The Doctrine of Separation of Powers in India, USA and France

Abstract

In any democratic set-up, the most common theoretical model for governance calls for the division of powers between three organs namely legislature, executive and judiciary. The existence of the separation of powers between these three organs has become a matter of relevance in contemporary times.

It is being used as a threshold to assess the credibility and integrity of a nation’s governance. While it is the basic premise of the doctrine of separation of powers to disallow any overlap of powers or functions, the modern-day application provides some room and flexibility with a view to facilitating effective and efficient governance.

Consequently, news of friction between any two organs of the state, even in well-established and powerful democracies such as the U.S.A., India and France, is no longer surprising. However, these instances of rifts and friction affect various aspects such as economic growth, business environment, human rights and environmental policies which is evidenced by various instances in world affairs.

The authors have used many of these recent examples in an attempt to illustrate the modern-day application of the doctrine of separation of powers.

Introduction

“The accumulation of all powers, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”                       

James Madison[1]

The doctrine of separation of powers is one of the most recognized doctrines of administration law in various parts over the world.[2]

Although the doctrine happens to be from a period as old as that of Plato and Aristotle, its relevance in the modern political context has only continued to increase over the years.

Be it the disregards for the judiciary by the Trump administration in the USA or the increasing cases on judicial activism versus judicial overreach in India; the doctrine of separation of powers is as relevant today as it will ever be. The doctrine of separation of powers is a central theme that runs among the several governing bodies in any democratic country[3].

The most accurate phrase that explains the philosophy behind the doctrine is a quote by John Acton, a famous historian and moralist (1834-1902). He has simply said that power tends to corrupt, and “absolute power corrupts absolutely”[4]. Likewise, other jurists and scholars have also accepted that for any system of governance to be stable, the different bearers of power need to balance off against each other[5].

As stated by Vile, conferment of power in a single body leads to absolutism.[6] The doctrine thus emphasizes the mutual exclusiveness of the three universally recognized organs of the State – legislature, executive and judiciary[7]. The goal is to attain a prevalence of rule of law coupled with independent judiciary[8].

In the modern world, what many are coming to realize is that a strict and mechanical division of powers between the three organs is not practical in a parliamentary form of government.

There is a need for cooperation and constant correspondence between the organs without which even bigger problems could take form.[9]

Nevertheless, the application of the doctrine in the modern world has raised far lesser conflicts than its lack thereof has caused[10]. 

Origin

Many trace the origin of the concept of separation of powers to Aristotle who had named three elements of governance i.e. procedural, administrative and legal functions which are often regarded as the origin of the doctrine[11].

Aristotle’s conception was further developed by Polybius who was highly impressed with the principle of checks and balances.[12] This model was widely used in Roman politics as well, such that it was one of the factors that enabled them to establish a worldwide empire.[13]

The doctrine disappeared and reappeared in the 16^th century with political scholars such as Locke. The doctrine of separation of powers was first propounded by Montesquieu, a French political analyst, in 1747, in his book ‘Espirit des Louis’ (The spirit of the laws).[14] In this book, he systematically and scientifically defined the doctrine.

It was stated that when any kind of power is concentrated in a single person’s hand, it amounts to a tyrannical form of government[15]. He further stated that in order to deal with the abuse and arbitrariness arising from this, the powers must be clearly divided between the three organs of governance – executive, legislature and judiciary[16].

According to Montesquieu, the doctrine was primarily an attempt to secure personal liberty.[17] He believed that an individual’s personal liberty was in danger as long as the legislative and executive powers rested in the hands-on one[18]. These views were based on Montesquieu’s observations on French and English monarchies[19].

Montesquieu’s theory, however, still faced criticism because while it was constructed keeping in mind the English Constitution, it was based on erroneous observations[20]. However, the doctrine was strongly preached profusely by Montesquieu in France. While the early French rulers believed in the concentration of power, it re-emerged in France in 1871.

This theory was further supported by Rousseau, a very famous jurist.[21] The doctrine can be found as one of the themes running behind all major Constitutions of the world, since the days of ‘Magna Carta’.[22]  The U.S.A. is known to be the first nation to implement the doctrine of separation of powers in its Constitution.[23]

Concept

In any democratic set-up, the most common theoretical model for governance calls for the division of powers between three organs namely legislature, executive and judiciary.[24] If not in practice, at least in theory, separation of powers is essential for the success of any democracy.[25]

Just like the definition of the concept of ‘rule of law’, separation of powers has a simple definition with complex implications making it a paradoxical concept. In simple words, it means that no single person or single body should be vested with all the powers – legislative, executive and judicial. 

This doctrine tries to bring exclusiveness in the administration by different organs of administration and therefore a strict demarcation of the above-mentioned powers is what is sought to be achieved by applying this doctrine.[26]

The basic concept behind the doctrine can be summarized in the following[27]:

1. The same person should not be a part of more than one of the organs of the State.
2. One organ of the State should not control or interfere with the work of another.
3. One organ of the State should not exercise functions of another.

Over the course of several years, the doctrine has faced significant amount of criticism as well. Many jurists and scholars have pointed out that even after differentiating the organs on the basis of their functions and defining a sphere for each of them within which they may perform these functions and use discretion, there is a wide scope for abuse of power.[28]

In practice, there is a tendency of each of the organs to overstep the boundaries and interfere with another organ’s sphere.[29] The doctrine is criticized as far too much of a theoretical concept, impractical to follow absolutely.[30] 

A much important component of the doctrine of separation of powers is the concept of checks and balances. It is often regarded as the source of the doctrine of separation of powers.[31]  

It is a mechanism designed to ensure that each of the three organs of the State function within the scope of their jurisdiction and discretion and there is no abuse of power by either of them.[32]

The checks and balance system allows on kind of authority to keep a check on the working of another authority so as to ensure the balance of power within a State.[33]

An example of checks and balance would be any law that is made by the legislature such that it gets declared invalid by the Judiciary for being beyond the powers of the organ. The legislature cannot overrule this decision by simply enacting another law declaring the judgment invalid.

Therefore, one may say that this is a check on the powers of the Legislature in order to maintain the balance of powers. In several countries, especially India, the doctrine of checks and balances is far more appreciated than that of separation of powers.[34]

The Separation of Powers in India

From being lassies-faire, non-interventionist and minimal to becoming what it is today i.e. welfare state, participative and socialist, India has experienced a drastic change in the role of the State[35]. The State, today assumes a variety of roles such as that of a protector, arbitrator, provider and controller. [36]

This means that the State today has more functions to perform than it did before. Due to this ever-increasing number of functions, the boundaries of demarcation drawn that divide the powers and functions of the three organs, are not as clear and prominent as required by the pure doctrine.

As mentioned before, the Indian administration follows the separation of functions rather than the separation of powers in India, thereby not sticking to the doctrine strictly. 

Constitutional provisions

India, like any other democracy, enshrines the supreme power in its Constitution. It is under this Constitution that the governing machinery is set-up, the three organs of powers and functions of the State. While there are no express provisions in the Constitution that recognize the doctrine in its absolute form, over the many years it has been read into the various provisions therein.

The lack of express provisions recognizing the doctrine is evidence that the Constituent Assembly never actually wanted the doctrine to be applied absolutely.[37] The Assembly had had many debates regarding the inclusion of this doctrine in a separate section, perhaps Article 40(A), but rejected them too.[38]

As viewed by Dr B R Ambedkar, the Indian Constitution is ‘pro-responsibility’ and such is preferred over the idea of stability.[39]

The Constitution enumerates the various powers of the three organs of the State in several of its provisions in an implied manner and does not provide for the assumption of powers by any organ that primarily belongs to another.[40]

Firstly, the Constitution vests the executive power of the Centre and the States in the President and Governor by means of Article 53(1) and Article 154(1) respectively. Under Article 50, the State is expected to make efforts to ensure the independence of the judiciary.

While there are no corresponding provisions for Legislature, there are other provisions that define its powers and functions exclusively. Articles 122 and 212 provide validity to all kinds of proceedings in the Parliament and the same cannot be questioned before any Court within India.

Similarly, judicial conduct of any of the judges of the Court cannot be discussed in the Parliament and the State Legislature under Article 121 and 211. Further, Article 361 provides immunity from civil and criminal liability to the President and the Governor, the bearers of the country’s executive powers. 

Some of the instances that show functional overlapping in the Constitutional, against the principles of the pure doctrine are discussed hereon. The legislature assumes law-making powers as well as judicial powers in case of breach of its privileges and impeachment of the President.[41]

The executive influences the working of the judiciary by exercising the power to make appointments to the office of the Chief Justice and other high-level judges.[42]

Constitutionally, the legislature may disqualify its members, impeach judges, punish those exceeding their freedom of speech in the Parliament, etc.[43]

Over the years, the concept of ‘essential powers’ and ‘incidental powers’ came into existence that pose a certain limitation on the functional overlapping by the organs. [44]

After a thorough reading of all of the provisions mentioned above, the authors feel that the Constitution does not favour the adoption of the pure doctrine, instead, it only embraces the doctrine in a broad sense, focusing on the use of checks and balances in the system.

The same is evident from the fact that the executive is accountable to the Legislature and enjoys office until its (legislature’s) pleasure. Similarly, the judiciary can exercise checks i.e. judicial review, on the legislature under Article 137 of the Constitution by determining the constitutionality of the laws enacted by them.

It provides for such a mechanism under the parliamentary form that makes it difficult for following the doctrine rigidly. The three organs are conferred with exclusive and overlapping powers.  

Judicial decisions

The Indian judiciary, very early on, adopted the view that while the Constitution of India does not incorporate the doctrine in its absolute rigid sense, it can still be inferred from the Constitution.[45] The doctrine was first expressly recognized as a part of Constitutional law in the case of Ram Jawaya Kapur v. the State of Punjab wherein it was held that the Constitution stands to be in violation with the violation of the doctrine.[46]

Similarly, in the re Delhi Laws Act case[47], a majority of 5:2 in Supreme Court accepted the view that even though the doctrine is not an expressly a part of the Constitution, its presence is evident in the provisions of the document.

The Supreme Court has also taken the view that while the doctrine does not form the cornerstone of the Constitution, it is still required to facilitate the division of powers between the three organs.[48] It was finally in 1975, in a landmark judgment by Justice Chandrachud[49] that the Supreme Court clarified all queries regarding whether the doctrine was applicable in India.

Justice Chandrachud said that no Constitution could survive without the doctrine of separation of powers and that the doctrine was a politically useful asset to any democracy. He stated that the doctrine was ingrained in the articles of the Constitution of India.

The Indira Gandhi v. Raj Narain case and the Keshavananda Bharti v. State of Kerala case have held that separation of powers in India constitutes the basic structure of the Constitution.

There have still been some rulings with an extreme point of view such as that in Uday Ram Sharma v. Union of India[50]. In this case, it was clearly held by the Court that there is no scope for applying the American doctrine of separation of powers in India and therefore should not be accepted under Constitutional law.

In an early case, Kartar Singh v. the State of Punjab,[51] it was observed by the Supreme Court that the sovereign powers under the Constitution have been divided in such a way that the legislature has the power to make law, the executive to implement that law and the judiciary to interpret that law.

Further, in Asif Hamid v. Jammu and Kashmir[52], it was held that the three organs are required to function within their own sphere of powers and discretion and that this was important for the effective functioning of a democracy.

The Supreme Court has further recognized that the three organs of the State are equal as inferred from the Constitution and that each of them must acknowledge and respect each other’s importance by paying due regard and deference to it.[53]

Yet the debate regarding limitation on each organ’s powers went through a drastic change in the latter part of the 20^th century. In the case of Bandhua Mukti Morcha v. Union of India[54], the Supreme Court adopted the view that within its own sphere, the legislature may exercise judicial power, the executive may exercise legislative and judicial functions and the judiciary may adopt a legislature character subject to certain limitations. 

The common view that extends till today is that rather than following the entire doctrine rigidly, the system of checks and balances is an effective alternative to achieve the goals of the doctrine without any conflicts.[55]

In the I R Colheo case[56], it was observed by the Court that the principles of constitutionalism that provide for control on the government decisions and actions, could not be implemented without the checks and balances models as provided under the doctrine.

Therefore, the authors feel that right from the Ram Jawaya v. State of Punjab case in 1955 to the I R Coelho case in State of Tamil Nadu in 2007, there has been a shift in the Court’s application of the doctrine. The early point of view was that there is the doctrine is not a part of the Constitution as intended by the Constituent Assembly but with the course of time, the doctrine is believed to constitute the basic structure of the Constitution.

The judiciary has in fact used the doctrine as an umbrella and has caused the development of many concepts such as ‘judicial activism’ under the same.[57]  It was under this umbrella that the judiciary developed the PIL or Public Interest Litigation, relaxing the concept of locus standi. Other matters where the Courts have exercised judicial activism include cases concerning the disadvantaged sections of the society, prisoners, environment protection and preservation, encroachment, etc. Judicial review too has emerged as a powerful weapon for keeping a check on abuse of power or arbitrary use of power by the legislature and the executive.

‘Judicial review’ and ‘judicial activism’ has been labelled as ‘judicial overreach’ by many and is being regarded as a violation of the doctrine. In the case Shri Sitaram Sugar Co Ltd v. Union of India[58], the Supreme Court observed that the general rule is that the Courts should not use the excuse of ‘judicial review’ to interfere with any policy of the government under Article 162. It was held that the powers and functions of State administration should not tamper with just because of some ego clash between the officers of the same country. In the case, Divisional Manager, Aravali Golf Course v. Chander Haas [59], judicial activism was held to be a deviation from the doctrine of separation of powers in India, therein the basic structure of the Constitution.

Contemporary application of the Doctrine of Separation of Powers

A very recent example of cases concerning the doctrine of separation of powers in India is that of the Supreme Court setting aside the Kerala Professional Colleges (Regularization of Admission in Medical Colleges) Ordinance 2017.[60] The facts of the case involve illegal admission of 180 students in Kannur Medical College and the Karuna Medical College.[61] The decision of the invalidity of admissions was upheld by the Kerala High Court and then the Supreme Court. Soon after this judgment, the Kerala State government promulgated an ordinance for legitimizing the admission of those 180 students. The ordinance was challenged before the Supreme Court. It was observed that there was a clear disregard for the Judiciary’s powers to determine the constitutionality of laws, amounting to a disregard for the doctrine of checks and balances thereby amounting to a clear disregard for the Constitution.[62] The Court observed that ‘the day is not far when every judgment can be annulled by the government’. [63]

Another very recent incidence of an ego clash between the Judiciary and Executive pertains to the SC hearing on the urban homeless. The SC Judge, Madan B Lokur, publicly stated that the Executive is making efforts to dispossess the Judiciary of its power to govern and used the phrase ‘the whip is broken’.[64] J. Lokur remarked that the Judiciary was ‘helpless’ after such comments from the Law Minister.[65]

SC had directed the government to provide shelter to the urban homeless and form committees to implement the same.[66] However, no such committees were framed by the government and thus failed to carry out the objectives of the Deendayal Antyodaya Yojana-National Urban Livelihood Mission (NULM). As a part of the Independence Day speech this year, the Law Minister said that governance must be left to those elected to govern and there should be no interference from the Court.[67]

Off late, there has been some noteworthy friction between the Executive and Judiciary. Some believe it is because of SC’s act of quashing the NJAC judgment in the name of judicial activism while others believe it is SC’s overreach with the administration of BCCI.

The Doctrine of Separation of Powers in France

Even though France is credited with giving origin to the doctrine of separation of powers, it recognizes the separation of powers in its Constitution in a flexible manner.[68] Article 1 and Article 2 of the document formulate the legislative branch separate from the executive branch.[69] An important feature that ensures separation of powers is its dual court system. France has one kind of court that deals with all the civil matters and another kind which deals with administrative matters. [70]

The French administration also consists of three independent organs viz. the legislature, the executive and the judiciary.[71] The legislature makes the laws. The executive branch implements these laws. However, the executive may also exercise veto to prevent a particular law from being passed. This is a mechanism to keep a check on the legislature.[72] Further, the Judiciary too has the power to determine the constitutionality of the laws passed by the legislature.[73] The legislative branch also has the power to remove a president or judge if they aren’t doing the duties of their job right. The executive branch chooses the judges and the legislative branch approves the executive branch’s choice.[74]

Contemporary application of the Doctrine of Separation of Powers

There have been several debates going around in France regarding the blurry concept of separation of power in the minds of the current French President, Emanuel Macron. Macron has advocated certain constitutional reforms before the parliament and the same is being criticized as they weaken the doctrine in France.

In July 2018, Macron appeared before the Parliament to make a policy speech that is usually made by the Prime Minister.[75] This was against the French notion of separation of powers that “interdiction d’entrée dans les hémicycles parlementaires” – which means that the President should not be allowed to appear before the Parliament.[76] The Prime Minister, himself, has expressed their disappointment with the President announcing a policy, calling it an interference with the role assigned to him.[77]

The constitutional reforms that are being advocated by Macron are also aimed at bringing about a change in the assigned role.[78] He believes that his role as a President has only been to ‘listen’ and not ‘respond’ and he wants to change that.[79] He wants to bring a transformation in the system. Macron has proposed various changes such reduction in number of MPs, limitation on their rights, limitation on their terms, etc.[80]

Macron is facing strong opposition. It has been pointed out what Macron is describing as a ‘transformative’ move, it is actually an attempt to disturb the balance of power so very well established by the Constitution.[81] Macron is being accused of attempting to reduce the Parliament to a mere record-keeping body. This is being characterized as disregard for the doctrine of separation of powers.[82]

The Separation of powers in the USA

The doctrine of separation of powers has had a significant impact on the development of administrative law in the U.S.A.[83] U.S.A. was the first country in the world to expressly inculcate the doctrine of separation of powers in its Constitution.[84] It was accepted absolutely and strictly. However, over the years, there has been a certain degree of flexibility with which the doctrine has been applied in the country[85]. The common view among the jurists and scholars has been that had there been strict adherence to the doctrine, the administrative law in the country would not have developed and grown, making modern governance extremely difficult.[86]

On the basis of this theory, Congress is given the sole power to legislate for the country under Article I of the Constitution such that it cannot be delegated, in its essential character, to any other agency. It is still enabled to delegate ancillary powers to the other organs of the state such as the President[87]. The executive branch is vested with powers under Article II of the Constitution. The President and his office enforce the law made by Congress and execute any other instructions given by the Congress.[88] Congress is free to initiate proceedings for the removal and impeachment of the President.[89] The power to decide cases and controversies is vested with the Judiciary under Article III.[90] They may enjoy their tenure and remuneration free from any diminishment during their office. They are appointed by the President with the advice of his Council and the Senates. The Judiciary actually interferes with the exercise of powers by the Congress as well as the President under the umbrella term ‘judicial review’.[91] These checks and balances have been incorporated in the Constitution itself and upheld by the Supreme Court in various cases such as Panama Refining Company v. Ryan (1935) [92]

Contemporary application of the Doctrine of Separation of Powers

One of the instances from today, that keeps the discussions and debates going in the U.S.A. include the incidence of the ban on Islamic immigrants and refugees by the Trump administration in the USA.[93] This ban was originally found to be unconstitutional by the Federal Court. However, the Executive branch disregarded the order. The executive assumed the powers to draft, implement and adjudicate over its own actions, thereby deviating from the philosophy of the doctrine of separation of powers.

The Trump administration is now and again indulging in commenting on the Judiciary, criticizing it for inhibiting America’s potential for growth as world supremacy.[94]

Another instance of the American President, Trump, tampering with the doctrine of separation of powers is the appointment of judges made by him.[95] Many legal scholars have observed that Trump’s appointments are bringing about a shift in ideologies of the Judiciary, from rightward tendencies to conservatism. It is being labelled as a ‘judicial takeover’ that is aimed at blurring the line separating the executive and the judiciary. This conservative intervention in the Judiciary has undertaken some extreme positions in regards to LGBTQ equality, civil rights, environmental regulations, consumer protection, etc.

Conclusion

The authors believe that while it is difficult to prevent the overlapping of functions, keeping in mind the goal to establish a welfare state, abuse of powers and arbitrariness can still be avoided with a strong checks and balances system. The need is greater, now more than ever, to strengthen such mechanisms if we wish to emerge as a country of credibility and integrity. The existing frictions between the organs of the State are making it difficult for smooth governance leading to confusion and uncertainties in the minds of the citizens.

Many developing communities around the world are recognizing the doctrine of separation of powers as a primary concern when dealing with issues of human rights, surveillance, terrorism, environment and economic growth. It is apparent to all democracies that threats to the rights and freedoms of their people are significantly reduced when they are governed by the law in conformity with the doctrine of checks and balances under the doctrine of separation of powers.

---

[1] Alexander Hamilton, John Jay, and James Madison, ‘The Federalist Papers’, ISO-8859-1, November 6, 2009.

[2] Judge Phineas M Mojapelo, ‘The Doctrine of Separation of Powers’, Advocate, Issue – April 2013.

[3] The Rule of Law by Tom Bingham [London: Allen Lane, 2010. 213 pp ISBN 9781846140907].

[4] Justice B.P. Jeeven Reddy, “Judicial activism: A perspective” The Hindu (Delhi) April 30, 2008.

[5] Dr. Reetesh Jain, ‘Separation of Powers in India’, International Journal of Academic Research and Development’, Volume 3; Issue 1; January 2018; Page No. 286-288.

[6] J.H.M. Salmon ‘History of Political Thought’, Vol. 17, No. 4 (Winter 1996), pp. 500-522.

[7] Commentary: Jain M.P & S.N Jain, “Principles of Administrative Law”, Wadhwa & Company Nagpur, 2007, Pp 31,32.

[8] Aharon Barak, The Judge in a Democracy (Princeton University Press, Princeton 2006).

[9] Supra 2.

[10] M.J.C. Vile, Constitutionalism and the Separation of Powers (2nd ed.) [1967].

[11] Frank W Walbank, ‘Polybius and the Roman State’, The University of Liverpool, September 1964.

[12] Ibid.                                                                                     

[13] Ibid.

[14] Manning F, J. (2011). HARVARD LAW REVIEW: ‘Separation of Powers as Ordinary Interpretation’, Page 1993-1994.

[15] Ibid.

[16] Ibid.

[17] Althusser, Louis, 2007, ‘Politics and History: Montesquieu, Rousseau, Marx, Ben Brewster (trans.)’, London: Verso.

[18] Rahe, Paul, 2009, ‘Montesquieu and the Logic of Liberty’, New Haven: Yale University Press.   

[19] Cox, Iris, 1983, ‘Montesquieu and the History of French Laws’, Oxford: Voltaire Foundation at the Taylor Institution.

[20] Lawrence Claus, ‘Montesquieu’s Mistakes and the True Meaning of Separation’, Oxford Journal of Legal Studies, Vol. 25, No. 3 (Autumn, 2005), pp. 419-451

[21] Supra 17.

[22] Nicholas Vincent, ‘Magna Carta and the English Historical Review: A Review Article’, The English Historical Review, Volume 130, Issue 544, 1 June 2015, Pages 646–684.

[23] Supra 7.

[24] Bakshi PM. The Constitution of India’, Universal Law Publishing Co. Pvt. Ltd., 2005.

[25] Bruce Ackerman, ‘The New Separation of Powers’, Harvard Law Review, Vol. 113, No. 3 (Jan., 2000), pp. 633-729.

[26] Supra 5.

[27] Sandhu Rajwanti, ‘Separation of Powers Law and Practice in India’, KULJ, 2015, Page 377.

[28] David Jenkins, ‘Separation of Powers and the Limits of Prerogative’, (2011) 56:3 McGill LJ 543.

[29] Supra 27.

[30] Benjamin F. Wright, Jr., Economica No. 40 (May, 1933), pp. 169-185.

[31] Philip B. Kurland, “The Rise and Fall of the Doctrine of Separation of Powers,” 85 Michigan Law Review 592 (1986).

[32] Ibid.

[33] Ibid.

[34] Supra 27.

[35] Bakshi, P.M., ‘The Constitution of India’, Universal Law Publishing Co.Pvt. Ltd., 2005

[36]Ibid.

[37] CAD vol.7 at 956 cited in H.R.Khanna, Making of the Indian Constitution 69 (1957).

[38] Ibid.

[39] Ibid.

[40] Ram Jawaya Kapur v. State Of Punjab [AIR 1955 SC 549].

[41] Sangeeta Mandal, ‘Judicial Review under Indian Constitution’, University of North Bengal, 2017, Pp 420p.

[42] Ibid.

[43] Ibid.

[44] Supra 27.

[45] Ram Jawayya Kapoor and ors. v. State of Punjab, AIR 1955 SC 549.

[46] Ibid.

[47] Re Delhi Laws Act Case, AIR 1951 SC 747.

[48] Ram Krishna Dalmia v. Justice Tendolkar [1959 SCR 229].

[49] Indira Gandhi v. Raj Narain [(1975) SUPP SCC 1, 260]

[50] Uday Ram Sharma v. Union of India [AIR 1968 SC 1138].

[51] Kartar Singh v. State of Punjab [AIR 1967 SC 1643].        

[52] Asif Hamid v. State of Jammu and Kashmir [AIR 1989 SC 1899]

[53] State of Bihar v. Bihar Distillery Ltd., (AIR 1997 SC 1511).

[54] Bandhua Mukti Morcha v. Union Of India [1984 SCC 161].

[55] I R Coelho v. State of Tamil Nadu [AIR 2007 SC 861].

[56] Ibid.

[57] I C Golak Nath v. State of Punjab [1975 SUPP SCC 1].       

[58] Shri Sitaram Sugar Co Ltd v. Union of India [AIR 1990 SC 1277]

[59] Divisional Manager, Aravali Golf Course v. Chander Haas [2008 1 SCC 683]

[60] ‘SC strikes down Kerala ordinance on medical college admissions’, Times Of India, Sep 12, 2018, 21:05 IST.           

[61] The Principal, Kannur Medical College v. The Admission Supervisory Committee for Professional Colleges in Kerala and Ors., WP(C).No. 25895 of 2018 (J).

[62] Ibid.

[63] Ibid.

[64] “We Were Told Governance Is For Govt, Not For Court , SC Justice Lokur’s Dig At Centre”, By: Live Law News Network August 16, 2018 10:40 PM IST.

[65] Ibid.

[66] Sampurna Behrua v. Union of India [M.A. NO.2069/2018 IN WRIT PETITION(C) No(s).473/2005].

[67] Supra 65.

[68] Mollers, Christoph (2013), ‘The Three Branches: A Comparative Model of Separation of Powers’, Oxford: Oxford University Press, pp. 3, 10.

[69] The French Constitution, Adopted by the Referendum of September 28, 1958 and Promulgated on October 4, 1958.

[70] Supra 68.

[71] Ibid.

[72] Supra 7.

[73] Ibid.

[74] Ibid.

[75] Alcyone Wemaera,‘ Macron’s propsed Constitutional Reforms weaken separation of powers, critics say’, France 24, 20 July 2018.

[76] Christophe Vimbert, Republican Traditions in France Public Law, Publications de l’Universite de Rouen Rue Thomas Becket, 2013. 

[77] Supra 75.

[78] Ibid.

[79] Ibid.

[80] Ibid.

[81] James McAuley,‘Macron warned against authoritarianism.’, The Washington Post, 4^th September 2018.

[82] Ibid.

[83] Supra 7.

[84] Ibid.

[85] Ibid.

[86] Caroline Morris and Ryan Malone, ‘Regulations Review in the American System’, Macaquarie Law Journal (2004) Vol 4.

[87] Supra 27.

[88] Ibid.

[89] Ibid.

[90] Ibid.

[91] Supra 7.

[92] Panama Refining Company v. Ryan [(1935)293 U.S. 388(400)

[93] Sabrina Siddiqui, Trump’s travel ban: what does the Supreme Court ruling mean?, The Guardian, 27 Jun 2018 02.27 BST.

[94] Ibid.

[95] Andy Kroll, Inside Trump’s Judicial Takeover, Rolling Stone, AUGUST 19, 2018 6:55PM ET.