Published by: Satamita Ghosh


Separation of Powers means division of power horizontally between the three branch of the Government i.e. Legislature, Executive and Judiciary. Different Constitutional systems vest each of the wings with varied levels of strength. In some countries the judiciary may only the power to review and strike down the actions of the executive but not the legislature whereas in the other it may be strong enough to have a regular clash with the legislature. 


The idea of the doctrine of Separation of powers is deeply woven in the fabric of the Indian Constitution, but the same has not been defined or clearly mentioned, but the same forms a very important aspect of the entire system. This doctrine is applied in order to prevent concentration on all the powers in one of the branch leading to domination of one. Separation of powers helps preserve the liberty and encourage democratic deliberation, through preventing a single body from enjoying supremacy, each body acts as checks and balance on the act of the other. The Indian Constitution has not accepted this doctrine in its entirety but, instead it has divided the work of each organ of the government, so that there is no confusion or ambiguity between the working of the each branch. In the case of Ram Jawaya Kapoor vs. State of Punjab, the Hon’ble Supreme Court, it was held that “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.” Legislature, executive and judiciary are required to function within their own demarcated areas without disturbing the functioning of the other organ. The proper functioning of a democracy depends independent functioning of all the organs, in case there is an encroachment in the function of one branch by the other the same would lead the entire system into a situation of chaos. There have been various cases wherein the doctrine has been discussed in details, the case University of Kerala vs. Council, Principals, Colleges, Kerala & Ors., analysed herein below discusses the doctrine in the light of the power of the Court after getting recommendation from an expert body can implement the said recommendation by a judicial order or whether court can send it to legislature to consider making a legislation of the recommendation. 



Case Details: Civil Appeal no.887 of 2009 was filed by the Appellant in the Hon’ble Supreme Court challenging the impugned judgment of the Kerala High Court, quashing the directions by way of letters/circulars issued by various universities directing change of the election mechanism from existing parliamentary to presidential, thereby allowing the colleges to carryout elections following system of their choice. 

Bench: Markande Katju, J and Ashok Kumar Ganguly, J 

Citation: (2010) 1 SCC 353

Facts: BA degree course student fell short of attendance and was not allowed to take the examination. The shortage of attendance was a result of his participation in the student’s union activities. The Principal did not allow him to appear for the examinations. This action of the Principal was challenged in a writ petition in the Kerala High Court, stating that the same was also politically motivated in order to restrain the functioning of student’s union in the college. The Hon’ble Court upheld the action of the Principal as the same was according to the rules. 

The another issue raised in the said writ petition is that whether it is legal to prohibit politics in college premises and restricting the students from participating in the political activities apart from official ones and whether the same is violation of rights under Article 19(1) (a) and (c) of the Constitution. The Hon’ble division bench of the Court opined that the educational institutes are free to lay down their own code of conduct to maintain discipline in their respective institutions, therefore the restriction imposed on students regarding attending and organizing political activities where held not to be in violation of the articles 19(1)(a) and (c) of the Constitution. The Kerala High Court also opined that the directions issued to carryout elections in presidential system shall stand set aside. This is the impugned judgment of the Hon’ble Court which was challenged in the Hon’ble Supreme Court. 

The Supreme Court was concerned about the method of carrying out student’s union elections resulting in criminalization of the said activities, therefore the Hon’ble Court vide its order dated 12th December 2005 directed appointment of Lynhdoh Committee, headed by Mr. J M Lyngdoh, Former Chief Election Commissioner along with five other members. The committees submitted its report on 23rd May 2006 and vide its order dated 22nd September 2006; the Supreme Court directed that the said recommendations be followed in all universities for carrying out elections. 


Whether after getting recommendations from an expert committee can the Court implement the same by a judicial order or it has to send to same to legislature for its consideration and implementation, i.e. can the court by its interim order implement the recommendations of the Lyngdoh Committee?

  • Whether the order dated 22nd September 2006 results in judicial legislation?

  • Whether the Constitution of India permits the Judiciary to legislate and if it does, will the same not amount to a direct violation of the doctrine of separation of power?

Opinion of Markande Katju, J:

Justice Katju has answered issue no. 2 in affirmative, stating that the interim order dated 22nd September 2006 amount to judicial legislation, which as per his opinion is not permitted under the Constitution of India.

He made reference to various judgment of the Hon’ble Supreme Court, such as, Employees welfare Association vs. Union of India, wherein the Supreme Court held that any authority carrying out legislative functions cannot be directed, also in the case of Union of India vs. Prakash P Hinduja, it was held that the court cannot direct legislation. In the case of Divisional Manager, Aravali Golf Club & Anr. vs. Chnadra Hass & Anr.  it was held that if there is a law the judges definitely can enforce it but they cannot create a law and seek to enforce it. This according to Justice Katju is a clear violation of the doctrine of separation of powers and that the Court after receiving the report of the committee, instead of passing an order for implementation of the same, should have sent it to the legislature or the concerned authority to make law on the same, either accepting the report in its entirety or parts thereof. In the case N K Prasada vs. Govt. of India, it was held that the Court should not encroach in the functions of the other organs of state. Justice Katju stated that the question are of great constitutional importance and therefore shall be examined by Constitutional Bench of the Supreme Court. 

While agreeing with the opinion of Justice Katju on requirement of opinion of a constitutional bench, Justice Ashok Kumar Ganguly stated that, the importance of doctrine of separation of powers lies in preservation of human liberty by avoiding concentration of power in one hand. This doctrine is of great importance but in practice to impose a complete separation of powers is impossible. According to him in modern world the powers and area of function of the legislature, executive and judiciary overlaps and the power so exercised by them is coextensive. In the case of Nand Kishor vs. State of Punjab, it was held that the court is not a mere interpreter of law, but it is much beyond that. It as an organ of the state is a source of law.


Separation of powers is an important principal which is envisaged in the constitution of India, each of the organs has its defined functions that it is required to perform. But the said doctrine has not been implemented in its strictest sense in our country therefore one can clearly observe some overlap in the functions of the legislature, executive and the judiciary for example Article 123 of the Constitution provides for ordinance making power to the Executive, similarly articles 103 and 192 provides judicial powers to the executive etc. In the case of Indira Nehru Gandhi vs. Raj Narain, it was held by Chandrachud, J that “the concentration of power in 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.” So far as the role of judiciary and importance of judicial legislations is concerned it is a known fact that the judiciary is the guardian of the fundamental rights and in case of any violation of the same can declare legislation void.

The power of judicial review vested with the judiciary is an important weapon, as it can check the action of both the legislature and executive. In areas where there are no legislations or rules the judiciary can issue guidelines which can later be made into legislation upon the consideration of the legislature, this has been done in the past in the Vishakha case, wherein the guidelines against sexual harassment at work place was laid down by the Supreme Court.

In various cases it has been observed that the judges not only interpret the law but also make laws, the present society demands an active judiciary, which can interpret make the previously existing laws applicable in the present times. Also Article 141 also provides that the decisions of the Supreme Court shall be binding on all the lower courts in India. It is important to widen the power of judiciary and allow judicial legislation for the progress of the society and benefit of the people. 

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