B.B.A., LL. B(Hons)- IIIrd Year

Bharath Institute of Law, Chennai

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In India, functions of the Government are separated from the powers of three organs namely the Legislature, the Executive, and the Judiciary and this constitutes a theory called Separation of powers which warrants check and balance in the administration of a country. But the application of the theory of Separation of powers is not being duly followed by India since the administration system of India is in contradiction to the principle of the theory i.e., to restrict   the power of each branch, when we see the power of Supreme Court over parliament and other branches, the Judiciary will have the sole power to interpret any law made by parliament. At the same time, it can quash any law if the law is deemed unconstitutional by the court. Moreover, there is no branch or organ to monitor the functions of the Supreme Court. Hence, if the Supreme Court acts unconstitutional, then the remedy will be in question since the Supreme Court is head of the Judiciary and is Independent in its own affairs. If we trace back history, the three key verdicts rendered by the Supreme Court, the court will clearly manifest its supremacy over the other two organs. The subsequent chapters of this briefing paper will be divided into three parts namely The Evolution of the theory in India. The Impact of this theory in Administration, and its consequences, and Sovereignty of the Judiciary in regulating the principles and laws of the nation.

KEYWORDS: “Unconstitutional”, “Sovereignty”, “Interpret”, “Branch”, “Separation of Powers”, “Checks and balances”.

In India, the development of the administration system evolved from the theory of Separation  of powers coined by Montesquieu[1]. So, the governance of our country is largely taken care of by the three organs: The Legislative, Executive, and Judiciary. Now these organs perform divergent roles in the Administration of our country. In the later stages of the modern era, the concept called checks and balances was globally adopted by     various countries, to limit the power of each organ and to have a check over the functions of another organs. As a result, the same concept was adopted in the Indian Administration System even though, the term separation of powers is nowhere used in the Constitution of India but the combined effect of the interpretation of different provisions of Constitution reveals the essence of the doctrine of Separation of Power[2]. If we investigate the purpose of aforesaid concept is to avoid tyranny and to promote democracy in   each branch. But in due course of time, we can see the shortcomings in the Indian system of check and balance because the Independence of the Judiciary plays a binding role in the administration of our country, which in the long run results in the supremacy of the Judiciary especially when comes to the Apex court decisions. So, the Independence of the Judiciary is required for fair justice but at the same time, there should be a limit          and control over the ultra vires function of the Judiciary when the Apex exercises its power beyond the Constitution. For example, collegium system which is not statutory law i.e., it is not brought by any amendment in the parliament and instead, that is absolutely based on    the interpretation of the Apex court in making common law. Thus, considering all these facts we can come to a conclusion like a review petition but again there are also some drawbacks such as the same bench re-appearing for the review of their own verdict. So, practically no person will reverse his opinion unless there is strong evidence or a clear-cut blunder in their judgment. Furthermore, this Article will hypothetically discuss about the challenges faced by the Indian model of Separation of Powers in context of Check and Balance.

1)      How did the Separation of Power theory evolve in India and whether it is fully deployed?

2)      What are the impacts and consequences of the theory of Separation of Power in Indian Administration?

3)      How does the Indian model of Separation of Power shape the Sovereignty of the Judiciary in regulating the principles and laws of the nation?

In 1748, the first time, the principle of Separation of Power was enunciated by the French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) where he opined about the importance of liberty, also he defined that the composition of the Government be so constituted as one man need not be afraid of another[3], but originally this concept was seen in the works of Aristotle in 4^th century BCE wherein he described about the three agencies of the Government as General assembly, Public officials and Judiciary[4]. Now if we trace back the History of Separation of Power in India, During the pre-independence period, the Judiciary was under the direct control of the British which resulted in biased verdicts in favor of the British Government[5]. As time progressed and after Indian Independence and a structured system was formulated by the Drafting Committee and was enforced on 26 January 1950. In India, for the first time, the Prof. K.T. Shah a member of Constituent Assembly laid emphasis to insert a new Article 40-A concerned with doctrine of separation of powers in the Constituent Assembly Debates by stating  “There shall be complete separation of powers as between the principal organs of the State, viz; the legislative, the executive, and the judicial”[6] but amendment was rejected and thereafter Dr. B.R. Ambedkar on his suggestion in Constituent Assembly Debates on 24^th and 25^th November 1948, emphasized about the importance of the executive to be separated from the Judiciary and he further discussed the evil effects of Colonial rule in independence of judiciary and finally the Assemble adopted the draft article 39-A( Article 50) on 25^th November 1948[7]. In view of post-independence, for the first in the case of Rai Sahib Ram Jawaya v. State of Punjab, Supreme Court that -“The Indian Constitution have not recognized doctrine of separation of powers in the absolute rigidity but the functions of the different branches or parts of Government have sufficiently been differentiated and consequently it can very well be said that our Constitution does not contemplate the assumption by one of the organ or part of the State of the functions that essentially belong to another”[8] and later in the landmark judgment in Kesavananda Bharti v. State of Kerala, Hon’ble Chief Justice Sikri categorically observed that “Separation of powers between the legislature, the executive and the judiciary is a part of the basic structure of the Constitution; this structure cannot be destroyed by any form of amendment”[9] and the application of Separation of Power was vividly discussed in the earlier Judgment in the year 1968 by the Supreme Court in the case of Udai Ram Sharma v. Union of India held that “The American doctrine of well-defined separation of legislative and judicial powers has no application to India.”[10] Also, if we take into consideration the case Indira Nehru Gandhi V Raj Narain, the Supreme Court held that in the Indian Constitution, there is a separation of powers in a broad sense only. A rigid separation of powers similar to the American Constitution or the Australian Constitution does not apply to India[11]. So, all this depicts how India adopted its doctrine of separation of power in its   Constitution. The main aim of the separation of powers is to maintain the checks and balances system among all three organs of the government. History demonstrates how a monarchy can be established by central power while the rulers or leaders control the people. Therefore, it is preferable to divide the powers among the authorities by their areas of responsibility rather than centralizing the power. The doctrine of separation of powers eliminates monarchy, and tyranny and holds the government accountable to the people for its action. It guarantees justice and protects Human Rights. The operations of each government entity are monitored by the one while staying separate from each other.

In India, since that the doctrine of Separation of Power was not fully accepted as stated in the cases of Ram Jawaya v State of Punjab[12]. But over the period of time, the doctrine of Separation of Power has got the status of Basic Structure of Constitution in a famous Kesavananda Bharti case[13]. The Provisions that substantiate the Separation of Power in Indian Constitution are listed below as an impact of this theory in our constitution,

Due to prolonged British Raj and the newly formed democracy of the republic country, there was a question of “How a government should operate”, For the prosperity of a nation operation of the county’s legislation, executive and judiciary is very important, thus evolved the concept of separation of power in India and it’s constitution. The term separation power does not mean there is no intervention between the organs, they all work together towards achieving a similar goal but doing different functions. The work of the legislature is to create laws for the effective governing of a nation and its citizens the legislature of the country is divided into two body carried lok Shaba (House of people), and Rajya Shaba (council of state) they are together called as parliament, they are headed by president who is a main member of the executive. When a bill is passed in the legislature, the bill passes through both the houses of the parliament and should be signed by the president to be passed as a law. The judiciary passes the power to make a review on those bills and strike down them if it is found to be unconstitutional. And the president has power to intervein in some cases and pardon the criminals The judges are appointed to supreme court through collegium system. From all the above-mentioned context we can conclude the one organ can intervein in the functions of other organs, but in the matters of legal subject the judiciary has soverignity compared to other organs.

Constitutional scholars of every hue and color would rank this as a ‘constitutional development’ and an assertion of ‘judicial independence’. Judges of the Supreme Court would characterize the development of judicial activism in this country as the “obligatory duty against injustice(s)”. But in truth, the actions of the court have been self-aggrandizing, positive consequences notwithstanding. On of the most egregious example is case of judicial appointments. The Constitution of India lays out the appointment of the judges to the highest court under Article 124 (2)[25]. Hereby, the Supreme Court has the sovereignty over the legal system of government, no one can interfere in their matters and every judge has freedom over their judgment, and yes, judiciary need a level of freedom to give a fair judgment but a level supervision over their activity must be maintained to avoid Judicial overreach and Judicial activism[26].

The Indian Constitution has not fully employed the concept of “doctrine of separation of powers”. Its existence is in the very general aspect. Before the concept of the collegium was given by the Supreme Court, Article 124[27] of the Indian Constitution stated unequivocally that the President of India, in concert with the Chief Justice of India, would appoint any judges to the Supreme Court. This indicates that the constitutional writers themselves thought the appointment of judges required the intervention of the executive. It has been made very obvious that all the components of the democratic government require the establishment of a certain safeguards. As per article 142[28] of the Indian constitution the supreme court has unique power to provide justice outside the law if necessary all this give supreme court power to act outside checks and balances.

The Constitution’s framers made a conscious decision to keep the executive involved in selection of the judiciary in order to prevent any abuse of the power by a single branch of the government, despite the fact that entire concept of the separation of powers was created to keep each of the branch independent of the other. So, we can say that the independence of the judiciary is necessary while not forcing itself on the other wings of the government.

[16] The State Of Tamil Nadu Rep. By ... vs K. Balu & Anr CIVIL APPEAL Nos .12164-12166.