Our Constitution has earmarked separate areas for exercise of powers and for discharge of duties to the three organs of the democracy, viz., the Executive, the Legislature, and the Judiciary. The Legislature is empowered to enact the laws within the framework of the Constitution; the Executive is entrusted with the powers and is expected to discharge its duties in accordance with the provisions of the Constitution and the laws as enacted by the competent Legislature. The adjudicatory function is entrusted to the Judiciary. In several judgments, Supreme Court has reiterated the principle governing the separation of powers.
In the case of In Rai Sahib Ram Jawaya Kapur and others v. State of Punjab,[1] a Constitution Bench of Supreme Court observed thus:
“It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in 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.”
It could thus be seen that the Constitution Bench of Supreme Court has held that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.
In the case of Indira Nehru Gandhi v. Raj Narain and another reiterating the position that the principle of separation of power is a part of the basic structure, a Constitution Bench of Supreme Court held thus:
“The political usefulness of the doctrine of separation of powers is now widely recognized though a satisfactory definition of the three functions is difficult to evolve. But the function of the Parliament is to make laws, not to decide cases. The British Parliament in its unquestioned supremacy could enact a legislation for the settlement of a dispute or it could, with impunity, legislate for the boiling of the Bishop of Rochester’s cook.
The Indian Parliament will not direct that an accused in a pending case shall stand acquitted or that a suit shall stand decreed… The reason of this restraint is not that the Indian Constitution recognizes any rigid separation of powers. Plainly, it does not. The reason is that the concentration of powers in any one organ may, by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic government to which we are pledged.”
The Constitution Bench of Supreme Court though admits that the Indian Constitution does not recognize any rigid separation of powers, yet holds that, by upsetting the fine balance between the three organs, the fundamental premises of a democratic government to which we have pledged, will be destroyed. The Court observed that the Indian Parliament will not direct that an accused in a pending case shall stand acquitted or that a suit shall stand decreed.
A Nine-Judge Bench of Supreme Court in the case of I.R. Coelho (Dead) by LRs. v. State of T.N.[2] recognized the doctrine of the separation of powers as a system of “check and balance”.
The Court observed that the separation of powers leads to “prevention of tyranny”. The Court while emphasizing on the interconnectedness between judicial review, rule of law, and the separation of power observed thus:
“Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary. Judicial review is justified by combination of “the principle of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review” (Democracy Through Law by Lord Styen, p. 131).”
Supreme Court reiterated that equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. It has been held that there can be no rule of law if there is no equality before the law. It observed that rights would be meaningless if the violation was not subject to the judicial review. The Court records the danger of legislative, executive and judicial powers being vested in one organ and, therefore, held that the duty to decide whether the limits have been transgressed has been placed on the judiciary.
While considering the importance of the doctrine of separation of powers in today’s world of positive rights and justifiable social and economic entitlements, Supreme Court in the case of State of U.P. and others v. Jeet S. Bisht and another[3] observed thus:
“If we notice the evolution of separation of powers doctrine, traditionally the checks and balances dimension was only associated with governmental excesses and violations. But in today’s world of positive rights and justifiable social and economic entitlements, hybrid administrative bodies, private functionaries discharging public functions, we have to perform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction.
Otherwise we envisage the country getting transformed into a state of repose. Social engineering as well as institutional engineering therefore forms part of this obligation.”
While expanding the contours of the doctrine of separation of powers, the Constitution Bench of Supreme Court in the case of Kalpana Mehta and others v. Union of India and others,[4] observed thus:
“… the concept of constitutional limitation is a facet of the doctrine of separation of powers. At this stage, we may clearly state that there can really be no straitjacket approach in the sphere of separation of powers when issues involve democracy, the essential morality that flows from the Constitution, interest of the citizens in certain spheres like environment, sustenance of social interest, etc. and empowering the populace with the right to information or right to know in matters relating to candidates contesting election. There can be many an example where Supreme Court has issued directions to the executive and also formulated guidelines for facilitation and in furtherance of fundamental rights and sometimes for the actualisation and fructification of statutory rights.”
Supreme Court, therefore, observed that Supreme Court can issue a direction to the executive and also formulate guidelines for facilitation and in furtherance of fundamental rights and sometimes for the actualization and fructification of statutory rights.
Reference
In Re: Directions in the matter of demolition of structures (2024)
[1] AIR 1955 SC 549
[2] (2007) 2 SCC 1
[3] (2007) 6 SCC 586
[4] (2018) 7 SCC 1