Judicial Pronouncements on the Doctrine of Separation of Powers

By | December 19, 2019
Important definitions under CPC

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This article talks about the judicial pronouncements on the doctrine of separation of powers. It takes the study of 4 case laws and judgments given by the Indian judiciary and studies them with respect to the separation of powers in India.


The doctrine of Separation of Powers as given by Baron de Montesquieu, a French scholar, was the three types of power in every state, that is of the executive, the legislature and the judiciary. And that all these powers should be assigned by different individuals, because if they were with one body or one individual it would lead to the concentration of power and its abuse, creating a despotic and tyrannical rule.

In its pure form, this doctrine has a few essential features: that the functions of the government are divided into the legislative, the Executive and the Judiciary, that all these functions are to be vested in separate and appropriate institutions, that the members having one power or part of one institution should not be members of another institution, and that the functions of one institution should not encroach on the functions of another.[1]

Montesquieu stated the Doctrine of Separation of Powers in the Following Words-

“They would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals”[2]

Indira Nehru Gandhi v. Raj Narain[3]

This dispute was regarding the elections in rae Bareilly where Indira Gandhi and Raj Narain the petitioner and defendant were both contesting. The petitioner was sure of his win but eventually lost to Indira Gandhi with a large margin. To which he believed that she won by using unconstitutional measure and flouting the election laws.

Raj Narain’s primary contention was that Indira Gandhi had infringed the provisions of the Representation of People‟s Act, 1951 during her campaign as she had been assisted by a Gazetted government officer who was on duty, the police, the armed forces, used government vehicles, exceeded the prescribed limit on campaign expenditure and had also distributed liquor and clothing to the voters in the constituency.

The hearing went from the Allahabad High Court to the Supreme Court where a 3-judge bench allowed certain documents to be shown in court. To which Indira Gandhi appealed in the Supreme Court requesting privilege for not having to produce the blue book as evidence.

A bench of 5 judges directed to produce the Bluebook and the case continued in the High Court under Justice Sinha. Finally, the judgment of the High Court pronounced Indira Gandhi guilty of using wrongful measures to win the elections and removed her from the Lok Sabha’s membership.

But during this time, simultaneously, the Parliament passed the 39th Constitutional Amendment which added a new Article 392A to the Constitution of India which provided that the election of a person who holds office of a Prime Minister at the time of such election or is appointed as Prime Minister after such election to the House of the People can be challenged only before such a body or forum as may be established by Parliament by law. This amendment was declared unconstitutional by the Supreme Court.

Where the dispute regarding P.M. election was pending before the Supreme Court, opined that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending powers, cannot exercise i.e. the parliament does not have the jurisdiction to perform a function which the other organ is responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions of the three organs of the state.

So if there is a provision then there should be proper implementation and this judgment emphasis on that point only. So, the main ground on which the amendment was held ultra-vires was that when the constituent body declared that the election of P.M won‘t be void, it discharged a judicial function which according to the principle of separation it shouldn‘t have done.

It was after the landmark case that the place of this doctrine in the Indian context was made clearer. It was observed by Chandrachud J.: “That is the Indian Constitution, there is the separation of powers in a broad sense only. A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India.”

Ram Jawaya Kapur v. State of Punjab[4]

This case was regarding a book publishing agency called Uttar Chand Kapur and Sons was restricted to print books as they believed it was not according to the prescribed format by the Education department of the Punjab Government.

It called for all ‘publishers and authors’ which was later changed to only ‘authors and others’ to submit books for approval and of which the copyright would stay only with the Government and they would also charge 5% royalty on the sales of them.

It was contested that the acts of the government in carrying out this monopoly was illegal and without jurisdiction. His second contention is, that assuming that the State could create a monopoly in its favour in respect of a particular trade or business, that could be done not by any executive act but by means of proper legislation which should conform to the requirements of Article 19(6) of the Constitution.

Lastly, it is argued that it was not open to the Government to deprive the petitioners of their interest in any business or undertaking which amounts to property without authority of law and without payment of compensation as is required under article 31 of the Constitution.

“Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has the power to make laws :

Provided that in any matter with respect to which the Legislature of a State and Parliament have the power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.”

The court in the above case was of the opinion that the doctrine of separation of power was not fully accepted in India. Further, the view of Mukherjee J. adds weight to the argument that the above-said doctrine is not fully accepted in India.

He states that: “The Indian Constitution has not indeed recognized the doctrine of separation of powering 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”. This can be seen by the following provisions of the Constitution:

Article 121 states the restriction on parliament that no discussion shall take place in the parliament with respect to the conduct of any judge of the supreme court or high court in the discharge of his duties.

Article 122 provides that “courts not to inquire into the proceedings of the Parliament” and Article 212 provides that “courts may not inquire into the proceedings of the legislature”

Kesavananda Bharati v. State of Kerala[5]

In this case, Swami Kesvananda Bharti was the head of a temple in Kerala. The Kerala Land reforms Act 1963 had affected the property of his religious institution and thus he challenged the state land reform legislation in Kerala.

While the proceedings of this case were ongoing, the parliament passed the 29th amendment which inserted certain land reform laws to the Ninth Schedule and adversely affected the Petitioner. Nani Palkhivala, the counsel for the petitioner took up this opportunity and challenged the constitutional validity of the Twenty-fourth, twenty-fifth and Twenty-ninth amendment.

It was contested that these amendments nullify the most cardinal principles of our constitution and the parliament cannot draw authority from the Constitution to alter those main principles. On the other side, the Parliament argued that there was no limit on the Parliament’s amending power under Article 368 – the Parliament could do anything short of repealing the Constitution itself.

Parliament is supreme and represented the sovereign of the people. Hence it was for the Supreme Court to examine the parliament’s amending power to ascertain to the constitutional validity of the amendments.

A 13 judge bench was instituted, for 5 months. The judgment came as a majority of 7:6, and all the 11 judges had separate and divergent opinions. It was also the first time in courts’ history where 4 judges refused to sign the judgment due to their disagreement with its accuracy.

In respect to the decisions, the Court did not allow the supremacy argument of the Parliament and that the grounds that the doctrine of separation of power was an essential part of the basic structure of the constitution.

The views of the majority were that the Twenty fourth amendment was valid, and except for the clause ousting the courts’ jurisdiction, the twenty-fifth amendment too is valid. But, the most important decision was that although the Parliament had the power to amend any part of the Constitution, it could not use this power to alter or destroy the ‘basic structure’ of the Constitution.

To decide this basic structure, the judges relied on the Preamble, the fundamental rights and the directive principles of state policy.


The Jharkhand case arose from the fact that after the elections to the Jharkhand State Legislature in 2005, no single party or pre-poll alliance had a majority in the Legislative Assembly. The Rashtriya Janata Dal and Jharkhand Mukti Morcha (RJD-JMM) alliance was the second-largest alliance after NDA, for which the Governor invited the leader of the prior alliance to prove majority.

The Governor did not call the leader of the largest pre-poll alliance or the leader of the largest single party (who happened to be the same person). He called the person who in his individual judgement was likely to provide a “stable government”. .” Mr Arjun Munda was elected leader of the largest pre-poll alliance. Also, he had the established support of 41 M.L.A.s, which constituted a clear majority. This included five independent M.L.A.s, whom the Governor met separately and individually to ascertain their views.

This generated a political storm in the country and the Opposition at the Centre took the government to task for allegedly calling the shots in the states through pliant governors. Further, the actions of the Governor was challenged in the Supreme Court, in the case of Anil Kumar Jha v. Union of India. [7]

In its decision, the Supreme Court gave clear directions as to how the House should be conducted. It stated the exact date the Jharkhand Assembly should be held. Then went on to direct the senior officials to ensure that the voting was peaceful, free and fair and devoid of any interference.

It also required the Protem speaker to record the proceedings and send a copy of the video recording to the Supreme Court. It also restricted the Governor from appointing any Anglo Indian member to the Assembly till the floor test was conducted.

This created a rift between the Legislature and the Judiciary, as it increased the activist role of the Supreme Court, in places where it does not have a good jurisprudential basis and is violative of the doctrine of the separation of powers. The judiciary had overstepped its limits and encroached on the powers of the Legislative, and also gone against the basic structure of the constitution.


Through the study of these and many other cases in regards to the Indian Constitution, it can be seen that there is no pure or rigid framework of the doctrine of separation of powers applied in India. Although, this doctrine is applicable where it is necessary to ensure the basic principles or the fundamental rights of individuals in the State.

All the three organs of the government perform their functions interdependently and in cases where it is necessary to aid and maintain a check and balance each other, thus helping the functioning of a good democracy.

[1] D.J. Galligan, Discretionary Powers: A Legal Study of official discretion

[2] The spirit of laws by Montesquieu

[3] A.I.R. 1975 S.C. 229

[4] A.I.R. 1955 S.C. 549

[5] (1973) 4 S.C.C. 225

[6] (2005) 3 S.C.C. 150)

[7] Separation of Powers in the Indian Constitution & Why the Supreme Court was Right in Intervening in the “Jharkhand” Imbroglio by Shashank Krishna

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