separation of powers

Associated with Montesquieu, the doctrine says that liberty is safest when making, executing and adjudicating laws are in separate hands. The Indian Constitution does not adopt a rigid separation as in the United States: the executive is drawn from and responsible to the legislature, and each organ exercises some functions of the others (delegated legislation, legislative contempt powers, judicial rule-making). Article 50 directs separation of the judiciary from the executive.

In Ram Jawaya Kapur the Supreme Court held that India has no rigid separation, but functions are sufficiently differentiated that one organ cannot take over the essential functions of another. Since Kesavananda Bharati, separation of powers is treated as part of the basic structure.

Example

Parliament cannot by law reverse a judgment without removing its basis, since that would violate the separation of powers.

In Indian law

• Article 50, Constitution of India
• Ram Jawaya Kapur v. State of Punjab, 1955 INSC 27: no rigid separation, but essential functions are differentiated
• Kesavananda Bharati v. State of Kerala, 1973 INSC 91: separation of powers as part of the basic structure

See also

basic structure doctrine · rule of law · judicial review · delegated legislation

Read more in the study notes

• Separation of powers and its bearing on administrative law (Administrative Law)
• The Competition Act, 2002: salient features, key definitions and amendments (Competition Law)
• Constitution: meaning, kinds and constitutionalism (Constitutional Law I)
• Amendment and the basic structure (Constitutional Law II)
• Public interest litigation and the role of the judiciary in environmental protection (Environmental Law)
• Constitutionalism and privatisation: who is 'the State' under Article 12? (Indian Constitutional Law - New Challenges)