HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)

Separation of Power and Global Trends

Submitted To:

Ms. Aditi Singh

(Faculty, Administrative Law)

Date of Submission: 06.03.2018

Submitted By:

Viaya Choudhary

B.A.LL.B. (Hons.) Student

Semester – V1, Section – A, Roll.No. 191

 Declaration

I, the undersigned, solemnly declare that this Project work title, “ Separation of Power and

Global Trends” is based on my own research work, carried out during the course of my study,

under the supervision and guidance of my faculty advisor.

I assert that the statements made and the conclusions drawn are the outcome of the said

research work. It further declares that, to the best of my knowledge and belief, proper

references have been given and it does not contain any part of any work which has been

submitted for the award of any other degree in this university or any other university.

Vijaya Choudhary
B.A. LL.B. (Hons.) Semester-VI, Section-A
Roll no-191
HNLU, New Raipur
Ms. Aditi Singh
Faculty of Administrative Law
HNLU, New Raipur
Chhattisgarh

CERTIFICATE

This is to certify that the Project tilted, “Separation of Power and Global Trends”

Submitted by Vijaya Choudhary as a part of internal assessment in B.A. LL. B. (Hons.)

Course is to the best of my knowledge his/her own research work.

The research has been conducted under my supervision and guidance and may be accepted

for consideration.

Place: New Raipur

Date:
 Acknowledgement

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.
I am highly indebted to Ms. Aditi Singh for putting trust on me and giving me a project topic
as such as this and for having the faith in me to deliver.

It is with her guidance and constant supervision and support in completing the project. I
would like to express my gratitude towards my parents and members of HNLU for their kind
cooperation and encouragement which helped me in completion of this project.

My thanks and appreciations also go to my colleagues in developing the project and people
who have willingly helped me out with their abilities.

Vijaya Choudhary

Semester- V1; BA.LLB

Section- A

Roll no-191
 Contents

Introduction 1

Objectives 3

Scope of the Study 4

Meaning and its Origin 5

Branches of Separation of Power 9

Separation of Powers Under Different Constitutions 12

Applications of the Doctrine of Separation of Powers 21

Conclusion 23

References 24
 List of Cases

1. Marbury v. James Madison

2. Liver Sidge v. Anderson

3. Ram Jawaya v. State of Punjab

4. Indira Nehru Gandhi v. Raj Narain

5. Golaknath v. State of Punjab

6. Bandhuva Mukti Morcha v. Union of India

7. Kesavananda Bharti v. State of Kerala

8. Mallikarjuna v. State of Andhra Pradesh

9. Supreme Court Employees’ Welfare Association v. Union of India

 Abbreviations

1. SC – Supreme Court

2. SCC – Supreme Court Cases

3. UK – United Kingdom

4. Ed. – Edition

5. SCR – Supreme Court Reports

6. AIR – All India Reports

7. US – United State

8. AC – Appeal Cases

9. Ltd. – Limited
 Introduction

The doctrine of separation of powers contemplates the idea that the governmental functions
must be based on a tripartite division of legislature, executive and judiciary. The three organs
should be separate, distinct and sovereign in its own sphere so that one does not trespass the
territory of the other. Aristotle who first perceived and saw that there is a specialization of
function in each Constitution developed this doctrine. Later other theorists like Montesquieu,
John Locke and James Harrington described these functions as legislative, executive and
judicial. All the theories that were forwarded by these political thinkers in relation to the
doctrine of separation of powers were on a basic presumption that the liberties of the people
should be protected from the tyrannical and despotic rulers when all the powers are vested
and exercised by the very same persons. At this note it is important to quote Cooley who
emphasizes the importance of the doctrine of separation of powers as:

“This arrangement gives each department a certain independence, which operates as a

restraint upon such action of others as might encroach on the rights and liberties of the
people, and makes it possible to establish and enforce guarantees against attempts at
tyranny”.

Under the U.S. Constitution, this theory has been applied to a certain extent, giving judiciary
a unique position. As Hughes C.J., once said, “We are living under a Constitution but the
Constitution is what the judges say it is.” The framers of the U.S. Constitution have strictly
adhered to this doctrine of separationof powers. But, in actual practice it has been seen that
this rigidity in the form of watertight compartments is not possible. Therefore, functionally
the constitutional provisions are premised on the principle of checks and balances. In William
Marbury v. James Madison1, the U.S Supreme Court offered a new dimension to the doctrine
of Separation of Powers. Lord Atkin too contributed to the evolution of this doctrine rendered
in his decision in Liver Sidge v. Anderson2.

The framers of the Indian Constitution did not recognize the doctrine of separation of powers
in a rigid sense. Unlike the American Constitution, this doctrine has not been strictly applied
in the Indian Constitution. It cannot be explicitly seen but can be witnessed through the

1
(1803) 2 Law Ed 69: 1 Cranch 138
2
(1942) AC 206

1
differentiation made in the discharge of functions by the different branches of the government
in the Constitution. This doctrine is not completely alien to our Constitution. As we
retrospect, relevant classic jurisprudence like Ram Jawaya v. State of Punjab3 clearly
elucidates this principle. Chief Justice Mukherjea in the instant case said:

“It can very well be said that our Constitution does not contemplate assumption, by one
organ or part of the State, of functions that essentially belong to another. The executive
indeed can exercise the powers of departmental or subordinate legislation when such powers
are delegated to it by the legislature. It can also, when so empowered, exercise judicial
functions in a limited way”.

Thus, it can be inferred from the above that these organs of the government are allowed to
exercise their functions but within certain limits. These limits are silver lined constitutionally
and the same also guarantees limitable encroachments.

The Constitution of India has been founded upon the fundamental principle of Rule of law. It
must be remembered that the quality of excellence of governance is evaluated on the
touchstone of efficacy and the strength of judicial mechanism.

3
A.I.R. 1955 S.C. 549

2
 Chapterization at a glance
Chapter-1
Meaning of Separation of Power and its Origin.
Chapter-2
Branches of Separation of Power.
Chapter-3
Separation of Powers under Different Constitutions.

Chapter-4

Applications of the Doctrine of Separation of Powers.

Research Methodology
This project work has been carried out following the descriptive and analytical approach.It
focuses on the Separation of Power and Global Trends. References (including various
websites) as guided by faculty of Administrative Law were primarily helpful for the
completion of this project.

Footnotes have been provided wherever necessary. I have exhausted all secondary research
methods.

Objectives of the Study

Following are the objectives of the study:

1. The aim of this study is to elucidate the Meaning of Separation of Power and its Origin.

2. To study the Branches of Separation of Power.

3. To study Separation of Powers under Different Constitutions.

4. To study the Applications of the Doctrine of Separation of Powers.

3
 Scope of Project
The scope of study includes the preview within which the project work lies. This topic has
been clearly enunciated with the help of articles from magazines, Books and other such e-
article databases that have been explored. The subject discusses Doctrine of separation of
power, Branches of separation of power under Indian context, focuses on separation of power
under different constitutions and also includes the applications of the doctrine of separation
of powers.

Review of Literature
The three organs of the government which we know as the executive, the judiciary and
legislature represent the people and their will in our country and are responsible for the
smooth running of a democratic government in our society. The legislature is the law-making
body, the executive is responsible for the enforcement of all such laws and the judiciary deals
with the cases that arise from a breach of law. Thus they are all interlinked organs of the
government and their roles and functions tend to overlap with each other, as it isn’t possible
to separate the three from each other completely. This has been the cause for not only serious
political debate in our country but has raised many philosophic and jurisprudential debates
among legal scholars and the law fraternity. Whether there should be a complete separation
of powers or a well co-ordinated system of distribution of powers thus becomes the focal
point of contemplation.

Mode of Citation

In this Project, I have used many web resources, websites etc. And I have followed the 19 th

bluebook citation for footnotes.

4
 Meaning & its Origin

Understanding that a government's role is to protect individual rights, but acknowledging that
governments have historically been the major violators of these rights, a number of measures
have been derived to reduce this likelihood. The concept of Separation of Powers is one such
measure. The premise behind the Separation of Powers is that when a single person or group
has a large amount of power, they can become dangerous to citizens. The Separation of
Power is a method of removing the amount of power in any group's hands, making it more
difficult to abuse.

It is generally accepted that there are three main categories of governmental functions – (i)
the legislative, (ii) the Executive, and (iii) the Judicial. At the same time, there are three main
organs of the Government in State i.e. legislature, executive and judiciary. According to the
theory of separation of powers, these three powers and functions of the Government must, in
a free democracy, always be kept separate and exercised by separate organs of the
Government. Thus, the legislature cannot exercise executive or judicial power; the executive
cannot exercise legislative or judicial power of the Government.4

As the concept of ‘Separation of Powers’ explained by Wade and Philips,5 it means three
different things:-

i. That the same persons should not form part of more than one of the three organs of
Government, e.g. the Ministers should not sit in Parliament;

ii. That one organ of the Government should not control or interfere with the exercise of its
function by another organ, e.g. the Judiciary should be independent of the Executive or that
Ministers should not be responsible to Parliament; and

iii. That one organ of the Government should not exercise the functions of another, e.g. the
Ministers should not have legislative powers.

The doctrine of Separation of Powers emphasizes the mutual exclusiveness of the three
organs of government, viz., legislature, executive and judiciary. The main underlying idea is

4
C.K.Takwani, Lectures on Administrative Law (2008)p.31.
5
E.C.S.Wade, Constitutional Law (1960) pp. 22-34.

5
that each of these organs should exercise only one type of function. There should not be
concentration of all the functions in one organ otherwise it will pose a threat to personal
freedom, for; in that case, it could act in an arbitrary manner. It could enact a tyrannical law,
execute it in a despotic manner and interpret it in an arbitrary manner without any external
control. The purpose underlying separation doctrine is to diffuse governmental authority so as
to prevent absolutism and guard against tyrannical and arbitrary powers of the state, and to
allocate each function to the institution best suited to discharge it. The rationale underlying
the doctrine that been that if all power is concentrated in one and the same organ, there would
rise the danger of state absolutism endangering the freedom of the people. However, it needs
to be appreciated that in considering this doctrine, we have moved from the discipline of law
to that of political theory. The separation of powers is a doctrine not a legal principle.6

Origin

There is an old adage containing a lot of truth that “power corrupts and absolute power
corrupts absolutely”. To evolve effective control mechanism, man had been looking for
devices to contain the forces of tyranny and authoritarianism. “Separation of Powers” was
conceived to be one such device.

It may not be possible to state precisely the origins of the doctrine of separation of powers.
However, if we look to the writings of the Greek philosopher Aristotle, it is possible to
discern a rudimentary separation of powers doctrine. Thus in his Politics, Aristotle remarked
that:

“There are three elements in each constitution in respect of which every serious lawgiver
must look for what is advantageous to it; if these are well arranged, the constitution is bound
to be well arranged, and the differences in constitutions are bound to correspond to the
differences between each of these three elements. The three are, first the deliberative, which
discusses everything of common importance; second, the officials.. and third, the judicial
element.”

The English political theorist, John Locke (1632-1704), also envisaged a threefold
classification of powers. Writing in The Second Treatise of Government (1689), Locke drew
a distinction between three types of power: legislative, executive and federative. . In Locke’s

Jain M.P & S.N Jain, “Principles of Administrative Law”, Wadhwa & Company Nagpur, 2007, pp 31,32
6

6
analysis, the legislative power was supreme and although the executive and federative powers
were distinct, the one concerned with the execution of domestic law within the state and the
other with a state’s security and external relations, he nevertheless took the view that ‘they
are always almost united’ in the hands of the same persons. Absent from his classification is
any mention of a separate judicial power. Moreover, the proper exercise of these powers is
achieved not through separation but on the basis of trust i.e., that a community has entrusted
political power to a government. Thus, Locke’s analysis does not, strictly speaking, amount
to the exposition of a doctrine of the separation of powers.7

The doctrine saw its full expansion in the hands of Charles Louis de Secondat, otherwise
known as Baron de Montesquieu (1689-1755). He felt that the history of despotic Tudors and
absolutist Stuarts, showed that freedom was not secured, if the executive and the legislative
powers were held in the same hands. He deduced his ideas of separation of powers from his
observations and ideas of the relations between the Stuart King and the Parliament. He
thought that Parliament would never be arbitrary, and the denial of legislative power to the
King alone could make the rule by extemporary decrees impossible. Montesquieu having
experienced the tyrannies in the monarchical France, must have watched the conditions on
the other side of the Channel with envy. In the second half of the 17th century, he would not
fail to notice that the Englishmen stood under the warm sunshine of the Magna Carta. Having
lost his legislative and tax powers to the Parliament, the English King was left with no
prerogative. Parliament made the laws. His Majesty’s Government was, even though the
cabinet system was not yet developed, administering the laws passed by Parliament. By the
end of the century the judges, like the Great Coke, could not be dismissed by the King at his
will, because the Act of Settlement gave them tenure during good behavior as distinguished
from tenure during the pleasure of His Majesty. Montesquieu concluded that the secret of the
Englishmen’s liberty was the separation and functional independence of the three
departments of the Government from one another.8

In his book, De L’Esprit des Lois (The Spirit of the Laws) 1748, Montesquieu stated:

“When legislative power is united with executive power in a single person or in a single body
of the magistrates, there is no liberty, because one can fear that the same monarch or senate
that makes tyrannical laws will executive them tyrannically. Nor is there liberty if the power

7
Parpworth Neil, “Constitutional & Administrative Law”, Oxford University Press United Kingdom, 2012, pp
18,19
8
Jain Kagzi M.C., “The Indian Administrative Law”, University Law Publishing Co. Pvt. Ltd., 2002, pp 15,16

7
of judging is not separate from legislative power and from executive power. If it were joined
to legislative power, the power over the life and liberty of the citizen would be arbitrary, for
the judge would be the legislator. If it were joined to executive power, the judge could have
the force of an oppressor. All would be lost if the same man or the same body of principal
men, either of nobles, or of the people, exercised these three powers: that of making the laws,
that of executing public resolutions, and that of judging the crimes or the disputes of
individuals.”9

9
Supranote 7, pp 19,20

8
 Branches of Separation of Power

The Legislature

The Legislature has been accorded high-esteem in the Indian Constitution. It is primarily
concerned with enactment of general rules of law that are germane to all aspects of the
conduct of its citizens and institutions. The Parliament is the Union Legislature of India
comprising two bodies namely Lok Sabha and the Rajya Sabha. It enacts laws, impose taxes,
authorizes borrowing, and prepares and implements the budget, has sole power to declare
war, can start investigations, especially against the executive branch, appoints the heads of
the executive branch and sometimes appoints judges as well as it has the power to ratify
treaties. As it anchors for the will of the people by ensuring a true and intact democracy, it
can be said that it cannot be done all by the Legislature itself. It is an imminent threat to
democracy if an absolute power is given to the nation’s purse holder. By making the
executive accountable to the popular house, the Constitution ensures a proper mechanism of
checks and balances to the doctrine of separation of powers. The entire system has other
facets which can help achieve the same. Therefore, this brings into question the role of the
other two pillars: the judiciary and the Executive.

The Judiciary

The framers of our Constitution drafted it so meticulously that it provides for an independent
and impartial Judiciary as the interpreter of the Constitution and as custodian of the rights of
the citizens through the process of judicial review. This mandates the judiciary to interpret
the laws but not to make them. They are not to lay down the general norms of behavior for
the government. This brings us to the recent debate whether this behavior of the judiciary can
be termed as judicial review or judicial activism? The higher judiciary in India, especially the
honorable Supreme Court, the most powerful judiciary in the world, has become an epicenter
of controversy over its role in entertaining and deciding public-interest-petitions. In deciding
these petitions, the judiciary issues many directions to the Government which includes
framing of legislation in many areas. Is it that the judiciary is transcending its limits and
trenching upon the fields of the executive or legislature? And if so is the case, then what is

9
the legitimacy of exercise of such powers? The role of the judiciary should only be limited to
scrutinizing the constitutionality of the legislation and not directing the government to enact
legislation. The scope of judicial review does not extend beyond enquiring whether an
impugned legislation or an executive action falls within the competence of the Legislature or
of the executive authority or is consistent with the Fundamental Rights guaranteed by the
Constitution or with its other mandatory provisions.

The three organs have to exercise their functions keeping in mind certain constitutionally
assigned encroachments. However according to Chief Justice Subba Rao in Golak Nath v.
State of Punjab10:

“It [the Constitution] demarcates their jurisdiction minutely and expects them to exercise
their respective powers without overstepping their limits. They should function within the
spheres allotted to them. …..No authority created under the Constitution is supreme; the
Constitution is supreme and all the authorities function under the supreme law of the land.”

Therefore if any of the three organs tries to expand its jurisdiction it would follow an
unavoidable conflict and affect the harmonious efficacy of the tripartite system of
government. No organ has to superintend over the exercise of powers and functions of
another, unless the Constitution strictly so mandates. Nonetheless, the interpretation by the
judiciary of the laws and regulations adds flesh and blood to the basic structure of the
Constitution. The Honorable Supreme Court has itself construed that the concept of
Separation of powers is a “basic feature” of the Constitution. So if one encroaches the
territory of the other it would be a clear violation of the basic structure of the Constitution
and judiciary is not an exception to the same.

The entire debate of limitation of each organ’s power has gone through a drastic change in
the past two decades. Justice Pathak in Bandhua Mukti Morcha v. Union of India 11said:

“It is a common place that while the Legislature enacts the law the Executive implements it
and the Court interpret it and, in doing so, adjudicates on the validity of executive action and,
under our Constitution, even judges the validity of the legislation itself. And yet it is well
recognized that in a certain sphere the Legislature is possessed of judicial power, the
executive possesses a measure of both legislative and judicial functions, and the Court, in its
duty of interpreting the law, accomplishes in its perfect action in a marginal degree of

10
A.I.R. 1967 S.C. 1643
11
1984 3 S.C.C. 161

10
legislative exercise. Nonetheless a fine and delicate balance is envisaged under our
Constitution between these primary institutions of the State”.

It can be clearly inferred from the above that one may exercise the other one’s function up to
a limited extent but the issue that predates the Indian scenario is whether this system is
working in a well-balanced manner.

The Executive

The Executive can veto laws, can command of the military, makes decrees or declarations
(for example, declaring a state of emergency) and promulgate lawful regulations and
executive orders, can refuse to spend money allocated for certain purposes, can appoints
judges, and has the power to grant pardons to convicted criminals. Like the other two pillars
of democracy, the Executive is equally expected to be free of intrusions from the other two. It
is always said that Executive is independent of the two but the incongruity persists. It is
completely eroded in actual practice. The reason is that each time the executive is questioned
for its actions by the judiciary and the Legislature. This dilutes the independence of the
Executive to the maximum. It’s not that the question of answerability pops up only in the
case of executive. The judiciary and legislature are equally answerable but in their cases, a
built-in system from within would be available for discharging those functions. This is the
real state of affairs, which exists in practice.

Though the Indian Constitution allocates executive powers to the President and Governors
(Article 53 (1) and Article 154 (1), they are empowered with certain legislative powers
(Articles 123, 213 and 356) and certain judicial powers (Articles 103 and 192). Similarly the
legislature exercises certain judicial functions (Articles 105 and 194) and judiciary exercises
few legislative and executive functions (Articles 145, 146, 227 and 229). However the
judiciary is made separate from the executive in the public services of the State (Article 50).
In Bihar, the scheme of the separation of the judiciary from the executive was introduced on
an experimental basis but later on it was extended throughout the State. In some states,
complete separation of judiciary from executive has been achieved through legislation. In
seven states, complete separation of judiciary from executive has been effected through
executive orders.

11
 Separation of Powers under Different Constitutions

Despite the safeguards it gives against tyranny, the modern day societies find it very difficult
to apply it rigidly. In principle they go for separation of powers and dilution of powers
simultaneously.

U.S.A.

If the Rule of Law as enunciated by Dicey affected the growth of Administrative Law in
Britain; the doctrine of ‘Separation of Powers’ had an intimate impact on the development of
Administrative Law in the U.S.A. As Davis points out “probably the principal doctrinal
barrier to the development of the Administrative process has been the theory of separation of
powers”. The truth is that while the doctrine of separation has affected the character of the
American Administrative Law, the doctrine itself has been affected by the newly emerging
trend in favour of Administrative Law.

The doctrine of separation forms the basis of American constitutional structure. Articles I, II
and II delegate and separate powers and also exemplify the concept of separation of powers.
Art. I vests legislative power in the Congress; Art. II vests executive power in the President
and Art. III vests judicial power in the Supreme Court. The ideal of separation, both
functional and personnel is yet unrealized but nearest approximation is reached in the State
Constitution of Massachusetts in the U.S. It is said therein, that-

… The legislative department shall never exercise the executive or judicial powers, or either
of them; the executive shall never exercise the legislative and judicial powers, or either of
them; the judicial shall never exercise the legislative or executive powers, or either of them;
to the end it may be a government of law and not of men.

Presidential Form of Government

The form of government, characterized as presidential, is based on the theory of separation

between the executive and the legislature. The President is both the head of the state as well
as its chief executive. He appoints and dismisses other executive officers and thus controls
the policies and actions of government departments. The persons in charge of the various
departments, designated as the Secretaries of State, hold office at his pleasure, are responsible
12
to him and are more like his personal advisors. The President is not bound to accept the
advice of a Secretary and the ultimate decision rests with the President. Neither the President
nor any member of the executive is a member of the Congress and a separation is maintained
between the legislative and executive organs. This system of government is fundamentally
different from the parliamentary system prevailing in India.

In U.S.A., the President is not in theory responsible to the Congress unlike India where the
cabinet is collectively responsible to the Parliament. The President has a fixed tenure of
office and does not depend on majority support in the Congress. Before the expiry of his
term, he can be removed only by the extremely cumbersome process of impeachment. Nor
can the President dissolve the Congress whereas in India, Prime Minister has the power to
seek dissolution of the Parliament. The executive therefore is not in a position to provide
effective leadership to the legislature and it is not always that the Congress accepts the
programme and the policy proposed by the executive. The independence of the Supreme
Court is constitutionally guaranteed.

Principle of Checks and Balances

The U.S. Constitution however incorporates some exceptions to the doctrine of separation
with a view to introduce the system of checks and balances. For instance, a bill passed by the
Congress may be vetoed by the President and, to this extent the President may be said to be
exercising a legislative function. Again, appointment of certain high officials is subject to the
approval of the Senate. Also, treaties made by the President are not effective until approved
by the Senate; to this extent, therefore, the Senate may be deemed to be exercising executive
functions. The Congress continuously probes into executive functioning through its various
committees, and also has the power to tax and sanction money for governmental operations.
The Supreme Court has the power to declare the Acts passed by the Congress
unconstitutional. But the judges of the Supreme Court are appointed by the President with the
consent of the Senate. This exercise of some part of the function of one type by an organ of
the other type is justified on the basis of the theory of checks and balances. It means that the
functioning of one organ is checked in some measure by the other organ so that no organ mat
run amok with its powers and misuse the same.Thus, in the case of Panama Refining
Company v. Ryan12 commenting on the practicality of the doctrine J. Cardozo said:

12
[(1935)293 U.S. 388(400)]

13
“The doctrine of “separation of powers” is not a doctrinaire concept to be made use of with
pedantic rigor. There must be sensible approximation, there must be elasticity of adjustment
in response the practical necessities of government which cannot foresee today the
development of tomorrow in their nearly infinite variety.”

Administrative Growth and Separation of Powers

Administrative law and separation doctrine are somewhat incompatible, for modern
administrative process envisages mingling of various types of functions at the administrative
level. Had the doctrine of separation been applied strictly in the U.S.A., the growth of
administrative process would have been extremely difficult and modern government might
have become impossible. For practical reasons therefore the doctrine of separation has to be
diluted somewhat to accommodate the growth of administrative process.

Delegated Legislation

The American Administrative Law has certain distinctive features which are a product of
separation doctrine. A significant breach of the doctrine occurred when the courts concede
the legislative power could be conferred on administrative authorities, and thus, the system of
delegated legislation came in vogue. But, in a bid to reconcile the separation doctrine, the
courts laid down that Congress cannot confer an unlimited legislative power on an
administrative authority, that the Congress must not give up its position of primary legislator
and that the Congress should therefore lay down the policy which the delegate is to follow,
while making the rules. J. Mukherjee in re Delhi Laws Act case13 observed:

“The position in America is that despite the theory that legislature would not delegate its
power to the executive a host of rules and regulations are passed by non-legislative bodies,
which have been judicially recognized as valid.”

U.K.

Maitland traces the doctrine of Separation of Powers in England to the reign of King Edward
I (1239-1307). He observes that all the three elements were present in the form of Parliament,
King’s Council and Courts of Law.

13
1951 AIR 332

14
Viscount Henry St. John Boling Broke (1678-1751) in his book “Remarks on the History of
England”advanced the idea of separation of powers. He laid emphasis on balance of powers
within the constitution because an imbalance would destroy it. He asserts that for protection
of liberty and security in a state, equilibrium is needed between the Crown, the Parliament
and the people.

Although Motesquieu derived the concept of his doctrine of separation of powers from the
British Constitution, as a matter of fact at no point of time this doctrine was accepted in its
strict sense in England. On the contrary, in reality, the theory of integration of powers has
been adopted in England. It is true that the three powers are vested in three organs and each
has its own peculiar features, but it cannot be said that there is no ‘sharing out’ of the powers
of the government. Thus, the King, though an executive head is also an integral part of the
Legislature. Similarly, all his Ministers are also members of one or the other Houses of the
Parliament. The Lord Chancellor is head of judiciary, Chairman of the House of Commons
(Legislature), a member of the executive and often a member of the cabinet. The House of
Commons ultimately controls the Legislative. The judiciary is independent but the judges of
the superior courts can be removed on an address from both Houses of Parliament.

In England, S.O.P has historical relevance only. Daniel Ullman says, “England is not the
classic home of the separation of powers. Each power there has taken on a character of its
own, while at the same time preserving the features of the others.” The position has been
summed up by the Donoughmore Committee in the following words:-

“In the British Constitution there is no such thing as the absolute separation of legislative,
executive and judicial powers. In practice it is inevitable that they overlap. In such
Constitutions as those of France and the United States of America, attempts to keep them
rigidly apart have been made, but have proved unsuccessful. The distinction is nonetheless
real and… important. One of the main problems of modern democratic State is how to
preserve the distinction whilst avoiding too rigid an insistence on it, in the wide border land
where it is convenient to entrust minor legislative and judicial functions to executive
authorities.”

The U.K. does have a kind of separation of powers, but unlike United States it is informal.
Black Stones theory of ‘Mixed Government’ with checks and balances is more relevant to the

15
U.K. Separation of powers is not an absolute or predominant feature of the U.K. Constitution.
The three branches are not formally separated and continue to have significant overlap.

The U.K. is becoming increasingly concerned with the Separation of powers, particularly
because of Article 6 of the European Convention on Human Rights which protects the right
to fair trial. The Constitutional Reforms Act, 2005 reforms the office of Lord Chancellor and
the Law Lords will stop being in the legislature. Section 23 of the Act provides for
establishment of Supreme Court of United Kingdom. The Supreme Court whose powers have
been separated from the powers of Parliament has become functional since October, 2009.
Section 61 of Constitutional Reforms Act, 2005 provides for Constitution of Judicial
Appointments Commission, for appointments of Judges in the Supreme Court as well as the
court of appeal. Thus by and large independence of Judiciary has been ensured by the
Constitutional Reforms Act, 2005.

On numerous occasions, senior judges have expressed the opinion that the U.K. Constitution
is base on a separation of powers. Thus in Duport Steels Ltd. v. Sirs (1980), Lord Diplock
stated that:

“At a time when more and more cases involve the application of legislation which gives effect
to policies that are the subject of bitter public and parliamentary controversy, it cannot be
too strongly emphasized that the British Constitution, though largely unwritten, is firmly
based in the separation of powers; Parliament makes the laws, the judiciary interprets
them.”

India

In India, the doctrine of Separation of Powers has not been accorded a constitutional status.
Apart from the directive principle laid down in Article 50 which enjoins separation of
judiciary from the executive, the constitutional scheme does not embody any formalistic and
dogmatic division of powers.

As a general provision, Parliament is entrusted to make the law for the union. Executive is
entrusted with duty of implementation of law and judiciary is also considered to be
independent under the constitutional scheme in India. However, there are many exceptions
which negate the application of this doctrine.

16
Constitutional Provisions

Under Article 53 the executive powers of the union are vested with the President and under
Article 154 the Governor is vested with execution powers but they do exercise their powers
with the aid and advice of the council of ministers at the Centre (Article 74) and at the State,
as the case may be. Both President and Governor exercise the power of ordinance making
under the constitution thus performing legislative functions. President makes laws for a State,
after the dissolution of the State Legislature, following the imposition of the President’s Rule
(Article 356). President has the power to disqualify any member of the house under Article
103. The judges of the Supreme Court are appointed by the President, while the parliament
has the power to impeach the judges. The President has the power to decide a disputed
question of the age of a judge of Supreme Court or any High Court for purpose of set restrain
from the judicial service.

The Union Council of Ministers is responsible to the Lok Sabha (Article 75). This house has
the powers to start impeachment proceedings against the President (Article 61) and the judges
of the Supreme Court. The members of Council of Ministers will be members of either house
of Parliament under Article 75(5) which means there is overlapping of personnel also.

The judicial function of Parliament is too substantial in certain respects. It can consider the
question of breach of any known parliamentary privilege; and in a case where the charge is
established have power to punish for their contempt.

The High Courts in certain marginal spheres perform such functions which are administrative
rather than judicial. Their power of supervision over other subordinate courts under Article
227 is more of the administrative nature than judicial. When under Article 228 they have
power to make transfer of cases, they exercise administrative control over the State district
courts as well. The legislative power of the High Courts and the Supreme Court includes their
power to frame rules which is fairly wide.

The Executive in India is authorized to legislate in the name of delegated legislation. In the
name of administrative adjudication of the right of individual citizens, the administrative
agencies, which are statutory tribunals and domestic tribunals have been constituted and
perform judicial function.

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Judicial Opinion of the Doctrine of Separation of Powers

There have been several landmark judgements that have changed the face of the doctrine of
separation of powers in India. These are discussed in this section.

The only validity of the doctrine of separation of powers is in the sense that one organ should
not assume the essential functions of the other. This was the view of Supreme Court in Ram
Jawaya Kapur v. State of Punjab , it was held that the

“…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 and consequently it can very well be said that our Constitution
does not contemplate assumption, by one organ or part of the State, of functions that
essentially belong to another14.”

Since after the Kesavananda Bharti v. State of Kerala , and the judicial articulation of the
doctrine of basic structure and essential features of the Constitution therein, the separation of
powers is spoken as a structural basis of the constitutional framework and cannot be
destroyed by any amendment15.

The doctrine puts less and less emphasis on organizational pattern, and seeks to effect
increasingly functional division. In re Delhi Laws Act case , Hon’ble Kania, CJ., observed
that.

“Although in the Constitution of India. . . . . . there is no express separation of power, it is

clear that a legislature is created by the Constitution and detailed provisions are made for
making that legislature pass laws. Is it then too much to say that under the Constitution the
duty to make laws, the duty to exercise its own wisdom, judgment and patriotism in making
law is primarily cast on Legislature? Does it not imply that unless it can be gathered from
other provisions of the Constitution, other bodies executive or judicial are not intended to
discharge legislative functions?16

14
[AIR 1955 SC 549]
15
[AIR 1973 SC 1461]
16
[AIR 1951 SC 332]

18
Therefore, the functions of different organs are clearly earmarked so that one organ does not
usurp the functions of another. In Indira Nehru Gandhi v. Raj Narain , Ray CJ., also
observed that in the Indian Constitution there is separation of powers in broad sense only.
Beg, J., has observed that basic structure also embodies the separation of powers doctrine and
none of the pillars of the Indian Republic can take over the other functions, even under
Article 368. Chandrachud, J., reiterated this view and held that this doctrine is useful as a
means of checks and balances in a political setup. For examples the judiciary should shy
away from the politics of the Parliament and the latter should revere the opinion of the
Courts17.

On a casual glance at the provisions of the Constitution of India, one may be inclined to say
that the doctrine of broad division of the power of state has been accepted under the
Constitution of India. In Golaknath v. State of Punjab , Subba Rao, CJ., observed:

“The Constitution brings into existence different constitutional entities, namely, the Union,
the States and the Union Territories. It creates three major instruments of power, namely, the
Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and
expects them to exercise their respective powers without overstepping their limits. They
should function within the spheres allotted to them18.”

In Bandhuva Mukti Morcha v. Union of India , Pathak J., said:

“The Constitution envisages a broad division of the power of state between the legislature,
the executive and the judiciary. Although the division is not precisely demarcated, there is
general acknowledgment of its limits. The limits can be gathered from the written text of the
Constitution, from conventions and constitutional practice, and from an entire array of
judicial decision19s.”

Essential functions were defined in Mallikarjuna v. State of Andhra Pradesh , when the
Andhra Pradesh Administrative Tribunal directed the State Government “to evolve proper
and rational method of determination of seniority among the veterinary surgeons in the
matters of promotions to next higher rank of Assistant Director of Veterinary Surgeons”. The
Supreme Court quashed the aforesaid direction and observed that the power under Article

17
[AIR 1975 SC 2299]
18
[AIR 1967 SC 1643]
19
[AIR 1984 SC 802]

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309 of the Constitution to frame rules is the legislative power which has to be exercised by
the President or the Governor of the State as the case may be. The High Court or
Administrative Tribunals cannot issue a mandate to the State Government to legislate on any
matter. In this way the principle of restraint prevents any organ of the State from becoming
superior to another or others in action20.

Similarly, in Supreme Court Employees’ Welfare Association v. Union of India , it was held
that no court can issue a direction to a legislature to enact a particular law neither it can direct
an executive authority to enact a law which it has been empowered to do under the delegated
legislative authority21.

20
[AIR 1990 SC 1251]
21
[AIR 1990 SC 334]

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 Applications of the Doctrine of Separation of Powers

The doctrine of separation for powers is there in order to ensure that there is no deliberate
infringement on the activities of the legislature, execute and judiciary on one another by the
other organ. However, a mutual interaction of the organs is permitted, the ultimate purpose is
to ensure that there is rule of law, that is rule according to law, not according to the whims of
men. It can only be applied in democratic countries where the chief executive, and members
of the legislature are elected, and the true purpose of each organ can be fulfilled

· The purpose of the legislature is to enact laws

· The purpose of the judiciary is to interpret the laws

· And the purpose of the executive is to enforce the laws and act administratively in the
interest of the electorate. The separation of powers, also known as trias politica, is a model
for the governance of democratic states. The model was first developed in ancient Greece and
came into widespread use by the Roman Republic as part of the uncodified Constitution of
the Roman Republic. Under this model, the state is divided into branches or estates, each with
separate and independent powers and areas of responsibility. The normal division of estates is
into an executive, a legislature, and a judiciary.

The opposite of separation of powers is the fusion of powers, often a feature of parliamentary
democracies. In this form, the executive, which often consists of a prime minister and cabinet
("government"), is drawn from the legislature (parliament). This is the principle of
responsible government. Although the legislative and executive branches are connected in
parliamentary systems, there is often an independent judiciary. Also, the government's role in
the parliament does not give them unlimited legislative influence. The separation of powers,
also known as trias politica, is a model for the governance of democratic states. The model
was first developed in ancient Greece and came into widespread use by the Roman Republic
as part of the uncodified Constitution of the Roman Republic. Under this model, the state is
divided into branches or estates, each with separate and independent powers and areas of
responsibility. The normal division of estates is into an executive, a legislature, and a
judiciary.

21
The doctrine of separation of power in its true sense is very rigid and this is one of the
reasons of why it is not strictly accepted by a large number of countries in the world. The
main object, as per Montesquieu - Doctrine of separation of power is that there should be
government of law rather than having willed and whims of the official. Also another most
important feature of this 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. The judiciary is the scale through which one can measure the actual development of
the state if the judiciary is not independent then it is the first step towards a tyrannical form of
government i.e. power is concentrated in a single hand and if it is so then there is a cent
percent chance of misuse of power. Hence the Doctrine of separation of power do plays a
vital role in the creation of a fair government and also fair and proper justice is dispensed by
the judiciary as there is independence of judiciary. Also the importance of the above said
doctrine can be traced back to as early as 1789 where the constituent Assembly of France in
1789 was of the view that “there would be nothing like a Constitution in the country where
the doctrine of separation of power is not accepted”.

22
 Conclusion

The Modern State has transformed from Police State to Welfare State. Earlier the State
functions were confined to defense, administration of justice or maintenance of law and
order. With the gradual change in time, state undertook the responsibility to provide social
security and social welfare for the common man, regulate industry, and trade etc. with a view
to protecting as well as promoting public interest. Thus with such a workload it is not
possible for the State to stick to the doctrine of Separation of powers. Theory of Separation of
power cannot be practically possible in reality.

It is rightly said by Madison that, “The accumulation of all powers, legislative, executive and
judicial, in the same hands of one, a few or many, and whether hereditary, self-appointed or
elective, may justly be pronounced the very definition of tyranny”.

From this it can be concluded that the doctrine of separation of powers in the strict sense is
undesirable and impracticable and therefore till now it has not been fully accepted in any of
the country. In theory under the Constitution of United States of America the doctrine of
separation of power has been strictly adopted but there also gradually the Supreme Court is
relaxing the policy. In India also on casual viewing of the Constitution it can be said that
India has adopted the doctrine of separation of power but in reality it is not so. The three
organs in some or the other way perform the task of other. For e.g. the legislature delegate
some powers to executive, thus executive the function of the legislature, in the same way the
Parliament other than making laws also have judicial power which it can exercise when its
contempt take places.

The researcher after considering all the aspects have come to the conclusion that the doctrine
of separation of power is not accepted in any country till now due to many critical issues
involved in it. And on comparing the Indian Constitution and U.S.A Constitution it can be
said that on face it seems that both the Constitution has adopted the doctrine of separation of
power but after through study it can be said that the doctrine is not strictly accepted in both
the countries.22

22
Supra note 4, p 18.

23
 References

Books:

o Takwani, C.K., ‘Lectures On Administrative Law’, Eastern Book Company,

Lucknow, 2008

o Massey, I.P., ‘Administrative Law’, Eastern book Company, Lucknow, 7th Edition,
2008

o Upadhaya J.J.R, “Administrative Law”, Central Law Agency, Allahabad, 2006

o Parpworth Neil, “Constitutional & Administrative Law”, Oxford University Press

United Kingdom, 2012

o Jain Kagzi M.C., “The Indian Administrative Law”, University Law Publishing Co.
Pvt. Ltd., 2002

o Jain M.P & S.N Jain, “Principles of Administrative Law”, Wadhwa & Company
Nagpur, 2007

o Wade, E.C.S., “Constitutional Law”,6th Edition, 1960

Websites:

o www.docstoc.com/docs/15808747/critical-analysis-of-the-doctrine-of-seperation-of-
power

o www.importanceofphilosophy.com/Politics_SeparationPower.html

o www.legalserviceindia.com/article/l16-Separation-Of-Powers.html

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