution, possess the power to enact laws
pertaining to subjects that are explicitly allotted to them. Nevertheless, none of these options
would be practical or achievable under different conditions. The parliament possesses the
jurisdiction to enact laws on any matter specified in the state list as per Article 249, under the
condition that such actions promote the welfare of the nation. If a state adopts a resolution
like this, it is legally obligated to follow the law that is enacted as a result. If the resolution is
passed by other states, they may also choose to adopt it. Parliament has the exclusive
authority to change or repeal a legislation that was enacted in response to a state resolution.
This authority is limited to cases where the objective is to implement international accords
and only during the current president's term. The state list encompasses subjects of local and
regional importance that cater to a wide range of interests. The Parliament has the right to
collect taxes on the 20 specific subjects listed by the state.

Concurrent List:

After the ratification of the 42nd Amendment in 1976, five themes were included in the
concurrent list. These five subjects encompass education, forestry, weights and measures, the
operation of justice, the safeguarding of birds and wildlife, the document known as the
constitution, and the arrangement of all courts, excluding the supreme and high courts. The

65
concept of a concurrent list originates in the Australian constitution and was not intended for
India. Considering that both the federal and state governments possess the authority to enact
laws on related matters, any conflicts in legislation will lead to the federal law superseding
any state legislation.

The issues listed in the concurrent list are of very low significance, however they necessitate
consistent national legislation. The state and parliament possess the authority to levy taxes on
three specific items included in the concurrent list.

4.4. THE SUPREME POWER OF PARLIAMENT IN SPECIFIC SPHERES

The allocation of responsibilities between the central government and the state governments
in a federation is sometimes inflexible, even if neither entity possesses the unilateral right to
alter the distribution of power between them. The procedure of amending the laws is also
complex and demanding to execute. The balance of powers undergoes incremental changes
through the process of judicial interpretation. However, there are exceptional circumstances
where it is unable to modify the existing state. In the case of Ram Manohar Lohia v. State of
Bihar, the Supreme Court of India made a distinction between "public order" and "law and
order" in the context of preventative detention. The court determined that "law and order" has
a broader scope than "public order."

The Center-State power allocation strategy introduces flexibility into an otherwise inflexible
federal organisation. The inflexibility of federalism was one of its weaknesses. The
Constitution stipulates a meticulous allocation of powers. While there may be situations
where cooperation between both governments is crucial, no government have the authority to
alter the distribution of powers. The subject can be addressed either through amending the
Constitution or through judicial interpretation. At the time of drafting the Constitution, it may
have been logical to establish a stringent system for distributing authority. Nevertheless, due
to the dynamic nature of the country's requirements and conditions, it may be necessary to
adapt the plan in order to address changes in governance and challenges that arise in any
region considered to be within the jurisdiction of India.

In the Re Berubari Union decision, the Supreme Court acknowledged that resolving contested
boundaries is a responsibility of the executive branch and does not require involvement from
the legislative branch. However, it is crucial that the legal framework be modified for every
specific region of India, especially in the case of regular legislation.

66
However, Ram Jawaya vs The State of Punjab 51 goes a step further and maintains that a
legislation must be passed even in cases where there isn't a "cessation matter." In this aspect,
the case mirrored England's viewpoint. In England, unless there is a corresponding Act of
Parliament, private rights cannot be impacted by executive action or treaties. 52

Entry 97 of List I of the Income Tax Act of 1961 was confirmed to fall under the jurisdiction
of Parliament. Article 6 of the U.S. Constitution states that all treaties formed by the United
States, both past and future, would be considered the highest law of the country. Furthermore,
judges in every state are obligated to adhere to these treaties.

Prior to referring to entry 97 of List I, Hidayatullah, J., argued that it is crucial to determine
whether the contested provisions would be justified under any of the three lists. His intention
was to mention the three lists, excluding entry 97 from list 1. However, the crucial and
intricate inquiry is whether the range and magnitude of Article 48 should be juxtaposed with
List 1 Entry 97. The case of Union of India v. B.S. Dhillon explored this issue in the context
of the Finance Act of 1969, which amended the definition of taxable wealth in the Wealth
Tax Act of 1952. Parliament has complete authority over the residual powers as stated in
Article 248. Article 248 has a different range and extent compared to Article 246(1) when
considered together with List I. If the residual powers had been included as an item in List I
under entry 97, then entry 248 would have been an unnecessary addition.

It is suggested that entry 97 of List I should be construed in accordance with Article 248
rather than Article 246(1), in contrast to other items, particularly entries 1-96 of the same list.
In other words, there are 97 entries in List II, and entry 97 is merely one of them. 53 Therefore,
any subjects that are not addressed by any of the three categories should be addressed by
Article 248. Article 248 serves as a provision that allows for certain actions, while entry 97 of
List I simply states the specific subject matter.

4.5 THE ROLE UNION LEGISLATION IN THE STATE

Federalism is characterised by the allocation of powers and the prevention of conflicts

between political parties. A federal compact necessitates a distinct delineation of authorities,
wherein both the central and regional governments mutually consent to refrain from meddling
in each other's internal matters. As per the observations made by M.P. Jain in the following
51
1955, 2 S.C.R. 225
52
Walker v. Baird (1892) A.C. 491, quoted in Basu’s commentary on Constitution of India, 5th ed. Vol. 4, p. 194.
53
V.N. Shukla, the Constitution of India,(1975), p.426.

67
manner:
Federalism is often perceived as a rigid form of governance. The strong separation of powers
between the federal government and the states is maintained by the constitution, thanks to its
dual polity structure. One party cannot single-handedly disrupt the equilibrium that has been
built between the nation and the state. The state and the centre are unable to encroach on the
territory that has been given to others.54

The framers of the Constitution of India recognised that blindly adhering to outdated and
rigid conceptions of federalism, as observed in previous functional federal constitutions,
would not be beneficial for India's objectives. In a nation as diverse as India, with multiple
cultures and ethnicities, a federal constitution surely offers advantages, but it also presents
disadvantages. Federalism possesses dual facets, rendering it capable of being employed both
advantageously and disadvantageously. While granting units greater authority and autonomy
might enhance effective governance, it also poses the risk of fragmentation. Occasionally, an
excessive level of federalism might have a negative impact on the overall functioning of the
federation. Having a rigid constitution is inappropriate, particularly in times of emergency or
other pressing situations. The provisions of the federal constitution can not be unilaterally
modified by any institution inside the federation. Amendments are the only means by which
the authority or powers of the union and local governments can be changed. However, the
Government of India has the authority to unilaterally amend any part of the constitution,
therefore changing the fundamental structure of the instrument. Even in subjects that are
under the jurisdiction of individual states, the national government has the authority to enact
legislation. Additional constitutional provisions govern the allocation of authorities as
outlined in article 246 of the constitution. These regulations empower the federal government
to establish laws within the jurisdiction of the state.

These regulations may be either temporary or immutable. The Centre may be authorised to
pass legislation on behalf of the state in the following circumstances:

(i) In situations where it is necessary for the benefit of the country (Article 259).
(ii) Legislation enacted in response to an emergency situation, as outlined in Article 250.
(iii) In cases where two or more states transfer power (Art. 250).

54
M.P. Jain, Indian Constitution Law, at 281 (1999).

68
As per Article 249, the Rajya Sabha has the authority to proclaim, through a resolution
supported by two-thirds of the members who are present and voting, that it is essential or
advantageous in the national interest for Parliament to enact laws concerning a specific
matter in the State List mentioned in the resolution. In this scenario, the Rajya Sabha has the
authority to enact legislation for the entirety or certain regions of India on any subject. While
the resolution remains in effect, this is considered legal. This resolution remains effective for
the specified term, but not exceeding one year. Furthermore, it can be performed as often as
required, but not exceeding an annual frequency.

The Constitution Assembly declined the request to incorporate this Article into the Draft
Constitution due to its provision that fundamentally undermined the federal nature of the
document. It is anticipated that this would eventually result in the Union encroaching on
State legislative authority.55

It is important to highlight that Article 249 includes four inherent safeguards to prevent the
misuse of the authority it possesses.

1. Parliament can commence the legislative process only when the necessary resolution is
endorsed by a majority of two-thirds of the Rajya Sabha members who are present and
participating in the voting.

2. The resolution must specify the item on the State List for which Parliament has the
authority to pass laws for the betterment of the nation.

3. The validity of the parliament's resolution extends for one year from the date of its
passage.

4. The legislation enacted by Parliament in reaction to this resolution is only legally binding
for a duration of six months after the resolution's termination.

Article 249 of the present Indian constitution is essentially a duplicate of the proposal put up
by B.N. Raus (Article 226 of the Draft Constitution) to the Constituent Assembly. However,
the drafting committee excluded an additional language from Raus's letter, which said that a
resolution passed by the Council of States on this basis may be invalidated by a subsequent
resolution that also demanded a two-thirds majority. However, it is important to mention that

55
Draft Constitution, pp. 213.2014.

69
Rau's original draft constitution did not include the current iterations of paragraphs (2) and
(3) of Article 249. It was added over strong resistance from advocates of states' rights.

Resolutions for the revisions were moved by Dr. Ambedkar, and the following clauses
were added:

(i) A resolution passed in accordance with subsection (I) will remain in effect for the
specified time, which should not exceed one year: Under the condition that a resolution
allowing the continuation of any such resolutions is passed as specified in clause (I), the
resolution in question will remain valid for an additional year beyond the date it would have
otherwise expired according to this clause.

(ii) A law made by the parliament that it would not have been able to make had a resolution
under clause (1) been passed by the parliament will, to the extent of its incompetence, no
longer be in effect six months after the resolution has ceased to be in force, with the
exception of actions taken or not taken before that time. 56

Upon a thorough examination of article 249, it becomes apparent that the parliament is only
authorised to enact legislation for either individual states or the entire nation, but for a
duration limited to one year. The parliament must repeat the similar process described in
paragraph (1) of Article 249 in order to extend the legality of such legislation. The term of
such laws can only be extended by one year at a time. While this approach may appear
plausible in principle, no government would actually employ this technique of repeatedly
invoking clause (1) to enact fundamental legislation for the state.

In Canada, the parliament has the authority to enact legislation on matters pertaining to the
provinces when they become nationally significant. The residual powers are mostly utilised
to maintain peace and order and ensure effective governance. This is analogous to the Indian
constitution, wherein the parliament is vested with the power to delineate the national
interests of the country. One key distinction among the Indian and Canadian systems is that in
Canada, the judiciary, rather than the dominion government, has the final authority to decide
whether a topic has become of national significance. Under article 249 of the constitution, the

56
Article 249 (3) of 'Constitution of India.

70
central government has the authority to pass legislation on any matter included in the state
list, as long as it is necessary and beneficial for the nation.

Legislation during the Proclamation of Emergency

The Indian constitution contains provisions that can be utilised to harmonise the Indian and
national constitutions. Justices E.S. Venkataramaih and M.P. Singh argue that centralising
powers are not compatible with the separation of powers. Typically, the division of powers
can be advantageous for effectively managing different regions within a huge country like
India. In times of crisis, it is necessary to have centralised authority in place to protect and
preserve the established order. 57

As stated in Article 250 (1), regardless of any other factors. This provision grants the
authority to enact legislation on any subject listed under the state's jurisdiction for the entire
Indian territory or any of its ports, even in the event of a declaration of emergency.
The country's parliament possesses absolute jurisdiction to pass legislation on any matter
specified in the state list, including in the event of an emergency proclamation. This is
because the proclamation does not prohibit the states from passing legislation that pertain to
their own state lists and concurrent lists. Article 250 has recently been amended to grant it the
power to alter the state list within the concurrent list. As a result, any state law that conflicts
with parliamentary law will be invalid to the level of repugnancy. 58

Article 250 states that the Parliament may pass laws pertaining to any matter on the State List
for the whole or any portion of India's territory while a proclamation of emergency is in
effect. These laws, however, will no longer be in effect six months soon after the
proclamation of emergency has ended59. Three categories of emergencies are listed in the
Indian Constitution:

 As per Article 352, if the President concludes that there is a grave emergency and that
"armed rebellion" or external aggression endangers the security of India or any part of

57
Justice E.S. Venkataramiah and Prof. M.P. Singh in "Distribution of Legislative powers between centre and
States" in Hidyatullah (Ed.) Constitution Law of India, 222-305 at 273.
58
Article 251 Constitution of India
59
Dr. J.N. Pandey, Constitutional Law of India, 44th Edition, 2007

71
 its territory. A "Proclamation of Emergency" is an official declaration made to
indicate the existence of an emergency situation.
 When the constitutional system of a State or States becomes dysfunctional, an
emergency situation arises under Article 356 in those States.Furthermore, Article 360
specifically addresses the issue of financial emergencies. Furthermore, the
Constitution has a provision for "financial emergencies.
 " Dr. Ambedkar justified the introduction of Article 360 by referring to the nation's
prevailing terrible financial situation. Furthermore, he cited the National Industrial
Recovery Act of the United States during the 1930s as a paradigm for Article 360.

4.6 THE PRESIDENTIAL VETO POWER OVER THE LEGISLATION OF STATE

As per the Constitution of India, the Union Executive has the authority to exercise influence
on laws passed by State Legislatures under certain situations.Article 200 not only covers the
necessary elements, but also deals with the Governor's approval of Legislatively Passed Bills.
It specifies that the Governor has the authority to designate a particular Bill for the President's
inspection. When a bill is reserved in this way, the President has three options: he can either
sign it into law or veto it, or he can order the Governor to bring the bill before the Legislature
for reanalysing in line with the House's message.60

Other provisions of the Constitution require that bills on certain State subjects cannot be
introduced in the State's Legislative Assembly without the President's prior approval, or that
certain legislation, even if it is competent for the State, must be reserved for the President's
assent in order to obtain validity.61

The legislative branch of the constitution is purposefully biassed in favour of the centre. In
order to reconcile the use of State and Union authority, the Courts have developed a number
of interpretation principles. One rule that has been applied in these situations is to create
harmony between the different entries that appear to be at odds with one another by limiting
the scope of the broader entry in favour of the narrower entry, so as not to undermine the
latter62. The States have benefited from this interpretive concept since it broadens the
definition of the Center's authority. 63

60
Article 201.
61
The Proviso to Article 304.
62
In re C.P. motor spirit Act, AIR 1939 P.C.
63
State of Bombay v. Balsara, AIR, 1951 SC 318.

72
The State of West Bengal challenged the Union of India's claim to land rights over A state-
owned territory in the case of State of West Bengal vs Union of India. The Coal Bearing
Areas (Acquisition and Development) Act, 1957 aimed to buy coal-rich territories and
transfer the state's authority over them to the Central government. The West Bengal
administration contested the jurisdiction of the Parliament to approve this particular provision
of the statute.
The Scheme of Distribution of Powers prioritises the consolidation of powers to enhance
engagement and interconnection between the national government and the states, despite the
distinct powers assigned to the Union and State legislatures. An additional reason supporting
the importance of a robust core is the empirical evidence from other federations.
Nevertheless, the Supreme Court recently issued a ruling in the case of Lily Thomas vs Union
of India and Ors. Only Article 102(1)(e) and 191(1)(e) of the Constitution give the central
Parliament the power to make laws regarding exclusion from a membership in the House of
Parliament, Legislative Assembly, or Legislative Council of a State. The authority to make
such laws is not granted by Article 246(1) in combination with Entry 97 of List 1 of the
Seventh Schedule of the Constitution.

4.7 REPUGNANCY BETWEEN CENTRAL LAWS AND STATE LAWS

The allocation of powers is the paramount characteristic of federalism. A federal constitution

creates a system where power is divided between the central Union and the peripheral States.
Under Articles 245 and 246 of the Constitution, each state is given autonomous authority to
exercise functions within its designated territories. The current Constitution, which adopts the
procedural framework of the Government of India Act, 1935, allocates jurisdiction between
the Union and the States through three lists: the Union List, State List, and Concurrent List.
Despite the scientific challenge of producing divisions that result in legislative discussions,
both the State and the Centre possess the power to enact laws within the specified themes of
the lists. Both the State Legislature and Parliament are supreme in their respective domains.
The Court is duty-bound to interpret legislation enacted by the State and Parliament in a
manner that minimises any potential disputes between them. The Doctrine of Repugnancy
pertains to the legal dispute that arises between the federal authorities and the states. The term
"repugnancy" is described in the Black Laws dictionary as the inconsistency or contradiction
between two or more acts or laws. Article 254 of the Indian Constitution is applicable to state
laws that concern matters included in the concurrent list and for which the parliament has

73
enacted legislation. The Article 254 (1) pertains to where there is any inconsistency between
a central law and a state law relating to a subject present in the concurrent list. 64

The doctrine of repugnancy denotes the relationship of repugnancy between two statutes,
which arises when two provisions directly contradict or when a state legislature's adopted law
and a law passed by Parliament both cover the same subject 65. Hence, when the topic of
conflict arises between laws enacted by the nation's legislature and Parliament, it is crucial to
determine if the two legislations pertain to the same or distinct subject matter. The State and
Central Legislatures has equal authority and jurisdiction when it comes to enacting legislation
in each of their respective areas. However, there are instances where the government's power
and objectives clash, so it is necessary to establish rational procedures to resolve conflicts or
inconsistencies in order to ensure successful governance. Therefore, the notion of repugnancy
provides a useful basis for resolving issues of this nature.

66
In M. Karunanidhi vs Union of India Justice Fazal Ali reviewed all its prior decisions and
summarized the test of repugnancy.

It is important to emphasise that there is a clear and insurmountable difference between state
and federal laws, which prevents them from coexisting or operating in the same area.
Revocation by implication is only feasible if the disparity is evident in both pieces of
legislation.There is no conflict when two statutes pertain to the same area and have the
potential to act without contradicting one other. If a statute in a related subject seeks to define
distinct and separate offences without any contradiction, there is no issue of conflict and both
statutes remain effective in the same domain.

Krishi Upaj Mandi Samiti, Narsinghpur v. M/s. Shiv Shakti Khansari Udyog :

The 1973 M. P. Krishi Upaj Mandi Adhiniyam, also referred to as the Market Act, brought
about substantial changes to the mechanism for establishing sugarcane prices. The Control
Order stipulated that the federal government must establish a minimum price for sugarcane.
As per the Market Act, the price of agricultural produce that has been notified and brought
into the market yard for sale must be determined, and it cannot be lower than the support
price published by the State government. One of the inquiries raised was whether the Market
Act will override the Control Order. The Market Act was not granted the President's assent
64
Vijay Kumar Sharma v. State of Karnataka, (1990) 2 SCC 562 : AIR 1990 SC 2072.
65
Security Association of India v. Union of India, AIR 2014 SC 3812 pp. 3827-3828.
66
M. Karunanidhi v. Union of India, AIR 1979 SC 898.

74
due to a conflict with the Control Order. Consequently, the argument that the Act would take
precedence because it was implemented with the President's agreement was considered
irrational. It is crucial to provide a detailed explanation to the President regarding the reasons
for seeking his approval, as it is not merely a procedural requirement. If consent is obtained
for a certain purpose, it will be limited to that purpose and cannot be extended.

4.8 THE DOCTRINE OF EXTRA TERRITORIAL NEXUS :

The Indian Constitution establishes a bicameral legislative system. Article 245 pertains to the
geographical distribution of powers, while Article 246 deals with the allocation of authorities
based on specific issues. Upon a superficial examination of Article 245, it becomes evident
that state legislatures possess the authority to establish legislation for any jurisdiction within
their respective boundaries, whereas the federal legislature possesses the capacity to
promulgate laws that apply to the entire nation. Conversely, the parliament possesses the
authority to enact laws that go beyond the limits of a single nation, as stipulated in article 245
clause (2).
State legislatures have found it easier to pass legislation, but the judiciary has prevented them
from breaking established constitutional norms or expanding their legislative agendas into
new areas. In violation of the law, the judiciary has created specific standards and criteria
through various court rulings. States have the authority to enact laws that apply outside their
borders when certain activities or events occur within the state but have an impact beyond it.
However, this is only permissible if there is a significant connection between the state and the
scope or subject matter of the legislation.

The State of Bombay v. R.M.D.C. case 67 has several conditions set by the Supreme Court.
The honourable court came to the conclusion that in order to assess whether the territorial
relationship is sufficient, two considerations must be made: (a) the connection must be
genuine and not fictitious; and (b) the liability that is being sought to be imposed must be
relevant to the connection.

Theory of Extra Territorial nexus :

The Indian Constitution's Article 245(1) grants the Central and the States the authorites to
enact legislation for their respective regions. The Centre is granted the authority to operate

67
AIR 1958 SC 699

75
outside of its borders under the Constitution, while the State is not granted the same right.

In Wallace Bros. And Co. Ltd. v. The Commissioner Of Income Tax (1948), a British-
incorporated business used a sleeping partner to conduct business in India. The company
generated a huge profit in that fiscal year. The respondent corporation was targeted for a tax
by the income tax authorities. The respondent contested this Income Tax Authority ruling in
the Bombay High Court, but the court determined that the levying of this tax is lawful
because the territorial nexus concept applies in this situation. The ruling also stated that a
significant portion of the taxed revenue was taken out of British India, which was seen to be
sufficient justification for establishing a territorial link.

This case is among the first to provide a precise definition of an extraterritorial operation and
the prerequisites that must be met for the enforcement of laws in extraterritorial jurisdictions.

Salient features Extra Territorial nexus: 68

 The authority to create laws regarding extraterritorial jurisdiction is exclusively held

by the Parliament.
 The state legislature is not granted this authority by the Indian Constitution. An
exception to this is the principle of territorial linkage, which confers state legislatures
with the same power to pass laws in extraterritorial territories.
 The territorial nexus theory is based on the connection between the state and the
subject matter.If there is a relationship between the two, the state legislature has the
power to pass legislation in extraterritorial territories.
 A state's legislation will not be considered valid only based on its operation outside its
borders, unless the second requirement indicated earlier is fulfilled.

4.9. THE COLOURABLE LEGISLATION:

The legal principle known as "colourable legislation" aims to prohibit the government from
abusing its legislative power in an unconstitutional or disproportionate manner. The argument
is based on the Latin maxim "quando aliquid prohibetur ex directo, prohibetur et per
obliquum," which asserts that actions that are prohibited directly should also be prohibited
indirectly. The term "colourable" is defined in Black's Law Dictionary as follows:

68
https://blog.ipleaders.in/doctrine-of-territorial-nexus/

76
1. Seeming to be true, valid, or correct.

2. With the intention of misleading; fake.

3. Outward form, disguise, or likeness.

According to the theory of "colourable legislation," the government is passing laws under the
pretence of having authority, even when it lacks the necessary jurisdiction.
In the case of R. S. Joshi v. Ajit Mills (1977), the Supreme Court determined that the phrases
"colourable exercise of power," "fraud on legislative power," and "fraud on the constitution"
can be used interchangeably. These expressions all describe situations where the legislature is
unable to pass a specific bill.

According to this idea, the legitimacy of legislation is contingent upon the legislature's
capacity to pass a certain law, rather than being influenced by the objectives or intentions of
the legislators. When deciding whether a statute is colorable, the court solely assesses
whether it falls within the jurisdiction of the governing body. It does not evaluate the
underlying motives of the legislation.

Evolution of Doctrine of Colourable Legislation:

The British government established the idea of colorable legislation to India. Although the
British first employed a unitary system of government during the early stages of their rule,
they later transitioned to a federal system. Power was divided between the central
government and the regional governments during British control. The principle of
"colourable legislation" was utilised to determine the jurisdiction of different government
bodies and sustain the equilibrium of power within the nation. The British government
adopted this theory from Australia and Canada.

Canada: An essential tenet of the nation's constitution is the notion of colorable law. Nova
Scotia and New Brunswick became part of Canada through the British North America Act of
1867, which established a federal government. The Act's Sections 91 through 95 pertain to
the allocation of powers between the federal government and the provinces. Subsequently,
provisions on the allocation of powers among governmental bodies were incorporated into
the Constitution Act of 1982. The theory of colorable legislation emerged as a consequence

77
of these constitutional constraints. The theory is utilised to oversee the legislative authority of
government bodies.

Australia: After the enactment of the Commonwealth of Australia Constitution Act in 1901,
a federal government was established to supervise the territories of New South Wales,
Tasmania, Queensland, Victoria, Western Australia, and Southern Australia. Australia's
governmental structure consists of two tiers: the state governments and the Commonwealth
government, which is often known as the Federal government. Section 51 of the Australian
Constitution outlines the legislative authority of the Commonwealth government, while
allowing the states to make laws on matters that are not specifically mentioned in the list.
These powers are referred to as residual powers. The Australian Constitution also contains a
simultaneous enumeration of legislative powers that are shared by both the federal and state
governments.
The judiciary developed the concept of colorable legislation based on constitutional
principles. By employing this methodology, it was ascertained if the government bodies'
utilisation of their legislative powers was valid. Despite achieving independence, the
fundamental principle of colorable law continued to exist in the Indian Constitution.

By limiting the legislative power of the government agencies through its rulings, the judiciary
advanced the concept of colorable legislation.69

Significance of Doctrine of Colourable Legislation:

The concept of colorable legislation is vital in restraining the government's misuse of

legislative authority by quick judicial intervention. This idea upholds the judiciary's
endeavour to preserve national stability in the event that any unauthorised government entity
attempts to overthrow the others and acquire additional powers. The concept of "colourable
legislation" grants the court the authority to verify that legislation complies with its
jurisdictional requirements. The courts possess the authority to invalidate laws if they
determine that they violate the constitution. If the legislature assumes authority, the other
branches of government may be obliged to accept its decisions. This seriously undermines the
premise of the division of powers. The concept of colorable law serves as a safeguard against
the misuse of power by a solitary body. It promotes legislators to exercise more prudence.It

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upholds the essence of democracy by endorsing popular goals and aspirations and serving as
a reminder to the government of its obligations towards the citizens.

4.10 Doctrine of Pith and Substance

The Doctrine of Pith and Substance is a principle recognised by constitutional law. It places
more focus on the essential ideas and characteristics of law than on its auxiliary elements.
The idea is particularly relevant in federal states since the limits of legislative authority are
set by the constitution. Regarding the Doctrine of Pith and Substance, the following details
are relevant:

 The idea determines whether a law is lawful by considering its main purpose and
content rather than any unintentional effects.
 It helps settle conflicts between laws or between branches of government.
 A law can be sustained if its main objective falls within the legislative authority of the
government that passed it. Courts use this method to decide whether a legislation's
encroachment on another government's territory is modest or large.
 The Doctrine of Pith and Substance is essential to maintaining the balance of power
between the various levels of government.
 It contributes to ensuring the effectiveness of legislative initiatives.

The doctrine is used when the topics covered in the first and second lists appear to be at odds
with one another. Reasons for Doctrine Adoption: The concept was created to shield
lawmakers from any limitations on their power by stating that any other legislation violates
another act and is therefore illegal. Sincere disposition and personality: The theory is
respected for its capacity to determine a subject's ranking by examining its true essence and
character. The first ruling upheld the Indian doctrine: Bombay State v. FN When the doctrine
was first applied in India, the case of Balsara was sustained in that ruling. It prevents the
federal government from overreaching. It prevents it from encroaching on the powers of state
governments. It assures that the legislative powers of both levels of government are precisely
defined and upheld.

The federal government and the state governments are encouraged to work together and
coordinate their efforts. It assists in settling disagreements on the allocation of legislative
authority between the federal government and the state governments.

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By guaranteeing that laws are passed within the constitutional bounds of the government, it
safeguards the rights of the people.70

State of Bombay Vs F.N.Balsara :

In relation to the principle of pith and substance, this is a highly consequential circumstance.
In this particular case, the Supreme Court upheld the constitutionality of the Bombay
Prohibition Act. The legislation prohibited the possession or consumption of alcohol by the
state of Bombay. Furthermore, it violated the federal government's jurisdiction over
regulating interstate commerce and trade. However, the Court concluded that the Act was
within the jurisdiction of the state government's legislative authority.

Chawla Vs The State of Rajasthan (1959)

In this instance, the legality of the Ajmer (Sound Amplifiers Control) Act, 1952, was called
into doubt. The legislation imposed limitations on the utilisation of audio amplification
devices within the jurisdiction of Ajmer. G. Chawla was convicted for unauthorised use of
sound amplifiers, in accordance with the Act. Chawla questioned the legitimacy of the Act.
He said that it fell beyond the jurisdiction of the state legislature. The Supreme Court of India
affirmed the legality of the Act. It was determined that the state legislature has the authority
to legislate on matters related to "public health and sanitation" as described in Entry No. 6 of
List II of the Seventh Schedule of the Indian Constitution.

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%20Pith%20and,law's%20true%20nature%20and%20character.

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 CHAPTER - 5

DIVISION OF POWERS AND ITS JUDICIAL TREND

5.1 INTRODUCTION

Another vital element of our Constitution is the maintenance of a separate court with the
power of "judicial review." However, the American experience has shown that we have
managed to steer clear of the opposite extreme, known as "judicial supremacy," which could
be the unavoidable result of granting excessive importance to judicial review.

One fundamental aspect of the Constitution is the State's judicial powers, which the Courts
may exercise as guardians of the Rule of Law.71

The successful integration of parliamentary sovereignty and a written constitution with

provisions for judicial review is, in fact, one of the most significant accomplishments of the
creators of our Constitution. Attaining a flawless equilibrium of powers among the several
departments of government is unattainable; in reality, one branch must ultimately hold the
authority to make final decisions.

The judiciary has the power to declare a law passed by the Legislature as unconstitutional.
This can happen if the law violates the provisions in the Bill of Rights or the legislative
authority granted by the Constitution. Additionally, a law can be deemed unconstitutional if it
goes against general principles that support ambiguous expressions, such as due process. The
Supreme Court has the authority to define due process, even though its specific contents are
not explicitly mentioned in the Constitution. Therefore, the American judiciary scrutinises the

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81
soundness of each legislative programme as if it were an additional chamber or a superior
chamber of the legislature.

The Indian Constitution effectively combines the English principle of Parliamentary

Supremacy with the American principle of Judicial Supremacy. It does so by empowering the
Judiciary to declare a law unconstitutional if it violates any of the fundamental clauses or if it
falls outside the jurisdiction of the Legislature, as outlined in the document. Furthermore, it
prohibits the judiciary from engaging in "judicial review" to assess the reasonableness of
legislative action.

Thus, it avoided expressions like ‘due process’, and made fundamental rights such as that of
liberty and property subject to regulation by the Legislature72.

Nevertheless, the Supreme Court concluded that Maneka Gandhi's case satisfied the criteria
of "due process" as outlined in Article 21. Moreover, the Union Parliament has the authority
to modify a substantial part of the Constitution through a special majority, in the event that it
is found that the court is excessively intrusive in a particular scenario.

Hence, our Constitution confers supreme power to the Legislature, to the maximum extent
permitted by the constraints of a written instrument. Nevertheless, as previously mentioned,
the Constitution (42nd Amendment) Act, 1976 disrupted the delicate equilibrium between
judicial review and legislative authority by adopting additional provisions such as Articles
31D, 32A, 131A, 144A, 226A, 228A, 323A-B, and 329A.

The Janata Government, which assumed office in 1977, repealed the articles—31D, 32A,
144A, 144A, 226A, 228A, and 329A—that were introduced by the 42nd Amendment.
Furthermore, it significantly restored Art. 226 to its original condition. These improvements
partially restored the current condition that existed before 1976.

However, the Judiciary has made progress by stating that "judicial review" is a "essential
characteristic" of our Constitution. Hence, unless the Supreme Court reverses its decision on
this matter, any amendment to the Constitution that removes the Court's power to invalidate
legislation based on its conflict with any provision of the Constitution will be deemed as a
violation of the Constitution itself.

5.2 IS SEPARATION OF POWER A PART OF THE BASIC STRUCTURE?

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The Indian Constitution grants the Parliament and State Legislatures the authority to enact
legislation within their respective jurisdictions. The core of this power is not absolute. The
Constitution grants the judiciary the authority to ascertain the constitutionality of a statute. If
a bill approved by the state legislatures or Parliament violates any provision of the
Constitution, the Supreme Court possesses the authority to deem it unconstitutional or an
abuse of its powers. The original framers of the Constitution intended for it to serve as a
malleable framework rather than a strict code of laws, notwithstanding this limitation. As a
result, Parliament was given the authority to modify the Constitution. Parliament is granted
the authority by Article 368 of the Constitution to modify the entire document at any time and
for any cause. However, since independence, the Supreme Court has acted as a check on
Parliament's enthusiastic legislative pursuits.

The Supreme Court determined that in order to uphold the intended objectives of the framers,
Parliament is prohibited from distorting, impairing, or modifying the fundamental elements
of the Constitution under the guise of altering it. The Constitution itself does not make any
reference to the concept of "fundamental structure".

5.3 The Golaknath Case:

In 1967, an eleven-judge Supreme Court body overturned its previous decision.

In the case of Golaknath v. State of Punjab, Chief Justice Subba Rao asserted that Article
368, which outlines the procedures for modifying the Constitution, alone presented the
process for amendment in its 6:5 majority ruling.

Parliament was not granted the authority to modify the Constitution under Article 368. The
amending powers, often referred to as constituent powers, of Parliament, which is also known
as plenary legislative powers, were derived from other portions of the Constitution (Articles
245, 246, 248) that granted Parliament the authority to enact legislation. Therefore, the
Supreme Court concluded that the legislative and modifying powers of Parliament were
nearly identical. Any modification to the the Constitution must be interpreted as legislation
consistent with Article 13 (2).

The majority opinion referred to implicit constraints on Parliament's authority to modify the
Constitution. From this perspective, the Constitution safeguards the essential freedoms of

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individuals.
Upon drafting the Constitution, the people reserved the fundamental rights for themselves.
Article 13 explicitly establishes the restriction on Parliament's authority, as agreed upon by
the majority. Due to the structure and provisions of the Constitution, Parliament lacked the
ability to alter, restrict, or undermine essential freedoms. The justices determined that the
fundamental rights were of utmost importance and sacred, and should not be limited, even if
there was unanimous agreement from both chambers of Parliament. It was noted that
Parliament possesses the power to convene a Constituent Assembly for the purpose of
modifying the fundamental rights, if deemed necessary.

The supreme court concluded that certain provisions of the Constitution were fundamental
and necessitated modification through means other than the usual procedure, as expressed in
various manners. The word "fundamental structure" was employed by M. K. Nambiar and
other solicitors during the petitioners' argument in the Golaknath case. However, this idea
was not explicitly mentioned in the text of the Supreme Court's decision until 1973. The
nationalisation of banks and the abolition of privy purses. Shortly following the Golaknath
verdict, the ruling party had significant electoral setbacks and relinquished control over
multiple states.

Barrister Nath Pai introduced a measure as a private member, however it failed to be enacted
due to political constraints prevailing at the time. The legislation aims to reinstate
Parliament's sole authority to modify the Constitution. Both the house floor and the Select
Committee deliberated and discussed the bill. Parliament had the chance to test its authority
when it passed laws to nationalise banks and remove the recognition of previous princes, with
the aim of taking control of their Privy purses. These purses were initially offered as a bribe
to convince the princes to join the Union during India's independence. Additional legislation
ensured a fair allocation of wealth and the distribution of production resources.

The Supreme Court deemed both of Parliament's actions as illegal, notwithstanding its
argument that it was carrying out the Directive Principles of State Policy. It became evident
that the Supreme Court and Parliament were unable to reach a consensus regarding the
relative significance of the Directive Principles of State Policy in comparison to the
fundamental rights. The primary source of disagreement revolved over Parliament's
supremacy in relation to the courts' authority to interpret and enforce the Constitution.

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The struggle also revolved around the protection of property as a fundamental right, which
was strongly defended by a few wealthy class in contrast to the large impoverished
population, for whom the government purported to be pursuing its socialist development
objective. Shortly after the Supreme Court overturned the President's decision to withdraw
recognition from the princes, Prime Minister Indira Gandhi dissolved the Lok Sabha and
announced an early election. Gandhi employed this strategy to garner support from the
masses and consolidate her position as the head of the opposition.

The Indian Constitution, for the first time, became a contentious electoral matter. Out of the
ten manifestos published for the 1971 elections, eight advocated for amending the
Constitution to reinstate the supremacy of Parliament. Moreover, AK Gopalan, a Marxist
from the Communist Party of India, insisted that the new constitution should not simply
abolish the existing one completely, but instead should include the genuine authority of the
people. Once again, the Government party maintained a supermajority of two-thirds. The
voters supported the socialist agenda of the ruling party, which called for substantial
constitutional reforms to reinstate the primacy of Parliament.

Parliament attempted to bridge the gap between July 1971 and June 1972 by implementing a
number of changes. The entity regained its absolute authority to modify any aspect of the
Constitution, including the provisions pertaining to fundamental rights outlined in Part III.
Now, any alteration that is agreed upon by both chambers of Parliament must have the
President's signature. Various limitations on property rights were officially included into
legislation. Article 19540, which guarantees essential liberties, along with the right to
equality before the law and equal protection under the law (Article 14), were replaced by
Article 39 (b) and (c) of the Directive Principles of State Policy. The treasury funds of former
princes were eliminated, and a significant set of land reform measures were transferred from
the court's authority to the Ninth Schedule.

5.4 POSITION BEFORE THE KESHVANANDA CASE

The legitimacy of Parliament's power to amend the constitution was challenged as early as
1951, primarily in regards to the clause concerning the fundamental rights of people. Several
laws were enacted after the state became statehood with the objective of modifying property
ownership and tenancy agreements. This aligns with the electoral promise of the governing
political party to carry out the socialist objectives outlined in Articles 39(b) and (c) of the

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Directive Principles of State Policy. These objectives call for a fair distribution of resources
among all citizens and prevent the accumulation of wealth by a select few.
Lawsuits were filed by property owners who were adversely affected by these statutes. The
courts deemed the land reform laws as invalid due to their violation of the fundamental right
to property, which is safeguarded by the Constitution. In response to the adverse rulings,
Parliament included these laws in the Ninth Schedule543 of the Constitution together with
the First and Fourth Amendments (1951 and 1952, respectively), thereby exempting them
from judicial review. In 1951, the Parliament made an amendment to the Constitution by
introducing the Ninth Schedule, which resulted in the removal of some laws from being
subject to judicial review.

As per the stipulations of Article 31, which has undergone multiple amendments
subsequently, the laws encompassed in the Ninth Schedule, pertaining to the procurement of
private property and the corresponding compensation, are immune to legal disputes in court
based on allegations of violation of citizens' fundamental rights. This barrier encompasses
around 250 laws enacted by state legislatures with the aim of abolishing different tenancy
agreements and regulating the extent of land ownership. The main purpose of the Ninth
Schedule was to hinder the government, led by the ruling party, from implementing its
agenda for a social transformation through the judiciary, which had consistently upheld
citizens' property rights.

The property owners once again contested the constitutional modifications that classified
them under the Ninth Schedule, before the Supreme Court. They argued that the land reform
measures were in violation of Article 13(2) of the Constitution.

Article 13(2) ensures the safeguarding of the fundamental rights of citizens. The constitution
and state legislatures explicitly prohibit any legislation that limits or abolishes the basic rights
that every citizen is entitled to.

They contended that each amendment to the Constitution possesses equivalent legal authority
to a statute, as explicitly stated in Article 13. (2). In both the cases of Sankari Prasad Singh
Deo v. Union of India in 1952 and Sajjan Singh v. Rajasthan in 1955, the Supreme Court
affirmed Parliament's authority to modify any provision of the Constitution, even those that
impact individuals' fundamental rights, by dismissing both claims. However, it is worth

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mentioning that two justices who expressed disagreement in the Sajjan Singh v. Rajasthan
decision raised doubts about the possibility of the ruling party in Parliament using people's
fundamental rights for their own advantage.

5.5 POSITION AFTER THE KESHAVANADA CASE: THE BASIC STRUCTURE

CONCEPT'S EMERGENCE

The inevitability of the whole thirteen-judge Supreme Court bench engaging in a dispute
about the legitimacy of these modifications was apparent. Their decision is delineated in
eleven distinct judgements. A total of nine judges affixed their signatures to a concise
statement delineating the principal decisions they reached in this particular case. According
to Granville Austin, the judges' individual findings differ dramatically from the issues stated
in the summary that they both agreed upon.The majority opinion, however, acknowledged the
groundbreaking concept of the Constitution's "fundamental framework."

The Twenty-fourth Amendment has been universally affirmed by all courts, establishing that
Parliament possesses the authority to modify any or all elements of the Constitution. All the
individuals who signed the summary agreed that Article 368 encompassed the power and
process for modifying the Constitution, and that the Golaknath case had been erroneously
determined.
Consequently, they effectively illustrated the distinction between a constitutional amendment
and a statute, as outlined in Article 13 (2).

It is important to emphasise the nuanced distinctions between the two roles carried out by the
Indian Parliament, namely its legislative capacity to enact national laws and its constituent
capabilities to modify the Constitution.

Constituent powers hold a higher level of authority compared to regular legislative powers.
While the British Parliament retains its sovereignty even without a written constitution, the
Indian Parliament and State legislatures are subject to constitutional limitations on their
powers and functions. The Constitution is not exhaustive in its inclusion of all the laws that
govern the nation. State legislatures and parliaments periodically enact legislation on various
topics within their respective domains. The Constitution serves as the fundamental basis for
establishing these laws.

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Parliament is the sole authority granted the ability to modify this structure, as stipulated in
Article 368. Contrary to ordinary laws, modifications to constitutional provisions necessitate
a special majority vote in Parliament.Examine the following example to more effectively
emphasise the distinctions between the legislative power of Parliament and its various
constituent authorities. As to Article 21 of the Constitution, no individual within the nation
can be denied their right to life or personal liberty unless a legally mandated process is
adhered to. The Constitution does not specify the specific steps of the procedure; rather, it is
the responsibility of the legislative and executive arms of government to establish
them.Examine the following example to more effectively emphasise the distinctions between
the legislative power of Parliament and its constituent authorities.

As to Article 21 of the Constitution, no anyone within the nation can be deprived of their life
or personal liberty without adhering to a legally mandated process. The Constitution does not
specify the specific steps of the procedure; rather, it is the responsibility of the legislatures
and the executive branch to establish them. Parliament and state legislatures provide the
necessary legislation that define unacceptable behaviours for which an individual may face
imprisonment or the death penalty. The government establishes the protocol for
implementing these laws, and the defendant is prosecuted in a court of law.

These statutes can be modified with a straightforward majority vote in the appropriate state
legislature. Changes to these provisions can be implemented without the need to modify the
Constitution. Nevertheless, if there is a necessity to include the basic entitlement to life in
Article 21, which now prohibits the death penalty, Parliament may have to exercise its
constituent powers to modify the Constitution accordingly.
Surprisingly, out of the thirteen justices in the Kesavananda Bharati case, seven, including
Chief Justice Sikri, who supported the summary statement, affirmed the presence of inherent
restrictions on the power of Parliament as a constituent body. According to Article 368, the
rights of Parliament to make amendments to the Constitution cannot be used to harm,
weaken, destroy, abolish, modify, or change the essential framework or structure of the
Constitution.

5.6 THE BASIC FEATURES OF THE CONSTITUTION BASED ON THE

KESAVANADA VERDICT

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Each judge expressed their perspective on the parts of the Constitution that they consider to
be crucial or foundational. There was a lack of consensus, even among the majority
perspective. Sikri asserts that the concept of basic structure encompasses the preeminence of
the Constitution, the Republican and Democratic systems of government, the secular nature
of the Constitution, the division of powers among the legislative, executive, and judicial
branches, and the federal character of the document. C.J. Shelat, J. and Grover, J. included
two additional crucial components to this inventory. The mandate to establish a Welfare State
is outlined in the Directive Principles of State Policy and the preservation of the nation's unity
and integrity.

Hegde, J., and Mukherjea, J. identified a distinct and shortened list of essential traits:

The foundational components of the individual liberties provided to its residents, India's
sovereignty, unity as a nation, the democratic structure of its political system, and the mission
to construct a welfare state.

Jaganmohan Reddy argues that the Preamble of the Constitution and the articles derived from
it, such as Sovereign Republican Republic, The parliamentary system Democracy, and Three
Organs of the State, encompass important traits.

He argued that the Constitution's survival was contingent upon the preservation of its
essential freedoms and guiding ideals. Only six judges, who formed the minority, agreed that
the fundamental rights of citizens were an integral component of the fundamental structure
and could not be modified by Parliament.

To summarise, the majority decision in Kesavananda Bharati acknowledged that Parliament

has the authority to make changes to any or all of the sections in the Constitution, as long as
these alterations do not significantly alter the original wording. However, there was a dispute
on the appropriate individual to be selected for that significant organisation. Despite
reaffirming the supremacy of Parliament's amending powers, the Supreme Court came close
to reverting back to the Sankari Prasad (1952) ruling. Conversely, this significantly enhanced
the power of judicial review.

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 CHAPTER – 6

CONCLUSION

6.1 Conclusion

Legislative, executive, and judicial activities commonly come among the three main
categories of government functions. It is possible to discern the primary governmental units
responsible for carrying out specific tasks, even although it may not always be apparent
which branch of government has authority over them. Taxation is a longstanding function of
the government, serving as an illustrative example. The judicial branch resolves conflicts
between citizens and tax collectors concerning the precise amount of tax owed in a certain
case by interpreting and applying the law to the factual circumstances. The legislative branch
is responsible for enacting legislation that grants the authority to impose new taxes. The
executive branch is responsible for operating the system that evaluates and collects the tax
owed by each taxpayer.
In criminal law, the judiciary is tasked with conducting trials for individuals accused of
crimes, while the executive branch is responsible for enforcing the law. Additionally, the
legislative branch holds the authority to establish new criminal offences. However, the
current government has numerous arduous tasks. The taxes and criminal law approach, which
is rather straightforward, is not readily applicable to the numerous complex government
procedures.

The Constitutional provisions of India regarding Union and State legislative relations
have been largely effective in maintaining the federal structure of the country.

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Current provisions are usefull because of the following:

 Clearly defined powers: The Constitution allocates the legislative power between the
Union and the States, facilitating cooperation and averting conflicts.
 Flexibility: The Constitution has provided flexibility in the allocation of powers,
allowing for adjustments through amendments and judicial interpretations.
 Effective functioning: Despite some conflicts, the Union and States have generally
functioned effectively, with the Centre playing a crucial role in matters of national
importance.

Amendments are needed for the following:

 Imbalance of power: Some argue that the Centre has become too powerful,
encroaching on State autonomy, and that amendments are needed to restore the
balance.
 Changing circumstances: India's socio-economic landscape has changed significantly
since 1950, and some provisions may require updates to address contemporary
challenges.
 Clarity and precision: Certain provisions, like the Seventh Schedule, could be made
more specific and clear to avoid interpretational disputes.

Potential areas for amendment:

1. Article 249: Empowering the Centre to legislate on State subjects in exceptional

circumstances.

2. Article 252: Allowing the Centre to delegate powers to States.

3. Seventh Schedule: Clarifying and updating the division of powers between the Union and
States.

4. Article 356: Refining the provisions for President's Rule to prevent misuse.

Therefore, while the Constitution's provisions on Union and State legislative relations have
been largely effective, some amendments could be considered to address emerging issues,
clarify ambiguities, and assure a more balanced and harmonious federal structure. However,

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any amendments should be carefully crafted to maintain the Constitution's basic structure and
federal principles.

Judicial theories developed by the courts to understand union and state legislation's
constitutional provisions:

Doctrine of Pith and substance.

In a federal system such as India, a legal theory known as the doctrine of pith and substance
is applied to judge whether a piece of legislation is lawful. It assists in resolving disputes over
legislative authority between the federal government and the states.

Pith and substance refer to the true nature or essence of a legislation. The doctrine says that
when a law is challenged, the court should look at its pith and substance (the main purpose
and effect) to determine:

1. Whether it falls within the legislative competence of the Centre or the state.

2. Whether it infringes on the powers of the other tier of government.

The court will examine:

- The main object and purpose of the law

- The scope and effect of the law

- The dominant intention behind the law

If the fundamental nature and essence of the law align with the jurisdiction of either the
federal government or the state government, it will be recognised as legally sound. If it
infringes upon the authority of the other level, it may be invalidated as unconstitutional.

This doctrine helps to:

- Clarify the division of powers between the Centre and states

- Prevent encroachment by one tier on the powers of the other

- Assure that laws are made by the appropriate level of government

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Therefore, the doctrine of pith and substance is a crucial tool for interpreting the Constitution
and ensuring that the federal structure of India is maintained.

Doctrine of Division of Powers:

The doctrine of separation of powers is a fundamental concept in political science and

constitutional law that divides the powers of government into three branches:

1. Legislative (Lawmakers/Parliament)

2. Executive (Cabinet/Government)

3. Courts and Judiciary

Each branch has distinct and independent powers, and no one branch has absolute authority
over the others. This division is designed to:

 Prohibits abuse of power

 Promote accountability
 Protect individual rights and liberties
 Assure checks and balances

Key aspects:

 Separation: Each branch has its own distinct powers and functions.
 Independence: Each branch operates independently, without interference from others.
 Checks and Balances: Each branch has some control over the actions of the other two.
 Cooperation: Branches work together to assure effective governance.

Benefits:

 Prevents tyranny and authoritarianism

 Encourages transparency and accountability
 Protects minority rights
 Promotes stability and predictability

This doctrine is a cornerstone of democratic governance, ensuring that power is distributed

and limited, and that no single branch dominates the others.

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The unitary bias of the federal system of government in India, with a strong Centre,
Here are some reasons for and against the justification of a strong Centre:

Reasons for a strong Centre:

 National Unity and Integrity: A strong Centre is necessary to maintain national unity
and integrity, given India's diversity and regional aspirations.
 Economic Development: A strong Centre can facilitate economic development by
ensuring a uniform economic policy, allocating resources, and promoting national
interests.
 External Security: A strong Centre is essential for external security, as it enables the
government to respond effectively to external threats and maintain national
sovereignty.
 Coordination and Regulation: A strong Centre can assure coordination and
regulation among states, preventing conflicts and promoting a unified approach to
national issues.

Reasons against a strong Centre:

 States' Autonomy: A strong Centre can encroach upon states' autonomy, undermining
federalism and the principles of decentralization.
 Regional Imbalance: A strong Centre can perpetuate regional imbalances, as
decisions are often made without considering the diverse needs and aspirations of
states.
 Inefficiency and Corruption: A strong Centre can lead to inefficiency and corruption,
as power is concentrated in a few hands, and decision-making becomes centralized.
 Democracy and Representation: A strong Centre can undermine democracy and
representation, as states and local governments may have limited say in national
decision-making processes.

Therefore, while a strong Centre has its advantages, it is essential to strike a balance between
national unity and states' autonomy, ensuring that federalism is not compromised. The Indian
Constitution has attempted to achieve this balance through various provisions, such as the
division of powers, the role of the Rajya Sabha, and the principles of cooperative federalism.
However, the debate continues, and the ideal balance between a strong Centre and states'
autonomy remains a subject of ongoing discussion and evolution.

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The Indian Constitution does not fully acknowledge or adhere to the notion of separation of
powers in a strict or absolute manner. The Constitution establishes a division of powers
among the legislative, executive, and judicial departments, while also incorporating
mechanisms of checks and balances, which permit certain areas of overlap and adaptability.

1. Not a strict separation: The Constitution doesn't strictly separate the powers, but rather
distributes them in a way that allows for some overlap and cooperation.

2. Parliamentary system: India follows a parliamentary system, where the executive (Council
of Ministers) is drawn from and accountable to the legislative (Parliament).

3. Judicial review refers to the authority of the judiciary to examine and invalidate legislation
and executive actions that contravene the Constitution. However, it should be noted that the
judiciary's involvement in lawmaking is restricted and not extensive.

4. Executive powers: The President and Governors have ceremonial and symbolic roles, but
also possess some executive powers, like appointing judges and granting pardons.

5. Legislative powers: Parliament has the power to make laws, but the Constitution also
empowers the President to promulgate ordinances and the Governors to grant assent to state
legislation.

6. Checks and balances: The Constitution includes a number of mechanisms for ensuring that
laws are scrutinised by the Rajya Sabha and that executive acts are subject to judicial review.

Therefore, while the Indian Constitution recognizes the doctrine of separation of powers, it
doesn't adhere to a rigid or absolute separation. Instead, it strikes a balance between
separation, checks, and balances to assure a functional and accountable government.

The existence of a strong Centre in India has led to conflicts with state governments on
several issues, including:

1. Power sharing and autonomy: States feel that the Centre encroaches on their powers and
autonomy, leading to tensions.

2. Financial resources: States demand greater financial autonomy and a larger share of
resources, while the Centre controls the purse strings.

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3. Legislation and policy: Conflicts arise when the Centre introduces laws or policies that
states feel infringe on their jurisdiction or interests.

4. Administrative control: States resent the Centre's control over key administrative
appointments and decisions.

5. Regional development: States feel that the Centre prioritizes development in certain
regions over others, leading to uneven growth.

6. Language and culture: States assert their linguistic and cultural identities, which may differ
from the Centre's priorities.

7. Law and order: States and the Centre may have differing approaches to maintaining law
and order, leading to conflicts.

8. Natural resources: States demand greater control over natural resources within their
territories, while the Centre seeks to regulate and exploit them.

9. Environmental issues: States and the Centre may have differing environmental priorities
and policies.

10. Political differences: Ideological and political differences between state and Central
governments can lead to conflicts and tensions.

These conflicts often manifest through political tensions, legal battles, and even protests and
movements, underscoring the need for cooperative federalism and greater dialogue between
the Centre and states.

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 SUGGESTIONS

1. There are customs that the federal government and state governments have to follow.
For instance, effective consultation between the federal and state governments is
required prior to the passage of legislation in a concurrent field. It is recommended
that Inter-State-Council be contacted prior to the introduction of bills in Parliament
regarding the concurrent sector, as this forum would serve as the most suitable venue
for this purpose. For the two levels of government to coexist peacefully, there is an
immediate need for cooperation and coordination between the federal and state
governments. It seems that the goal of the constitution's many provisions and sections
was to institutionalise the concepts of cooperative federalism.
2. It is suggested that parliament should retain sole authority over the residuary
legislative powers pertaining to taxation problems, with the concurrent listing of
residuary fields other than taxation.
3. The States' organisation assures the enforcement of Union laws, especially those
concerning the concurrent realm.
4. To avoid total authority centralization, the states must be consulted before the federal
government can implement laws pertaining to concurrent list issues. A strong centre is
necessary to preserve the unity and integrity of the country because a weak centre is
likely to lead to the nation's weakening. A weak nation either attracts external
invasion or fosters chaos within its borders. This is evident from both its recent
history and its present secessionist tendencies. A concentration of the powers of the

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 governmental organs will lead to dictatorship. Conversely, if they are separated, there
won't be any more confusion or overlap among the organs.
5. Legislative bodies and the executive branch must be kept apart. An independent
legislature can effectively oversee the executive. In the legislative branch of
government, every lawmaker aspires to hold a lucrative job such as a ministerial slot.
There won't be a contest among parliamentarians for lucrative positions like
ministerial births if the government and legislature are kept apart.
6. There isn't a single other private organisation that is approved to administer mediation
outside of or prior to going to court.
7. State legislatures and Parliament may pass laws for this reason. Private arbitration
shall be added as Entry 5A to List III Concurrent List of the Seventh Schedule to the
Constitution
8. We must design our own executive structure that best suits our needs.
Generally speaking, it is better to develop our own genus executive than to copy any
foreign executive. We have to design our own executive system to meet our own
genus. It is usually better to construct an executive form inside our own genus than to
copy one from another.

To assure that the goal is protected from any violations, these recommendations ought to be
included in the Constitution through constitutional amendments. After all, the successful
application of any legislation or system determines how effective it is. No matter how good a
law or system is, it won't be able to accomplish its goals unless and until it is put into practice
in accordance with its original intent and with the same energy and excitement as when it was
first enacted.

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 REFERENCES

Primary Material : The Constitution of India

1. Siddanth, “Separation of Powers : Constitutional plan and practice,” September, 2010.

2. Prachishah, “Separation of Powers in India and USA,”December, 2010.
3. Aman Chhibber, “Separation of Powers : Its scope and changing equation,” October,
2007.
4. Balasaheb Pandhre, “Doctrine of Separation of Power, andworking of three organs of
State”.
5. M.J.C. Vile, The Structure of American Federlism London.
6. M.V. Pyllee, Select Constitutions of the World, 3rd Ed. 2012.
7. Narender Kumar, Constitutional Law of India, Eight Edition, 2012.
8. Principles of Australian Law, 36 (1962).
9. R.N. Tripathy, Federal Finance in Developing Economy,Calcutta, 1960.
10. Robert Shackleton, "Montesquieu, Bolingbroke and the Separation of Powers,"
French Studies, Vol. III, 1949.
11. Rousseau: Political Writings, ed. by F. Watkins, London, 1953.
12. Sathe, S.P., ‘Administrative Law’, Lexis Nexis, New Delhi,Seventh Edition, 2004.
13. Shukla V.N., Constitutional Law of India, Fifth Edition, vol. 11.
14. Sir Ivor Jennings, Some Characteristics of the Indian Constitution, Madras, 1953.

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15. A.V. Dicey, Introduction to the Study of the law of the Constitution, London, 1931.
16. Ashok Chanda, Indian Administration, London.
17. Administrative Law Treatise, 1958 Vol.1.
18. Allen, Law and orders (1956).
19. All India Reporter.
20. Punjab Law Journal.
21. Delhi law Review.
22. Bombay law Reporter.
23. Banaras law Reporter.
24. Supreme Court Cases.
25. htpp://answer.ask.com
26. wikipedia, the freeencyelopedia.
27. www.google.com
28. www.1egalsutra.com.
29. http://en.wikipedia.org
30. http://esciencenews. Corn
31. http://Iegalserviceindia.com
32. http://www.docstoc.com
33. Basu, D.D., ‘Administrative Law’, Kamal Law House, Kolkata,Sixth Edition, 2004
34. Bora Laskin, Canadian Constitutional Law, 1979.

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