Australian Constitution follows the same pattern of distribution of powers.
Unlike these Constitutions, the Indian Constitution does not expressly vest
the three kinds of power in three different organs of the State. But the
principle of separation of powers is not a magic formula for keeping the three
organs of the State within the strict confines of their functions. As observed
by Cardozo, J., in his dissenting opinion in Panama Refining Company v.
Ryan. (1934) 293 US 388,440 the principle of separation of powers “is not a
doctrinaire concept to be made use of with pedantic rigour. There must be
sensible approximation, there must be elasticity of adjustment in response to
the practical necessities of Govt. which cannot foresee today the
developments of tomorrow in their nearly infinite variety.” Thus, even in
America, despite the theory that the legislature cannot delegate its power to
the executive, a host of rules and regulations are passed by non-legislative
bodies, which have been judicially recognised as valid. See the judgment of
Mukherjea. J., in the Delhi Laws Act case, 1951 SCR 747.964=(AIR 1951 SC
332 at p.394).
686. The truth of the matter is that the existence, and the limitations on
the powers of the three departments of Government are due to the normal
process of specialisation in governmental business which becomes more and
more complex as civilization advances. The legislature must make laws, the
executive enforce them and the judiciary interpret them because they have in
their respective fields acquired an expertise which makes them competent to
discharge their duly appointed functions. The Moghal Emperor, Jehangir,
was applauded as a reformist because soon after his accession to the throne
in 1605, he got a golden chain with sixty bells hung in his palace so that the
common man could pull it and draw the attention of the Ruler to his
grievances and sufferings. The most despotic Monarch in the modern world
prefers to be armed, even if formally, with the opinion of his Judges on the
grievances of his subjects.
687. The political usefulness of the doctrine of separation of powers is now
widely recognized though a satisfactory definition of the three functions is
difficult to evolve. But the function of the Parliament is to make laws, not to
decide cases. The British Parliament in its unquestioned supremacy could
enact a legislation for the settlement of a dispute or it could, with impunity
legislate for the boiling of the Bishop of Rochestor's cook. The Indian
Parliament will not direct that an accused in a pending case shall stand
acquitted or that a suit shall stand decreed. Princely India, in some parts,
often did it.
688. The reason of this restraint is not that the Indian Constitution
recognizes any rigid separation of powers. Plainly, it does not. The reason is
that the concentration of powers in any one organ may, by upsetting that fine
balance between the three organs, destroy the fundamental premises of a
democratic government to which we are pledged. Sir Carleton K. Allen says
in his 'Law and Orders' (1965 Ed., p. 8) that neither in Montesquieu's
analysis nor in Locke's are the governmental powers conceived as the
familiar trinity of legislative, executive and judicial powers. Montesquieu's
“separation” took the form not of impassable barriers and unalterable
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