<b>The Ninth Schedule Judgement: Part 3 of 7</b>—The separation of powers between Legislature, Executive and the Judiciary constitutes basic structure, has been found in Kesavananda Bharati's case by the majority.
The separation of powers between Legislature, Executiveand the Judiciary constitutes basic structure, has been foundin Kesavananda Bharati's case by the majority. Later, itwas reiterated in Indira Gandhi's case. A large number ofjudgments have reiterated that the separation of powers is oneof the basic features of the Constitution.
In fact, it was settled centuries ago that for preservationof liberty and prevention of tyranny it is absolutely essential tovest separate powers in three different organs. In Federalist47, 48, and 51 James Madison details how a separation ofpowers preserves liberty and prevents tyranny. In Federalist47, Madison discusses Montesquieu's treatment of theseparation of powers in the Spirit of Laws (Boox XI, Ch. 6).There Montesquieu writes, "When the legislative and executivepowers are united in the same person, or in the same body ofmagistrates, there can be no liberty. . . Again, there is noliberty, if the judicial power be not separated from thelegislative and executive." Madison points out thatMontesquieu did not feel that different branches could nothave overlapping functions, but rather that the power of onedepartment of government should not be entirely in the handsof another department of government.
Alexander Hamilton in Federalist 78 remarks on theimportance of the independence of the judiciary to preservethe separation of powers and the rights of the people:
"The complete independence of the courtsof justice is peculiarly essential in alimited Constitution. By a limitedConstitution, I understand one whichcontains certain specified exceptions tothe legislative authority; such, forinstance, that it shall pass no bills ofattainder, no ex post facto laws, and thelike. Limitations of this kind can bepreserved in practice in no other waythan through the medium of courts ofjustice, whose duty it must be to declareall acts contrary to the manifest tenor ofthe Constitution void. Without this, allthe reservations of particular rights orprivileges would amount to nothing."(434)
Montesquieu finds tyranny pervades when there is noseparation of powers:
"There would be an end of everything,were the same man or same body,whether of the nobles or of the people, toexercise those three powers, that ofenacting laws, that of executing thepublic resolutions, and of trying thecauses of individuals."
The Supreme Court has long held that the separation ofpowers is part of the basic structure of the Constitution. Evenbefore the basic structure doctrine became part ofConstitutional law, the importance of the separation of powerson our system of governance was recognized by this Court inSpecial Reference No.1 of 1964 [(1965) 1 SCR 413].