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05/02/20231

Doctrine of Separation of Powers

05/02/2023Prof.(Dr.) T.V. Subba Rao, NLSIU, B'LORE2

Constitutionalism

Constitution Constitutional law

Separation of ju

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the executive is

an aspect of

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05/02/2023PROF.(DR.) T.V. SUBBA RAO, NLSIU, B'LORE

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☼Doctrine of Separation of powers is an important instrument to perpetuate constitutionalism.

☼ The doctrine of separation of powers in its elementary sense existed even in second century B.C. in the writings of Polybius in Rome. He propounded the theory of mixed government. He advocated that the stability in Rome could be achieved by mixing the features of monarchy, aristocracy and democracy. The consuls, the senate and popular assembly in ancient Rome exemplified such mixed government. The power of the government is distributed in such a way that each will have check over the other.

☼ In that sense this concept was a forerunner to the seventeenth century theories of checks and balances and separation of powers.


John Locke’s contribution to the theory of Separation of Powers: John Locke’s ( 1632-1704) exposition of separation of

powers was marked with three divisions. Firstly, discontinuous legislative power where the

rule making power is required to act from time to time and not continuously.

Secondly, the continuous executive power includes both executive power and judicial powers.

Thirdly, the federative powers include foreign affairs, war and peace, leagues and alliances and all the transactions outside commonwealth.


He observed, it may be too great a temptation to human frailty apt to grasp at power for the same persons who have power of making laws to have also in their hands the power to execute them, where they may exempt themselves from obedience of the laws they make and suit the law, both in its making and execution, to their own private advantage and thereby come to have a distinct interest from the rest of the community, contrary to the end of society and government and thus the legislative and executive powers come often to be separated.


French Jurist Baron de Montesquieu (1689-1775) improved Locke’s theory of separation of powers and laid strong foundations. In order to prevent the exercise of arbitrary power, he advocated that the separation of legislation, administration and adjudication and they should not be placed in the hands of same body of persons. He observed, when the legislative and executive powers are united in the same person or body there can be no liberty because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to enforce them in tyrannical manner………where the power of judging joined with the legislature the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be legislator. Where it joined to the executive power, the judge might behave with all the violence of an oppressor.


Impact of Montesquieu’s theory of separation of powers on American Constitution: Madison, who took leading part in the framing of American Constitution, in his writings in Federalist, observed that The accumulation of all powers legislative, executive and judiciary in the same hands whether of one, a few or many and whether hereditary, self-appointed or elective may justly be pronounced the very definition of tyranny.

Art. I Section I of the American Constitution vests all legislative power in the Congress, where as all the executive power is vested in the President by virtue of Art.II , Sec I. The Supreme court of America exercises all judicial power by virtue of Art. III Sec.I. American constitution technically exemplifies separation of powers. However, in practice there are many deviations


Usurpation of the power of Judicial Review, which was not granted explicitly under the constitution of America, was carried by Chief Justice Marshall in a famous case of Marbury Vs Madison (1803).

The President of America interferes with legislative process by his veto power. While exercising treaty making power he involves in law-making power.

The President can pack the judiciary with his own men.

It can be stated that all the three branches of govt. exercise mutual interference.

Separation of powers in strict sense does not exist in America. However, one may state that with degree of variation it constitutionally recognizes separation of powers.


Separation of powers in India.: Indian Constitution, no doubt, makes tripartite classification of powers

between executive, legislature and judiciary Nonetheless, it is not on the lines of Montesquieu’s classification Separation of powers is one of the Directive Principles of State Policy,

Art.50, that executive should be separated from the Judiciary. Justice Patanjali Sashtri in Inre Delhi Laws Act case observed, the

historical background and the political environment which influenced the making of the American Constitution were entirely absent here and beyond the creation of three organs of the state to exercise their respective functions of most civilized governments, there is not least indication that the framers of the Indian Constitution made American Doctrine of Separation of Powers, namely that their absolute separation of powers and vesting in different hands lay the basis, an integral and basic feature of the Indian Constitution.

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The Indian Supreme Court was more specific in Ram Jawaya Vs. State of Punjab AIR 1955 S.C. 549 wherein it has stated, Indian Constitution has not indeed recognized the doctrine of separation powers in its absolute rigidity but the functions of the different parts or branches of the government have sufficiently differentiated and consequently it can very well said that our Constitution does not contemplate assumption by one organ or part of the state of functions that essentially belong to another.

However, it would be interesting to note that Justice Sikri and Justice Shelat and Grover in their exposition of basic structure theory in Keshavananda Bharathi’s case observed that separation of powers and demarcation of power between the legislature, the executive and judiciary constitute basic structure.

The separation of powers is often blurred in the Indian governmental power distributionProf.(Dr.) T.V. Subba Rao, NLSIU, B'LORE

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History of separating judiciary from the executive in India: Initially Collectors of East India Company were presiding

over civil of criminal cases In 1793 Lord Cornwallis declared, the revenue officers

must be deprived of their judicial powers. It had fluctuating fortunes: reintroduced by Bird’s

Committee in 1837 followed till 1854 when Lord Delhousie, he was both Governor of Bengal and Governor-General in India, sought to discontinue it.

After mutiny, after transfer of power to the Queen also no specific measures were taken-even though several laws were codified.

Since 1886 Indian National Congress continuously adopted resolutions for separation -There was a favourable move in 1913 but shelved due to the outbreak of Ist world war

In 1919 several provincial legislatures have recommended for the same – not acceded. -When the GI Act of 1935 was framed, the separation powers was treated as an exploded doctrine

05/02/2023 Prof.(Dr.) T.V. Subba Rao, NLSIU, B'LORE

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Framing of Art. 50 The Draft Article 39A The debates in the Constituent Assembly on

separation of judiciary and executive took place on 24th and 25th November, 1948

Dr. B.R. Ambedkar required separation of judiciary from executive to be completed in three years so that there is no room left for what might be called procrastination in a matter of this kind.

The article was being “deliberately” introduced in the Chapter on Directive Principles for otherwise separation could be required to be done ‘instantaneously’

But on the next day, i.e. 25th, Nov. 1948, Dr. Ambedkar moved another amendment dropping the 3 years limit.


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Pandit Nehru: Clarified by saying that the Government is entirely in favour of the separation of judiciary and executive functions, if anyone suggested the period of three years or some other period, my first reaction would have been that the period is too long.

In the 14th Report of the Law Commission (1958), the Chairman, the greatest Jurist, M.C. Setalvad observed, the real purpose of this reform is to ensure the independent functions of the judiciary freed of all suspicion of executive influence or control, direct or indirect. It incidentally ensures that officers will devote their time entirely to judicial duties and this fact leads to efficiency in the administration of justice .

He added, separation is most urgently and immediately called for to ensure the efficiency of the Magistrates and the removal of extreme delays….


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In the 37th Report of the Law Commission(1967 ) on the Code of Criminal Procedure, 1898, the question of separation of judiciary from executive was again considered and the Commission observed that it was necessary that the members of the judiciary on the criminal side should be “independent of executive control”.

The 41st Report, 1969, dealing with the reforms of criminal procedure, states that separation should be completed fast and must be uniform in all States and advocated for parliamentary legislation.

The separation of executive from the judiciary is still to be realized even after 61 years of the republic

The Indian Constitution, though does not accept the strict doctrine of separation of powers, provides for an independent judiciary, prescribes the institutional conditions of service of the Judges, confers extensive jurisdiction on it and power to issue writs.


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Whether separation of judiciary and executive envisaged only for subordinate courts.:In Chandra Mohan v. State of U.P. AIR 1966 SC 1987It was observed that the makers of the Constitution realised that "it is the Subordinate Judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question in the case of the superior Judges." Presumably to secure the independence of the judiciary from the executive, the Constitution introduced a group of articles in Ch. VI of Part VI under the heading "Sub-ordinate Courts". Article 50 of the Directive Principles of Policy States that the State shall take steps to separate the judiciary from the executive in the public services of the States. Simply stated, it means that there shall be a separate judicial service free from the executive control. H.M. Seervai opines that the separation is required at subordinate level


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In Supreme Court Advocates-on-Record Association v. Union of India AIR 1994 SUPREME COURT 268It was held by S. Ratnavel Pandian, J.:- that the definition of the expression "the State" in Article 12 shall apply throughout Part IV, wherever that word is used. Therefore, it follows that the expression "the State" used in Article 50 has to be construed in the distributive sense as including the Government and Parliament of India and the Government and the Legislature of each State and all local or other authorities within the territory of India or under the control of the Government of India. When the concept of separation of the judiciary from the executive is assayed and assessed that concept cannot be confined only to the subordinate judiciary, totally discarding the higher judiciary. If such a narrow and pedantic or syllogistic approach is made and a constricted construction is given, it would lead to an anomalous position that the Constitution does not emphasise the separation of higher judiciary from the executive. Indeed, the distinguished judges of the Supreme Court, in various decisions have referred to Article 50 while discussing the concept or independence of higher or superior judiciary and thereby highlighted and laid stress on the basic principle and values underlying Article 50 in safeguarding the independence of the judiciary.


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Judiciary Vs. Executive the period of up to 1967 was a period of

subservience From 1967 period of conflict After 1977 period of assertion on the part of

judiciary The general criticism of executive assault comes

from the appointments, conditions of service, appeasement by post retirement benefits and threats of impeachment.

Statements in and out of Parliament denigrating the judiciary are generally on increase

The non-confirmation /appointment of additional judges

Efforts to appoint committed political activists as judges.


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Till 1973 the practice was to appoint senior most judge of the Supreme Court as the Chief Justice of India

Ostensibly acting under the Law Commissions’ Report (1956) where it was stated that administrative competence, experience and merit should be counted while appointing the CJI and acting according to ‘Kumaramangalam’s thesis” the S.C. superseded Shelat, Hegde and Grover and appointed A.N. Ray as CJI as a consequence of Keshavanandabharathi’s case.

The result is the self inflicted wound on the Indian S.C. in a Habeas Corpus case

Justice Khanna and other judges of various high courts who displayed courage were punished for their independent views. Fourteen judges of high courts who were a party to various judgements against the government were transferred from one high court to another without their consent. A list of 52 inconvenient judges was prepared at that time.


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Upon the retirement of Justice A.N. Ray, the next senior most judge, Justice H.R. Khanna, was denied his right to become the Chief Justice of India. Justice R.N. Aggarwal and Justice U.R. Lalit, who were additional judges of the Delhi and Bombay High Courts respectively, were not confirmed. ( Subsequently even Justice Khanna was in politics!)

However the post emergency period saw high altitude of judicial activism. But the executive is at the receiving end.

It would be interesting to note that in its 125th Report, the Law Commission stressed the need to bring the judiciary under the concept of planned expenditure, and observed that, “it is time to frankly annihilate a myth that expenditure on administration of justice is non-plan expenditure…One can say with confidence that expenditure on administration of justice must be now treated as plan expenditure.” speedy disposable of the cases and infrastructure facilities are directly linked to the budgetary allocations.


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Under Art.124 Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. – apparently it gave primacy to the executive but the courts interpreted it differently


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Undermined the role of the executive in appointments and transfers by judicial interpretation. – initially it was thought consultation was mentioned under Art.124 the President is not bound by the opinion thus given.

Union of India v. Sankalchand Himatlal Sheth AIR 1977 S C2328 - The power to transfer a High Court Judge is conferred by the Constitution in public interest and not for the purpose of providing the executive with a weapon to punish a Judge who does not toe its line or who, for some reason or the other, has fallen from its grace Art. 222 (1) is, in substance, worded in similar terms as the 1st proviso to Art. 124. It casts an absolute obligation on the President to consult the Chief Justice of India before transferring a Judge from one High Court to another. That is in the nature of a condition precedent to the actual transfer of the Judge. After an effective consultation with the Chief Justice of India, it is open to the President to arrive at a proper decision of the question whether a Judge should be transferred to another High Court because, what the Constitution requires is consultation with the Chief Justice, not his concurrence with the proposed transfer.


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In S.P.Gupta Vs. Union of India AIR 1982 SC 149 the court reiterated the above view but added that the decision of the President can be challenged on the ground of Malafide. The court opined that the appointment of judges was not an executive act but the result of constitutional process which must be observed in word and spirit.

S.C. Advocates-on-Record Association Vs. Union of India ( Second Judges Case) AIR1994 S.C. 268 read with Presidential ReferenceAIR 1999 SC 1 – laid certain guidelines totally departing from the above .

Primacy given to opinion of Chief Justice of India – the opinion of Chief Justice of India which is reflective of opinion of judiciary i.e. having an element of plurality in its formation - Opinion formed in any other manner - Not binding on Govt.


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The expression "consultation with the Chief Justice of India" in Arts. 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does not constitute "consultation" within the meaning of the said Articles.

The opinion of the Chief Justice of India which has primacy in the matter of recommendations for appointment to the Supreme Court has to be formed in consultation with a collegium of Judges. It is desirable that the collegium should consist of the Chief Justice of India and the four senior-most puisne Judges of the Supreme Court.

Successor CJI to be included in collegium - Senior-most Judge of Supreme Court coming from High Court to which person proposed to be recommended belongs - Not to be included in collegium.


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Opinion of all members of collegium and of senior-most Supreme Court Judge who hails from same High Court as of the person to be re-commended - Must be in writing - To be conveyed by C.J.I. to Govt. with recommendation.

When the Chief Justice of India is in a minority and the majority of the collegium disfavour the appointment of a particular person that person shall not be appointed.

Merit is the predominant consideration - inter se seniority of Judges to be given due weight - Strong cogent reasons required to be recorded in case of departure from order of seniority - Means recording of good reasons for appointing a particular Judge.

High Court Judge - Appointment - Opinion of C.J.I. - To be formed in consultation with collegium - Collegium to consist of Chief Justice of India and two senior-most puisne Judges of S.C. only.


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Judicial review in the case of an appointment, or a recommended appointment, to the Supreme Court or a High Court is available if the recommendation concerned is not a decision of the Chief Justice of India and his senior-most colleagues, which is constitutionally requisite.

Before recommending the transfer of a puisne Judge of one High Court to another High Court, also as a puisne Judge, the Chief Justice of India must consult a plurality of Judges. He must take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred, any Judge of the Supreme Court whose opinion may have significance in the case and atleast one other senior Chief Justice of a High Court or any other person whose views he considers relevant.

High Court Judge - Transfer - Judicial review - Only on ground of absence of proper consultation.


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The appointment of those judges with questionable credentials by ‘collegium’ underscored the point that it requires revision

The process of appointing appellate justices or their transfer is not a small affair – without sufficient secretariat, intelligence inputs, inputs of professional background all requires a separate process more than a closed room meeting of judges.

The whole process is without transparencyLaw Commission in its 214th report sought to

reconsider the above judgments of the Supreme Court. - it also suggested to restore the primacy of the CJI and the executive.

One of the suggestions made was to establish National Judicial commission which was previously thought of and shelved.


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This assumption of the power and judges becoming judges in their own cause, corruption at different levels, undue subjugation of the executive brought in the thinking of bringing The Judicial Standards and Accountability Bill, 2010 The Bill seeks to (a) lay down judicial standards, (b) provide for the accountability of judges, and (c) establish mechanisms for investigating individual complaints for misbehaviour or incapacity of a judge of the Supreme Court or High Courts. It also provides a mechanism for the removal of judges. The Bill establishes two authorities to investigate complaints against judges. The Two authorities are: National Judicial Oversight Committee; and Scrutiny Panel.

the bill in the present form is criticised as a measure which is an example of cure being worse than the disease. “There is a complete misalignment and a mismatch between the present system of judicial appointments and core values of judicial accountability.” – the criticism mainly related to the definition of misconduct and composition of scrutiny committee


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Why delay in implementing separation Lack of strong public opinion – not even 10% of the

citizenry know about utility of such separation – it stands last in priorities.

The so called civil society/ whistle blowers are not bothered about such division

Absence of political will and growing political interference.

Development of lack of trust mutually between Excutive and judiciary – it is a common feature of mutual onslaughts between executive and judiciary – it is criticized that judicial activism is often used to clip the wings of executive.

Overlapping constitutional distribution of the power between executive and judiciary


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“The principle of the complete independence of the judiciary from the executive is the foundation of many things in our island life. It has been widely imitated in varying degrees throughout the free world .It is perhaps one of the deepest gulfs between us and all forms of totalitarian rule.” -Sir Winston Churchill

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