SEPARATION OF POWER- A COMPARITIVE STUDY OF U.S, U.

K AND
INDIA
A
Project on
Comparative Study of
Separation of power-USA, UK and INDIA

SUBMITTED TO: - Mr. Abhishek Kanu Bhardwaj

FACULTY, ADMINISTRATIVE LAW

SUBMITTED BY: - Prathmendra Hidko

ROLL NO- 111

SEMESTER VI; BATCH XIV

SEC - B

Submitted on: 15.02.2017

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Declaration

I hereby declare that the project work entitled SEPARATION OF POWER A COMPARITIVE
STUDY OF U.S., U.K. AND INDIA" is record of an original work done by me under the
guidance of Faculty Member MR. Abhishek Kanu Bhardwaj.

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CONTENTS

ACKNOWLEDGEMENT....Pg 4

OBJECTIVES...Pg 5

RESEARCH METHODOLOGY ...Pg. 6

INTRODUCTION...pg. 7

A. SEPARATION OF POWER. Pg. 9

B. COMPARITIVE STUDY...Pg.11

B.1 SEPARATION OF POWER IN U.S

B.2 SEPARATION OF POWER IN INDIA

B.3 SEPARATION OF POWER IN U.K

CONCLUSION.Pg. 16

BIBLIOGRAPHY....Pg. 17

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ACKNOWLEDGEMENTS

First and foremost, I am thankful to Mr. ABHISHEK KANU BHARDWAJ, Faculty of

Administrative Law, HNLU, for allotting me a very interesting topic i.e. Comparative Study of
Separation of power-USA, UK and INDIA to work as a project on Administrative law. She has been
very kind in providing inputs for this work, by way of suggestions and materials.
I would also like to thank my dear colleagues and friends in the University, who have
helped me with ideas about this work. Last, but not the least I thank the University
Administration for equipping the University with such good library and internet facilities,
without which, no doubt this work would not have taken the shape in correct time.

Prathmendra Hidko

ROLL NO.-111, Sec. -B

SEMESTER VI; BATCH XIV

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SEPARATION OF POWER- A COMPARITIVE STUDY OF U.S, U.K AND
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OBJECTIVES

To discuss about Separation of Power.

To make a comparative study of separation of power in U.S, U.K and INDIA

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RESEARCH METHODOLOGY

The focus of my study is to prepare an overview of the project Comparative Study of

Separation of Power U.S.A, U.K and INDIA., which was possible by an extensive
research over the internet. Books have also been referred for the completion of the
project.

Thus the secondary sources of data have been used for dealing with the project.

Prathmendra Hidko
SECTION B
Sem VI, Batch XIV

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INTRODUCTION:

Separation of power is a political doctrine originating in the writings of

Montesquieu in The Spirit of the Laws where he urged for a constitutional
government with three separate branches of government.

Separation of powers, division of the legislative, executive, and judicial functions

of government among separate and independent bodies. Such a separation, it has been argued,
limits the possibility of arbitrary excesses by government, since the sanction of all three branches
is required for the making, executing, and administering of laws.

The doctrine may be traced to ancient and medieval theories of mixed government, which argued
that the processes of government should involve the different elements in society such as
monarchic, aristocratic, and democratic interests. The first modern formulation of the doctrine
was that of the French writer Montesquieu in De lesprit des lois (1748), although the English
philosopher John Locke had earlier argued that legislative power should be divided between king
and Parliament.

Montesquieus argument that liberty is most effectively safeguarded by the separation of powers
was inspired by the English constitution, although his interpretation of English political realities
has since been disputed. His work was widely influential, most notably in America, where it
profoundly influenced the framing of the Constitution. The U.S. Constitution further precluded
the concentration of political power by providing staggered terms of office in the key
governmental bodies.

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Modern constitutional systems show a great variety of arrangements of the legislative, executive,
and judicial processes, and the doctrine has consequently lost much of its rigidity and dogmatic
purity. In the 20th century, and especially since World War II, governmental involvement in
numerous aspects of social and economic life has resulted in an enlargement of the scope of
executive power. Some who fear the consequences of this for individual liberty have favored
establishing means of appeal against executive and administrative decisions rather than
attempting to reassert the doctrine of the separation of powers.

According to Jain & Jain1, 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 United States

Meaning:

It is generally accepted that there are three main categories of governmental functions:

Legislative
Executive
Judiciary

Likewise, there are three main organs of the government in a state:

Legislature
Executive
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 organs of the government. Thus,
the legislature cannot exercise executive or judicial power: the executive cannot exercise
legislative or judicial power and the judiciary cannot exercise legislative or executive power of
the government.

1 Principles of Administrative Law, Vol. I(2007)

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Historical Background:

The doctrine of Separation of powers has emerged in several forms at different periods. Its origin
is traceable to Plato and Aristotle. In the 16th and 17th Centuries, French philosopher John Boddin
and British politician Locke expressed their views about the theory of Separation of Powers. But
it was Montesquieu who for the first time formulated this doctrine systematically, scientifically
and clearly in his book Esprit des Lois , published in the year 1748.

SEPARATION OF POWER:

The doctrine of the separation of powers as usually understood is derived from Montesquieu
whose elaboration of it was based on a study of Lockes writings and an imperfect understanding
of the eighteen century English constitution.
Montesquieu, a research scholar, conceived the principle of separation of power. He found that
concentration of power in one person or group of persons resulted in tyranny. He therefore, felt
that the governmental power should be vested in three organs, the legislature, the executive 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.

Lock and Montesquieu derived the contents of this doctrine from the developments in the British
constitutional history of the early 18th century. In England after a long war between parliament
and the King, they saw the triumph of Parliament in 1688 which gave Parliament legislative
supremacy culminating in the passage of the Bill of Rights. This led ultimately to recognition by
the King of legislative and tax powers of Parliament and the judicial powers of the courts. At that
time, the King exercised executive powers, Parliament exercised legislative powers and the
courts exercised judicial powers, though later on England did not stick to this structural
classification of functions and changed to the parliamentary form of government.3

Montesquieu was concerned with the preservation of political liberty. Political liberty is to be
found, he says,4 only when there is no abuse of power. But constant experience shows us that
every man invested with power is liable to abuse it, and to carry his authority as far as it will go

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. To prevent this abuse, it is necessary from the nature of thing that one power should be a
check on another

Writing in 1748, Montesquieu said:

When the legislative and executive powers are united in the same person, or in the same body or
magistrates there can be no liberty. Again there is no liberty if the judicial power is not separated
from the legislative and executive powers where it joined with the legislative power, the life and
liberty of the subject would be exposed to arbitrary control; for the judge would then be the
legislator. Where it joined with the executive power, the judge might behave with violence and
oppression. There would be an end of everything where the same man or the somebody to
exercise these three powers.

Though in the face of complex socio-economic problem demanding solution is a modern welfare
state, it may no longer be possible to apply the separation theory strictly, nevertheless, it has not
become completely redundant and its chief value lies in emphasizing that it is essential to
develop adequate check and balance to prevent administrative arbitrariness.

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COMPARITIVE STUDY:

(i) Separation of powers in U.S.A.

In the United States Constitution, Article 1 Section I gives Congress only those "legislative
powers herein granted" and proceeds to list those permissible actions in Article I Section 8, while
Section 9 lists actions that are prohibited for Congress. The vesting clause in Article II places no
limits on the Executive branch, simply stating that, "The Executive Power shall be vested in a
President of the United States of America." The Supreme Court holds "The judicial Power"
according to Article III, and it established the implication of judicial review in Marbury v.
Madison under the Marshall court. The government refers to the branches as "branches of
government", while some systems use "government" to describe the executive. The Executive
branch has attempted to claim power arguing for separation of powers to include being the
Commander in Chief of a standing army since the American Civil War, executive orders,
emergency powers and security classifications since World War II, national security, signing
statements, and the scope of the unitary executive.
In America this doctrine forms the Foundation on which the whole structure of the constitution is
based. The Constitution of America has also not given overriding power of judicial review to the
Supreme Court. It is a queerer fact of American constitutional history that the power of judicial
review has been usurped by the court. However, American constitutional developments have
shown that in the face of the complexity of modern government, strict structural classification of
the powers of the government is not possible. The President of the United States interferes with
the exercise of powers by the congress through the exercise of his veto power.

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He also exercises the law making power in exercise of his treaty making power. The President
also interferes with the functioning of the Supreme Court through the exercise of his power to
appoint judges.

In the same manner congress interferes with the powers of president through vote on budget,
approval of appointments made by the Senate and the ratification of treaty. Congress also
interferes with the exercise of power exercised by the courts by passing procedural laws, creating
special courts and by approving the appointment of judges. In its turn the judiciary interferes
with the powers of congress and the president through the exercise of its power of judicial
review.
(2) Separation of power in India:

It is often understood that in our country the debate about the separation of powers dates as long
back as the Constitution itself. It was extensively debated in the Constituent Assembly. It was not
given constitutional status in our Constitution finally but it does clearly seem that the constitution
of India has been made keeping the separation of powers doctrine in mind, but nowhere is this
explicitly stated or embraced by the constitution itself. Since ours is a parliamentary system of
governance, though an effort has been made by the framers of the constitution to keep the organs
of the government separated from each other, but a lot of overlapping and combination of powers
has been given to each organ.

The legislative and executive wings are closely connected with each other due to this, the
executive is responsible to the legislature for its actions and derives its powers from the
legislature. The head of the executive is the president, but a closer look shows that he is only a
nominal head and the real power rests with the Prime Minister and his Cabinet of ministers as in
Article 74(1). In certain situations the President has the capacity to exercise judicial and
legislative functions. For example, while issuing ordinances Art? The judiciary too performs
administrative and legislative functions. The parliament too may perform judicial functions, for
example if a president is to be impeached both houses of Parliament are to take an active
participatory role. Thus all three organs act as a check and balance to each other and work in
coordination and cooperation to make our parliamentary system of governance work. India being
an extremely large and diverse country needs a system like this where all organs are responsible

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to each other as well as coordinated to each other; otherwise making governance possible
becomes a very rigid and difficult task.

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.2

The Supreme Court in Ram Jawaya Kapur v. State of Punjab3

Indian 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 be very well said that our constitution does not
contemplate assumption by one organ or part of the State functions that essentially belong to
another

In Indira Nehru Gandhi v. Raj Narain4 C.J also observed that in the Indian Constitution there is
separation of powers in a broad sense only. A rigid Separation of powers as under the American
Constitution or under the Australian Constititution does not apply to India.

In Delhi Development Authority v M/s UEE Electricals Engg. Pvt. Ltd

Supreme Court ruling has sought to clarify the meaning and objective of judicial review as a
protection and not an instrument for undue interference in executive functions. The Supreme
Court made the observation that, One can conveniently classify under three heads the grounds

2 Upendra Baxi: Developments in Indian Administrative Law

3 AIR 1955 SC 549

4 AIR 1975 SC 2299

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on which administrative action is subject to control by judicial review. The first ground is
illegality, the second irrationality and the third procedural impropriety.

It can be understood thus that there is a difference when there are essential powers of one of the
organs of the government and the incidental powers of the organs. Hence, though one organ
cannot usurp the essential powers of an organ, it can exercise its powers on the incidental
powers for smooth cooperative running of the nation. This distinction clearly demarcates the the
amount of power one organ can wield over the activities of another. For example, though the
judiciary has the right to judicial activism to check legislatures which may be unconstitutional, it
cannot usurp powers such as making laws themselves.

But it is clear that the Separation of Powers doctrine has not been implemented in its strictest
format in our country nor been given Constitutional status but a diluted and modern approach is
followed to aid and guide our parliamentary system of governance.5

(3) Separation of power in U.K

The legislature and executive have a close relationship in the UK constitution. This led Walter
Bagehot to declare the "nearly complete fusion" of the roles in the nineteenth century. Other
writers have stressed that the harmonization of the executive and judiciary does not preclude
their distinctiveness. By convention, government ministers are drawn from one of the two
houses; the weight of democratic responsibility entails that most come from the House of
Commons. There is, however, a limit on their number. Most other members of the executive are
excluded from holding legislative office, including the Civil Service, the armed forces, and the

5 http://www.lawteacher.net/free-law-essays/constitutional-law/indian-constitution-
and-separation-of-powers-constitutional-law-essay.php

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police, some of whom are prevented from becoming involved in any political affairs. The
crossover in personnel is effectively limited to ministers. [16] The Prime Minister wields
considerable power on behalf of the executive, as party leader and chief spokesperson for
government policy.

The UK Parliament creates law through the authority of the Queen in parliament, securing the
support of at least the House of Commons, and usually the House of Lords as well although
since the passing act of the Parliament Act 1911 this has not been necessary.[11] Under
the European Communities Act 1972, the organs of the European Communities to legislate for
the United Kingdom was recognized, by virtue of that Act. The power to create primary
legislation has also been devolved to Scottish and Welsh parliaments and to government
ministers and local authorities to create secondary legislation.

The judiciary undertakes minor legislative functions in the form of court procedure, which,
whilst the performance of a conflicting power, strengthens their independence. Tribunals are tied,
but remain independent from, the executive. Government departments adjudicate on many
decisions, and are required to take principles such as fairness and transparency into account in
return. The courts provide only one method of dispute resolution, albeit one that is important
where the government is one party and independence is necessary. The picture of which
decision-making processes should be assigned to which body is complicated.

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CONCLUSION:

Modern constitutional systems show a great variety of arrangements of the legislative, executive,
and judicial processes, and the doctrine has consequently lost much of its rigidity and dogmatic
purity. In the 20th century, and especially since World War II, governmental involvement in
numerous aspects of social and economic life has resulted in an enlargement of the scope of
executive power. Some who fear the consequences of this for individual liberty have favored
establishing means of appeal against executive and administrative decisions, rather than
attempting to reassert the doctrine of the separation of powers.
Doctrine of Separation of Powers in todays context of Liberalization, Privatization and
Globalization cannot be interpreted to mean either Separation of powers or check and

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balance or principle of restraint but community of powers exercised in the spirit of co-
operation by various organs of the state in the best interest of the people.

Thus, the doctrine of Separation of Power is not accepted fully in the Indian Constitution.

BIBLIOGRAPHY:

Lectures on Administrative Law By C.K Takwani 5th Edition

Administrative Law by I.P Messey.

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