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Mumbai University · Second Year LLB · Semester 3
Fully examine the Doctrine of Separation of Powers in light of landmark pronouncements of the Supreme Court of India.
Fully examine the Doctrine of Separation of Powers in light of landmark pronouncements of the Supreme Court of India.
Q4Essay Type QuestionsAttempt any 3 out of 5 · 13 marks each · Total: 39 marks2024
Q4(a)13 MarksFully examine the Doctrine of Separation of Powers in light of landmark pronouncements of the Supreme Court of India.

I. Introduction

The Doctrine of Separation of Powers is a political-constitutional principle under which the three organs of the State — the Legislature, the Executive and the Judiciary — are kept functionally and personally distinct so that each may act as a check on the other and liberty may be preserved. Its classical exposition is by Montesquieu in De L’Esprit des Lois (1748).

II. Three Facets of the Doctrine

  1. The same person should not form part of more than one organ.
  2. One organ should not interfere with or control another.
  3. One organ should not exercise the functions of another.

III. The Doctrine in the United States

The U.S. Constitution (1787) adopts a rigid separation reinforced by the system of “checks and balances”. Each organ is independently elected / constituted and functionally distinct.

IV. The Doctrine in the United Kingdom

The U.K. follows parliamentary sovereignty and fusion of Legislature and Executive; separation is functional only, reinforced by convention and the Constitutional Reform Act, 2005 (independent Supreme Court).

V. The Indian Position

India adopts a functional but not a rigid separation. The following constitutional provisions evidence this:

  • Article 50 — State shall take steps to separate the judiciary from the executive.
  • Articles 53 & 154 — executive power vested in the President / Governor.
  • Articles 121 & 211 — no discussion on judges’ conduct in Parliament / Legislature.
  • Articles 122 & 212 — courts not to inquire into parliamentary proceedings.
  • Article 361 — immunity of President / Governor.

Overlaps include: delegated legislation by executive; President’s ordinance power (Articles 123, 213); judicial review by courts; adjudication by tribunals.

VI. Landmark Supreme Court Pronouncements

Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 — Mukherjea C.J.: Indian Constitution has not recognised the doctrine in its absolute rigidity; organs are not watertight compartments but there is sufficient demarcation.
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 — Separation of Powers is part of the basic structure of the Constitution.
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 — the 39th Amendment inserting Article 329A(4) was struck down as it violated separation of powers — Parliament cannot assume judicial power.
I.R. Coelho v. State of T.N., (2007) 2 SCC 1 — judicial review and separation of powers are inter-twined basic features.
State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296 — Governor cannot usurp functions of the High Court.
Supreme Court Advocates-on-Record Assn. v. Union of India (NJAC case), (2016) 5 SCC 1 — independence of the judiciary is part of basic structure flowing from separation of powers.

VII. Modern Developments

The rise of the administrative state, with delegated legislation, administrative adjudication and tribunalisation, has blurred the lines but has not displaced the doctrine. The judiciary enforces the doctrine through:

  1. Judicial review of legislation and administrative action;
  2. Insistence on independent appointment and tenure of judges;
  3. Striking down “encroachments” where one organ steps into the exclusive sphere of another.

VIII. Conclusion

In India, separation of powers operates as a functional separation with mutual checks and balances, forming part of the basic structure. While rigid separation is impossible in a modern welfare State, the doctrine survives as the constitutional guarantor of liberty and good governance.