NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

In partial fulfilment of the requirement of the project on the subject of Constitutional Law-I of B.A., L.L.B
(Hons.), Third Trimester

Submitted on 4th March 2015

SEPARATION OF POWERS
with special reference to,

RAM JAWAYA KAPOOR v. STATE OF PUNJAB

Submitted to:

Submitted by:

Ms. Kuldeep Kaur

Udyan Arya Shrivastava

(Assistant Professor of Law)

(2014 BALLB 98)

NATIONAL LAW I NSTITUTE UNIVERSITY , BHOPAL

PREFACE

I feel great pleasure in presenting this project. I hope that readers will find the project interesting and that the
project in its present from shall be well received by all. The project contains a detailed study of the concept of
Separation of Powers and an analysis of the judgement in Rai Sahib Ram Jawaya Kapur and Ors. v. The State of
Punjab.
Every effort is made to keep the project error free. I would gratefully acknowledge any suggestions to improve
the project to make it more useful.

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ACKNOWLEDGEMENTS

On completion of this Project it is my present privilege to acknowledge my profound gratitude and indebtedness
towards my teachers for their valuable suggestions and constructive criticism. Their precious guidance and
unrelenting support kept me on the right track throughout the project. I gratefully acknowledge my deepest sense
of gratitude to:
Prof. (Dr.) S.S. Singh, Director, National Law Institute University, Bhopal for providing us with the infrastructure
and the means to make this project;
Our Constitutional Law teacher, Ms. Kuldeep Kaur who provided me this wonderful opportunity and guided me
throughout the project work;
Im also thankful to the library and computer staffs of the University for helping me find and select books from
the University library.
Finally, Im thankful to my family members and friends for the affection and encouragement with which doing
this project became a pleasure.

Udyan Arya Shrivastava

(2014 BALLB 98)

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TABLE OF CONTENTS

I.

PREFACE................................................................................................................................2

II.

ACKNOWLEDGEMENTS.........................................................................................................3
1. INTRODUCTION.....................................................................................................................5
1.1.Historical Evolution of the Doctrine............................................................5
1.2.Montesquieus Theory................................................................................6
1.3.France, England & USA............................................................................... 6
2. SEPARATION OF POWERS IN INDIA........................................................................................7
3. RAM JAWAYA KAPUR V. STATE OF PUNJAB..............................................................................9
3.1.Facts of the Case........................................................................................ 9
3.2.Issues Raised............................................................................................ 10
3.3.Judgement................................................................................................ 10
4. CONCLUSION.......................................................................................................................12
5. BIBLIOGRAPHY...................................................................................................................13
5.1.Books & Articles....................................................................................... 13
5.2.Other Authorities...................................................................................... 13
5.3.Websites................................................................................................... 13

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INTRODUCTION
Historical Evolution of the Doctrine

The earliest reference made to the concept of the doctrine of Separation of Powers was by Classical Greek
philosophers Plato & Aristotle in the 4th Century BC. In the 16th & 17th centuries French philosopher John Bodin
and British politician Locke expressed their views regarding the doctrine.
But it was Montesquieu, the French jurist, who conceived this principle through his book, Espirit des Lois
Sprit of Law that was published in 1748.
He found that concentration of powers in one person or group of persons resulted in tyranny. To avoid this
situation and with a view to checking the arbitrariness of the government he suggested that power of governance
should be clearly divided between the three organs of the state i.e. Executive, Legislative and the Judiciary.
The principle can be stated as follows:
1. Each organ should be independent of the other.
2. No one organ should perform functions that belong to the other.
Montesquieu was impressed by the liberal thoughts as they existed in England in the 18 th century and witnessing
the autocratic use of power by Louis XIV in his own country, he felt that the secret of an Englishmans liberty
was the separation and functional independence of the three departments of the Government from one another.
According to Montesquieu:
Miserable indeed would be the case, were the same man or the same body, whether of the nobles or of
the people, to exercise those three powers, that of enacting powers, that of executing the public
resolutions and that of judging the crimes or differences of individuals.1
Montesquieus Theory

The main object as per Montesquieu in the Doctrine of separation of power is that there should be government of
law rather than one dependent on will and whims of the official. Also another most important feature of the above
said doctrine is that there should be independence of judiciary i.e. it should be free from the other organs of the
state and if it is so then justice would be delivered properly, Montesquieu did specify that the independence of
judiciary has to be real and not apparent merely, Montesquieu mentioned that the fundamental principle of a free
1
Baron de Montesquieu. "The Spirit of the Laws, Paris (1748).
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constitution would be subverted if the whole power of one department is exercised by the same hands which
possess the whole power of another department.
France, England & USA

The doctrine had different implications in France, USA & England. These are summarised below.
France: It resulted in the rejection of the power of the courts to review the acts of the legislature or the executive.
The existence of separate administrative courts to adjudicate disputed between the citizen and the administration
owes its origin to this theory.
USA: The principle was categorically adopted in the making of its Constitution. In USA, executive power is
vested in the President, legislative power in Congress and judicial power in the Supreme Court and the courts
subordinate thereto.
England: In reality, the theory of Integration of Powers has been adopted in England. The Lord Chancellor is the
Head of the Judiciary, Chairman of the House of Lords, a member of the Executive and often a member of the
Cabinet.

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SEPARATION OF POWERS IN INDIA

The doctrine of separation of powers has no place in the strict sense in the Indian Constitution but the functions
of different organs of the Government have been sufficiently differentiated so that one organ of the Government
could not usurp the function of another.
In the Indian Constitution there is express provision that Executive power of the Union shall be vested in the
President, and the executive power of the State shall be vested in Governor.

(Article 154(1) of Indian

Constitution). But there is no express provision that legislative and judicial powers shall be vested in any person
or organ.
President being the executive head is also empowered to exercise legislative powers. In his legislative capacity he
may promulgate Ordinances in order to meet the situation as Article 123(1) says If at any time, except when
both Houses of Parliament are in Session, President is satisfied that circumstances exist which render it necessary
for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to
require. When Proclamation of emergency has been declared by the President due to failure of Constitutional
machinery the President has been given legislative power under Article 357 of our Constitution to make any Law
in order to meet the situations. A power has also been conferred on the President of India under Article 372 and
372-A to adapt any Law in country by making such adaptations and modifications, whether by way of repeal or
amendment as may be necessary or expedient for the purpose or bringing the provisions of such Law into accord
with the provisions of the Constitution. The President of India also exercises judicial function. Article 103(1) of
the Constitution is notable in this connection. According to this Article If any question arises as to whether a
member or either of House of Parliament has become subject to disqualification mentioned in clause (1) of
Article 102, the questions hall be referred for the decision of the President and his decision shall be final.
Article 50 lays emphasis to separate judiciary from executive. But in practice we find that the executive also
exercises the powers of judiciary as in appointment of judges. (Articles 124, 126 & Article 127). The legislative
also exercises judicial function in removal of President (Article 61) in the prescribed manner. Judiciary also
exercises legislative power, High Court and Supreme Court are empowered to make certain rules legislative in
character. Whenever High Court or the Supreme Court finds a certain provision of law against the Constitution or
public policy it declares the same null and void.
In this regard Honble Chief Justice B.K. Mukherjea, in Ram Jawaya Kapur has said,
The Indian Constitution has not indeed recognised the doctrine of separation of powers in the absolute
rigidity but the functions of the different parts or branches of the Government have been sufficiently
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differentiated and consequently it can very well be said that our Constitution does not contemplate
assumption by one organ or part of the State of the functions that essentially belong to another. 2
It is clear that doctrine of Separation of Power has not been accepted in India in its strict sense. Since it is a
Parliamentary form of government, therefore it is based upon intimate contact and close co-ordination among the
three wings. But still a tension between separation and concentration of power will always exist.

2
Ram Jawaya Kapur and Ors. v. State of Punjab, AIR 1955 SC 549, at para 14.
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RAM JAWAYA KAPUR V. STATE OF PUNJAB

Facts of the Case

In the State of Punjab, all recognised schools had to follow the course (of studies) as approved by the
Education Department of the Government. For a long period of time prior to 1950, the method adopted by the
Government for selection and approval of text books for recognised schools was commonly known as the
alternative method.
Books on relevant subjects, in accordance with the principles laid down by the Education Department, were
prepared by the publishers with their own money and arrangements and they were submitted for approval to
the Government. The Education Department after proper scrutiny selected certain number of books on each
subject as alternative text books, leaving it to the discretion of the Head Masters of the different schools, to
select any one of the alternative books on particular subject out of the approved list. Authors, who were not
publishers, could also submit books for approval and if any of their books were approved, they had to make
arrangements for publishing the same.
This procedure was in practice since 1905 but was altered in May 1950. By certain resolutions passed by the
Government the whole of the territory of Punjab (as it remained in the Indian Union after partition) was
divided into three Zones. The text books on certain subjects like agriculture, history, social studies, etc., for all
the zones were prepared and published by the Government without inviting them from the publishers. With
respect to the remaining subjects, offers were still invited from "publishers and authors" but the alternative
system was given up and only one text book on each subject for each class in a particular zone was selected.
Another change introduced at this time was that the Government charged, as royalty, 5% on the sale price of
all the approved text books.
However, by a notification in August 1952, the Government omitted the word "publishers" altogether and
invited only the "authors and others" to submit books for approval by the Government. These "authors and
others, " whose books were selected, had to enter into agreements in the form prescribed by the Government
and the principal terms of the agreement were that the copyright in these books would vest absolutely in the
Government and the "authors and others" would only get a royalty at the rate of 5% on the sale of the text
books at the price or prices specified in the list. Thus the publishing, printing and selling of the books were
taken by the Government exclusively in their own hands.
A petition against the 1952 notification was filed by six persons under Article 32 of the Indian Constitution.
Issues Raised
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1. Whether the acts of the Government, in carrying out their policy of establishing monopoly in the business of
printing and publishing text books for school students, are wholly without jurisdiction and illegal.
2. Even if the State could create a monopoly in its favour in respect of a particular trade or business, whether the
same could be done by any executive act or it could be done only by means of a proper legislation which should
conform to the requirements of Article 19 (6) of the Constitution.
3. Whether it was open to the Government to deprive the petitioners of their interest in any business or
undertaking. (It was contended by the petitioners that such interest amounts to property and the act of the
Government led to deprivation of the same it without authority of law and without payment of compensation as is
required under Article 31 of the Constitution.
Judgement

The action of the Government may be good or bad. It may be criticised and condemned in the Houses
of the Legislature or outside but this does not amount to an infraction of the fundamental right
guaranteed by article 19(1)(g) of the Constitution.3
The court held that the Indian Constitution, though federal in its structure, is based on the British Parliamentary
system where the executive is deemed to have the primary responsibility for the formulation of governmental
policy and its incorporation into law though the condition precedent to the exercise of this responsibility is its
retaining the confidence of the Legislature.
The court was unable to agree with the petitioners regarding their first contention i.e. the carrying on of the
business of printing and publishing text books was beyond the competence of the executive Government without
a specific legislation sanctioning such course. Generally speaking, a trader might be lucky in securing a particular
market for his goods but if he loses the same because the customers for some reason or the other do not choose to
buy goods from him, it is not open to him to say that it was his fundamental right to have his old customers for
ever.
Therefore, in the view of the bench the petitioners have no fundamental right in the present case which can be
said to have been infringed by the action of the Government, the petition is bound to fail on that ground. This
being the position, the other two points raised do not require consideration at all. As the petitioners have no
fundamental right under article 19(1)(g) of the Constitution, the question whether the Government could establish
a monopoly without any legislation under article 19(6) of the Constitution is altogether immaterial. Again a mere
chance or prospect of having particular customers cannot be said to be a right to property or to any interest in an
3
Ram Jawaya Kapur and Ors. v. State of Punjab, AIR 1955 SC 549, at para 22.
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undertaking within the meaning of article 31(2) of the Constitution and no question of payment of compensation
can arise because the petitioners have been deprived of the same.
As a result the petition was dismissed with costs.

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CONCLUSION
In strict sense the principle of separation of powers cannot be applied in any modern Government. But it does not
mean that the principle has no relevance. Nowadays Government is an organic unity. It cannot be divided into
water tight compartments. History proves this fact. If there is a complete separation of powers the government
cannot run smoothly and effectively. Smooth running of government is possible only by co-operation and mutual
adjustment of all the three organs of the government.
Conferment of power in a single body leads to absolutism. But even after distinguishing the functions when an
authority wields public power, then providing absolute and sole discretion of the body in the matters of such
power. Therefore, the doctrine of Separation of Power is a theoretical concept and is impracticable to follow
absolutely.
Since it is not possible to have water-tight compartments between the functions and organs of the state rather, the
system of checks and balances wherein duties and rights are crossed over, has been established.
The doctrine is important in the sense that each organ of the Government should exercise its power on the
principle of checks and balances signifying the fact that none of the organs of Government should usurp the
essential functions of the other organs. But rigid separation of powers is definitely a constitutional myth.

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BIBLIOGRAPHY
Books & Articles

Jain, M.P. Indian Constitutional Law. Lexis Nexis Butterworths Wadhwa. Nagpur. 6th Edition (Reprinted).
2010.
Montesquieu, Baron de. The Spirit of the Laws. Paris. 1748.
Separation of Powers: The myth and reality, The Third Nani A. Palkhivala Memorial Lecture. By Bimal
Jalan. Available at: http://www.pucl.org/Topics/Law/2006/seperation-of-powers.html
Separation

of

Powers:

Constituional

Plan

and

Practice,

By

Siddhant.

Available

at:

http://jurisonline.in/2010/09/separation-of-powers-constitutional-plan-and-practice

Other Authorities

Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.

Websites

www.google.com
www.indiankanoon.org
www.manupatra.com

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