INTRODUCTION

The French philosopher Montesquieu developed the concept of separation of powers by

establishing a clear and distinct distinction between the executive, the legislature, and the
judiciary. The doctrine of separation of powers has changed over time. The French
philosopher John Bodin and the English statesman Locke, whose origins date back to Plato
and Aristotle, expressed their views on the separation of powers doctrine in the 16th and 17th
centuries.

Triaspoliticia, is a democratic understanding of separation of power in governance of a

country. This idea was established in ancient Greece and widely circulated as part of the
Roman Republic's unwritten constitution. The state is divided into subdivisions or regions,
each of which has its own powers and responsibilities. One class is divided into executive,
legislative and judicial.

Separation of powers is an old principle (traced back to the Vedas), but it was popularised
globally by Montesquieu and Locke. Such a division can be seen in the Smritis, which are
ancient sources of law, i.e., Dharma. The Naradsmriti has a very notion of separation of
power which is classified as following: -.

(i) Diwan controlled the Executive organ

(ii)Responsibility of maintaining peace was of Senapati

(iii) Kazi handled the duty of Judiciary.

At the same time, they all obey the decision of king, and because the king is the most
powerful person in making laws, he might be compared to today's legislature.

SEPARATION OF POWER

However, all modern laws contain the concept of separation of powers. He simply argued that
all three branches of government should do the same: legislative, executive, and judicial & as
they have their duties and authority clearly separated so that no one branch may exercise the
authority of another. This aspect is the opposite to the doctrine of centralisation of power at
the single level (i.e., at the Central level), as this may compromise the goal of a democratic
government
The Supreme Court further stated, "Despite the fact that the Indian Constitution does not
recognize the concept of separation of powers in its entirety and totality, the functioning of
various institutions and the responsibilities of the government are entirely different, as are our
laws."

Characteristics of separation of powers

Separation of Power in its pure form has the following characteristics: -

(1) The main responsibilities of the government are divided into legislative, administrative,
and judicial

(2) The other institutions are given different responsibilities according to need.

(3) Members of one organization cannot be members of another organization

(4) The role of one organization should not interfere with the role of another

organization The separation of powers theory can be broken down into two categories: -

(I) Positive Sense - It not only establishes boundaries but also specifies the minimal amount
of authority that can be exercised within those boundaries for a court to uphold constitutional
ideals.

(II) In a negative sense - It restricts how each state organ can use its authority.

SEPARATION OF POWER IN THE INDIAN CONTEXT

In India, the will of the people is mediated through three departments within the government.
The Legislature makes laws, the Executive enforces laws, and the Judiciary comes into play
when there is the violation of laws. Thus, even when functioning within the scope of their
own authority, these organs' tasks tend to overlap. This raises the question of what the
relationship between these three national bodies should be? Do we need a complete
separation of powers, or do we need coordination between powers?

The Constitution of India provides for the distribution of duties of state bodies as follows:
Article 5o requires governments to take efforts to remove decision-making from the
executive branch. This is the guarantee of judicial independence. Articles 122 and 212
stipulate that the legality of proceedings in the Parliament and the Legislative Assembly
cannot be interfered
with by any court. This ensures that the judiciary is independent and protected from the
influence of decisions based on allegations of procedural incompetence.

Administrative law in India has evolved gratuitously over the years, particularly in terms of
adopting the theory of separation of powers via various precedents. The separation of powers
idea is essential in constitutional law because it seeks to provide a system of checks and
balances between the executive, legislative, and judicial branches of government. The Indian
Constitution does not specifically address this concept, although it is inferred by its various
passages.

Key Indian court judgements and their influence on the administrative law may be used to
properly understand the evolution of administrative law in terms of the recognition of the
theory of separation of powers are: -

 In the re Delhi Laws Act

For the very first time hon’ble Supreme Court adheres to the notion that, unless the
constitution authorizes a body, a body should not engage in activities owned by
others. In a seven-judge court, the majority concluded that while the principle of
separation of powers is not part of our constitution, it is exceptionally articulated in a
clause of the constitution itself.
 Rai Sahab Ram Jawaya Kapur & others Vs. State of Punjab
One of the famous instances relating to the duties and responsibilities of the executive
is Ram Jawaya Kapur and others. The court ruled that the executive branch's operations do
not necessarily require legislative approval because its powers and responsibilities change
over time. The Court agreed to a flexible meaning of separation of powers because it believed
that if this theory were to be defined rigidly, it would become unworkable.

The simple facts of this case are that six people, through a petition under Article 32 of the
Constitution, alleged to have right to issue textbooks for different grades in schools of Punjab
as, ‘Uttar Chand Kapoor and his sons’. The Ministry of Education of the Punjab Government
has issued a series of notices regarding the printing, publishing, and marketing of textbooks
since the 195os as part of its nationalization strategy. The petition alleged that the sale of
these books imposed unreasonable restrictions and forced other employees out of business.
Petitioners insisted that they had the fundamental right to conduct business, i.e., Article 19(1)
(g). The petitioners requested a writ of mandamus ordering the Government of Punjab to
remove notices infringing its rights under section 19(1)(g), as this violation occurred without
statutory legislation or executive order.

Mukherjee, J. ruled that the Indian Constitution recognizes the "doctrine of separation of
powers," recognizing a clear distinction between legislative, judicial, and executive functions,
with the executive's function being to execute or supervise the enforcement of laws passed by
the legislature. In this judgment, the Supreme Court emphasized the issue of responsible
governance and encouraged and strengthened the parliamentary form of government.
Mukherjee, C.J., speaking on behalf of the Supreme Court, stated that while the Indian
Constitution demarcates the functions of the Legislature and the Executive by stating that no
organ should assume the functions essentially belonging to the other organ, there is no
separation between them in its absolute rigidity. The idea of separation of powers really
refers to a parallelism of authority between the three organs in a particular field, with
hierarchies that each organ must maintain for the other two to check it. As a result, the
administration may continue to issue administrative orders until the legislature passes
legislation to the contrary.

In Chandra Mohan v. State of U. P According to the Supreme Court, "the Indian

Constitution, although differ in recognizing the rigorous and stringent concept of separation
of powers, but also allows for an independent judiciary in the States.... Indeed, it is common
knowledge that in pre-independence India, there was a strong agitation for the separation of
the judiciary and the executive, under the belief that unless they were separated, the
independence of the judiciary at the highest levels would be a mere wash of an eye.”

 I.C. Golak Nath v. State of Punjab

According to the Supreme Court, the Constitution establishes three constitutional
entities: the Union, the States, and the Union Territories. It created the Legislature, the
Executive, and the Judiciary as the three primary departments of government. It
clearly defines their authority limits and expects them to use their unique skills within
those limits. They should only work on tasks that have been assigned to them.
 The Supreme Court then issued one of its most significant judgements in
Keshvananda Bharti v Union of India, holding that amending authority was now
subject to the basic framework of the constitution. As a result, any change that affects
these critical structures will be deemed null and void. According to Beg, J., the
separation of powers is a vital component of the constitution. "None of the republic's
three distinct organs may assume the functions of the others." As a result, the court's
stance on the concept of separation of powers was strengthened.
 Indira Nehru Gandhi vs. Raj Narain
The case that created history & was one of the major reason fro the imposition of
Emergency in India (1975-1977). Indira Gandhi filed an appeal in response to the
Allahabad High Court's decision to declare Indira Gandhi's election fraudulent. A
conditional stay was granted as Supreme court was not in session. As a result of
democratic unrest an emergency was promulgated. In the meantime, Indira Gandhi
proposed the 39th constitutional amendment, inserting Article 392A to the Indian
Constitution. As per Article 392A, the election of the Prime Minister and Speaker
cannot be challenged in court and must instead be referred to a committee appointed
by Parliament. As a result, the hon’ble apex court has been unable to determine the
case of Indira Gandhi. As a result, the 39th Amendment's constitutionality was
brought into doubt.
It was noted: "That the separation of powers in the Indian Constitution only applies in
a limited sense. India's constitution does not follow the same strict division of powers
as the American or Australian does.” Chandrachud J. further highlighted that the
idea of Separation of Powers is not commonly understood in terms of its political
utility. Without a conscientious devotion to its precise check and balance, no
constitution can endure. The principle of Separation of Powers is a restraint principle
based on the intrinsic prudence of self-preservation dictum that discretion is the better
part of valour. Khanna J believed court of law's order is void is generally a judicial
role, not a legislative function.
It was also determined that decision of a particular subject is a judicial function that
cannot be exercise by a parliament even by bringing a change in the constitution. So,
the fundamental reason the amendment was ruled ultravires was that when the
 constituent body signalled that the Prime Minister's election would not be invalidated,
it performed a judicial role that it should not have performed under the separation
principle. As a result of this decision, the concept of separation of powers became
apparent in the Indian context.
 Asif Hamid v. State of Jammu and Kashmir,
The Court decided that the legislative, executive, and judicial branches of government
must all act within the parameters established by the Constitution. No organ may
perform the duties of another. Democracy is built on the strength and independence of
each of its organs. Judicial review is an effective tool for limiting unconstitutional
abuse of power by the legislature and the executive. The sole constraint on judicial
authority, however, is the self-imposed discipline of judicial restraint. As a result,
because neither the powers nor any government can be contained in an airtight
container, this notion cannot be applied freely to any modern government.
 Dr Ashwini Kumar vs Union of India Ministry of Home Affairs
In its strict sense, the examples of judicial excessive contradict the theory of
separation of powers. According to the theory of separation of powers, the legislative
makes legislation, the executive executes it, and the court settles disputes in
conformity with existing law. But such watertight isolation does not exist and is
impractical. In broad terms, it indicates that one organ of the state should not execute
a function that is the responsibility of another organ. While interpreting and
expanding the meanings of terms like ‘due process of law,' 'equal protection of the
law,' or 'freedom of speech and expression' is a permissible judicial role, establishing
a whole new law... by directives... is not a legitimate judicial function.

CONCLUSION

Theory of Separation of power has been used as a guiding torch in Indian governance in
order to divide powers as far as feasible but not in totality, so that the functions of organs of
government are differentiated from one another. Because our parliamentary system of
government requires a great deal of cooperation, each organ must relate to the other on some
level in order to work properly. Because placing too much power in any one organ might be
highly harmful, as a result, a system of checks and balances has emerged through time, which
is consistent with various Supreme Court judgments as previously explained.

Thus, the Indian Constitution, which is an exceptionally well-crafted instrument meant to

protect every citizen's dignity and liberty, has not entirely adopted the notion of separation of
powers, but has drawn heavily from it and preserved it as a guiding principle. However, as
the Supreme Court has determined and affirmed in several instances, the theory of Separation
of Powers has been included in our fundamental structural doctrine. As a result, it occupies a
position of paramount significance, but adjusted to meet the demands of a modern all-
encompassing state.