The debate about the doctrine of separation of powers, and exactly what it involves in regard to Indian governance, is as old as the Constitution itself. Apart from the directive principles laid down in Part-IV of the constitution which provides for separation of judiciary from the executive, the constitutional scheme does not provide any formalistic division of powers.

It appeared in various judgments handed down by the Supreme Court after the Constitution was adopted.

It is through these judicial pronouncements, passed from time to time, that the boundaries of applicability of the doctrine have been determined.

1. Re Delhi Laws Act case

In the Re Delhi Laws Act case, it was for the first time observed by the Supreme Court that except where the Constitution has vested power in a body, the principle that one organ should not perform functions that essentially belong to others is followed in India. By a majority of 5:2, the Court held that the theory of separation of powers though not part and parcel of our Constitution, in exceptional circumstances is evident in the provisions of the Constitution itself. As observed by Kania, C.J.:

“Although in the Constitution of India there is no express separation of powers, it is clear that a legislature is created by the constitution and detailed provisions are made for making that legislature pass laws. Does it not imply that unless it can be gathered from other provisions of the constitution, other bodies-executive or judicial-are not intended to discharge legislative functions?”

In essence, this judgment implied that all the three organs of the State, i.e., the Legislature, the Judiciary, and the Executive are bound by and subject to the provisions of the Constitution, which demarcates their respective powers, jurisdictions, responsibilities and relationship with one another. Also, that it can be assumed that none of the organs of the State, including the judiciary, would exceed its powers as laid down in the Constitution.

2. Kesavananda Bharti Case

In practice, from time to time, disputes continued to arise as to whether one organ of the State had exceeded the boundaries assigned to it under the Constitution.

This question of what amounts to an excess, was the basis for action in the landmark Kesavananda Bharti Case of 1973. The question placed before the Supreme Court in this case was in regard to the extent of the power of the legislature to amend the Constitution as provided for under the Constitution itself.

It was argued that Parliament was “supreme” and represented the sovereign will of the people. As such, if the people’s representatives in Parliament decided to change a particular law to curb individual freedom or limit the scope of judicial scrutiny, the judiciary had no right to question whether it was constitutional or not.

However, the Court did not allow this argument and instead found in favour of the appellant on the grounds that the doctrine of separation of powers was a part of the “basic structure” of our Constitution.

Thus, the doctrine of “separation of powers” is acknowledged as an integral part of the basic features of our Constitution. It is also agreed that all the three organs of the State, i.e., the Legislature, the Judiciary, and the Executive are bound by and subject to the provisions of the Constitution, which demarcates their respective powers, jurisdictions, responsibilities and relationship with one another.

It is assumed that none of the organs of the State, including the judiciary, would exceed its powers as laid down in the Constitution. It is also expected that in the overall interest of the country, even though their jurisdictions are separated and demarcated, all the institutions would work in harmony and co-operation to maximize the public good.

As per this ruling, there was no longer any need for ambiguity as the doctrine was expressly recognized as a part of the Indian Constitution, unalterable even by an Act of Parliament. Thus, the doctrine of separation of powers has been incorporated, in its essence, into the Indian laws.

3. Indira Nehru Gandhi v. Raj Narain

However, it was after the landmark case of Indira Nehru Gandhi v. Raj Narain that the place of this doctrine in the Indian context was made clearer. It was observed by Chandrachud J.:

“That in the Indian Constitution, there is separation of powers in a broad sense only. A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India.”

Other Cases

The doctrine of separation of powers was further expressly recognized to be a part of the Constitution in the case of Ram Jawaya Kapur v. State of Punjab, where the Court held that though the doctrine of separation of powers is not expressly mentioned in the Constitution it stands to be violated when the functions of one organ of Government are performed by another.

This means the Indian Constitution had not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belongs to another.

In I.C. GolakNath v. State of Punjab, Supreme Court took the help of doctrine of basic structure as propounded in Kesvananda Bharati case and said that Ninth Schedule is violative of this doctrine and hence the Ninth Schedule was made amenable to judicial review which also forms part of the basic structure theory. It was observed:

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

Checks and Balances

The concept of constitutional checks arose as an outgrowth of the classical theory of separation of powers. The purpose of this, and of the later development of checks and balances, was to ensure that governmental power would not be used in an abusive manner.

To prevent one branch from becoming supreme, protect the “opulent minority” from the majority, and to induce the branches to cooperate, government systems that employ a separation of powers need a way to balance each of the branches. Typically this was accomplished through a system of “checks and balances”, the origin of which, like separation of powers itself, is specifically credited to Montesquieu.

Under the system of checks and balances, one department is given certain powers by which it may definitely restrain the others from exceeding constitutional authority. It may object or resist any encroachment upon its authority, or it may question, if necessary any act or acts which unlawfully interferes with its sphere of jurisdiction and authority.

The Indian Constitution provides for a scheme of checks and balances between the three organs of government namely, the legislature, the executive and the judiciary, against any potential abuse of power.

For example,

• The judges of the Supreme Court and the High Courts in the States are appointed by the executive i.e. the President acting on the advice of the Prime Minister and the Chief Justice of the Supreme Court. But they may be removed from office only if they are impeached by Parliament. This measure helps the judiciary to function without any fear of the executive.
• Similarly, the executive is responsible to Parliament in its day to day functioning. While the President appoints the leader of the majority party or a person who he believes commands a majority in the Lok Sabha (House of the People or the Lower House) a government is duty bound to lay down power if the House adopts a motion expressing no confidence in the government.
• Similarly, the judiciary keeps a check on the laws made by Parliament and actions taken by Executives, whether they conform to the constitution or not, using the tool of Judicial Review.

Judicial Review

There is, however, one facet in any democratic constitution which cannot be wished away, and that is, the necessity to have machinery by which an authority is brought into existence to decide on the interpretation of constitutional provisions, or as to what the Constitution says and means and to resolve disputes, with finality, between the Central Government and the States, or between the three organs of the State inter se. In every such democratic Constitution it is the apex court of the country, which is conferred such jurisdiction and powers.

Article 144 of the Constitution declares that all authorities, civil and judicial, shall come to the aid of the Supreme Court. Article 141 is to the effect that the law declared by the Supreme Court is binding on all courts within the territory of India. Articles 129 and 142(2) expressly confer the power of contempt on the Supreme Court of India and Article 215 correspondingly confers such power on the High Courts of the country. This, history has shown, is the most potent weapon in the hands of the superior courts to compel obedience to its will.

It is only the fear of being sent to jail, which makes the clients and lawyers to be disciplined and respectful to the judges and to faithfully carry out their judgments and orders.

It is therefore clear that the founding fathers did not allow the Indian Supreme Court to go the way of the US Supreme Court where a belligerent President could turn around and say, “the judge has made his decision, let him now enforce it.”

Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive.

However, the only check on judicial power is the self-imposed discipline of judicial restraint. Therefore this doctrine cannot be liberally applied to any modern government, because neither the powers can be kept in water tight compartments nor can any government can run on strict separation of powers.

• In Suman Gupta v. State of Jammu and Kashmir, the respective State Government reserved certain seats in medical colleges for the students residing in the particular state on reciprocal basis, this policy of state was challenged on the ground that it discriminate among the students on the ground of place of birth.

The Supreme Court rejected the policy on the ground of discrimination but meanwhile the students who are the beneficiaries of this policy had completed their substantial education, and now it is not in the interests of justice to cancelled their admission, therefore here Supreme Court applied the doctrine of prospective overruling and held that the government must not apply the impugned policy from next academic year.

Therefore, by using the doctrine of prospective overruling in the above to cases, the Supreme Court maintained the balance between judiciary and other organs of the government. It can also be maintained by using the self-restraint by the judges.

• In Divisional Manager, Aravali Golf Club v. Chander Hass and Another, the Supreme Court warned the High Court for its over activism.

The Supreme Court held that since there was no sectioned post of tractor driver against which the respondents could be regularized as tractor driver, the direction of the first appellate court and the single judge to create the post of tractor driver and regularizing he services was completely beyond their jurisdiction. The court cannot direct the creation of post.

Creation and sanction of post is a prerogative of the executive or legislative authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organization. The court further said that the creation of a post is an executive or legislative function and it involves economic factors. Hence, the courts cannot take upon themselves the power of creation of post.

• Similarly, in Madhu Holmagi v. Union of India, wherein one advocate filed a public interest litigation challenging the “Agreement 123” i.e. Indo-US nuclear treaty proposed to be entered by the Indian government, petitioner contended that court must have to scrutinize the all documents relating to the agreement 123 and must have to prevent the Indian government from entering in to the nuclear deal.

In this case, court dismissed the petition and also imposed a cost of Rs. 5000 on the petitioner stating that it is an abuse of court proceeding. Because the question raised by the petitioner is a question of policy decision, which is to be decided by the parliament and not by the judiciary.