2019 Doctrine Of Separation Of Power.docx

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DOCTRINE OF SEPARATION OF POWERS (Project Report)

Submitted to

Dr. Avinash Samal Faculty Member in Political Science

By

Rupali Vinod Ramteke B. A. LL. B. (Hons.) Student Semester – I, Section – C, Roll No. 136

Hidayatullah National Law University Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)

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DECLARATION I, Rupali Ramteke, hereby declare that, the project work entitled, “Doctrine of Separation of Powers” submitted to H.N.L.U, Raipur is record of an original work done by me under the able guidance of Dr. Avinash Samal, Faculty Member, H.N.L.U., Raipur.

RUPALI VINOD RAMTEKE Roll No. 136 01/09/2014

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ACKNOWLEDGEMENTS

Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard work and honesty. This research venture has been made possible due to the generous cooperation of various persons. To list them all is not practicable, even to repay them in words is beyond the domain of my lexicon. May I observe the protocol to show my deep gratitude to the venerated Faculty-in-charge Mr. Avinash Samal, for his kind gesture in allotting me such a wonderful and elucidating research topic.

RUPALI VINOD RAMTEKE

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Contents Page

Declaration Acknowledgements

1. Introduction 1.1 The Doctrine of Separation of Powers: A Contextual Outline 1.1.1 Definition 1.1.2 Importance

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1.2 Objectives 1.3 Scope of the study 1.4 Methodology of the study

2. Essence of Democracy

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2.1 Meaning of Separation of powers 2.1.1 The Legislature 2.1.2 The Judiciary 2.1.3 The Executive

3. 4. 5. 6.

Separation of Powers Judicial view on the Doctrine of Separation of Powers Conclusion References

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1. INTRODUCTION-

"Power tends to corrupt, and absolute power corrupts absolutely." - John Acton

1.1 THE DOCTRINE OF SEPARATION OF POWERS: A CONTEXTUAL OUTLINE1.1.1 DefinitionThe separation of powers, also known as trias politica, was coined by CharlesLouis de Secondat. The Doctrine of Separation of Power is the forerunner to all the constitutions of the world which came into existence since the days of the “Magna Carta”. The doctrine of the separation of powers divides the institutions of government into three branches: legislative, executive and judicial: the legislature makes the laws; the executive put the laws into operation; and the judiciary interprets the laws. The powers and functions of each are separate and carried out by separate personnel. No single agency is able to exercise complete authority, each being interdependent on the other. Power thus divided should prevent absolutism (as in monarchies or dictatorships where all branches are concentrated in a single authority) or corruption arising from the opportunities that unchecked power offers. The doctrine can be extended to enable the three branches to act as checks and balances on each other. Each branch’s independence helps keep the others from exceeding their power, thus ensuring the rule of law and protecting individual rights 1.1.2 ImportanceThe doctrine of separation of power in its true sense is very rigid and this is one of the reasons of why it is not accepted by a large number of countries in the world. The main object as per Montesquieu in the Doctrine of separation of power is that there should be government of law rather than having will and whims of the official. Also another most important feature of the above said

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doctrine is that there should be independence of judiciary i.e. it should be free from the other organs of the state and if it is so then justice would be delivered properly. The judiciary is the scale through which one can measure the actual development of the state if the judiciary is not independent then it is the first step towards a tyrannical form of government i.e. power is concentrated in a single hand and if it is so then there is a cent percent chance of misuse of power. Hence the Doctrine of separation of power do plays a vital role in the creation of a fair government and also fair and proper justice is dispensed by the judiciary as there is independence of judiciary. Also the importance of the above said doctrine can be traced back to as early as 1789 where the Constituent Assembly of France in 1789 was of the view that “there would be nothing like a Constitution in the country where the doctrine of separation of power is not accepted”. Also in 1787 the American constitution inserted the provision pertaining to the Doctrine of separation of power at the time of drafting of the constitution in 1787. Further in the Indian constitution also there provisions pertaining to the doctrine of separation of power.

The framers of the Indian Constitution did not recognize the doctrine of separation of powers in a rigid sense. Unlike the American Constitution, this doctrine has not been strictly applied in the Indian Constitution. It cannot be explicitly seen but can be witnessed through the differentiation made in the discharge of functions by the different branches of the government in the Constitution. This doctrine is not completely alien to our Constitution. As we retrospect, relevant classic jurisprudence like Ram Jawaya v. State of Punjab [A.I.R. 1955 S.C. 549] clearly elucidates this principle. Chief Justice Mukherjea in the instant case said: “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. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way”.

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Thus, it can be inferred from the above that these organs of the government are allowed to exercise their functions but within certain limits. These limits are silver lined constitutionally and the same also guarantees limitable encroachments. The Constitution of India has been founded upon the fundamental principle of Rule of law. It must be remembered that the quality of excellence of governance is evaluated on the touchstone of efficacy and the strength of Judicial mechanism.

1.2 OBJECTIVESSet in the above perspective or background, the broad objective of the study is to:  Analyze the scheme of Separation of Powers as envisaged under the Indian Constitution.  To go in depth about the Separation of Powers in India.  To study Judicial view of separation of powers.

1.3 SCOPE OF THE STUDYThe present Project is an attempt to analyze the scheme of Separation of Powers as envisaged under the Indian Constitution and the difficulties faced by the three wings of the government in practice while implementing the provisions of the Constitution in letter and spirit. It also aims to draw a comparative analysis with the American Constitution scheme of Separation of Powers. Throughout the course of the project, various foreign and Indian cases have been discussed wherein the Courts have recognized that there is no clear straightjacket formula to determine separation of powers. Given the complexity of the democracies all over the world, overlap in jurisdiction is bound to arise. However, each wing of the government must keep an internal check to ensure they do not end up violating the rights of the people. The Hon’ble Supreme Court of India has recognized that Separation of Powers is a part of the basic structure of the Indian Constitution. It is in

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this context, that the author felt the need to examine the ‘Constitutional Plan and Practice with respect to Separation of Powers in India’. 1.4 METHODOLOGY OF THE STUDY-

Given a study of this kind, a descriptive analytical method has been followed to carry out the study in historical method.

Montesquieu: The theory of Doctrine of Separation of Power was first propounded by Montesquieu in as early as in 1747 published in his book namely ‘Espirit des Louis’ (The spirit of the laws). Montesquieu found that if the power is concentrated in a single person’s hand or a group of people then it results in a tyrannical form of government. To avoid this situation with a view to checking the arbitrariness of the government he suggested that power of governance there should be clear cut division of power between the three organs of the state, i.e. Executive, Legislative and the Judiciary. This made Montesquieu propound the above said theory and according to this it was held that each organ of the state should be confined to its own spheres i.e. there should not be any overlapping of jurisdictions of the organs of the state. Montesquieu studied the English constitution for two years and after that he came to the conclusion that the stability of the English Constitution is because of its adherence of the separation of power. Montesquieu had clearly misconstrued the statement pertaining to the British constitution and later on he was criticized and in a very sarcastic manner its criticism was made and it was stated that“Montesquieu saw the foggy England sitting in the sunny wine yard of Paris and he completely misconstrued the statement”.

Further Montesquieu explained the doctrine in its own word they are; “When the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. Again,

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there is no liberty if the judicial power is not separates from the legislative and executive powers. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control; for the Judge would then be the legislator. Where it joined with the executive power, the Judge might behave with violence and oppression. There would be an end of everything was the same man or the same body to exercise these three powers…”

After the end of the War of Independence in America by 1787 the founding fathers of the American constitution drafted the constitution of America and in that itself they inserted the Doctrine of separation of power and by this America became the first nation to implement the Doctrine of separation of power throughout the world. The Constituent Assembly of France in 1789 was of the view that “there would be nothing like a Constitution in the country where the doctrine of separation of power is not accepted”. In France, where the doctrine was preached with great force by Montesquieu, it was held by the more moderate parties in the French Revolution3. However the Jacobins, Napoleon I and Napoleon III discarded the above theory for they believed in the concentration of power. But it again found its place in the French Constitution of 1871. Later Rousseau also supported the said theory propounded by Montesquieu. England follows the parliamentary form of government where the crown is only a titular head. The mere existence of the cabinet system negates the doctrine of separation of power in England as the executive represented by the cabinet remains in power at the sweet will of the parliament. In India under the Indian constitution there is an express provision under article 50 of the constitution which clearly states that the state should take necessary steps to separate judiciary from the executive i.e. independence of judiciary should be maintained.

Checks and Balances:

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The doctrine of separations of powers may be traced back to an earlier theory known as the theory of mixed government from which it has been evolved. That theory is of great antiquity and was adurnbrated in the writings of Polybius, a great historian who was captured by the Romans in 167 BC and kept in Rome as a Political hostage for 17 years in his history of Rome Polybius explained the reasons for the exceptional stability of Roman Government which enabled Rome to establish a worldwide empire. He advanced the theory that the powers of Rome stemmed from her mixed government. Unmixed systems of government that is the three primary forms of government namely, Monarchy, Aristocracy and Democracy – were considered by Polybius as inherently unstable and liable to rapid degeneration. The Roman constitutions counteracted that instability and tendency to degeneration by a happy mixture of principles drawn from all the three primary forms of government. The consuls, the senate and the popular Assemblies exemplified the monarchical, the aristocratic and the democratic principles respectively. The powers of Government were distributed between them in such a way that each checked and was checked by the others so that an equipoise or equilibrium was achieved which imparted a remarkable stability to the constitutional structure. It is from the wok of Polybius that political theorist in the 17th Century evolved that theory of separation of powers and the closely related theory of Checks and Balances.

2. ESSENCE OF DEMOCARACY-

The doctrine of separation of powers is an inseparable part of the evolution of democracy. Democracy dictates a system in which every citizen can, without fear of retribution, breathe, express himself, and pursue his or her interests. It enables him to live a life of his choice to the extent he does not encroach upon the rights of the other people. It is in this context that it can be presupposed that a system of balances and counter balances exists among the three organs of the government to ensure a strong nurtured democratic system. The Legislature, the Judiciary and the Executive are the pillars of democracy. No democracy indeed contemplates conferment of absolute power in any single authority.

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Therefore the system of checks and balances is one of the most salient features of our constitutional scheme. The three organs can practically not be segregated into three watertight compartments due to their interdependence on each other to ensure efficacious governance. They have to work in accordance and in consonance to achieve a meaningful sustenance and purposeful progress of citizens. Though, minimum encroachment is always desirable. As has been observed by the Hon’ble Chief Justice Balakrishnan, “the Constitution lays down the structure and defines the limits and demarcates the role and function of every organ of the State including the judiciary and establishes norms for their inter relationships, checks and balances.” Thus, all the three organs are expected to work in harmony instead of giving primacy to only one of the organs. Bestowing absolute power is anathema to democracy. The very objective of the historical freedom struggle was to protect and promote the democratic rights of the people.

The conscience of our Constitution speaks through its Preamble and the dynamics of its goal is spelt-out, in its various provisions. The will of the people finds its best expression in the very words as inscribed in the Preamble “We the People of India” and “do hereby Adopt, Enact and Give ourselves this Constitution”. Thus, it is the people who are sovereign and they exercise this sovereign power in choosing their representatives to the Parliament.

2.1 MEANING OF SEPARATION OF POWERS-

A complete and absolute separation of power is practically and theoretically not possible. Though, it is always possible to give a broad meaning to this doctrine. The basic concept of the separation of powers would mean: a. That the same persons should not form part of more than one of the three organs of government. b. That one organ of government should not control or interfere with the work of another.

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c. That one organ of government should not exercise the functions of another. Such a clear demarcation is always desirable to keep the democratic system of a nation intact. If legislative and executive powers are vested in the same person, there would be no liberty. The same follows if judiciary was distinct from the legislature and executive. If all powers are vested in the same body it will lead to arbitrariness. Giving legislative power to judiciary would amount to biasness and executive power would lead to despotism and tyranny. As of today, the Parliament exercises political and financial control over the Executive, and there are inherent checks and balances to keep each organ within the limits of Constitutional power. There is no relationship in this world which is perfect and is prone to certain tensions and strains. But, the way out to this issue is through the development of healthy conventions. There should be mutual respect for each other keeping in mind the purpose of their exercise of these powers. Ultimately the aim is to achieve a ‘welfare state’; therefore a healthy coordination among the three can work wonders.

2.1.1 The LegislatureThe Legislature has been accorded high-esteem in the Indian Constitution. It is primarily concerned with enactment of general rules of law that are germane to all aspects of the conduct of its citizens and institutions. The Parliament is the Union Legislature of India comprising two bodies namely Lok Sabha and the Rajya Sabha. It enacts laws, impose taxes, authorizes borrowing, and prepares and implements the budget, has sole power to declare war, can start investigations, especially against the executive branch, appoints the heads of the executive branch and sometimes appoints judges as well as it has the power to ratify treaties. As it anchors for the will of the people by ensuring a true and intact democracy, it can be said that it cannot be done all by the Legislature itself. It is an imminent threat to democracy if an absolute power is given to the nation’s purse holder. By making the executive accountable to the popular house, the Constitution ensures a proper mechanism of checks and balances to the doctrine of separation of powers. The entire system has other facets which can help achieve the same. Therefore, this brings into question the role of the other two pillars: the judiciary and the Executive.

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2.1.2 The JudiciaryThe framers of our Constitution drafted it so meticulously that it provides for an independent and impartial Judiciary as the interpreter of the Constitution and as custodian of the rights of the citizens through the process of judicial review. This mandates the judiciary to interpret the laws but not to make them. They are not to lay down the general norms of behaviour for the government. The higher judiciary in India, especially the honourable Supreme Court, the most powerful judiciary in the world, has become an epicentre of controversy over its role in entertaining and deciding public-interest-petitions. In deciding these petitions, the judiciary issues many directions to the Government which includes framing of legislation in many areas. The role of the judiciary should only be limited to scrutinizing the constitutionality of the legislation and not directing the government to enact legislation. The scope of judicial review does not extend beyond enquiring whether an impugned legislation or an executive action falls within the competence of the Legislature or of the executive authority or is consistent with the Fundamental Rights guaranteed by the Constitution or with its other mandatory provisions. The three organs have to exercise their functions keeping in mind certain constitutionally assigned encroachments. However according to Chief Justice Subba Rao in Golak Nath v. State of Punjab [A.I.R. 1967 S.C. 1643]: “It [the Constitution] demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them. …..No authority created under the Constitution is supreme; the Constitution is supreme and all the authorities function under the supreme law of the land.” Therefore if any of the three organs tries to expand its jurisdiction it would follow an unavoidable conflict and affect the harmonious efficacy of the tripartite system of government. No organ has to superintend over the exercise of powers and functions of another, unless the Constitution strictly so mandates. Nonetheless, the interpretation by the judiciary of the laws and regulations adds flesh and blood to the basic structure of the Constitution. The Honorable Supreme Court has itself construed that the concept of Separation of powers is a “basic feature” of the Constitution. So if one encroaches the territory of the

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other it would be a clear violation of the basic structure of the Constitution and judiciary is not an exception to the same. The entire debate of limitation of each organ’s power has gone through a drastic change in the past two decades. Justice Pathak in Bandhua Mukti Morcha v. Union of India [1984 3 S.C.C. 161] said: “It is a common place that while the Legislature enacts the law the Executive implements it and the Court interpret it and, in doing so, adjudicates on the validity of executive action and, under our Constitution, even judges the validity of the legislation itself. And yet it is well recognized that in a certain sphere the Legislature is possessed of judicial power, the executive possesses a measure of both legislative and judicial functions, and the Court, in its duty of interpreting the law, accomplishes in its perfect action in a marginal degree of legislative exercise. Nonetheless a fine and delicate balance is envisaged under our Constitution between these primary institutions of the State”. It can be clearly inferred from the above that one may exercise the other one’s function up to a limited extent but the issue that predates the Indian scenario is whether this system is working in a well-balanced manner.

2.1.3 Executive-

The Executive can veto laws, can command of the military, makes decrees or declarations (for example, declaring a state of emergency) and promulgate lawful regulations and executive orders, can refuse to spend money allocated for certain purposes, can appoints judges, and has the power to grant pardons to convicted criminals. Like the other two pillars of democracy, the Executive is equally expected to be free of intrusions from the other two. It is always said that Executive is independent of the two but the incongruity persists. It is completely eroded in actual practice. The reason is that each time the executive is questioned for its actions by the judiciary and the Legislature. This dilutes the independence of the Executive to the maximum. It’s not that the question of answerability pops up only in the case of executive. The judiciary and legislature are equally answerable but in their cases, a built-in system from within would be available for discharging those functions. This is the real state of affairs, which exists in practice.

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Though the Indian Constitution allocates executive powers to the President and Governors (Article 53 (1) and Article 154 (1), they are empowered with certain legislative powers (Articles 123, 213 and 356) and certain judicial powers (Articles 103 and 192). Similarly the legislature exercises certain judicial functions (Articles 105 and 194) and judiciary exercises few legislative and executive functions (Articles 145, 146, 227 and 229). However the judiciary is made separate from the executive in the public services of the State (Article 50). In Bihar, the scheme of the separation of the judiciary from the executive was introduced on an experimental basis but later on it was extended throughout the State. In some states, complete separation of judiciary from executive has been achieved through legislation. In seven states, complete separation of judiciary from executive has been effected through executive orders.

3. THE SEPARATION OF POWERS: It is often understood that in our country the debate about the separation of powers dates as long back as the Constitution itself. It was extensively debated in the Constituent Assembly. It was not given constitutional status in our Constitution finally but it does clearly seem that the constitution of India has been made keeping the separation of powers doctrine in mind, but nowhere is this explicitly stated or embraced by the constitution itself. Since ours is a parliamentary system (insert def on parl sys of gov here)of governance, though an effort has been made by the framers of the constitution to keep the organs of the government separated from each other, but a lot of overlapping and combination of powers has been given to each organ. The legislative and executive wings are closely connected with each other due to this; the executive is responsible to the legislature for its actions and derives its powers from the legistlature. The head of the executive is the president, but a closer look shows that he is only a nominal head and the real power rests with the Prime Minister and his Cabinet of ministers as in Article 74(1). In certain situations the President has the capacity to exercise judicial and legislative functions. For example, while issuing ordinances Art? The judiciary too performs administrative and legislative functions. The parliament too may perform judicial functions, for example if a president is to be impeached both houses of Parliament are to take an active participatory role. Thus all three organs act as a check and balance to each other and work in coordination and cooperation to make our parliamentary system of governance work. India being

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an extremely large and diverse country needs a system like this where all organs are responsible to each other as well as coordinated to each other, otherwise making governance possible becomes a very rigid and difficult task. It is important to note that the separation of powers is still an important guiding principle of the constitution. Most noteworthy is our judicial system which is completely independant from the executive and the legislature. According to Article 137, the High Courts and Supreme Courts have the power of judicial review which empowers them to declare any law passed by the parliament unconstitutional if it so decides. As in regard to the judges, they are extremely well protected by the Constituition, their conduct is not open to discussion in the Parliament and their appointment can only be made by the President in consultation with the Chief Justice of India and the judges of the Supreme court. Here a discussion on judicial activism is apt, the debate about judicial activism contemplates judges assuming legislative or executive functions and there is much concern among the protagonists of the activism debate about judges taking over and intruding upon the functions of the legislature and executive. A reference to Montesquieu’s passage in his book Separation of Powers may be made, “Again there is no liberty, if the power of judgment be not separated from the legislative and executive powers. Were it joined with the legislative the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor. Miserable indeed would be the case, where the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, of enacting laws, that of executing the public resolutions and that of judging the crimes or differences of individuals.” Montesquieu’s concern raised in the passage extends to the combination of powers exercised by all three organs, and though there is severe debate regarding judges intruding over the functions of the legislative and the executive, it must be kept in mind that the other two organs must also them maintain a safe distance from the workings of the judiciary. It can be understood thus that there is a difference when there are ‘essential’ powers of one of the organs of the government and the ‘incidental’ powers of the organs. Hence, though one organ cannot usurp the ‘essential’ powers of an organ, it can exercise its powers on the ‘incidental’ powers for smooth cooperative running of the nation. This distinction clearly demarcates the the amount of power one organ can wield over the activities of another. For example, though the judiciary has the right to judicial activism to check legislatures which may be unconstitutional, it cannot usurp powers such as making laws themselves.

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But it is clear that the Separation of Powers doctrine has not been implemented in its strictest format in our country nor been given Constitutional status but a diluted and modern approach is followed to aid and guide our parliamentary system of governance.

4. JUDICIAL VIEW ON THE DOCTRINE OF SEPARATION OF POWERAs clearly mentioned about the separation of power there were times where the judiciary has faced tough challenges in maintaining and preserving the Doctrine of separation of power and it has in the process of preservation of the above said Doctrine has delivered landmark judgments which clearly talks about the independence of judiciary as well as the success of judiciary in India for the last six decades. The first major judgment by the judiciary in relation to Doctrine of separation of power was in Ram Jawaya v state of Punjab [AIR 1955 SC 549]. The court in the above case was of the opinion that the Doctrine of separation of power was not fully accepted in India. Further the view of Mukherjea J adds weight to the argument that the above said doctrine is not fully accepted in India. He states that: “The Indian constitution has not indeed recognize the doctrine of separation of powering 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”. Later in I.C.Golak Nath v State of Punjab, Subha Rao [AIR 1967 SC 1643], C.J opined that: “The constitution brings into existence different constitutional entitles, namely the union, the state and the union territories. It creates three major instruments of power, namely the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping there limits. They should function with the spheres allotted to them”

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The above opinion of the court clearly states the change in the courts view pertaining to the opinion in the case of Ram Jawaya v state of Punjab related to the doctrine of separation of power.

5. CONCLUSIONBroadly speaking the doctrine of the separation of powers is a valuable doctrine. In the American constitution there is a system of checks and balances and the power vested in one organ cannot be exercised or encroached upon by the other. At no point of time was the doctrine accepted in its strict sense in England. In the British ministry there exists a union of persons but separation of organs. Thus we find several branches of government headed by the same persons. The doctrine of separation of powers is not accepted fully in the constitution of India and one may agree with the observation of Mukherjee,J. in Ram Jawaya v state of Punjab “The Indian constitution has not indeed recognize the doctrine of separation of powering 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”.

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