Separation of Powers and Judicial Pronouncements in India

In India, we follow a separation of functions and not of powers. And hence, we don’t abide by the principle in its rigidity. An example of it can be seen in the exercise of functions by the Cabinet ministers, who exercise both legislative and executive functions. Art. 74(1) wins them an upper hand over the executive by making their aid and advice mandatory for the formal head. The executive, thus, is derived from the legislature and is dependant on it, for its legitimacy. This was the observation made by the Hon’ble S.C. in Ram Jawaya v. Punjab.

In a subsequent law case, S.C. had occasion to apply the Kesavananda ruling regarding the non-amend ability of the basic features of the constitution and a strict adherence to the doctrine of separation of powers can be seen. In Indira Gandhi Nehru v. Raj Narain, where the dispute regarding P.M. election was pending before the Supreme Court, it was held that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise. 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. The place of this doctrine in the Indian context was made a bit clearer after this judgment.

Though in India strict separation of powers like in American sense is not followed but, the principle of ‘checks and balances’, a part of this doctrine is. Therefore, none of the three organs can usurp the essential functions of the other organs, which constitute a part of ‘basic structure’ doctrine so much so that, not even by amending the constitution and if any such amendment is made, the court will strike it down as unconstitutional

S.C. in Kesavananda Bharati held that amending power was now subject to the basic features of the constitution.

And hence, any amendment tampering these essential features will be struck down as unconstitutional. Beghot, J. added that separation of powers is a part of the basic structure of the constitution.

None of the three separate organs of the republic can take over the functions assigned to the other.

This scheme cannot be changed even by resorting to A. 368 of the constitution. There are attempts made to dilute the principle, to the level of usurpation of judicial power by the legislature.

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