The Oxford Handbook of the Indian

Constitution
Sujit Choudhry (ed.) et al.

https://doi.org/10.1093/law/97801987048
98.001.0001
Published online: 06 February 2017
Published in print: 01 March 2016
Online ISBN: 9780191774034 Pr
ISBN: 9780198704898

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CHAPTER

p. 253
15 Separation of Powers 
Ruma Pal

https://doi.org/10.1093/law/9780198704898.003.0015 Pages 253–269

Published: 06 February 2017
 Abstract
This chapter examines how the issue of separation of powers is treated in the Indian Constitution.
More speci cally, it considers whether the separation of powers is a principle in the constitutional law
of India and if so, what sort of doctrine of separation of powers is embraced by the Indian Constitution.
The chapter begins with an overview of the three models of separation of powers articulated in the
Indian Constitution, along with the constitutional provisions showing the functional overlap between
the executive, legislature, and judiciary. It then turns to a discussion of the legislative branch’s judicial
powers under the Constitution, as well as its control of the judiciary; the executive’s administration,
legislative, and judicial functions; and the courts’ judicial power and independence. Finally, it looks at

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the allocation of powers relating to governance to autonomous bodies such as the Election
Commission and the Comptroller and Auditor-General.

Keywords: autonomous bodies, constitutional law, Election Commission, executive, India, Indian
Constitution, judicial power, judiciary, separation of powers
Subject: Constitutional and Administrative Law, Law
Series: Oxford Handbooks
Collection: Oxford Handbooks Online

I. Introduction

LATELY the issue of separation of powers has become increasingly the subject matter of debate—whether it
is the Government’s move to protect convicted Members of Parliament, or in the matter of appointment of
1
Supreme Court judges, or indeed a di erence of opinion within the judiciary itself. Much of the turf war
stems from a confusion as to the meaning of ‘power’ and, as Seervai put it, to the ‘mistaken belief that
power is property’. Power in fact ‘is a means to an end, and it must be conferred on that authority which can
2
best achieve that end’. In other words, the separation is of functions and the classical theory of separation
3
of powers is nothing more than a ‘doctrine of functional specialization’. But no one who values political
freedom can dispute Montesquieu’s idea that monopoly of powers, however de ned, by any one of the
4
di erent organs created and functioning under a Constitution, written or unwritten, leads to tyranny, and
that separation of powers of governance in some form is necessary with each of the separate authorities
acting as a check and balance on the exercise of power of the others. The questions that then arise are: (a)
whether the separation of powers is a principle in Indian constitutional law; and (b) if so, what sort of
doctrine of separation of powers the Indian Constitution embraces.

Generally speaking the areas of governance have been classi ed into the executive or the administrative
branch (including the enforcement of laws); the legislative or the enactment of laws; and the judicial or the
p. 254 resolution of disputes relating to the enactment, enforcement, and application of laws. Of the two models
of separation commonly followed, one provides for a rigid separation of powers between these three
authorities following Montesquieu’s dictum. An example of this is the American Constitution under which:

Separate departments … [are] created for the exercise of legislative, executive and judicial power,
and care taken to keep the three as separate and distinct as possible, except so far as each is made a
check upon the other to keep it within proper bounds, or to prevent hasty and improvident action.
The executive is a check upon the legislature in the veto power … the legislature is a check upon
both the other departments through its power to prescribe rules for the exercise of their authority,
 and through its power to impeach their o cers; and the judiciary is a check upon the legislature by
5
means of its authority to annul unconstitutional laws.

The second model is of a looser separation or the Westminster model, which is based on the principle of the
supremacy of Parliament. This model, though unwritten, was followed by England prior to its joining the
European Union, allowing Parliament ‘to change the law in any way it pleases. No statute can be attacked on
6
the ground that it trespasses on a eld reserved to another organ of the State.’ The power of judicial review
of legislative action was consequently limited to questioning delegated legislation to the extent that the
delegation is excessive, beyond the scope of the statute seeking to delegate the power of legislation to the
7
executive, or unreasonable. A distinction was made between the legislative and executive wings ‘[b]ut

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behind this façade lay the “e cient secret” of the English Constitution’, the close association of these two
wings. The earlier concept of parliamentary sovereignty and the scope of judicial review of legislative action
have undergone changes subsequent to the acceptance by Britain of the European Communities Act 1972.
Now ‘under the terms of the 1972 Act it has always been clear that it [is] the duty of a United Kingdom Court,
when delivering nal judgment, to override any rule of national law found to be in con ict with any directly
9
enforceable rule of Community law’. Executive and legislative powers, however, continue to be interlinked,
and the British cabinet is a ‘hyphen which joins, a buckle which fastens, the legislative part of the State to
10
the executive part’.

The Indian Constitution provides a third model of separation of powers. While there is recognition of
legislative, executive, and judicial bodies, it does not expressly vest the di erent kinds of power in the
11 12
di erent organs of the State (except the executive powers in the President and governors), nor is there
any exclusivity in the nature of functions to be performed by them. Unlike Westminster, Parliament in India
p. 255 being limited by a written constitution is not supreme and it does not possess the sovereign character of
13
the British Parliament. In India the Constitution is supreme and legislation contrary to constitutional
14
provisions is void. Despite the Supreme Court’s observations to the contrary, separation of powers under
the Constitution between the three organs of the State is not equal and the executive has been given
dominant powers. The constitutional allocation of powers must be seen in the background of the
Constituent Assembly debates where the discussion on separation of powers was limited to separation of the
executive from the judiciary because, in a parliamentary democracy as sought to be set up by the framers of
the constitution, those who form the majority in the legislative bodies necessarily govern the country. As
Acharya Kripalani stated during the early years of the Lok Sabha:

Let there be no camou age. Legislature practically means the executive. It is absurd to say that the
Legislature is a free body of persons. Today the Executive is the legislature but the legislature may
not be the Executive. The executive is the legislature in a party system democracy. In a centralized
15
democracy there is no di erence.

Like the Westminster model, there is no real ‘separation’ as such between the executive and legislative
authorities under our Constitution. But it has gone further in providing for a functional overlap between the
16
legislative, executive, and judicial wings of government, so that there is in fact no strict separation of
powers with each of these organs empowered to carry out functions which would generally be considered
within the purview of the other. For example, since the Constitution provides wide powers of judicial review
of administrative, legislative, and judicial action, the judiciary is often called upon to discharge what may be
termed as quasi-legislative or executive actions. Again, executive functions have been distributed to
authorities that are required to function independently of all three organs of governance such as the
17
Election Commission and the Comptroller and Auditor General, and legislative functions have been
granted to independent statutory bodies. The present chapter is limited to expounding this lack of
separation and the functional overlap in the Indian constitutional context. The issue of separation of powers
 18
has received a somewhat erratic interpretation by courts in India. This chapter therefore begins with the
constitutional provisions showing the functional overlap before considering the judicial approach.

p. 256
II. The Legislature

As stated earlier, unlike England, the Indian Constitution, by virtue of being written, has rmly rejected the
theory of parliamentary sovereignty. However, subject to abiding by constitutional limitations enforced
through judicial review, the powers of Parliament and State legislatures to enact laws are plenary.
Parliament has the right to legislate on the constitution, organisation, jurisdiction, and powers of the

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19
Supreme Court and High Courts. State legislatures have a similar power with regard to the District and
20 21
Subordinate Judiciary, as well as the power to determine the jurisdiction of all courts within its territory.
22
Parliament can also determine the number of judges to be appointed in the Supreme Court, and has the
23
power to remove judges of the Supreme and High Courts by impeachment. Terms and conditions of
24
service, including salaries of judges, are also subject to legislative control.

1. Judicial Powers
Legislatures exercise judicial powers under the Constitution. Examples include the case of impeachment of
25 26
judges and contempt of legislatures. Further, the Speakers/Chairmen, while exercising powers and
27
discharging functions under the Tenth Schedule to the Constitution, act as a tribunal. Legislatures can also
change the basis on which a decision is given by a court and thus in e ect nullify the impact of a judicial
decision. Such retrospective validation of a law declared by a court to be invalid is usually resorted to after a
28
tax is declared as illegally collected under an ine ective or an invalid law. However, the cause for
ine ectiveness or invalidity must be removed before validation can be said to take place e ectively:

The most important condition, of course, is that the Legislature must possess the power to impose
the tax, for, if it does not, the action must ever remain ine ective and illegal. Granted legislative
competence, it is not su cient to declare merely that the decision of the court shall not bind for
that is tantamount to reversing the decision in exercise of judicial power which the legislature does
29
not possess or exercise.

29 Shri Prithvi Cotton Mills Ltd v Broach Borough Municipality (1969) 2 SCC 283 [4].

p. 257 Also, no legislature can set aside an individual decision inter partes and a ect their rights and liabilities
alone. ‘Such an act on the part of the legislature’ has been held by the Supreme Court to amount to
‘exercising the judicial power by the State and to function as an appellate court or tribunal, which is against
30
the concept of separation of power’.

2. Legislative Control of the Judiciary

To counter early successful legal challenges to land reform measure and to limit the power of judicial
review, the Constitution was amended by the Constitution (First Amendment) Act 1951. Article 31B, which
was added to the Constitution, along with the Ninth Schedule, provides that none of the Acts and
Regulations speci ed in the Ninth Schedule can be challenged on the grounds that they are inconsistent
with or abridge the rights conferred by Part III, notwithstanding any judgment or decree of any court or
tribunal to the contrary. This allows statutes in violation of fundamental rights and held to be void by a
court to continue in force by the simple expedient of being included in the Ninth Schedule by way of a
31
constitutional amendment.
 Another important example of the legislature holding powers traditionally reserved for the judiciary came
by way of the Forty-second Amendment, enacted in 1976. The Amendment introduced Articles 323A and
323B, which authorise Parliament and the State legislatures, respectively, to create tribunals to which the
power of adjudication of disputes on various subjects can be transferred while excluding the jurisdiction of
the courts in respect of those subjects. Both Articles also made it possible to totally exclude the powers of
judicial review under Articles 32 and 226 and vest such powers in tribunals legislatively. Finally, the power
of impeachment of judges is reserved to Parliament, although it ultimately depends on parliamentary
32
majorities to determine the outcome of the procedure.

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III. The Executive

Theoretically, under a strict separation of powers the executive should only carry out administrative
functions including the implementation of laws and maintenance of law and order. However, the ‘functional
overlap’ prevailing under the Indian Constitution allows the executive to perform, in addition to
administration, key legislative and judicial functions.

p. 258 1. Legislative Powers

While Article 245 empowers Parliament and State legislatures to make laws for the whole of the territory of
India and of a State, respectively, the executive has the primary responsibility for the formulation of
governmental policy and its transmission into law. Bills originate with the executive and with a majority in
33
Parliament or the State legislatures, it follows that the executive predominates in the legislative process.
Additionally, Article 245 does not provide or prohibit legislation by the executive. In fact, the powers of the
executive at the Centre on matters in respect of which Parliament has the power to make laws are, under
Article 73, coextensive with Parliament. The power is exercised in the name of the President, who is to act on
the advice of his ministers. A similar power is given under Article 162 to the Governor, coextensive with the
State legislature. Executive orders under either of these Articles have an equal e cacy as an Act of the
34
Parliament or State legislature, as the case may be. Executive legislation consequently covers a broad
spectrum and is extensively used. The executive exercises such power when there is no legislation covering
35
the eld or as a delegate of the legislative bodies.

As far as delegated legislation is concerned, there are mainly two checks in this country on the power of the
legislature to delegate. There can be no delegation which amounts to ‘abdication and self-e acement’ by
36
the concerned legislative body. Judicial determination of the line beyond which the legislative power
cannot be delegated has wavered, but rarely have the courts struck down an executive order on the ground
37
that there exists excessive delegation. In order to make the power valid, courts have generally construed
the power, where possible, in such manner that it does not su er from the vice of delegation of excessive
38
p. 259 legislative authority. The position has been further complicated by the judicially evolved doctrine of
‘conditional legislation’. Thus, the decision of the executive for extension of laws to areas not covered by a
law ‘with such restrictions and modi cations as it thinks t’ by noti cation in the O cial Gazette has been
39
termed to be conditional legislation and not delegated legislation and held to be valid. Other instances of
40
the exercise of delegated legislative power by the executive include the imposition of tax, extending the
41 42
coverage of statutes, xing the maximum price for drugs, deciding when a statute, including a
43
constitutional amendment, will become enforceable, banning the import or export of essential
commodities—for example, control orders made under the Essential Supplies (Temporary Powers) Act 1946
44 45
regulating sale of iron and steel —or the export and movement of rice and of rice and paddy products, to
name a few. As the Supreme Court once noted, ‘with the proliferation of delegated legislation, there is a
46
tendency for the line between legislation and administration to vanish into an illusion’.
 The Constitution also expressly recognises the legislative powers of the executive in Chapter III of Part V the
heading of which is ‘Legislative Powers of the President’. Clause (2) of Article 123 in that chapter provides
that an ordinance promulgated under Article 123 ‘shall have the same force and e ect as an Act of
Parliament’. Similarly Chapter IV’s heading refers to ‘The Legislative Powers of the Governor’ and Article
213 has granted power to the Governor to promulgate ordinances when the Legislative Assembly is not in
session. There is no limit on the subjects on which such ordinances may not be issued, nor is the prior
47
approval of the concerned legislature required. Governance by ordinance has been often resorted to by the
48
executive as a means of bypassing the normal process of legislation. The executive, through the President,
p. 260 also determines whether a State law will prevail in case of inconsistency between laws made by
49
Parliament and laws made by the legislature of a State.

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But perhaps the most egregious form of legislative power granted under the Constitution to the executive
are those listed under emergency provisions. This is the subject of a separate chapter in this Handbook, and
I will restrict myself for the present purposes to what is commonly termed as President’s Rule declared
under Article 356. Article 356 provides that when the President on receipt of a report from the Governor of
the State or otherwise is satis ed that the government of that State cannot be carried on in accordance with
the provisions of the Constitution, she may by Proclamation not only dissolve the State Assembly by
assuming all the functions of the government of that State, but may also declare that the powers of the
50
legislature of the State shall be exercisable by or under the authority of Parliament. When a declaration is
made to this e ect by the President, it shall be competent for Parliament to direct that the legislative power
of the State legislature shall be exercised by the President himself or by any other authority to whom such
51
power may be delegated by the President under Article 357(1). Laws so made by Parliament or the
President continue even after the Proclamation under Article 356 has ceased to operate until it is altered,
52
repealed, or amended by a competent legislature or authority. In making the report to the President the
53
Governor acts according to his discretion.

Given the wide powers of the executive, a leading commentator has remarked that parliamentary
supremacy, in the context of the practical working of the parliamentary system, is:

[O]nly a ‘myth’ or ‘ ction’ which ‘actually boils down to supremacy of the executive government
of the day’ and ‘[w]hen a government shouts from the housetop to uphold ‘sovereignty of
Parliament’, what, in e ect, it is seeking is to have complete, uncontrolled, freedom of action itself
54
to do what it likes as it knows the majority in Parliament would always support it.

2. Judicial Powers
The executive exercises judicial powers under several provisions. For instance, it has the ability (in the name
of the President) to decide whether a Member of a House of Parliament has become disquali ed to continue
55
as such. It has the right to advise the President/Governor, advice he is bound to accept, to grant pardon to
56
or modify the punishment of a convicted person. Article 311 allows the executive to hold an inquiry into
charges against any person holding a civil post under the Union or the State and to award punishment.
Besides, several statutes—for example, laws dealing with licensing, levy of taxes, or imposition of duties—
57
p. 261 give the administrative authority the power to decide rights a ecting a claimant or competing claims.
The executive also sta s administrative tribunals set up under Article 323A as well as other tribunals set up
58
under Article 323B to discharge functions earlier carried on by courts.
 3. Executive Control of the Judiciary
Under the Constitution, it is ostensibly left to the President to decide the number of judges to be appointed
59
to the High Courts, as well as to decide nally on who is to be appointed as a judge, whether of the
60
Supreme Court or the High Courts. Regulations also empower the executive to control the appointment
61
and service conditions of the District Judiciary. Further, the executive has the power to prosecute judges
62
for o ences under the Prevention of Corruption Act 1947.

IV. The Judiciary

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1. Judicial Power and Independence
As a check on the seemingly unbridled power of the other two organs, the Supreme Court and the High
Courts have been given wide powers of judicial review by the Constitution to test whether legislative or
63
executive action is contrary to the provisions of the Constitution. Part III of the Constitution, which
contains the fundamental rights, also contains a prohibition on all authorities within the territory of India
from making any law which takes away or abridges rights conferred by Part III. Any law in contravention of
64
this is void to the extent of such contravention. The right to move the Supreme Court to enforce all rights
in Part III is contained in Part III and is itself also a fundamental right. Another constitutional limitation of
the power of legislation arises out of the delineation of legislative powers between Parliament and the State
65
legislatures. As the Supreme Court once observed, ‘In this regard, the courts in India possess a power not
known to the English Courts … The range of judicial review recognized in the superior judiciary of India is
66
perhaps the widest and the most extensive known to the world of law.’

However, the position of the judiciary was, until 1993, seen as being subject to extensive legislative and
executive control and as constitutionally weak. It is also clear from the earlier discussion that the only
e ective constitutional balance to executive dominance with parliamentary or legislative majorities can and
has been the judiciary. The two-fold consequence of this has been, rst, an assault on the functioning of the
67
p. 262 judiciary by the executive–legislative, and, secondly, an assertion of judicial independence by the
judiciary—the former being destructive of, and the latter being indispensable to, the separation of powers.
Independence was asserted by the judiciary functionally (used in the sense of freedom from legislative and
executive interference) and administratively (used in the sense of jurisdictional and organisational
independence of the judicial set-up). Perhaps the earliest case of assertion of functional independence came
in 1965, with a serious con ict between a High Court and a State legislature when the Supreme Court said
that legislatures could not interfere in any manner with the discharge of functions by the judiciary and ‘that
provisions of the Constitution … are intended to safeguard the independence of the Judicature in this
68
country’.

Administrative independence of the judiciary was under threat from the executive because it had the nal
69 70 71
say in the appointment, transfer, and promotion of a judge after consultation with the Chief Justice and
72
such judges of the Supreme Court or High Courts as the President thinks necessary. In 1993, the Supreme
Court secured the independence of the judiciary from executive control or interference by judicially
prescribing procedural norms for transfer and appointment of judges by a collegium of senior judges
73
p. 263 together with the Chief Justice of the High Court or Supreme Court, as the case may be. ‘From being a
74
mere consultant, the Chief Justice of India and the Supreme Court collegium now have the nal word.’ As
far as the District Judiciary is concerned, administrative separation of the judiciary from the executive was
secured by interpreting Article 233(1) and striking down Rules framed by the Governor which allowed the
Governor to appoint persons outside the judicial service as District Judges. One of the reasons for holding
that the Rules framed were unconstitutional was the concept of an independent judiciary under the doctrine
 75
of separation of powers. This was followed by a series of judgments by which the administrative
76
functioning of the judicial system at all levels of the judiciary was ensured. In recent years, judicial
independence has been heavily debated in the context of tribunals and their composition, a topic covered by
a di erent chapter in this Handbook.

2. Judicial Control of the Legislature

‘Control’ by the judiciary of the other organs follows from the existence of a written constitution and the
judicial review, interpretation, and application of constitutional provisions. Courts have not taken kindly to
statutory provisions limiting the jurisdiction of courts to decide disputes and a provision that seeks to

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exclude the jurisdiction of courts is strictly construed. This principle is equally applicable to constitutional
77
provisions. Thus, in Kihoto Hollohan v Zachillhu, the Supreme Court construed Paragraph 6(1) of the Tenth
Schedule to the Constitution, which seeks to impart nality to the decision of the Speakers/Chairmen as to
whether a member of a House has become subject to disquali cation on the ground of defection, to mean
that the nality ‘[did] not detract from or abrogate judicial review of the decision under Articles 136, 226,
and 227 of the Constitution insofar as in rmities based on violations of constitutional mandates, mala des,
78
non-compliance with Rules of Natural Justice and perversity, are concerned’.

Decisions that have set aside legislation (both Central and State) on the ground of a lack of jurisdiction are
legion. The Supreme Court’s control has not been restricted to the law-making powers of legislatures and
has extended to judicial overview of actions within the legislative bodies. The recent decision, Raja Ram Pal v
Speaker, Lok Sabha, is illustrative of this:

[W]henever Parliament, or for that matter any State Legislature, claims any power or privilege in
p. 264 terms of the provisions contained in Article 105(3), or Article 194(3), as the case may be, it is the
Court which has the authority and the jurisdiction to examine, on grievance being brought before
it, to nd out if the particular power or privilege that has been claimed or asserted by the
79
legislature is one that was contemplated by the said constitutional provisions.

79 Raja Ram Pal (n 68) [62].

Constitutional concepts judicially developed by a process of interpretive evolution have also circumscribed
legislative powers. On 24 April 1973, the Supreme Court held in Kesavananda Bharati that the power to
amend the Constitution under Article 368 did not extend to amending the ‘basic structure’ of the
80
Constitution, though it was not unanimous in de ning what the ‘basic structure’ was. The theory of the
81
basic structure applies only to constitutional amendments and not to ordinary legislation. In 1981, Waman
Rao v Union of India held that amendments to the Constitution made on or after 24 April 1973, by which time
the Ninth Schedule was amended from time to time by inclusion of various statutes, were open to challenge
82
on the ground that they damage the basic or essential features of the Constitution. The key question
whether the basic structure test would include judicial review of the Ninth Schedule laws on the touchstone
83
of fundamental rights was considered exhaustively by a recent nine-judge decision of the Supreme Court.
84
The issue was answered in the a rmative.

A second concept that has served this role is ‘due process of law’, introduced into Articles 14 and 21. As an
important commentator remarks with regard to due process, ‘The judiciary in India has thereby acquired
vast power to supervise and invalidate any union or state action … perceived by the Court to be “arbitrary” or
85
“unreasonable”.’ While Article 21 has been stretched to cover every possible situation relating to human
existence, Article 14 has been more restrictively applied to strike down legislation. Neither has the Court ‘at
any time set aside economic and business regulations by recourse to substantive due process’, nor has
86
‘primary legislation been invalidated merely on the ground of arbitrariness or unreasonableness’.
 Decisions/Directions have also been given by Courts in the recent past a ecting prospective and sitting
members of legislatures. The following decision will serve by way of illustration. In 2002, the Supreme Court
held in Union of India v Association for Democratic Reforms that voters had a right to know who they were
87
electing. The outcome of this decision was that detailed information relating to a candidate as prescribed
p. 265 by the Supreme Court must be given to every voter. More recently, the Supreme Court was called upon to
consider when a Member of Parliament or the State Assembly would be disquali ed from continuing as such
88
under Articles 102 and 191, respectively. The Court held that the disquali cation would take e ect
immediately upon conviction but cease to operate from the date of order of stay of conviction passed by the
appellate court under Section 389 of the Code of Criminal Procedure 1973 or the High Court under Section
89
482 of the Code. In an attempt to overturn this decision, the Government sought to pass a Representation

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of the People (Second Amendment and Validation) Bill 2013 and an ordinance. Neither attempt was,
90
however, proceeded with.

Finally, where there is a legislative vacuum, on occasion binding directives have also been issued under
91
Article 142 until appropriate legislation has been made, although courts have generally been reluctant to
92
use this power. The directives, when given, have rarely been overturned by legislation to the contrary. On
93
the other hand, judicial directions have often been incorporated in subsequent statutes, unless they
94
otherwise a ected executive powers.

p. 266 3. Judicial Control of the Executive

In exercise of the powers of judicial review, the judiciary has given directions to the executive to implement
constitutional, statutory, or policy measures but has generally been reluctant to interfere in matters of
95
policy. Occasionally it has set up committees to monitor and oversee the implementation of such
96
directions.

V. Autonomous Bodies

Fortifying the de nition of ‘power’ in the phrase ‘separation of powers’ as a division along functional lines,
and contrary to the traditional concept of such separation being amongst only three organs of governance,
the Indian Constitution has provided for the allocation of powers relating to governance to authorities who
are required to be independent of the legislatures and the executive.
 1. The Election Commission
While under the Government of India Act 1935, the conduct of elections was vested in an executive
authority, under the Constitution of India, an autonomous constitutional authority was created under
Article 324 for the superintendence, direction, and conduct of elections. This body is called the Election
97
Commission, and is ‘totally independent and impartial, and is free from any interference of the executive’.
Parliament is empowered to make law as regards matters relating to conduct of election of either
Parliament or State legislatures, without a ecting the plenary powers of the Election Commission under
98
Article 324. There is also a ‘blanket ban on litigative interference during the process of the election,
99
clamped down by Article 329(b) of the Constitution’. The Election Commission is, for the purposes of

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100
discharging its functions, invested with executive, quasi-judicial, and legislative powers. Article 243K has
101
p. 267 vested similar powers in the State Election Commissioner in respect of Panchayat elections. These
102
plenary powers include the power of postponing an election if the circumstances warrant. However, in
practical terms the independent action of the Election Commission is frequently thwarted by the executive.
Although Clause (6) of Article 324 mandates that the President or the Governor of a State, shall, when so
requested by the Election Commission, make available to the Election Commission or to a Regional
Commissioner such sta as may be necessary for the discharge of the functions conferred on the Election
Commission, such requests are often sought to be obstructed by governments both in the Centre and States,
leading to a deadlock. The judiciary has generally upheld the plenary powers of the Election Commission in
the resultant litigation.

2. Comptroller and Auditor General

Described ‘as the most important o cer in the Constitution of India’ with duties ‘far more important than
103
the duties even of the judiciary’ by BR Ambedkar, the Comptroller and Auditor General (CAG) is required:

[T]o audit all receipts which are payable into the Consolidated Fund of India and of each State and
of each Union Territory having a Legislative Assembly and to satisfy himself that the rules and
procedures in that behalf are designed to secure an e ective check on the assessment, collection
and proper allocation of revenue and are being duly observed and to make for this purpose such
104
examination of the accounts as he thinks t and report thereon.

104 Comptroller and Auditor-Generalʼs (Duties, Powers and Conditions of Service) Act 1971, s 16.

However, the CAG is not required to examine expenditures even before they are deployed. So when political
parties in their manifestos promised various free gifts to the electorate if they were voted into power, the
105
Supreme Court held that the CAG had no role to play at that juncture. The powers of auditing the receipts
and expenditure of the Union and the States are subject to the CAG’s independent authority, although the
o ce has not been given the same independence as the judiciary. For one, there is no constitutionally
prescribed criterion for selection of a candidate for appointment as CAG who is appointed by the President
on the ‘recommendation’ of the Prime Minister. Secondly, the Supreme Court has the exclusive powers to
106
appoint its o cers and servants, while the CAG heads the Indian Audit and Accounts Department but does
107
not have such powers. The conditions of service of persons serving in the Indian Audit and Accounts
Department and the administrative powers of the CAG are prescribed by rules made by the President after
108
p. 268 consultation with the CAG. Finally, the independence of the CAG is seriously impaired, as the CAG is
109
not assured of tenure unlike the judiciary where the age of retirement is provided for in the Constitution.

The CAG also has no power to take action on its own report. All that is constitutionally required is the
110 111
placing of the report before Parliament or the State Assembly, as the case may be. It is therefore
possible for the executive commanding a majority to disregard the CAG’s objections to unjusti ed
 expenditure. Recently, however, on the basis of the adverse report of the CAG, the Supreme Court in exercise
of its powers of judicial review directed investigation into grant of uni ed access service licence with 2G
spectrum and ultimately set it aside.

Executive functions have also been constitutionally farmed out to other autonomous bodies, more as
facilitating executive functioning rather than as independent centres. For instance, the Union Public Service
Commission acts in an advisory capacity as to service matters of central civil servants, including
112
recruitment and disciplinary matters. While the President is, by Article 320 of the Constitution, required
to consult the Public Service Commission (except in certain cases), the President is not bound by the advice
113
of the Commission. Similarly, provision has also been made by Article 280 for the appointment by the

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President of a Finance Commission to make recommendations to the President as to the distribution
amongst the Union and the States of the net proceeds of taxes and duties and as to the principles which
114
should govern the grants-in-aid of the revenue of the States out of the Consolidated Fund of India. Courts
115
have rarely interfered with such recommendations.

VI. Conclusion
116
Despite such overlap, until today a broad ‘constitutional organization of legal powers’ continues to be
generally maintained by the legislature, executive, and judiciary with the recognition of the need for checks
and balances to ensure that the constitutional objectives as delineated in the Directive Principles are
achieved. However, Montesquieu’s theory of an equal Trinitarian separation of powers has been expressly
rejected by the Constitution, most importantly by conceding the powers of judicial review over legislative
117
and executive action. There has been a discernible move towards the creation of more autonomous
p. 269
bodies both legislatively (such as the National Judicial Appointments Commission Bill 2014) and judicially
(such as directions for setting up of a State Security Commission, a Police Establishment Board, and Police
118
Complaints Authorities) towards ensuring checks on the exercise of power. As Ackerman observes, ‘A
better understanding of the separation of powers would recognize that [autonomous] agencies … deserve
119
special recognition as a distinct part of the system of checks and balances.’

The advantages of a written constitution with its prescription of the objectives, the ambit of functions, and
fetters on the exercise of such functions by di erent authorities for attaining these objectives cannot be
overemphasised in a country like ours. However, although the Indian model of distribution of functions is
still at the evolutionary stage, if we are to remain true to the Constitution in the evolutionary process, the
judiciary as an independent interpreter of the Constitution must remain the keystone.

Notes
1 State of Uttar Pradesh v Jeet S Bisht (2007) 6 SCC 586.
2 HM Seervai, The Position of the Judiciary under the Constitution of India (Sir Chimanlal Setalvad Lectures) (University of
Bombay 1970).
3 Bruce Ackerman, ʻThe New Separation of Powersʼ (2000) 113(3) Harvard Law Review 633, 688.
4 Re Delhi Laws Act 1912 AIR 1951 SC 332 [64], citing Montesquieu, The Spirit of Laws, trans Thoma Nugent and JV Prichard,
vol 1 (G Bell & Sons 1914) 162–63:

When the legislative and the executive powers are united in the same person, or in the same body of
Magistrates, there can be no liberty; because apprehensions may rise, lest the same monarch or senate should
enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power
be not separated from the legislative and the executive.
5 Thomas Cooley, A Treatise on the Constitutional Limitations (Da Capo Press 1972) 35.
6 George Paton, A Textbook of Jurisprudence (4th edn, Oxford University Press 2004) 332.
7 Kruse v Johnson [1898] 2 QB 91 (HCJ).
8 Je rey Jowell and Dawn Oliver, The Changing Constitution (7th edn, Oxford University Press 2011) 191.
9 R v Secretary of State for Transport [1991] 1 AC 603, 658–59 (Bridge LJ). See also Jowell and Oliver (n 8) 115.
10 Re Delhi Laws Act 1912 (n 4) [285].
11 Re Delhi Laws Act 1912 (n 4) [285]: ʻthe Indian Constitution does not expressly vest the di erent sets of powers in the
di erent organs of the State.ʼ
12 Constitution of India 1950, arts 53 and 154.
13 Re Delhi Laws Act 1912 (n 4) [133].
14 Jeet S Bisht (n 1) [49].

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15 Parliamentary Debates, vol 3 (Lok Sabha Secretariat 1955) 4990, 1955.
16 Seervai (n 2) 81: ʻI may say at once that our Constitution is not based on the separation of powers.ʼ
17 Bruce Ackerman has called such separation of powers ʻconstrained parliamentarismʼ and has lauded it ʻas the most
promising framework for future development of the separation of powersʼ. Ackerman (n 3) 640.
18 In 1951 the Supreme Court said: ʻIt does not admit of any serious dispute that the doctrine of separation of powers has,
strictly speaking, no place in the system of government that India has at the present day under her own Constitution or
which she had during the British ruleʼ (Re Delhi Laws Act 1912 (n 4) [285]). In 2011 the Supreme Court said: ʻThere is distinct
and rigid separation of powers under the Indian Constitutionʼ (State of Uttar Pradesh v Sanjay Kumar (2012) 8 SCC 537
[16]).
19 Constitution of India 1950, sch 7, List 1, Entries 77–79.
20 Constitution of India 1950, sch 7, List 2, Entries 3, 65; List 3, Entries 11-A, 14, and 46.
21 Jamshed N Guzdar v State of Maharashtra (2005) 2 SCC 591 [39]; Nahar Industrial Enterprises Ltd v Hong Kong and
Shanghai Banking Corporation (2009) 8 SCC 646 [115].
22 Constitution of India 1950, art 124.
23 Constitution of India 1950, arts 124(4), 124(5), and 218.
24 Constitution of India 1950, arts 125 and 221; The Supreme Court Judges (Salaries and Conditions of Service) Act 1958; The
High Court Judges (Salaries and Conditions of Service) Act 1954.
25 Constitution of India 1950, arts 124(5) and 217.
26 Constitution of India 1950, art 194(3). See also Special Reference No 1 of 1964 AIR 1965 SC 745 [133].
27 Kihoto Hollohan v Zachillhu (1992) Supp (2) SCC 651 [111].
28 The recent resolution of a tax dispute in favour of the Vodafone Group by the Supreme Court in Vodafone International
Holdings BV v Union of India (2012) 6 SCC 613 and the subsequent retrospective change of the law by Parliament is an
example of this.
30 State Bankʼs Sta Union (Madras Circle) v Union of India (2005) 7 SCC 584 [31].
31 There are at present 284 Statutes included in the Ninth Schedule.
32 When Ramaswamy J of the Supreme Court was sought to be impeached in 1993, the Congress Party, which commanded a
majority in Parliament, abstained from voting, thus defeating the motion of impeachment. This a er three senior judges
appointed by the Ninth Lok Sabha had found him guilty of misconduct on eleven counts and ʻmisbehaviourʼ was ʻprovedʼ
within the meaning of art 124(4).
33 Ram Jawaya Kapur v State of Punjab AIR 1955 SC 549 [14]: ʻThe Cabinet enjoying, as it does, a majority in the legislature
concentrates in itself the virtual control of both legislative and executive functions.ʼ
34 Indra Sawhney v Union of India (1992) Supp (3) SCC 217 [526]. The earlier understanding of the scope of art 162 in GJ
Fernandez v State of Mysore AIR 1967 SC 1753 [12] was that:

Article 162 does not confer any power on the State Government to frame rules and it only indicates the scope of
the executive power of the State. Of course, under such executive power, the State can give administrative
instructions to its servants how to act in certain circumstances; but that will not make such instructions
statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the
force of statutory rules it must be shown that they have been issued either under the authority conferred on the
State Government by some statute or under some provision of the Constitution providing therefor.

35 Ram Jawaya Kapur (n 33) [7]: ʻthe language of Article 172 clearly indicates that the powers of the State executive do
extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which
legislation has been passed already. The same principle underlies Article 73 of the Constitution.ʼ
36 Re Delhi Laws Act 1912 (n 4) [93].
37 ʻGuidelinesʼ justifying delegated legislation have been found by courts even from the preamble of a statute. See Pannalal
Binjraj v Union of India AIR 1957 SC 397 [25]: ʻNo rules or directions having been laid down in regard to the exercise of that
power in particular cases, the appropriate authority has to determine what are the proper cases in which such power
should be exercised having regard to the object of the Act and the ends to be achieved.ʼ
38 Ajoy Kumar Banerjee v Union of India (1984) 3 SCC 127 [27].
39 Re Delhi Laws Act 1912 (n 4) [93]. It has been later held by the Supreme Court that the distinction between the two is
without a di erence and that conditional legislation is delegated legislation: Lachmi Narain v Union of India (1976) 2 SCC
953 [49].
40 Banarsi Das Bhanot v State of Madhya Pradesh AIR 1958 SC 909; Narinder Chand Hem Raj v Lt Governor, Union Territory,
Himachal Pradesh (1971) 2 SCC 747; cf Bimal Chandra Banerjee v State of Madhya Pradesh (1970) 2 SCC 467.
41 Edward Mills Co Ltd v State of Ajmer AIR 1955 SC 25: The Minimum Wages Act 1948 (although the statute did not provide for

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any criterion to do so).
42 Union of India v Cynamide India Ltd (1987) 2 SCC 720.
43 AK Roy v Union of India (1982) 1 SCC 271 [45].
44 Union of India v Bhanamal Gulzarimal Ltd AIR 1960 SC 475.
45 Chinta Lingam v Govt of India (1970) 3 SCC 768 [3].
46 Cynamide India Ltd (n 42) [7].
47 T Venkata Reddy v State of Andhra Pradesh (1985) 3 SCC 198 [9].
48 This was noted by the Supreme Court in AK Roy (n 43) [8]:

In India, that power [of the executive to issue ordinances] has a historical origin and the executive, at all times,
has resorted to it freely as and when it considered it necessary to do so. One of the larger States in India has
manifested its addiction to that power by making an overgenerous use of it—so generous indeed, that
ordinances which lapsed by e lux of time were renewed successively by a chain of kindred creatures, one a er
another. And, the ordinances embrace everything under the sun, from Prince to pauper and crimes to
contracts. The Union Government too, so we are informed, passed about 200 ordinances between 1960 and
1980, out of which 19 were passed in 1980.

Between 2000 and 2011 the Union government promulgated 75 ordinances. See List of Ordinances issued by Government
of India (Legislative I Section, Legislative Department, Ministry of Law and Justice 2012)
<lawmin.nic.in/ld/folder1/listord.doc>, accessed October 2015.
49 Constitution of India 1950, art 254.
50 Constitution of India 1950, art 356(1)(b).
51 Ram Prasad v State of Punjab AIR 1966 SC 1607.
52 Constitution of India 1950, art 357(2).
53 Since a practice has developed of the Centre appointing a person with a political background as a governor, the discretion
has on occasion been used for political reasons (SR Bommai v Union of India (1994) 3 SCC 1) and occasionally governors
and the State executive have come into conflict (State of Gujarat v RA Mehta (2013) 3 SCC 1).
54 MP Jain, Indian Constitutional Law (5th edn, Wadhwa & Co 2003) 1635.
55 Constitution of India 1950, art 103.
56 Constitution of India 1950, arts 72 and 161.
57 East India Commercial Co Ltd v Collector of Customs AIR 1962 SC 1893.
58 This is discussed in greater detail below.
59 Constitution of India 1950, art 216.
60 Constitution of India 1950, arts 124(2) and 217(1).
61 Constitution of India 1950, art 233.
62 K Veeraswami v Union of India (1991) 3 SCC 655 [61].
63 Constitution of India 1950, arts 32 and 226.
64 Constitution of India 1950, arts 12 and 13(2).
65 Constitution of India 1950, arts 245 and 246.
66 Union of India v Raghubir Singh (1989) 2 SCC 754 [7].
67 The discharge of judicial functions by the executive when India was under British administration of the Constitution
perhaps historically accounts for the persistent e orts of the political executive to curb the judiciary.
68 Special Reference No 1 of 1964 (n 26) [67]. The power of courts to judicially review parliamentary privileges and powers has
been reiterated subsequently in Kihoto Hollohan (n 27); Raja Ram Pal v Speaker, Lok Sabha (2007) 3 SCC 184; Amarinder
Singh v Punjab Vidhan Sabha (2010) 6 SCC 113.
69 Constitution of India 1950, art 124(2) in the case of Supreme Court judges and art 217 in the case of High Court judges.
70 Constitution of India 1950, art 222.
71 As the Chief Justice of a State High Court or as the Chief Justice of India.
72 See Justice Ruma Pal, ʻAn Independent Judiciary: Fi h Tarkunde Memorial Lectureʼ (New Delhi, 10 November 2011):

Post the decision in Kesavananda Bharati limiting the power of constitutional amendment, the majority, all
senior judges, were superseded and the dissenter was rewarded with the high o ice of the Chief Justice of
India. The superseded judges resigned in protest. In 1975 Emergency was declared. Judicial review for
infringement of fundamental rights including the right to life and liberty were severely curtailed allowing the
Executive virtually unbridled power to deprive citizens to detain citizens with impunity. Several High Courts
held that the Governments could not. In retaliation in 1976, 16 High Court judges were transferred by the

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Executive to other High Courts. The majority in the Supreme Court disagreed with the High Courts and upheld
the Governmentʼs powers. There was one dissenter—Justice H.R. Khanna. The Executive again ʻpunishedʼ him
by superseding him for appointment as the Chief Justice of India although he was then the senior-most judge
in the Supreme Court and would have in the normal course been so appointed. Justice Khanna resigned. Small
wonder then that a er this, a battered judiciary (a er an initial regrettable hiccup in the form of the decision in
S.P. Guptaʼs case (1981 Supp SCC 87)) picked itself up and with all the interpretative tools at its command—
termed by many as an unacceptable feat of judicial activism—by a composite judgment in several public
interest litigations virtually wrested the powers of appointment, confirmation and transfer of judges from the
Executive.

See also Union of India v Sankalchand Himatlal Sheth (1977) 4 SCC 193 [41].
73 Supreme Court Advocates-on-Record Association v Union of India (1993) 4 SCC 441; Special Reference No 1 of 1998 (1998) 7
SCC 739.
74 Excerpted from Justice Ruma Pal (n 72). Recently, the Ninety-ninth Amendment to the Constitution—which sought to
replace the collegium system of appointments—was struck by the Supreme Court for violating judicial independence. See
Supreme Court Advocates-on-Record Association v Union of India 2015 SCC OnLine SC 964; BN Srikrishna, ʻJudicial
Independenceʼ (chapter 20, this volume).
75 Chandra Mohan v State of Uttar Pradesh AIR 1966 SC 1987 [18].
76 See eg, All-India Judgesʼ Association v Union of India (1992) 1 SCC 119 [63]. The directions included steps to bring about
uniformity in designation of o icers both in the civil and the criminal side; raising retirement age of judicial o icers to 60
years; providing a working library at the residence of every judicial o icer; providing sumptuary allowance and residential
accommodation to every judicial o icer; providing every District Judge and Chief Judicial Magistrate a State vehicle,
judicial o icers in sets of five to have a pool vehicle; and setting up an In-service Institute at the Central and State or Union
territory level.
77 Kihoto Hollohan (n 27); see also Amarinder Singh (n 68).
78 Kihoto Hollohan (n 27) [111].
80 Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.
81 Indira Nehru Gandhi v Raj Narain (1975) Supp SCC 1.
82 (1981) 2 SCC 362.
83 IR Coelho v State of Tamil Nadu (2007) 2 SCC 1.
84 IR Coelho (n 83) [116]. The Court said ʻevery addition to the Ninth Schedule triggers Article 32 as part of the basic structure
and is consequently subject to the review of the fundamental rights as they stand in Part IIIʼ.
85 TR Andhyarujina, ʻThe Evolution of Due Process of Law by the Supreme Courtʼ in BN Kirpal and others (eds) Supreme but
Not Infallible: Essays in Honour of the Supreme Court of India (Oxford University Press 2004) 193.
86 TR Andhyarujina (n 85) 210.
87 (2002) 5 SCC 294. The information was to be given on a idavit by each candidate seeking election to Parliament or a State
legislature as a necessary part of his/her nomination paper. This needed amendment of the Representation of the People
Act 1951. Parliament amended the law under which the candidate was not required to disclose (a) the cases in which he
was acquitted or discharged of criminal o ence(s); (b) his assets and liabilities; or (c) his educational qualification as
directed by the Supreme Court. In Peopleʼs Union for Civil Liberties (PUCL) v Union of India (2003) 4 SCC 399 [9] the Court
said ʻthe legislature in this country has no power to ask the instrumentalities of the State to disobey or disregard the
decisions given by the courtsʼ. The amendment was accordingly held to be ʻillegal, null and voidʼ.
88 Lily Thomas v Union of India (2013) 7 SCC 653. Representation of the People Act 1951, s 8(4) provided that persons
convicted of specified o ences would not be disqualified from continuing as Members of Parliament or the State
legislatures, in the case of a person who files an appeal or a revision in respect of the conviction or the sentence within
 three months until the appeal or revision is disposed of by the court. Sub-section (4) of s 8 of the Act was accordingly held
to be unconstitutional and struck down.
89 Lily Thomas (n 88) [34]–[35]. However, the Court made it clear that sitting Members of Parliament and the State legislature
who had been convicted for any of the specified o ences mentioned in Section 8 of the Act and who had filed appeals or
revisions which were pending would not be a ected by the judgment: Lily Thomas (n 88) [348].
90 ʻNo “Nonsense” ʼ The Indian Express (New Delhi, 5 October 2013) <http://archive.indianexpress.com/news/no-
nonsense/1178575/>, accessed October 2015 , criticised ʻparties pandering to public emotionʼ regarding the
disqualification of MPs convicted of crimes. The primary reason for such criticism was that the parties had failed in ʻtheir
higher bipartisan responsibility to secure the institutional integrity of the legislatureʼ and that it would ʻdamage the
institutional balance that sustains our democracyʼ.
91 See eg, Re Measures for Prevention of Fatal Accidents of Small Children due to Their Falling into Abandoned Borewells and

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Tubewells (2010) 15 SCC 224; Gainda Ram v MCD (2010) 10 SCC 715; Kalyaneshwari v Union of India (2011) 3 SCC 287;
Lafarge Umiam Mining (P) Ltd v Union of India (2011) 7 SCC 338; Delhi Jal Board v National Campaign for Dignity & Rights of
Sewerage & Allied Workers (2011) 8 SCC 568; University of Kerala v Council of Principals of Colleges, Kerala (2011) 14 SCC
357; Dayaram v Sudhir Batham (2012) 1 SCC 333; Inspector General of Police v S Samuthiram (2013) 1 SCC 598. The
justification for this is outside the scope of the present discourse. Su ice it to say that the directions have been given in
matters as diverse as the myriad social and economic problems faced by the country. See Justice Ruma Pal, ʻJudicial
Oversight or Over-reach: The Role of the Judiciary in Contemporary Indiaʼ (2008) 7 SCC J 9; Justice Ruma Pal, ʻThe Court as
a Social Auditor: Tenth Dr. Amitabha Chowdury Memorial Lectureʼ (Gauhati, December 2013).
92 P Ramachandra Rao v State of Karnataka (2002) 4 SCC 578 [27].
93 Eg, directions given in Vishaka v State of Rajasthan (1997) 6 SCC 241 incorporated in the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act 2013.
94 Eg, Prakash Singh v Union of India (2006) 8 SCC 1 and Prakash Singh v Union of India (2009) 17 SCC 329 on police reforms.
See also ʻPolice Reforms: Indiaʼ (Commonwealth Human Rights Initiative) <http://humanrightsinitiative.org/index.php?
option=com_content&view=article&id=87&Itemid=98>, accessed October 2015 .
95 BALCO Employeesʼ Union v Union of India (2002) 2 SCC 333; Special Reference No 1 of 2012 (2012) 10 SCC 1.
96 See eg, TN Godavarman Thirumulpad v Union of India (1997) 2 SCC 267; Ram Jethmalani v Union of India (2011) 8 SCC 1.
97 Special Reference No 1 of 2012 (n 95) [27].
98 Special Reference No 1 of 2012 (n 95) [126] (Pasayat J).
99 Mohinder Singh Gill v Chief Election Commissioner (1978) 1 SCC 405 [9].
100 Mohinder Singh Gill (n 99) [45]. See also Indian National Congress (I) v Institute of Social Welfare (2002) 5 SCC 685 [25]. These
plenary powers include the power of postponing an election if the circumstances so warrant (Election Commission of India
v State of Tamil Nadu (1995) Supp (3) SCC 379). However, in practical terms the independent action of the Election
Commission is frequently thwarted by the executive. Although clause (6) of art 324 mandates that the President, or the
Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or
to a Regional Commissioner such sta as may be necessary for the discharge of the functions conferred on the Election
Commission, such requests are o en sought to be obstructed by governments both in the Centre and States, leading to a
deadlock. The judiciary has generally upheld the plenary powers of the Election Commission in the resultant litigation.
101 See West Bengal State Election Commission v State of West Bengal (2013) 3 Cal LT 110.
102 Election Commission of India (n 100).
103 Constituent Assembly Debates, vol 8 (Lok Sabha Secretariat 1986), 30 May 1949.
105 S Subramaniam Balaji v State of Tamil Nadu (2013) 9 SCC 659.
106 Constitution of India 1950, art 146.
107 Constitution of India 1950, art 148(5).
108 Constitution of India 1950, art 148(5).
109 See eg, Constitution of India 1950, arts 124(2), 217(1), and 149 read with Comptroller and Auditor Generalʼs (Duties,
Powers and Conditions of Service) Act 1971, s 16. The Indian Audit and Accounts Department is under its control. On the
basis of the CAGʼs report as laid before the Parliament or State Legislature, it is open to the executive to take such action
as may be required. Recently the adverse report of the CAG the Supreme Court in exercise of its powers of judicial review
directed investigation into grant of unified access service licence with 2G spectrum and ultimately set it aside (Centre for
Public Interest Litigation v Union of India (2012) 3 SCC 1).
110 Constitution of India 1950, art 151(1).
111 Constitution of India 1950, art 151(2).
112 Constitution of India 1950, art 320(3).
113 AN DʼSilva v Union of India AIR 1962 SC 1130.
114 Special Reference No 1 of 1962 AIR 1963 SC 1760.
115 All India Judgesʼ Association v Union of India (2002) 4 SCC 247 [20]; Brij Mohan Lal v Union of India (2007) 15 SCC 614; Brij
Mohan Lal v Union of India (2012) 6 SCC 502.
116 George H Sabine, A History of Political Theory (4th edn, Oxford University Press 1973) 514.
117 Unfortunately not consistently by the judiciary.
118 Prakash Singh (n 94).
119 Ackerman (n 3) 718.

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