2.

Distribution of Legislative Powers: The Scheme of

the distribution of legislative powers in India the
judicial approach and the present position.
Recommendation of Sarkaria Commission &
Venkatachaliah Commission.

What is the doctrine of separation of powers?

Separation of powers is the division of

the legislative, executive, and judicial functions of government
among separate and independent bodies.

The Legislature makes laws, the Executive puts those laws

into effect, and the Judiciary administers justice by
interpreting the law and ensuring that the law is upheld.
The purpose of separation is to limit the possibility of
arbitrary excesses by the government.
Separation of powers also prevents misuse of power or
accumulation of power in a few hands, which thereby
safeguards the society from arbitrary and irrational power of
the state.

What are the provisions pertaining to the separation

of powers between the three organs of state in India?

The Constitution of India has various implicit provisions for

the separation of powers among the legislature, the
executive, and the judiciary. However, in most cases, the
separation is not water-tight, and there are instances
of overlap in functions to ensure checks and balances.

Table on separation of powers between Legislature and

Executive

Legislature and Executive

Separation of powers Functional overlap

 Constitution has  Article 75: India has a

separate provisions for Parliamentary form of government,
 establishing: and every Minister should be a
member of the Parliament.
o Article 79: The
Parliament as the  Article 53 and Article 79:The
legislative body. President is vested with the
o Article 74: Article executive power of the union, and
The council of also, he/she is an integral part of
ministers with the Parliament.
Prime Minister as
head of the Real
Executive.  Article 123: The President may
promulgate ordinances when the
 Also, there are distinct Parliament is not in session. Thus,
provisions for their even the executive can legislate in
functioning: the form of an ordinance in India.
o Parliament (Article
107-117)  In India, delegated legislation is
o Council of Ministers allowed, where the Parliament can
(Article 74 read with delegate its legislative powers to
Article 53) the Central or the State
Governments for the purpose of
making rules.

Table on separation of powers between Judiciary and

Executive.

Judiciary and Executive

Separation of powers Functional overlap

 Article 50: State shall  Article 72: In India, the President’s

take steps to separate clemency powers overlap with the
the judiciary from the judicial functions.
executive in the public  Article 323a and Article
services of the state. 323b: Tribunals established
 Accordingly, the dispense justice in India. Tribunals
Parliament enacted consist of both judicial as well as
the Criminal Procedure executive members.
Code1973, which
separated the judiciary  The District Magistrate, while acting
and the executive. as a Returning officer, acts in
 Article 361: The a quasi-judicial capacity where
President and the he/she must scrutinize the
Governor enjoy nomination papers and then decide
immunity from court whether the candidate is fit to
proceedings. contest.

Table on separation of powers between Judiciary and

Legislature.
Judiciary and Legislature
Separation of powers Functional overlap

 Article 121: No  Article 61: The parliament has quasi-

discussions shall take judicial powers during the
place in Parliament with Presidential Impeachment process.
respect to the conduct
of any Judge of the  The judiciary may take legislative
Supreme Court or of a functions under certain
High Court in the circumstances, which are dubbed
discharge of his/her as Judicial activism or Judicial
duties. overreach.
o Example: The Vishaka
 Article 122: Courts Guidelines on sexual
not to inquire into harassment in the
proceedings of the workplace.
Parliament. o People’s Union for
Democratic Rights v. Union
of India (1982) case, which
gave for Public Interest
Litigation( PIL).

What are the various judicial pronouncements on the

doctrine of separation of powers in India?
Ram Jawaya Kapoor vs State of Punjab (1955): It was
held that the Indian Constitution has not indeed recognized
the doctrine of separation of powers in its absolute rigidity,
but the functions of the different parts or branches of the
government have been sufficiently differentiated.

Golak Nath vs State of Punjab (1967): In this case, the

judges observed that the three organs of the government are
expected to exercise their functions within their limits and
keeping in mind certain encroachments assigned by the
Constitution.

Indira Gandhi vs Raj Narain (1975): The Supreme court

invalidated a clause of Article 329A inserted to immunize the
election dispute to the Office of the Prime Minister from any
kind of judicial review. In this case, It is held that the
separation of powers is a part of the Basic structure.
 Kartar Singh vs State of Punjab (1994): It was stated that
the function of the legislature is to make the law, the
executive is to implement the law, and the judiciary to
interpret the law within limits set down by the Constitution.

What are the issues associated with judicial legislation

in India?

The term “judicial legislation” refers to the law pronounced,

proclaimed, and declared by the judiciary, specifically the
Supreme Court. This type of law is sometimes called “judicial
law” or “Judge-made law.”

 The Supreme Court in Rattan Chand Hira Chand v. Askar

Nawaz Jung (1991) stated, “The legislature often fails to
keep pace with the changing needs and values nor is it
realistic to expect that it will have provided for all
contingencies and eventualities. It is, therefore, not only
necessary but obligatory on the courts to step in to fill the
lacuna”.

 Some of the instances of judicial legislation include-

o The collegium system out of The Second Judges case

(1993) and the Third Judges case (1998).
o Legalizing passive euthanasia in Aruna Shanbaug v.
Union of India, (2011).
o ‘None Of The Above’ (NOTA) in elections as a Right in
People’s Union for Civil Liberties (PUCL) case 2013.

 The Indian Constitution does not strictly follow the doctrine of

separation of powers, but the functions of different parts of
the government have been differentiated.

 The judiciary is not supposed to indulge in lawmaking, but

 there are instances where judicial legislation is justified.

 Judicial creativity can be justified in certain situations, such as

when there is a peculiar issue at hand or when laws enacted
need to fulfill the needs of the people.

 Judges make the law when there is a legal vacuum or no

express principles of law. The impact of judge-made law can
create credibility and reliability, but it can also create a sense
of uncertainty and unwanted strife between the organs of the
State.

The Sarkaria Commission

The Sarkaria Commission was established in 1983

by the Government of India to examine and review the
workings of the Indian federal system and suggest
improvements in Centre-State relations. It was chaired by
Justice R. S. Sarkaria, a retired Supreme Court judge.

The commission studied various areas of

governance, focusing on legislative, administrative, and
financial relations between the Centre and the States. Its
recommendations aimed to promote cooperative federalism
and address issues like governors’ discretionary powers and
the use of Article 356.

Sarkaria Commission
The clash of interests between the Centre and the
States has been a long-standing issue in India, often causing
disturbances in the smooth functioning of the democratic
machinery. In response to these challenges, the Sarkaria
 Commission was set up in 1983 by the Parliament under the
chairmanship of Justice R. S. Sarkaria. Along with members
Shri B. Sivaraman and Dr. S. R. Sen, the commission
examined the existing arrangements between the Union and
the States.

Objectives: Its primary objective was to assess the

distribution of powers, functions, and responsibilities and
recommend reforms to ensure better coordination and
cooperation between the two levels of government.

Sarkaria Commission Recommendations

The Sarkaria Commission made several crucial
recommendations to improve Centre-State relations and
ensure a balanced distribution of powers. It emphasized the
need for restraint in using Article 356 and suggested that it
should only be applied as a last resort. The Commission
recommended strengthening fiscal federalism by giving
States more financial autonomy and suggested reforms in
the appointment and role of Governors to ensure they
remain impartial. It also proposed establishing a permanent
Inter-State Council to promote dialogue between the Centre
and the States, fostering greater cooperative federalism.

Sarkaria Commission on Emergency Provisions

The Sarkaria Commission emphasized that Article
356 should be invoked very sparingly and only in extreme
cases, as a measure of last resort, when all available
alternatives to rectify or prevent a breakdown of the
constitutional machinery in the State have been exhausted.

o In cases where the State Government is not functioning per

the Constitution, or where there is a failure of constitutional
 machinery in the State, the Sarkaria Commission
recommended that a warning should be issued to the errant
State.
o Additionally, before taking action under Article 356, any
explanation provided by the State should be duly considered.
o In the event of a political breakdown, the Governor is
required to explore all possibilities for forming a government
that enjoys majority support in the State Assembly.
o Furthermore, the State Legislative Assembly should not be
dissolved either by the Governor or the President before the
proclamation under Article 356(1) is laid before Parliament.

Sarkaria Commission on Inter-State Council

The Sarkaria Commission recommended the
establishment of a permanent Inter-State Council under
Article 263, to be called the Inter-Governmental Council. The
Commission suggested that the Council should consist of a
General Body that would be assisted by a smaller Standing
Committee. The General Body of the Inter-Governmental
Council would consist of the following members:

1. Prime Minister (Chairman)

2. All Chief Ministers of the States
3. All Union Cabinet Ministers, or those Union
Ministers dealing with subjects of common interest
to both the Union and the States.

Sarkaria Commission on Appointment of Governor

The Sarkaria Commission stressed the importance of
consultation with the State Chief Minister during the
appointment of the governor and proposed that the
Governor’s tenure should generally be five years, only to be
disturbed in exceptional circumstances. The key
recommendations for the appointment of Governors are:

o The appointee should be eminent in some walk of

life.
o The Governor should be a person from outside the
State.
o The Governor should be a detached figure, not too
involved in local politics.
o The appointee should not have been too actively
involved in politics, particularly in recent years.
o A politician from the ruling party at the Union
shouldn’t be appointed as Governor in a State
governed by another party or coalition.

Sarkaria Commission on All-India Services

The Sarkaria Commission affirmed that the All India
Services (AIS) remains as essential today as they were when
the Constitution was framed. The Commission strongly
opposed any move to disband the AIS or allow States to opt
out of the scheme, deeming such actions as retrograde and
harmful to the nation’s broader interests. The key
recommendations for the strengthening of the All India
Services are:

o Improvements should be made in the selection,

training, deployment, development, and promotion
processes for AIS officers.
o There should be a shift from the current emphasis
on generalism to greater specialization in specific
areas of public administration.
o Training and career development policies should be
aligned to promote specialization within the
 services.

Sarkaria Commission on Legislative Relations

The Sarkaria Commission made significant
recommendations regarding Legislative Relations between
the Centre and the States, focusing on the need for
coordination and cooperation in areas of shared
responsibility. The Commission recommended that residuary
powers of legislation related to taxation matters should
remain exclusively with Parliament, while other residuary
subjects, except taxation, should be placed in the Concurrent
List. Other key recommendations include:

o The coordination of policy and action in concurrent

or overlapping areas of jurisdiction should be
achieved through mutual consultation and
cooperation.
o In the field of education, the Union Government
should set norms and standards, with professional
bodies like the U.G.C. responsible for oversight,
while actual implementation should be left to the
States.
o When a Resolution for the abolition or creation of a
Legislative Council is passed by a State Legislative
Assembly, the President should present it to
Parliament along with the comments of the Union
Government. Parliament should then decide
whether to accept or reject the request within a
reasonable time.

Sarkaria Commission on Financial Matters

The Sarkaria Commission made several key
recommendations on financial matters, focusing on
improving fiscal coordination between the Union and the
States. The Commission emphasized that the surcharge on
income tax should not be levied by the Union Government
unless it is for a specific purpose and a limited period,
ensuring that such measures are not used excessively or
indefinitely. Key recommendations on financial matters
include:

o The Finance Commission should draw upon experts

from different parts of the country.
o To ensure an adequate flow of funds to backward
regions within States, the Commission suggested
the creation of expert bodies similar to the Finance
Commission at the State level.

Sarkaria Commission Other Recommendations

Apart from its major suggestions on Centre-State
relations, the Sarkaria Commission provided several other
recommendations aimed at improving administrative
practices and resolving disputes more effectively. Some key
additional recommendations include:

o The Governor should not act against the advice of

the Council of Ministers in dealing with a State Bill
presented to the President under Article 200.
o State governments should avoid the practice of
repeatedly promulgating Ordinances without
seeking to replace them with an Act of the
Legislature.
o The Inter-State Water Disputes Act should be
amended to empower the Union Government to
appoint a tribunal suo motu if necessary when a
dispute is confirmed.
 o Government work at both the Union and State levels
should be conducted in the local language,
especially when it affects local populations, to
ensure better governance in a welfare State.

Sarkaria Commission Significance

The Sarkaria Commission’s recommendations played a

significant role in shaping Centre-State relations in India.
Though not all recommendations were implemented, the
report has remained an important reference point for
subsequent commissions and reforms, including the Punchhi
Commission. It enhanced awareness of the need for greater
cooperation and dialogue between the Centre and the
States, especially in handling sensitive matters like the use
of Article 356.

The Venkatachaliah Commission

The Venkatachaliah Commission, officially known

as the National Commission to Review the Working of the
Constitution (NCRWC), made 249 recommendations,
covering various aspects of the Indian Constitution. These
recommendations spanned constitutional amendments,
legislative actions, and executive measures. The commission
focused on areas like fundamental rights, electoral
processes, the judiciary, and centre-state relations.
Following are some key recommendations:

Fundamental Rights:
 New Rights:
The commission proposed adding new fundamental rights,
including the right against torture, the right to compensation
for illegal deprivation of liberty, the right to privacy, and the
 right to rural wage employment.

 Expansion of Existing Rights:

The right to education was suggested to be expanded to
include free education until the age of 18 for girls and
members of Scheduled Castes and Scheduled Tribes.

Electoral Reforms:
 NOTA:
The commission recommended the introduction of a "None of
the Above" (NOTA) option in elections to allow voters to
reject all candidates.

 State Funding:
Partial state funding of elections was suggested to reduce
the influence of private donations.

 Strengthening Election Commission:

The commission recommended empowering the Election
Commission with greater independence and authority.

Judicial Reforms:
 National Judicial Commission:
The commission proposed the establishment of a National
Judicial Commission to oversee the appointment of higher
court judges.

 Code of Conduct:
The commission recommended a code of conduct for judges
to ensure high standards of judicial behavior.
Centre-State Relations:
 Governor's Role:
The commission suggested that governors be appointed by
the President after consultation with the Chief Minister of the
concerned state and should not be removed before the
completion of their term, except in exceptional
circumstances.
 Discretionary Powers:
The commission recommended that governors exercise their
discretionary powers sparingly and judiciously.

Other Notable Recommendations:

 Anti-Defection Law: The commission proposed
strengthening the Anti-Defection Law.
 Parliament and State Legislatures: The commission
made recommendations regarding the functioning and
composition of Parliament and State Legislatures.
 Executive and Public Administration: The commission
recommended changes to executive and public
administration.
3. The Judiciary: The Supreme Court of India. Jurisdiction and
Powers. Its role as guardian of the Constitution,
Independence of Judiciary.

Jurisdiction and Powers of Supreme Court

The extensive jurisdiction and powers of the Supreme Court,
as conferred by the Constitution of India, can be classified
into the following categories:
Original Jurisdiction
 As a federal court, the Supreme Court decides disputes
between different units of the Indian
Federation, including any dispute:
o Between the Center and one or more states; or
o Between the Center and one or more states on one side and
one or more other states on the other side; or
o Between two or more states
 This jurisdiction of the SC is exclusive and original:
o Exclusive: means no other court can decide such disputes.
o Original: means the SC has the power to hear such disputes
in the first instance, not by way of appeal.

Writ Jurisdiction
 The Supreme Court is empowered to issue writs for the
enforcement of Fundamental Rights of an aggrieved
citizen.
 This jurisdiction of the SC is original but not exclusive:
o Original: because an aggrieved citizen can directly go to
the SC, not necessarily by way of appeal.
o Not Exclusive: because the High Courts are also
empowered to issue writs for enforcement of
Fundamental Rights.

Appellate Jurisdiction
 The Supreme Court is primarily a court of appeal and hears
appeals against the judgments of High Courts.
 The Appellate Jurisdiction of the SC can be classified
under the following four heads:
Appeals in Constitutional Matters
An appeal can be made to the Supreme Court against the
judgment of the High Court if the High Court certifies that
the case involves a substantial question of law that requires
interpretation of the Constitution.
Appeals in Civil Matters
 An appeal lies to the Supreme Court from any judgment of a
High Court if the High Court certifies that:
o the case involves a substantial question of law of general
importance.
o the question needs to be decided by the SC.
Appeals in Criminal Matters
 An appeal can be made to the Supreme Court against the
judgment of the High Court in the following three
situations:
o if the High Court has on appeal, reversed an order
of acquittal of an accused person and sentenced him/her
to imprisonment of life or for 10 years.
o if the High Court has taken before itself any case from
any subordinate court, convicted the accused person,
and sentenced him to imprisonment for life or for 10
years.
o if the High Court certifies that the case is fit for
appeal to the SC.
 The following two points are to be noted w.r.t. the above
provisions:
o In the first two cases, an appeal lies to the SC as a matter
of right i.e. without any certificate of the High Court.
o If the High Court has reversed the order of
 conviction and has ordered the acquittal of the accused,
there is no right to appeal to the SC.
Appeal by Special Leave
 The Supreme Court is authorized to grant in its
discretion Special Leave to Appeal from any
judgment in any matter passed by any court or
tribunal in the country, except the military tribunal or
the martial court.
 This provision contains 4 aspects:
o It is a discretionary power and hence cannot be claimed
as a matter of right.
o It can be granted in any
judgment whether final or interlocutory.
o It may be related to any matter – constitutional, civil,
criminal, income-tax, labor, revenue, advocates, etc.
o It can be granted against any court or tribunal (except a
military court) and not necessarily against a High Court.
 Thus, the scope of this provision is very wide and
it vests the Supreme Court with a plenary jurisdiction
to hear appeals.
Advisory Jurisdiction
 Article 143 authorizes the President of India to seek the
opinion of the Supreme Court in the following 2
categories of matters:
o On any question of law or fact of public importance that
has arisen or is likely to arise.
 In this case, the SC may tender or may refuse to tender
its opinion to the President.
o On any dispute arising out of any pre-Constitution treaty,
agreements, etc.
 In this case, the SC must tender its opinion to the
President.
 In both cases, the opinion tendered by the SC is only
 advisory and not a judicial pronouncement.
o Hence, they are not binding on the President.

A Court of Record
As a Court of Record, the Supreme Court has the following 2
powers:
 the judgments, proceedings, and acts of the Supreme
Court are recorded for perpetual memory and
testimony. These records are admitted to be of evidentiary
value and cannot be questioned when produced before any
court.
o Thus, these judgments are recognized as legal
precedents and legal references.
 it has the power to punish for contempt not only of itself
but also of High Courts, Subordinate Courts, and Tribunals
functioning in the entire country.

Power of Judicial Review

 It refers to the power of the Supreme Court to examine the
constitutionality of legislative acts and executive
orders of both the Central and the State Governments.
o If, on examination, they are found to be violative of the
Constitution, they will be declared illegal, unconstitutional,
null, and void by the Supreme Court.
Review Jurisdiction
The Supreme Court has the power to review any
judgment pronounced or order made by it.
Constitutional Interpretation
The Supreme Court is the ultimate interpreter of the
Constitution of India. In this capacity, it has the power to
give final interpretation to the spirit and content of the
provisions of the constitution and the verbiage used therein.
Other Powers
The numerous other powers of the Supreme Court can be
 seen as follows:
 It decides the disputes regarding the election of
President and Vice-President.
o In this regard, it has the original, exclusive, and final
authority.
 It enquires into the conduct and behavior of
the Chairman and members of UPSC, SPSC, or JSPSC on
a reference made by the President.
 It is authorized to withdraw the cases pending before
the High Courts and dispose them by itself.
 It can transfer a case or appeal pending before one High
Court to another High Court.
 Its law is binding on all courts in India
 Its decree or order is enforceable throughout the country.
 It has the power of judicial
superintendence and control over all the
courts and tribunals functioning in the entire country.

Independence of Judiciary

Judicial independence means that the judiciary should be

free from external pressures or influences, particularly from the
executive and legislature. It ensures that judges can make
decisions impartially based on the law and facts, without fear of
retribution or external control. In India, judicial independence is
vital as it safeguards democracy, protects human rights, and
upholds the constitutional values enshrined in the Indian
Constitution.

In India, judicial independence is rooted in the doctrine of

the separation of powers, which divides the government into
three branches: the legislature, the executive, and the
judiciary. The Constitution of India establishes this separation of
 powers to prevent any one branch from having unchecked
authority.

While the legislature is tasked with making laws and the

executive is responsible for implementing them, the judiciary
ensures that the laws comply with the Constitution and that
they are interpreted and enforced impartially.

The judiciary’s role is to act as a check on the power of

both the executive and legislature. It ensures that no law or
action contravenes the fundamental rights of the citizens or
violates constitutional provisions. Through judicial review, the
judiciary can strike down laws or government actions that are
unconstitutional.

 Separation of Powers:
 Article 50 of the Constitution mandates the separation
of the judiciary from the executive. The Constitution
provides that the judiciary should function
independently of the executive, ensuring that decisions
are made solely based on legal reasoning and
constitutional principles.
 The principle of separation of powers is fundamental to
the functioning of India’s democracy, as it prevents the
concentration of power in one branch and ensures a
system of checks and balances.

 Appointment and Tenure:

o Judges of the higher judiciary, including the Supreme Court
and High Courts, are appointed by the President of India
based on the recommendation of the Collegium system,
which consists of the Chief Justice of India and a group of
senior judges.
o The Constitution provides for security of tenure and
 conditions of service to ensure judicial independence.

 Judicial Review:
o The judiciary in India has the power of judicial review,
enabling it to examine the constitutionality of laws passed
by the legislature and actions taken by the executive.
 Immunity and Privileges:
o Judges enjoy certain immunities and privileges to
protect them from external pressures or influences while
performing their judicial functions.
 Financial Independence:
o The judiciary is granted financial autonomy to manage its
budgetary requirements independently, reducing the
potential for external influence.