The origin of the principle of separation of powers can be traced back to Aristotle who opined that government should be composed of three organs, namely the deliberative (legislative), the magisterial (executive) and the judicial. Locke and Montesquieu elaborated on this concept in 18th Century.
In India, even before the basic structure doctrine came to be propounded in 1978, separation of powers was recognised by the Apex Court of India. Although in the Constitution of India, there is no express separation of powers. The Apex Court has over the years in a number of cases considered ‘separation of powers’ as a basic feature of the Constitution of India.
In Rai Sahib Ram Jawaya Kapur v. The State of Punjab – 1955 (2) SCR 225, the Hon’ble Supreme Court explained the doctrine of separation of powers thus :
The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the 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 belong to another. (Para 11)
In Special Reference No.1 of 1964, it was observed –
whether or not there is a distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. (Para 42)
In Smt. Indira Nehru Gandhi v. Raj Narain & Anr. , AIR 1975 SC 1590, Y.V. Chandrachud, J. had drawn a distinction between the American and Australian Constitution on the one hand and the Indian Constitution. He observed that the principle of separation of powers is not a magic formula for keeping the three organs of the State within the strict confines of their functions. He further observed that in a federal system, which distributes powers between three coordinate branches of government, though not rigidly, disputes regarding the limits of Constitutional power have to be resolved by courts.
In S. R. Bommai and Ors. v. Union of India and Ors. (1994) 3 SCC 1, B.P. Jeevan Reddy J. observed-
The fact that under the scheme of our Constitution, greater power is conferred upon the center vis-a-vis the States does not mean that States are mere appendages of the center. Within the sphere allotted to them, States are supreme. The center cannot tamper with their powers. More particularly, the Courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States….must put the Court on guard against any conscious whittling down of the powers of the States. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle the outcome of our own historical process and a recognition of the ground realities. …enough to note that our Constitution has certainly a bias towards center vis-a-vis the States. (Para 276)
Bhim Singh v. U.O.I & Ors , 2010 , it was held that the Indian Constitution does not recognize the strict separation of powers. The constitutional principle of separation of powers will only be violated if an essential function of one branch is taken over by another branch, leading to a removal of checks and balances. (Para 76) It was further observed as –
Separation of Powers is an essential feature of the Constitution. In modern governance, a strict separation is neither possible nor desirable. Nevertheless, till this principle of accountability is preserved, there is no violation of separation of powers. The Constitution does not prohibit overlap of functions, but in fact, provides for some overlap as a Parliamentary democracy. But what it prohibits is such exercise of the function of the other branch which results in wrestling away of the regime of constitutional accountability. (para 59)
University of Kerala v. Council, Principals’, Colleges, Kerala and Others , (2010) 1 SCC 353 , Justice Ganguly observed as follows –
- The rationale of the doctrine of Separation of Powers, to my mind, is to uphold individual liberty and rule of law. Vesting of all power in one authority obviously promotes tyranny. Therefore, the principle of Separation of Powers has to be viewed through the prism of constitutionalism and for upholding the goals of justice in its full magnitude. (Para 3)
- Separation of powers may, therefore, be a plausible Constitutional doctrine but as a matter of practice a complete separation is never possible. (Para 6)
- It may perhaps be said that the framers of our Constitution never wanted to introduce the doctrine of Separation of Powers rigidly to the extent of dividing the three organs into water-tight compartments. (para 14)
State of Tamil Nadu v. State Of Kerala & Anr , 2014
It was observed that Indian Constitution, unlike the Constitution of United States of America and Australia, does not have an express provision of separation of powers. However, the structure provided in our Constitution leaves no manner of doubt that the doctrine of separation of powers runs through the Indian Constitution. It is for this reason that this Court has recognized the separation of power as a basic feature of the Constitution and an essential constituent of the rule of law. The doctrine of separation of powers is, though, not expressly engrafted in the Constitution, its sweep, operation, and visibility are apparent from the Constitution. Indian Constitution has made demarcation without drawing formal lines between the three organs – legislature, executive and judiciary. (Para 93)
By a series of decisions discussed above, the Apex Court has recognized the importance of separation of powers in Indian system of governance. It becomes clear that even in the absence of specific constitutional provisions regarding separation of powers, the application of the doctrine is evident under the Constitutional structure.
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