DOCTRINE OF SEPARATION OF POWER
Doctrine of separation of power is a key feature of a democratic and constitutional government.
This doctrine prevents accumulation of power in the hands of any single government entity, and
divides them between different organs of the government while defining their powers and functions,
the role of these organs is to essentially keep a check on each other and prevent any one from
exercising arbitrary power.
In India, there are three organs of the government namely legislature, executive and judiciary and
their roles, functions, powers and scope are laid down in the constitution. The role of the legislature
is to make laws, role of executive is to implement and execute these laws and lastly, role of
judiciary is to interpret these laws and administer justice. These three organs cannot overstep their
authority and interfere in the workings of each others’ domain.
India is a common law country i.e. the power of the judges is not only limited to interpreting laws
but also to making and shaping them. The supreme authority to make laws lies with the legislature
or the parliament but the judgements given by the judges in courts have a binding effect and
becomes law of the land. The judges while deciding cases not only refer to the constitution but to
the prior judgements given by other judges which are known as precedents.
The doctrine of separation of power is asymmetric with India’s common law history. As discussed
above, it can be seen that the main aim of the doctrine is to draw boundaries between the
functioning of these three organs, but when we talk about the common law system, it can be seen
how Judiciary by making laws is clearly stepping in the shoes of Legislature. Judges in India have
given numerous judgements which have taken the shape of laws for example, in Keshavananda
Bharti vs. State of Kerala, the judiciary claimed that the parliament cannot amend the basic
structure of the constitution, which restricted the power of the legislature to carry out its functions.
In a country that follows the principle of parliamentary supremacy, it is the parliament which is the
sole authority vested with the power to make laws, it can amend any law and no court can overrule
any legislation made by the parliament. United Kingdom follows such system. Whereas India
follows the constitutional law model, according to which Constitution is the supreme law of the
country and it also limits the powers of the government to ensure that it cannot violate the
fundamental rights of its citizens. If India had adopted parliamentary supremacy, there would not
have been the problem of so many loopholes that exist in the laws right now. Because the law
making power is vested with the legislature as well as the judiciary, there are multiple
interpretations of a single law, there are more than required legislations on a single issue which
leads to inefficient governance and allows individuals to find loopholes to evade law.