5. Doctrine of Separation of Powers in India

India departs from the two conventional models of separation of power commonly followed i.e. the rigid system followed by the USA and the weak system of separation of powers or Westminster Model. Our model represents a contemporary approach in constitutionalising the doctrine of separation of powers. Essentially, there is no strict separation of powers under the Indian Constitution, both in principle and practice:

♤ Implied division of power/functions: While the Indian Constitution recognizes legislative, executive and judicial bodies, neither does it expressly vest different kinds of power in different organs of the state, nor does it provide for exclusivity in the nature of functions to be performed by these organs.

♤ Supremacy of the Constitution: Unlike the British model, Parliament in India is not supreme. It does not possess a sovereign character like the Westminster and is limited by a written constitution. In India, the Constitution is supreme and any legislation contrary to constitutional provisions is void.

♤ No real separation of power: Like the Westminster model, there is no ‘real’ separation per se, between the legislature and the executive authorities under our Constitution.

♤ Functional overlap: In fact, the Indian Constitution goes far as to provide for a functional overlap between the legislative, executive and the judicial wings of the government. For instance, Judiciary often discharges quasi-legislative or executive functions.

Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs. The question which is important here is that what should be the relation among these three organs of the state, i.e. whether there should be complete separation of powers or there should be co-ordination among them.

In the words of Dr. Durgas Das Basu,

“So far as the courts are concerned, the application of the doctrine (the theory of separation of

powers) may involve two propositions: namely,

a) that none of the three organs of Government, Legislative Executive and Judicial, can exercise any power which properly belongs to either of the other two;

b) that the legislature cannot delegate its powers.”

What is significant is the word “properly” and therefore conceives of a broad division of powers where the core function is one which is exclusively conferred on that particular organ of the State, though there may be some overlap in regard to the fringe areas of the topics so entrusted. The pronouncement on this aspect of law by the courts is that under the Indian Constitution, there is a broad separation of powers.