The Doctrine of Separation of Powers

The most significant impact of the Doctrine of Separation of Powers is seen and felt in terms of the institutional independence of the Judiciary from other Organs of the State. Judiciary, in terms of personnel, the Judges, is independent. Constitutional Bench Judgments have uniformly ruled that the Doctrine of Separation of Powers, though not specifically engrafted, forms part of the Basic Structure of the Constitution as its sweep, operation and visibility are apparent. Constitution has made demarcation, without drawing formal lines, amongst the Three Organs with the duty of the Judiciary to scrutinize the limits and whether or not the limits have been transgressed. Adjudication results in what is often described as Judge-Made Law. It is apparent that law-making within certain limits is a legitimate element of a Judge’s role, if not inevitable. It can be argued that there have been occasions when this Court has legislated beyond what can be strictly construed as pure interpretation. These are extraordinary cases that mandate a larger debate and discussion.”

Hon’ble Justice Sanjiv Khanna, Dr. Ashwani Kumar v. UOI, [Writ Petition (Civil) No. 738 of 2016].

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Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683 observed, Judges must know their limits. They must have modesty and humility, and not behave like Emperors. Legislature, Executive and Judiciary all have their own broad spheres of operation. It is not proper for any of these Three Organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.

Hon’ble Justice Hemant Gupta, State of Uttar Pradesh v. Dr. Manoj Kumar Sharma, [Civil Appeal No. 2320 of 2021] decided on 09.07.2021.

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Doctrine of Separation of Powers, though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of the Indian Constitution. The Constitution has made demarcation, without drawing formal lines between the Three Organs – Legislature, Executive and Judiciary. Separation of Powers between Three Organs is also nothing but a consequence of principles of equality enshrined in Article 14. A legislation can be invalidated on the basis of breach of the Separation of Powers since such breach is negation of equality under Article 14 [State of Tamil Nadu v. State of Kerala, (2014) 12 SCC 696].

There can be no rule of law, if there is no equality before the law. It is clear from judicial pronouncements and literature that Separation of Powers forms part of the Basic Structure of the Constitution. Violation of Separation of Powers would result in infringement of Article 14.

Hon’ble Justice L. Nageswara Rao, Madras Bar Association v. Union of India, [Writ Petition (Civil) No. 502 of 2021] decided on 14.07.2021.