Symbiosis having th? sourc? of th? sam?.515

Symbiosis Int?rnational Univ?rsity,























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Submitt?d by:


Pulkit D?vpura






Batch: 2017-2020






Symbiosis Law School, Pun?













Th?r? is
an und?rlying conn?ction b?tw??n th? principl?s of rul? of law and s?paration


pow?r. In
a syst?m gov?rn?d by rul? of law th?r? should not b? any absolut? pow?r b?ing


at th?
whims of th? on?s having th? sourc? of th? sam?.515 Th?r?for? if th?r? is no
sourc? of


pow?r in
th? first plac?; th?n chanc?s of th? pow?r b?ing ?x?rcis?d whimsically by a


b?com? ?v?n
l?ss and distant. Th? conc?pt of S?paration of Pow?r has b??n d?riv?d to r?duc?


th? lik?lihood
of gov?rnm?nt violating th? rights of individuals. Th? basic assumption b?hind


this conc?pt
is that wh?n a singl? p?rson or group has a larg? amount of pow?r, th?y can


dang?rous to citiz?ns. Th? S?paration of Pow?r is a way of r?moving th? amount


pow?r in
any group’s hands, making it mor? difficult to abus?.


It has b??n
known that S?paration of pow?r had b??n found?d by th? Mont?squi?u and Lock?


but its
roots ar? found in th? V?das. If w? study th? Smritis which ar? anci?nt sourc?
of law


Dharma, w? find such typ? of s?paration. In Narad Smriti w? trac? th? v?ry
principl? of


of pow?r. At that tim? D??wan was h?ad of th? ?x?cutiv? wing of any l?gacy,


did a job to maintain law and ord?r and Kaji was th? judicial h?ad. At th? sam?


w? hav?
to b?ar in mind that th?y all ar? subordinat? to th? King and King was th? supr?m?


who mak?s th? law and th?r?for? h? was similar to pr?s?nt form of l?gislatur?.


what com?s out is that in anci?nt tim? also th?r? was a s?paration of pow?r in


or l?gacy. Aft?r all, King is known as th? supr?m? authority of all but th?


and pow?rs
has b??n s?parat?d.


Th? valu? of this doctrin? li?s in that it att?mpts to pr?s?rv? human
lib?rty by avoiding th? conc?ntration of pow?rs in any on? p?rson or body of p?rson.
As stat?d by Madison- “Th? accumulation of all pow?rs, l?gislativ?, ?x?cutiv?
and judicial, in th? sam? hands wh?th?r of on?, a f?w, or many and wh?th?r h?r?ditary,
s?lf-appoint?d or ?l?ctiv?, may justly b? pronounc?d th? v?ry d?finition of
tyranny.” And for th? pr?v?ntion of this tyranny, th? doctrin? of s?paration of
pow?r holds its gr?at?st importanc?.















In India, th?r? ar? thr?? distinct activiti?s in th? Gov?rnm?nt through
which th? will of th? p?opl? ar? ?xpr?ss?d. Th? l?gislativ? organ of th? stat?
mak?s laws, th? ?x?cutiv? forc?s th?m and th? judiciary appli?s th?m to th? sp?cific
cas?s arising out of th? br?ach of law. ?ach organ whil? p?rforming its
activiti?s t?nds to int?rf?r? in th? sph?r? of working of anoth?r functionary b?caus?
a strict d?marcation of functions is not possibl? in th?ir d?alings with th? g?n?ral
public. Thus, ?v?n wh?n acting in ambit of th?ir own pow?r, ov?rlapping functions
t?nd to app?ar amongst th?s? organs. Th? qu?stion which is important h?r? is
that what should b? th? r?lation among th?s? thr?? organs of th? stat?, i.?. wh?th?r
th?r? should b? compl?t? s?paration of pow?rs or th?r? should b? co-ordination
among th?m.


Th? application of doctrin? of s?paration of pow?r has a proposition
that non? of th? thr?? organs of Gov?rnm?nt, L?gislativ? ?x?cutiv? and
Judicial, can ?x?rcis? any pow?r which prop?rly b?longs to ?ith?r of th? oth?r







is that institution which consist of th? r?pr?s?ntativ? of th? p?opl? i.?.,


Its main
obj?ctiv? is to discuss and d?bat? on th? issu?s conc?rning th? p?opl? and th?


It is th? law and policy making body. G?n?rally, n?w laws or polici?s ar?


in th? Parliam?nt/ Stat? L?gislatur? in th? form of Bills. Th?s? Bills onc?


by th? L?gislatur?
ar? s?nt to th? Pr?sid?nt for ass?nt. Onc? th? pass?d bill g?ts th? ass?nt of


th? Pr?sid?nt,
it b?com?s th? law, or th? policy com?s into ?ff?ct. Parliam?nt or th? Stat?


ar? th? forms of “L?gislatur?”. It is h?r? wh?r? th? Govt. is bound to answ?r


which ar? rais?d by anoth?r r?pr?s?ntativ? of th? hous?.





?x?cutiv? is that branch of th? Govt. which ?nabl?s and impl?m?nt th? actions
and d?cisions of th? Govt. may it b? impl?m?ntation of th? laws pass?d by th? l?gislatur?
or pr?paring th? blu?print of various oth?r initiativ?s which ar? tak?n up by
th? Govt lik? Jan-Dhan Yojana, Start-up India Stand Up India ?tc., th? rul?s
and r?gulation as w?ll as th?ir fram?work is





pr?par?d by th? ?x?cutiv? only. This body consist of th? bur?aucrats
from All India S?rvic?s lik? IAS, IFS, IRS, IPS.


Lik? th? oth?r two important parts of syst?m or country wh?r? l?ad?rs ar?
chos?n by vot?s, th? ?x?cutiv? is ?qually ?xp?ct?d to b? fr?? of invasions from
th? oth?r two. It is always said that ?x?cutiv? is ind?p?nd?nt of th? two, but
th? un?xp?ct?d w?irdn?ss continu?s to ?xist and do hard or annoying things. It
is compl?t?ly w?aring away in actual practic?. Th? r?ason is that th? ?x?cutiv?
is qu?stion?d for its actions by th? judg?s, th? court and th? Gov?rnm?nt. This
wat?rs down th? ind?p?nd?nc? of th? ?x?cutiv? to th? high?st possibl? valu?.
It’s not that th? qu?stion of answ?rability pops up only in th? cas? of ?x?cutiv?.
Th? judiciary and th? l?gislatur? ar? ?qually answ?rabl? but in th?ir cas?s, a
built-in syst?m from within would b? availabl? for discharging thos? functions.
This is th? r?al situation, which ?xists in practic?.





is anoth?r ‘ind?p?nd?nt’ branch of th? Govt whos? main task is to b? uphold th?


and th? rul? of law. It acts as a watchdog ov?r th? actions of th? l?gislatur?


and curtails th? sam? wh?n it violat?s th? rights of th? individuals. Judiciary
has to


?nforc? th?
law and p?nalis? thos? who ar? found to b? br?aching th? sam?. It consists of


who pr?sid? ov?r th? court. It is th? most important f?atur? of d?mocracy. It


for saf?guarding th? int?r?sts and th? fundam?ntal rights of th? p?opl?.


of th? Hon’bl? Supr?m? Court, Hon’bl? High Court and oth?r low?r courts.


k??ps a tab on th? activiti?s of th? gov?rnm?nt and plays an important rol? in


?v?nt of
violation of Fundam?ntal Rights of th? p?opl? of th? country. Judiciary also
has th?


to ?xamin? th? validity of th? Laws ?nact?d by th? Parliam?nt on th?










1. In th? r? D?lhi Laws Act cas?,
it was for th? first tim? follow?d by th? Supr?m? Court that ?xc?pt wh?r? th?
constitution has v?st?d pow?r in a body, th? way of thinking that on? organ
should not compl?t? functions which basically b?long to oth?rs is follow?d in
India. By a majority of 5:2, th? Court h?ld that th? ?xplanation of s?paration
of pow?rs



though not an important part of our Constitution, in rar? circumstanc?s
is obvious in th? l?gal rul?s of th? Constitution its?lf. As obs?rv?d by Kania,


in th? constitution of India th?r? is no ?xpr?ss s?paration of pow?rs, it is cl?ar


a  l?gislatur? is cr?at?d by th? constitution and d?tail?d provisions ar?
mad? for making that l?gislatur? pass laws. Do?s it not imply that unl?ss it
can b? gath?r?d from oth?r provisions of th? constitution, oth?r bodi?s-?x?cutiv?
or judicial-ar? not int?nd?d to discharg? l?gislativ?



judgm?nt sugg?st?d that all th? thr?? organs of th? Stat? which ar? th? L?gislatur?,


Judiciary and th? ?x?cutiv? ar? bound by and subj?ct to th? l?gal rul?s of th?


which limits th?ir pow?rs, l?gal controls, r?sponsibiliti?s and r?lationship


with on?
anoth?r. Also, that it can b? assum?d that non? of th? organs of th? Stat?, th?


th? Judiciary, and th? ?x?cutiv? would go b?yond its pow?rs as laid down in







Th? qu?stion plac?d b?for? th? Supr?m? Court in this cas? was conn?ct?d
to th? ?xt?nt of th? pow?r of th? gov?rnm?nt to updat? th? Constitution as giv?n
und?r th? Constitution its?lf. It was argu?d that Parliam?nt was “b?tt?r
than anyon? or anything ?ls?” and r?pr?s?nt?d th? sov?r?ign will of th? p?opl?.
So, if th? p?opl?’s r?pr?s?ntativ?s in Parliam?nt d?cid?d to chang? a
particular law to control individual fr??dom or limit th? ?xt?nt of th? rang?
of th? judiciary, th? ?x?cutiv? and th? l?gislatur? had no right to qu?stion wh?th?r
it was r?lat?d to th? Constitution or not. How?v?r, th? Court did not allow
this argum?nt and inst?ad found in favor of th? p?rson who’s arguing against a
l?gal d?cision on th? grounds that th? b?li?f of s?paration of pow?rs was a
part of th? “basic structur?” of our Constitution.


As p?r
this ruling, th?r? was no long?r any n??d for confusing doubl?-m?aning as th? id?a


a  singl? purpos? r?cogniz?d as a part of th? Indian Constitution, p?rman?nt
?v?n by an Act of Parliam?nt. So, th? id?a of s?paration of pow?rs has b??n
includ?d into th? Indian laws.





How?v?r, it was aft?r th? landmark cas? of Indira N?hru Gandhi v. Raj
Narain that th? plac? of this doctrin? in th? Indian cont?xt was mad? cl?ar?r.
It was obs?rv?d: “That in th? Indian



Constitution, th?r? is s?paration of pow?rs in a broad s?ns? only. A
rigid s?paration of pow?rs as und?r th? Am?rican Constitution or und?r th?
Australian Constitution do?s not apply to India.”Chandrachud J. also obs?rv?d
that th? political us?fuln?ss of th? doctrin? of S?paration of Pow?r is not wid?ly
r?cogniz?d. No Constitution can surviv? without a conscious adh?r?nc? to its
fin? ch?ck and balanc?.


4.    OTH?R CAS?S


doctrin? of s?paration of pow?rs was furth?r ?xpr?ssly r?cogniz?d to b? a part
of th?


in th? cas? of Ram JawayaKapur v. Stat? of Punjab, wh?r? th? Court h?ld that


though th?
doctrin? of s?paration of pow?rs is not ?xpr?ssly m?ntion?d in th? Constitution


stands to
b? violat?d wh?n th? functions of on? organ of Gov?rnm?nt ar? p?rform?d by


This m?ans th? Indian constitution had not ind??d r?cogniz?d th? doctrin? of


of pow?rs in its absolut? rigidity but th? functions of diff?r?nt parts or
branch?s of


th? Govt.
hav? b??n suffici?ntly diff?r?ntiat?d and cons?qu?ntly it can v?ry w?ll b? said


constitution do?s not cont?mplat? assumption, by on? organ or part of th? stat?,


that ?ss?ntially b?longs to anoth?r.


In I.C.
GolakNath v. Stat? of Punjab, Supr?m? Court took th? h?lp of doctrin? of basic


as propound?d in K?svanandaBharati cas? and said that Ninth Sch?dul? is


of this
doctrin? and h?nc? th? Ninth Sch?dul? was mad? am?nabl? to judicial r?vi?w


forms part of th? basic structur? th?ory. It was obs?rv?d: “Th? Constitution
brings into


diff?r?nt constitutional ?ntiti?s, nam?ly, th? Union, th? Stat?s and th? Union


It cr?at?s thr?? major instrum?nts of pow?r, nam?ly, th? L?gislatur?, th?


and th? Judiciary. It d?marcat?s th?ir jurisdiction minut?ly and ?xp?cts th?m


?x?rcis? th?ir
r?sp?ctiv? pow?rs without ov?rst?pping th?ir limits. Th?y should function


within th?
sph?r?s allott?d to th?m.”





mod?ls around th? world:


with a high d?gr?? of s?paration of pow?rs ar? found all ov?r th? world. ?v?n


though th?r?
is th? ?xist?nc? of th? saf?guards it giv?s against v?ry bad tr?atm?nt, th?


communiti?s of p?opl? find it v?ry hard to apply it stiffly and strictly. In
way of


truth/rul? th?y go for s?paration of pow?rs and dilution of pow?rs at th? sam?







In th? Unit?d Stat?s Constitution, Articl? I S?ction I giv?s Congr?ss
only thos? “law-bas?d pow?rs within this ar? grant?d” and mov?
forwards to list thos? allow?d actions in Articl? I S?ction 8, whil? S?ction 9
lists actions that ar? prohibit?d for Congr?ss. Th? claus? in Articl?


II  plac?s no limits on th? ?x?cutiv? branch, simply stating that, “Th?
?x?cutiv? Pow?r will b? v?st?d in a Pr?sid?nt of th? Unit?d Stat?s of Am?rica.”


Th? Supr?m? Court holds “Th? Judicial Pow?r”
according to Articl? III, and it ?stablish?d th? ?ff?ct of Judicial r?vi?w in
Mar bury v. Madison. Th? f?d?ral gov?rnm?nt r?f?rs to th?


branch?s as “branch?s of gov?rnm?nt”, whil? som? syst?ms us?
“gov?rnm?nt” to d?scrib? th? ?x?cutiv?. Th? ?x?cutiv? branch has tri?d
to forc?fully tak? pow?r from Congr?ss arguing for S?paration of pow?rs to
includ? b?ing th? Command?r in Chi?f of a standing army sinc? th? war b?tw??n
groups that all liv? in on? country, ?x?cutiv? ord?rs, ?m?rg?ncy pow?rs and s?curity
classifications sinc? WWII, national s?curity, signing stat?m?nts, and now th?
id?a of a unitary ?x?cutiv?.


To pr?v?nt
on? branch from b?coming most pow?rful or b?tt?r than anyon? or anything ?ls?,


and to
caus? th? branch?s to coop?rat?, authority and control syst?ms that ?mploy a


of pow?rs n??d a way to balanc? ?ach of th? branch?s. Usually this was v?ry


through a syst?m of “ch?cks and balanc?s”, th? origin of which, lik?
s?paration of


its?lf, is sp?cifically cr?dit?d to Mont?squi?u. Ch?cks and balanc?s allows for


bas?d r?gulation that allows on? branch to limit anoth?r, such as th? pow?r of


to chang? th? composition and ar?a of l?gal control of th? f?d?ral courts.







In India a p?rf?ct syst?m of s?paration of pow?r do?s not ?xist, this is
du? to th? un?qual distribution of pow?rs among th? 3 organs. As s??n in th?
yardsticks as giv?n by prof?ssor Ivo Duchac?k, India fails in c?rtain asp?cts
of impl?m?nting doctrin? of s?paration of pow?r. If th?s? conditions ar? th?n
fulfill?d all th? organs can work tog?th?r smoothly. Th? first sugg?stion for
th? sam? is:





organ should b? giv?n ?qual r?pr?s?ntation as giv?n in th? U.S. constitution.
This will giv? a b?tt?r chanc? to all th? organs, bringing th?m on par with th?ir


Th? pow?r to am?nd th? constitution is giv?n mainly to th? parliam?nt.
Th? oth?r organs hav? a v?ry small say in th? sam?. Mor? pow?r should b? giv?n
to th? ?x?cutiv? to giv? rath?r mor? r?pr?s?ntation.


Th?y should consciously r?aliz? th? uns??n boundari?s and r?sp?ct ?ach
oth?r’s sov?r?ignty.


It is not only th? duty of th? tripartit? to r?aliz? th? sam? but also
th? obligation of th? citiz?ns to r?aliz? th? ultimat? sanctity of th?



Th?s? ar? f?w of th? sugg?stions that might giv? ris? to a n?ar to p?rf?ct
syst?m of doctrin? of s?paration of pow?r h?lping in a smooth functioning b?tw??n
th? c?ntr? and stat?.





The doctrine of separation of power in its true sense is very rigid and
this is one of the reasons of why it is not accepted by a large number of
countries in the world. The main object as per Montesquieu in the Doctrine of
Separation of Power is that there should be government of law rather than
having will and whims of the official. Also another most important feature of
the said doctrine is that there should be independence of judiciary i.e. it
should be free from the other organs of the State and if it is so then justice
would be delivered properly. The judiciary is the scale through which one can measure
the actual development of the State. If the judiciary is not independent, then
it is the first step towards a tyrannical form of government i.e. power is
concentrated in a single hand and if it is so then there is a very high chance
of misuse of power. Hence the Doctrine of Separation of Power does play a vital
role in the creation of a fair government and also fair and proper justice is
dispensed by the judiciary as there is independence of judiciary.


In conclusion, it is evident that governments in their actual operation
do not opt for the strict separation of powers because it is undesirable and
impracticable, however, implications of this concept can be seen in almost all
the countries in its diluted form. The discrepancies between the plan and practice,
if any, are based on these very grounds that the ideal plan is impractical for
everyday use. India relies heavily upon the doctrine in order to regulate,



check and control the exercise of power by the three organs of
Government. Whether it is in theory or in practical usage, the Doctrine of
Separation of Powers is essential for the effective functioning of a democracy.






























































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