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AMITY LAW SCHOOL

AMITY UNIVERSITY

LUCKNOW

SESSION : 2017-2018

PROJECT OF SEPRATION OF POWER

Submitted To : Submitted BY:

PROFESSOR Dr. Sangita Laha SWETANK SRIVASTAVA

Enrolment no- A8101817073

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ACKNOWLEDGEMENT

The completion of this undertaking could not have been possible without the
participation and assistance of so many people whose name may not all be enumerated .
Their contributions are sincerely appreciated and gratefully acknowledged. However , I

would like to express my deep appreciation and indebtedness particularly to the

following :

PROFESSOR Dr. Sangita Laha for his endless support , kind and understanding
spirit during our case presentation .

To all relatives , friends and others who in one way or another shared their support
, either morally , financially and physically , thank you .

Above all , to the GREAT ALMIGHTY , the author of knowledge and wisdom ,
for his countless love .

THANKING YOU .
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SYNOPSIS

1. INTRODUCTION
2. ORIGIN
3. SEPRATION OF POWER IN INDIA
4. CONSTITUTIONAL PROVISION
5. JUDICIAL OPINION OF DOCTRINE OF SEPRATION OF POWER
6. SEPRATION OF POWER IN USA
7. PRINCIPLE OF CHECK AND BALANCE
8. ADMINISTRATIVE GROWT AND SEPRATION OF POWER
9. DELEGATED LEGISLATION
10.SEPRATION OF POWER IN ENGLAND
11.CONCLUSION
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Separation of Powers: A Comparative Analysis of the Doctrine India, United States

of America and England

INTRODUCTION

Meaning

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 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

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:
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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 Lockes 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 states 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, Lockes analysis does not, strictly speaking, amount to the exposition of a doctrine
of the separation of powers

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
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laws. His Majestys 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
Englishmens liberty was the separation and functional independence of the three
departments of the Government from one another.[iii]

In his book, De LEsprit 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 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
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SEPARATION OF POWERS IN 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.

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 Presidents 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.
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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

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 [AIR 1955 SC 549], 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
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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 another.

Since after the Kesavananda Bharti v. State of Kerala [AIR 1973 SC 1461], 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 amendment.

The doctrine puts less and less emphasis on organizational pattern, and seeks to effect
increasingly functional division. In re Delhi Laws Act case [AIR 1951 SC 332],
Honble 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?

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 [AIR 1975
SC 2299], 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
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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 Courts.[xii]

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 [AIR 1967 SC 1643], 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 them.

In Bandhuva Mukti Morcha v. Union of India [AIR 1984 SC 802], 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 decisions.

Essential functions were defined in Mallikarjuna v. State of Andhra Pradesh [AIR

1990 SC 1251], 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 309 of the Constitution to frame rules is the
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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 action.

Similarly, in Supreme Court Employees Welfare Association v. Union of India [AIR

1990 SC 334], 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 authority

SEPARATION OF POWERS IN USA

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.[xv]

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.[xvi]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.
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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.[xx] Thus, in the case of Panama Refining
Company v. Ryan [(1935)293 U.S. 388(400)], commenting on the practicality of the
doctrine J. Cardozo said:

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
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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 rulesJ. Mukherjee in re Delhi Laws
Act [Supra] case 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.

SEPARATION OF POWERS IN ENGLAND

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, Kings Council and Courts of Law.

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.
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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.[xxv]

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 U.K. Separation of powers is not an absolute or predominant feature of
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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.[xxvii]

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.
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CONCLUSION

The modern interpretation of the doctrine of separation of powers is not a mere

theoretical philosophers conception. It is a practical work-a-day principle. The division
of Government into three branches does not imply, as its critics would have us think,
three water-tight compartments. The machinery and procedure of legislative
impeachment of executive officers and judges, executive veto over legislation and
appointment of judges and judicial review of legislation and executive action are
essential features of any sound constitutional system. It is said that instead of applying
the doctrine in a strict sense of the functional machinery and procedures of the
Government, the doctrine should be deemed to require a system of checks and balances
among the three departments of the Government while opposing the concentration of
governmental powers in any of the three departments.