Module 1.
Introduction
S. No. Form of Govt. Governing Principle Country
1 Democracy Government of the people, by the people and for the people India, Italy, Greece
2 Communism Public Ownership and Rule by Single Authoritarian Party China, Cuba, Laos
Citizens own means of production and distribution; each
3 Socialism person constributes according to their needs and ability. Algeria, Vietnam
4 Oligarchy Rule of few elites (socially, financially, physically powerful) Russia
Rule by privileged group; A form of government in which
5 Aristrocracy nobility has power. Nigeria
One source of power, unconstrained, authority passes
6 Monarchy through Succession Saudi Arabia, Oman
Government by divine guidance or by officials who are Vatican City, Iran,
7 Theocracy regarded as divinely guided. Afghanistan
Control of another territory, natural resources and people Cayman Islands, Falkland
8 Colonialism by a foreign group. Islands (Malvinas)
No limit to the powers of the government; total and North Korea,
absolute power in the ruling party; Power and authority is Turkmenistan
9 Totalitarianism maintained by a single figure.
Form of government in which the military exerts total
Military control of a country, usually after seizing power by
10 Dictatorship overthrowing the previous rulers in a coup. Sudan, Myanmar
“Power tends to corrupt and absolute
power corrupts absolutely.”
Lord Acton
“When the legislative and executive powers
are united in the same person, or in the same
body of magistrates, there can be no liberty;
because apprehensions may arise, lest the
same monarch or senate should enact
tyrannical laws, to execute them in a
tyrannical manner. Again, there is no liberty,
if the judiciary power be not separated from
the legislative and executive.”
Charles de Montesquieu
1. The doctrine of Separation of Powers deals with the mutual
relations among the three organs of the Government namely
legislature, executive and judiciary.
2. The origin of this principle goes back to the period of Plato and
Aristotle.
3. It was Aristotle who for the first time classified the functions of
the Government into three categories viz.,
• Deliberative,
• Magisterial, and
• Judicial
1. The French Jurist Montesquieu in his book L. Esprit Des Lois
(Spirit of Laws) published in 1748, for the first time enunciated the
principle of separation of powers.
2. That’s why he is known as modern exponent of this theory.
3. Montesquieu’s doctrine, in essence, signifies the fact that one person
or body of persons should not exercise all the three powers of
the Government viz. legislative, executive and judiciary.
4. In other words, each organ should restrict itself to its own sphere
and restrain from transgressing the province of the other.
Montesquieu’s “Separation” took the form, not of impassable barriers and
unalterable frontiers, but of mutual restraints, or of what afterwards came to be
known as “checks and balances”.
The aim behind the principles is to protect the people again capricious
tyrannical and whimsical powers of the State.
According to Wade and Phillips the doctrine of separation of powers implies:
I. The same person should not form more than one organ of the
Government.
II. One organ of the Government should not exercise the function of other
organs of the Government.
III. One organ of the Government should not encroach with the function of
the other two organs of the Government.
SEPARATION OF POWERS – USA
In American Constitution we find that legislative, executive
and judicial powers are vested in separate entities.
Section 1 of Article I declares: “All legislative powers herein granted shall
be vested in a Congress of the United State”.
Section 1 of Article II says: “The executive power shall be vested in a
President of the United States of America.”
Section 1 of Article III reads: “The judicial power of the United States,
shall be vested in one Supreme Court and in such inferior courts as the
Congress may from time to time ordain and establish.....”
• The Founders were wary of any one individual or group of people having
too much power.
• History had shown them that the concentration of power in the
hands of a few led to a government that failed to account for the
welfare of all.
• By dividing the powers of government amongst the three branches, the
Founders theorized that each branch would act as a “check” on the
other two, and would allow for the interests of all to be heard.
• Specifically, Separation of Powers and Checks and Balances protects
the rights and interests of the minority, prevents tyrannical rule, and
encourages compromise and collaboration between the three branches.
1. The President of the United States however, in practicality interferes with the exercise of
powers by the Congress through the exercise of his veto power.
2. He also exercises the law-making power in exercise of his treaty-making power.
3. The President also interferes with the functioning of the Supreme Court through the
exercise of his power to appoint judges.
4. In the same manner Congress interferes with the powers of the President through vote
on budget, approval of appointments by the Senate and the ratification of treaty.
5. Congress also interferes with the exercise of powers by the courts by passing procedural
laws, creating special courts and by approving the appointment of judges.
6. In its turn, the Judiciary interferes with the powers of the Congress and the President
through the exercise of its power of judicial review.
7. It is correct to say that the Supreme Court of the United States has made more
amendments to the American Constitution than the Congress itself.
The American Supreme Court observed in Kilbourn v. Thompson (1881):
“It is essential to the successful working of this system that the persons
entrusted with power in any one of these branches shall not be
permitted to encroach upon the powers confided to the others, but that
each shall by the law of its creation be limited to the exercise of the powers
appropriate to its own department and not other… It may be stated… as a
general rule inherent in the American constitutional system, that unless
otherwise expressly provided or incidental to the powers conferred,
the legislature cannot exercise either executive or judicial power; the
executive cannot exercise either legislative or judicial power; the
judiciary cannot exercise either executive or legislative power.”
• It needs to be emphasized that although the separation doctrine has been very
much diluted over the years because of the emergence of administrative process,
the doctrine at times manifests itself with all its force in judicial decisions.
• One instance of this is found in Buckley v. Valeo, where the Supreme Court
held a congressional act to be unconstitutional because it breached the
separation doctrine in so far as the Congress sought to claim the administrative
power of making appointments to a federal body, viz, the Federal Election
Commission.
• “The accumulation of all powers, legislative, executive and judicial, 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.”
- James Madison, The Federalist
• During the 17th century in England
Parliament exercised legislative powers.
• The King exercised executive powers,
and the Courts exercised judicial powers,
but with the emergence of cabinet
system of Government i.e.
Parliamentary form of Government, the
doctrine remains no good.
• The renowned constitutional Bagehot
observed. “The cabinet is a hyphen
which joins, buckle which fastens,
the legislative part of the State to the
executive part of the State.”
1. Whilst the House of Lords of the United Kingdom is the upper chamber of
Parliament and has government ministers, for many centuries it had a judicial
function.
2. It functioned as a court of first instance for the trials of peers and for
impeachments, and as a court of last resort in the United Kingdom i.e., as
Appellate Committee of the House of Lords.
3. The creation of a Supreme Court for the United Kingdom was first
proposed in a consultation paper published by the Department of Constitutional
Affairs in July 2003.
4. It argued that the separation of the judicial functions of the
Appellate Committee of the House of Lords from the legislative
functions of the House of Lords should be made explicit.
Arguments in favor of establishing a distinct Supreme Court of UK:
1. Whether there was any longer sufficient transparency of independence from the
executive and the legislature to give assurance of the independence of the judiciary.
2. The requirement for the appearance of impartiality and independence limited
the ability of the Law Lords to contribute to the work of the House itself, thus
reducing the value to both them and the House of their membership.
3. It was not always understood by the public that judicial decisions of "the House of
Lords" were taken by the Appellate Committee and that non-judicial members were
never involved in the judgments. Conversely, it was felt that the extent to which the
Law Lords themselves had decided to refrain from getting involved in political issues
concerning legislation on which they might later have had to adjudicate was not always
appreciated.
4. Space within the House of Lords was at a constant premium and a separate supreme
court would ease the pressure on the Palace of Westminster.
SEPARATION OF POWERS – INDIA
In Constituent Assembly Debates Prof. K.T. Shah a member of Constituent
Assembly laid emphasis to insert by amendment a new Article 40-A concerned with
doctrine of separation of powers. This Article reads:
“There shall be complete separation of powers as between the principal
organs of the State, viz; the legislative, the executive, and the judicial.”
Shri K. Hanumanthiya:
“Instead of having a conflicting trinity it is better to have a harmonious
governmental structure. If we completely separate the executive, judiciary
and the legislature conflicts are bound to arise between these three
departments of Government. In any country or in any government, conflicts
are suicidal to the peace and progress of the country..... Therefore, in a
governmental structure it is necessary to have what is called “harmony” and
not this three-fold conflict.”
Dr. B.R. Ambedkar, one of the important architect of Indian Constitution, disagreeing with
the argument of Prof. K.T. Shah, advocated thus:
“There is no dispute whatsoever that the executive should be separated from the
judiciary. With regard to the separation of the executive from the legislature, it is true that
such a separation does exist in the Constitution of United States; but many Americans
themselves were quite dissatisfied with the rigid separation embodied in the American
Constitution between the executive and legislature......... There is not slightest doubt in my mind
and in the minds of many students of Political Science, that the work of Parliament is so
complicated, so vast that unless and until the members of the Legislature receive direct
guidance and initiative from the members of the Executive, sitting in Parliament, it
would be very difficult for Members of Parliament to carry on the work of the
Legislature. I personally therefore, do not think that there is any very great loss that is likely to
occur if we do not adopt the American method of separating the Executive from the
Legislature.”
With the aforesaid observations the motion to insert a new Article 40-A dealing with the
separation of powers was negatived i.e. turned down.
Executive ➔ Legislature
▪ Article 123 (Ordinance),
▪ Article 357 (Exercise of legislative powers under Proclamation)
▪ Article 372 (Continuance in force of existing laws and their adaptation)
▪ Article 372A (Power of the President to adapt laws)
Executive ➔ Judiciary
• Article 103 (Decision on questions as to disqualifications of members)
• Article 124, 126, 127 (Appointment of Judges)
• Article 72 (Pardoning Power)
Legislature ➔ Executive
Article 56 r/w Article 61 (Impeachment of President)
Legislature ➔ Judiciary
Constitutional Amendments to Nullify Judicial Decisions
Article 124 (Impeachment of Judges of Supreme Court)
Schedule IX
Judiciary ➔ Executive
Judicial Review of Ordinances or Executive Actions
Judiciary ➔ Legislature
Article 145 (Rules of Court, etc.)
Judicial Review
Basic Structure Doctrine
In re, Delhi Laws Act, 1912, AIR 1951 SC 332
Factual Background:
• Section 7 of the Delhi Laws Act, 1912
“The Provincial Government may by notification in the official gazette extend, with such restrictions
and modifications as it thinks fit, to the Province of Delhi, or any part thereof, any enactment which is
in force in any part of British India at the date of such notification”.
• Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947
“The Central Government may, by notification in the official gazette, extend to the Province of Ajmer-
Merwara, with such restrictions and modifications as it thinks fit, any enactment which is in force in any
other Province at the date of such notification.”
• Section 2 of the Part C States (Laws) Act, 1950
“The Central Government may, by notification in the official gazette extend to any Part C State or to
any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in
force in a Part A State at the date of the notification and provision may be made in any enactment so
extended for the repeal or amendment of any corresponding law which is for the time being applicable
to that Part C State.”
In re, Delhi Laws Act, 1912, AIR 1951 SC 332
President of India made reference to SC under Article 143 to clarify validity of laws
delegating legislative powers to the executive Government.
In this landmark judgment on delegation of powers, SC held Acts to be ultravires (5:2)
“Although in the Constitution of India there is no express separation of powers, it is
clear that a legislature is created by the Constitution and detailed provisions are made
for making that legislature pass laws. It is then too much to say that under the
Constitution the duty to make laws, the duty to exercise its own wisdom,
judgment and patriotism in making law is primarily cast on the legislature?
Does it not imply that unless it can be gathered from other provisions of the
Constitution, other bodies executive or judicial are not intended to discharge
legislative functions?”
-Hon’ble Chief Justice Kania
Lok Prahari Thr. Its Gnrl. SECY, S N SHUKLA Vs State of U.P. AIR 2016 SC 5593
Background -
Members of Parliament Local Area Development Scheme - annual budgetary grants by
the Union Government to enable Members of Parliament to recommend work of a
developmental nature with an emphasis on creating durable community assets based on local
necessities in their constituencies - The constitutional validity of the Scheme was adjudicated
upon and upheld in a judgment of a Constitution Bench of this Court rendered on 6 May 2010
in Bhim Singh v. Union of India.
In the State of Uttar Pradesh, a scheme known as the Vidhayak Nidhi Scheme was
introduced in the State Budget in 1998-1999 with an allocation of Rupees 50 lakhs for every
Member of the Legislative Assembly and Legislative Council. In the Budget of 2000-2001, the
allocation under the Scheme was enhanced to Rupees 75 lakhs. The appellant moved the High
Court in its writ jurisdiction in 2004 seeking to challenge the constitutionality of the Vidhayak
Nidhi Scheme and for obtaining an order restraining the state from enhancing the budgetary
outlay from Rupees seventy five lakhs to one crore per MLA/MLC, as was proposed.
• The primary submission of the appellant before the High Court (and in these proceedings under
Article 136 of the Constitution as well) is that the field of development plans for districts is occupied
by virtue of the provisions contained in Article 243ZD and the enactment of the state legislature
noted above. According to the appellant, it is only the District Planning Committee which can
identify or approve of a development plan. Hence, it was urged that elected representatives of the state
legislature cannot be permitted to select a scheme other than what is within the purview of an
approved development plan prepared by the District Planning Committees under the state legislation
of 1999.
• The Division Bench of the High Court held that there is no distinction between MPLADS and the
Vidhayak Nidhi Scheme since under both the central and the state schemes, the recommended work
has to relate to one district or the other within the country. The High Court adopted the view that the
power of identifying and recommending work of a developmental nature conferred upon the
elected representatives – be they Members of Parliament under MPLADS or MLAs/MLCs under the
state scheme is supplemental to the power vested in the District Planning Committee
constituted under the state legislation.
• Hence, while dismissing the writ petition, the High Court held that the judgment of the
Constitution Bench in Bhim Singh was dispositive of the controversy.
• In Bhim Singh, Constitution Bench held that the function of a Member of Parliament under the
applicable guidelines is merely to recommend a piece of work.
• The district authority is entrusted with the absolute authority to decide upon the feasibility
of the work recommended, assess to the funds required for execution, engage an
implementing agency, supervise the work and ensure financial transparency by providing
audit and utilization certificates. The Constitution Bench observed that a major role is assigned
under MPLADS to panchayats, municipalities and corporations. Rejecting the argument of invalidity,
this Court observed as follows :
• “93…The extracts of the Guidelines we have produced above make it clear that even though
the district authority is given the power to identify the agency through which a particular
work recommended by the MP should be executed, the Panchayati Raj institutions (PRIs)
will be the preferred implementing agency in the rural areas, through the Chief Executive
of the respective PRI, and the implementing agencies in the urban areas would be urban
local bodies, through the Commissioners/Chief Executive Officers of Municipal
Corporations, municipalities”.
• The submission that the scheme violated the constitutional principle of separation of powers was
accordingly repelled.
• The grievance of the appellant is also that unlike MPLADS, the Vidhayak Nidhi
Scheme has been used to finance buildings belonging to private organizations,
which explains why there was a clamour to give money to schools controlled by
the MLA/MLC or by the members of his or her family. This, it was submitted was
resulting in a misappropriation of public funds since the construction of school
buildings can be implemented through the principal/manager. Hence, it was
asserted that the accountability mechanism which this Court found to be existing
in MPLADS is absent under the Vidhayak Nidhi Scheme.
• This aspect has not been dealt with either by the State Govt. in their response, or the
High Court while delivering its judgment.
• The Division Bench noted that the “murmur against perceived misuse of Vidhayak
Nidhi is becoming more audible”.
While we are of the view that there can be no objection to the state implementing a scheme of
the nature that was upheld by the Constitution Bench in Bhim Singh, the safeguards which form
a part of the MPLAD Scheme should be duly considered so as to ensure that the role which is
ascribed to the district planning authorities and institutions of local self-governance is not
denuded.
The safeguards which must be introduced shall include the following :
1. The role of the elected representatives would be to recommend the work of a
developmental nature in their constituencies within the budget allotted under the
Scheme;
2. the feasibility of the work, estimate of funds, selection of the implementing agency
and supervision of work must be independently determined by a nominated
authority or body of the State government;
3. Panchayati Raj Institutions in rural areas and municipal bodies in urban areas may
be considered as preferred implementing agencies having regard to the entrustment
of responsibilities under Parts IX and IXA of the Constitution;
4. the plans prepared by the District Planning Committees under Article 243ZD read
with the U P District Planning Committee Act, 1999 may be made available by every
district Collector to elected representatives to enable them to decide whether any
developmental work which has already been identified in the above plan should be
executed in pursuance of the funds made available under the Vidhayak Nidhi
Scheme; and sufficient safeguards should be provided to ensure against conflicts of
interest such as the allocation of funds to institutions controlled by an elected
representative or a member of his or her family;
5. and The scheme must include sufficient safeguards to ensure financial transparency,
such as proper supervision of work, monitoring quality and timely completion
besides procedures to ensure proper audit and utilization of funds.
Held:
1. We are in agreement with the view of the High Court that the Vidhayak Nidhi Scheme does
not per se violate Article 243ZD or the U P Planning and Developmental Act, 1999.
2. Elected representatives have a vital role in democracy.
3. They have an intrinsic connection with their constituencies and have a legitimate role
to discharge in meeting the development needs of their constituencies.
4. Article 243ZD does not exclude their role. On the contrary, they perform a
supplemental role by enhancing and supporting the work of the institutions of local
self-governance.
5. However, it is in our view necessary that the guidelines which have been formulated by the
State Government are revisited and the directions set out above are complied with so as to
ensure that the guidelines are in conformity with the spirit and underlying purpose of
Parts IX and IXA of the Constitution in terms as held by the Constitution Bench of
this Court in Bhim Singh.
6. The revised guidelines shall apply to all projects to be undertaken hereafter under the
Vidhayak Nidhi Scheme.
7. This exercise shall be completed by the State Government not later than a period of two
months from the receipt of the present judgment.
8. The appeal shall accordingly stand disposed of in the above terms.
9. There shall be no order as to costs.
In Chandra Mohan v. State of U.P., AIR 1966 SC 1987, Supreme
Court held:
“The Indian Constitution, though it does not accept the strict
doctrine of separation of powers, provides for an independent
judiciary in the States....... But at the time the direct control of the
executive. Indeed, it is common knowledge that in pre-
independence India there was a strong agitation that the
judiciary should be separated from the executive and that the
agitation was based upon the assumption that unless they were
separated, the independence of the judiciary at the power
levels would be a mockery.”
No one can deny that the State in the present day has become the major
litigant and the superior Courts particularly the Supreme Court, have
become centres for turbulent controversies some of which with a flavour
of political repercussions and the Courts have to face tempest and storm
because their vitality is a national imperative. In such circumstances,
therefore, can the Government, namely, the major litigant be justified in
enjoying absolute authority in nominating and appointing its arbitrators?
The answer would be in the negative. If such a process is allowed to
continue, the independence of judiciary in the long run will sink without
any trace.
S.C. Advocates-on-Record Case, AIR 1994 S.C. 268 at p. 344
302. …The true position is that every provision of the Constitution can be amended
provided in the result the basic foundation and structure of the Constitution remains the
same. The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government.
(3) Secular character of the Constitution;
(4) Separation of powers between the Legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
303. The above structure is built on the basic foundation, i.e., the dignity and
freedom of the individual. This is of supreme importance. This cannot by any
form of amendment be destroyed.
Kesavananda Bharati Sripadagalvaru vs. State of Kerala (24.04.1973 - SC) :
MANU/SC/0445/1973
Virtually, absolute separation of powers is not possible in any form of
Government. In view of the variety of situations, the legislature cannot foresee or
anticipate all the circumstances to which a legislative measure should be
extended and applied. Therefore, legislature is empowered to delegate some of its
functions to administrative authority (executive). But one thing is notable that
legislature cannot delegate its essential legislative power.
In Hari Shankar Nagla v. State of M.P, it was observed, “The Legislature cannot
delegate its function of laying down legislative policy in respect of a measure and its
formulation as a rule of conduct. The Legislature must declare the policy of the
law and the legal principles which are to control any given cases and must
provide a standard to guide the officials or the body in power to execute the law.
The essential legislature function consists in the determination of the choice of the
legislative policy and of formally enacting that policy into a binding rule of conduct.”
In Asif Hameed v. State of Jammu and Kashmir reported in AIR 1989 S.C.
1899 the Supreme Court observed:
“Although the doctrine of separation of powers has not been recognised
under the Constitution in its absolute rigidity but the Constitution makers
have meticulously defined the functions of various organs of the State.
Legislature, executive and judiciary have to function within their own spheres
demarcated under the Constitution. No organ can usurp the functions
assigned to another. The Constitution trusts to the judgment of these
organs to function and exercise their discretion by strictly following the
procedure prescribed therein. The functioning of democracy depends
upon the strength and independence of each of its organs.”
• Government is an organic unity. It cannot be divided into water tight
compartments.
• History proves this fact. If there is a complete separation of powers
the government cannot run smoothly and effectively.
• Smooth running of government is possible only by co-operation and
mutual adjustment of all the three organs of the government.
• In strict sense the principle of separation of powers cannot be applied in
any modern Government either may be U.K., U.S.A., France, India or
Australia.
• It is not possible to categorize the functions of all three branches of
Government on mathematical basis.
• But it does not mean that the principle has no relevance now a days.
• The doctrine of Montesquieu is not merely a “myth” - it also carries a
truth, in the sense that each organ of the Government should exercise its
power on the principle of “Checks and Balances” signifying the fact that
none of the organs of Government should usurp the essential functions
of the other organs.
CLASS ACTIVITY