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Critical Analysis of Application of Separation of
Power Theory in India.
By
Vivek Vilas Sable.
Page 1 of 11
Contents
Abstract ...................................................................................................................................... 2
1. Introduction ............................................................................................................................ 3
2. Evolution of Doctrine of Separation of Powers ..................................................................... 3
3. Types of Constitutions (Written and Unwritten) ................................................................... 4
4. Application of Montesquieu’s Theory in United States of America ..................................... 5
5. Separation of Powers in India ................................................................................................ 5
5.1 Constitutional Debates on Separation of Powers ............................................................. 5
6. Separation of Judiciary from Executive ................................................................................. 7
6.1 Indian Government Structure ........................................................................................... 8
8. System of Checks and Balances ............................................................................................ 9
9. Conclusion ........................................................................................................................... 10
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Abstract
Separation of Powers has always been a topic of debate. It plays an important role in
government. But do we have it in our constitution or not is another topic of debate? Basically
this research paper tries to explain what is separation of powers? Why it is important? What
are types of constitution and which constitution we have? Do we have a checks and balances
system in our constitution? What is the importance of the independence of judiciary? How
Montesquieu’s Theory of separation of powers is applied in United States of America and the
most important thing do we have it in our constitution or not? The language used is very simple
English language because motivation behind this research is to spread knowledge as well as
awareness within common citizens who think that law is complex and not a common man’s
thing.
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1. Introduction
Separation of powers is a key feature of any democratic system of government. This
system divides state into three core branches the legislature, the executive and the judicial
branch, these branches have powers to fulfill different tasks assigned to them. These branches
are also knowns as organs of the government. Tasks assigned to each organ and their
institutions are in such way that each of them can check the exercise of power by the others as
result no one branch or institution can become so powerful to control the system completely.
Before starting the analysis it is very important to understand the meaning of three organs of
the government. Legislative organ makes laws, executive organ carries out laws and judicial
organ interprets laws
1
.
2. Evolution of Doctrine of Separation of Powers
History of human kind has witnessed the bad consequences of concentration of power
in one hand. Many times kings misused their powers to oppress the people. Magna Carta is the
milestone in human history where a limit was placed on the power of King John. People were
so oppressed by cruelty of king john they decided to do something about it and they came up
with the first historical document called Magna Carta which contained some basic rules and
regulations to protect the interest of people as well as king, Magna Carta was signed in front
of witnesses by King John on 15th June 1215 and Magna Carta was considered as law of land
and it was the first document in the history of mankind which stated that king and his
government was not above the law and it was designed to prevent king from exploiting his
powers and it also placed a limit on king’s powers by establishing law as power itself
2
.
The concept of separation of power was introduced by Aristotle. Aristotle was the first
person who categorized functions of government into three elements first deliberative, second
officials and third judicial
3
. Viscount Henry St. John Bolinbroke advanced Aristotle’s idea of
separation of powers, he argued that the protection of security, liberty within the state totally
depends upon achieving and maintaining an equilibrium (a state in which opposing forces or
influences are balanced) between the people, crown and parliament
4
.
1
Usa.gov. n.d. Branches Of The U.S. Government | Usagov. [online] Available at:
<https://www.usa.gov/branches-of-government> [Accessed 20 July 2020].
2
UK Parliament. n.d. Magna Carta. [online] Available at: <https://www.parliament.uk/magnacarta> [Accessed
21 July 2020].
3
Www3.lancashire.gov.uk. n.d. Separation Of Powers - Historical Development. [online] Available at:
<http://www3.lancashire.gov.uk/corporate/web/viewdoc.asp?id=101712> [Accessed 21 July 2020].
4
Www3.lancashire.gov.uk. n.d. Separation Of Powers - Historical Development. [online] Available at:
<http://www3.lancashire.gov.uk/corporate/web/viewdoc.asp?id=101712> [Accessed 21 July 2020].
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The concept of separation of power was enhanced systematically and scientifically by
French jurist Baron Montesquieu who is also known as modern exponent of power of
separation theory, when he was living in United Kingdom during his stay in year 1748 he wrote
a book named “In the spirit of law” in this book he talked about separation of power and he
focused on the importance of independence of judiciary to protect the democracy. Montesquieu
categorized powers of government in three elements first legislative, second executive and third
judicial. He said all these three powers should be separated all the time because if all these
three powers or any two of them are united then there can be no liberty. Montesquieu said there
will be an end if one person or one body got power to exercise these three powers
5
. Currently
all democratic nations use Montesquieu’s theory of separation of power in various forms.
In simple plain English language “separation of power” can be explained in one line
only “all three branches (legislature, judiciary and executive) of government should function
independently without interfering into each other’s functions”.
3. Types of Constitutions (Written and Unwritten)
Constitutions can be categorized in two types, first is written constitution and second
unwritten constitution. In written constitution amendment is a very difficult task and United
States of America had the first written constitution. Unwritten constitution means a constitution
which is very flexible and can be updated based on previous judgements, cultures, traditions
etc.
In United Kingdom’s constitution amendments can be made very easily for example if
a simple law is passed then parliament will amend the constitution, here we can see that it is
flexible unwritten constitution. If we look at American constitution we can see that making any
changes to it is a very difficult task, everyone should agree to the amendment then only it can
be amended. America’s constitution is a very rigid written constitution.
So it can be said that written constitution is a rigid constitution and unwritten
constitution is a flexible constitution. But when it comes to Indian constitution we can see that
it a mixture of rigidity and flexibility. Indian constitution provides provisions for amendments
to the constitution with the help of article 368. Article 368 gives constitutional amendment
powers to parliament of India.
5
Benwell Richard and Oonagh Gay. The Separation Of Powers - Parliament And Constitution Centre. [online]
Parliament.uk. Available at: <http://www.parliament.uk/briefing-papers/sn06053.pdf> [Accessed 22 July 2020].
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4. Application of Montesquieu’s Theory in United States of America
Montesquieu’s theory of separation of power was utilized in creation of the constitution
of United States of America. American constitution framers adopted this doctrine in its full
strength. United States of America’s constitution is oldest written constitution. In American
constitution we can see that all the powers related with executive, legislative and judicial organs
are vested in separate bodies at the very beginning of the constitution.
In United States of America the executive power is vested in the president. As per
section 1 article 1 of American constitution Legislative power is assigned in congress, as per
section 1 article 2 executive power is vested in the president of United States of America and
as per section 1 article 3 judicial power is entrusted in Supreme Court and other courts in the
nation. USA’s constitution is a very rigid, it strictly follows the doctrine of separation of powers
and it makes very difficult to amend any part of the constitution. This constitution is amended
only 27 times since it was written
6
. Last amendment to the Constitution of United states of
America was done in year 1992. America follows Presidential system of government.
American constitution can be described as a strictly federal constitution
7
. American
constitution was consented by fifty independent states, in America states have their own
constitutions and federal government has its own constitution and no one interferes between
each other’s functions. In short it can be said that United States of America follows dual
federalism in a strict manner, in which people directly elect the President.
5. Separation of Powers in India
Indian constitution is world’s largest constitution. Creators of Indian constitution has
adopted the concept of separation of powers in a very beautiful way. In year 1947 India became
an independent democratic nation and there were many challenges in front of India and creating
a new constitution was the biggest challenge after independence. During constitution assembly
discussions it was an important point of discussion that “should we have a complete separation
of power or not?”
5.1 Constitutional Debates on Separation of Powers
When constitution of India was framed separation between judiciary and executive was
adopted as directive principle of state policy. But when the constitution amendment procedure
6
America's Founding Documents. The Constitution: Amendments 11-27. [online] National Archives. Available
at: <https://www.archives.gov/founding-docs/amendments-11-27> [Accessed 22 July 2020].
7
Ncert.nic.in. 2020. Federalism. [online] Available at: <http://ncert.nic.in/textbook/pdf/jess402.pdf> [Accessed
20 July 2020].
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started, during constitution assembly debates many members raised this question why there is
no complete separation of powers between all three organs of the government? Prf. K. T. Shah
(member of constitution assembly) put importance on adding article 41-A for creating complete
separation of powers between three organs
8
. Mr. Kazi Sayed Karimuddin was also in support
of Prf. K. T. Shah he also added that there should be a non-parliamentary form of government
instead of parliamentary. Mr. Kazi Sayed Karimuddin added in a parliamentary form of
government political opponents are neglected, crushed and ignored and he also added that our
people are not trained in a parliamentary systems of government to put up with the opposition
in the country and if we choose parliamentary government then there would be a great conflict
between all the three organs of government
9
.
During constitution assembly debates Shri K. Hanumanthaiya had a completely
different overview on Prof. K. T. Shah’s recommendations, Shri K. Hanumanthaiya said that
we can argue about the merits and demerits of both systems, but we have already accepted the
Parliamentary system is good for the country and he also added that for very good reasons
parliamentary system seem to be better addable in Indian conditions. He proved a really nice
point by saying instead of having conflict trinity it is far better to have a harmonious
governmental structure
10
. According to him, this new amendment proposal was totally out of
place in our current constitutional structure.
The Honourable Shri K. Santhanam clarified more on this issue by explaining how the
separation of powers in America’s constitution is a myth to a considerable extent. He explained
that the Supreme Court in America is said to completely separate from the executive but in
times we have seen how president after president tied to manipulate the Supreme Court by
appointing the judges that suits to their own views. He further added that if there is a conflict
between the President and Supreme Court then president only had to wait till that judge retires
and then nominate in old judge’s place and get all the judgements done into his own favor.
Hence even after Supreme Court is separate from the executive it has to be dependent on the
executive because president is the ultimate appointing authority in the presidential form of
government. He also said that if we consider our constitution it lays down that our Supreme
8
K.T. Shah, Constituent Assembly Of India Debates (Proceedings)-, Friday, the 10th December 1948, page
number 2.
9
Kazi Syed Karimuddin, Constituent Assembly Of India Debates (Proceedings)-, Friday, the 10th December
1948, page number 7,8.
10
Shri K. Hanumanthaiya, Constituent Assembly Of India Debates (Proceedings)-, Friday, the 10th December
1948, page number 5,6.
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Court will be as independent as the executive and legislature as independent as United States
and therefore the desires of Prof. K. T. Shah have been fulfilled in our constitution
11
.
The Honourable Shri K. Santhanam was countered by Prof. Shibban Lal Saksena with
a question, he said to appoint judges President has to take consent from the Senate
12
. The
Honourable Shri K. Santhanam answered, even if president has to take consent from senate
still he has the right to nominate the judges so the president can only nominate only people
who will obey his views
13
.
The Honorable Dr. B. R. Ambedkar explained about the situation in United States of
America. He said many American citizens are dissatisfied with the current structure of their
constitution which follows separation of powers very rigidly between executive and judiciary.
Also he clarified that even under parliamentary form of government separation of judiciary
from executive is an accepted proposition, and we have adopted the complete separation of
powers between judiciary and executive as a directive principle of the state policy
14
.
By analyzing the debates it can be said that most of the members were not in favor of
insertion of complete separation of powers and changing the government structure to a
presidential system instead of parliamentary government system. Also main worry of Prof K.T.
Shah was that if we do not have a complete separation of power between judiciary and
executive then executives might misuse their powers to manipulate the judiciary but all of his
doubts were clarified by many members of the constitution assembly. So it can be concluded
that we have partially adopted the doctrine of separation of powers.
6. Separation of Judiciary from Executive
Judiciary is the only way for a common citizen to obtain justice, it is judiciary’s work
to protect the fundamental rights of citizens, protect citizens from misuse of powers by other
organs so it is must that judiciary should be able to function independently without influence
from anything or anyone in the country. In simple words judiciary can be called as a guardian
angel of the people and the law.
11
The Honourable Shri K. Santhanam, Constituent Assembly Of India Debates (Proceedings)-, Friday, the 10th
December 1948, page number 5.
12
Prof. Shibban Lal Saksena, Constituent Assembly Of India Debates (Proceedings)-, Friday, the 10th
December 1948, page number 8,9.
13
The Honourable Shri K. Santhanam, Constituent Assembly Of India Debates (Proceedings)-, Friday, the 10th
December 1948, page number 9.
14
The Honorable Dr. B. R. Ambedkar, Constituent Assembly Of India Debates (Proceedings)-, Friday, the 10th
December 1948, page number 10,11.
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Separation of judiciary from the executive or from the legislature guarantees an un-
biased justice system in any country. Separation of Judiciary from other organs gives power to
judicial system in any country and if it is separated then it becomes very difficult to manipulate
it even for the president and by functioning separately judiciary can serve better to the citizens
of country.
Protecting the constitution is the most important function of judiciary. Because
constitution prevents organs of government to overpower the judiciary and if anything is
against the constitution then judiciary can reject it without getting any pressure from executive
or legislature and it is important advantage of separating judiciary from the executive.
6.1 Indian Government Structure
India has adopted parliamentary form of government in which there is complete
separation of powers between head of the states and head of the government. In India executive
the president is the head of the state and also head of the government head which is prime
minister of India. Legislative consist of Rajyasabha, Loksabha and the President. Judiciary is
completely separated from these two organs. Even being a head of the state the president is
also answerable to judiciary. Which shows that in Judiciary holds more power than legislative
and executive organs.
3 Organs of the Constitution / 3 Wings of Governance
15
If we look at above diagram we can see that the president of India is part of the executive
as well as legislature organ but the judiciary is completely independent and does not overlaps
with any other organ. If we look at American constitution then we can see that the president is
not answerable to any other organ and it shows that American constitution follows the
15
Doj.gov.in. 2020. [online] Available at:
<https://doj.gov.in/sites/default/files/PPT%20for%20school%20children.pdf> [Accessed 20 July 2020].
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separation of power very strictly. But this cannot be applied in India because there is a risk of
misuse of powers and manipulation within the judicial organ by the president, by making
judiciary totally independent Indian constitution creators has showed that no one is above the
law. In Indian constitution instead of rigidly using separation of power, creators has
meaningfully separated the functions of organs of the Government by doing this Indian
constitution has achieved the coordination between the organs of the government so that no
organ can usurp the other. This has been achieved with Article 50 of the Indian Constitution
which says “Separation of judiciary from executive The State shall take steps to separate the
judiciary from the executive in the public services of the State”
16
. So it can be justified that all
the concerns of Prof. K.T. Shah related with the separation of judiciary from the executive were
clarified and then only we had chosen the parliamentary form of the government.
8. System of Checks and Balances
Many people, authors think that India has not adopted the system of checks and balances like
America adopted it, but it is not true. Till now we know that our constitution is mixture of few
constitutions of other countries and we had adopted best things from constitutions of other
countries. So how can we say that there is no system of checks and balances? Actually framers
of Indian constitution has brilliantly developed system of checks and balances and they had
included it in the constitution. For example, instantly after adoption of our constitution Article
13 demolished all the laws that were inconsistent with or in derogation of the fundamental
rights
17
. Article 32 and Article 136 gives powers to the Supreme Court and Article 226 and
227 gives power to the High Courts for a judicial review of any act of the executive or
legislature of the country
18
. By looking at these examples we might think that there is no check
on judiciary but it is not true. Article 124(2) of Indian Constitution says that every judge of
Supreme Court shall be appointed by the president you might think that president can be
manipulative and appoint judges who will favor his view but Article 124(2) also says that the
chief justice of India shall always be consulted while appointing judges in Supreme Court. Also
the president has power to remove any judge from the office but he can achieve this only if at
least 100 members of Loksabha or 50 members of Rajyasabha gives a written notice to the
speaker. So there are various provisions in our constitution which puts a limit on the power of
president, now we might think that 50 or 100 members can be manipulated by doing this the
16
Article 50 of The Constitution of India.
17
Article 13 of The Constitution of India
18
Article 32,136,226,227 of The constitution of India
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president can misuse his/her powers but the process does not end here after getting a written
notice an investigation is conducted and if judge is found guilty then a motion for removal is
issued and it has to be adopted by each house of parliament by majority of the total members
of the house and a majority of at least two third of members of that house present and voting
once this motion is adopted in both houses then only the president can issue an order for the
removal of judge
19
.
By looking at above provisions it is crystal clear that Indian Constitution has a system
for checks and balances.
9. Conclusion
When it came to the application of separation of powers in Indian Constitution few
members of constitution assembly were concern that we are not using complete separation of
power and because of it judicial system of independent India will become vulnerable to the
other organs of the government and it will be manipulated and only rich people will be able to
afford the luxury of justice. But during debate it was clarified that judiciary will be independent
and will not get manipulated. Also even if we have adopted the presidential form of government
judiciary would have manipulated. In conclusion we can say that Indian constitution did not
adopt the separation of powers rigidly, but it is pretty clear that Indian constitution has adopted
the division of powers. Also if we look at the current situation of our country it is pretty clear
that judiciary is getting influenced even after having many provision to protect the judicial
system from being influenced. Also, the theory of separation of powers adopted or not adopted
by us, there are many unconstitutional things are happening in our country and according to
my point of view it is very sad to see that day by day the most important organ “judiciary”
which is the only ray of hope for justice for a common citizen is being manipulated.
19
The Wire. 2018. How A Sitting Judge Can Be Removed From Office. [online] Available at:
<https://thewire.in/law/explainer-impeachment-cji-judge-removal-constitution> [Accessed 23 July 2020].