Project work

on
Separation of Powers: A Comparative Analysis of the Doctrine
India, United States of America and England

By:-
J M Rashmi
LLM 2017-18

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 Content

Abstract 1

Chapter I (3-5)

Introduction
Meaning
Origin

Chapter II(6-9)

Separation of Powers in India

Constitutional Provision

Chapter III (10 12)

Separation of powers in USA

Presidential form of government
Principle of checks and balance
Administrative growth and separation of power
Delegated legislation

Chapter IV (13-14)

Separation of power in England

Conclusion 15

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 Separation of Powers: A Comparative Analysis of the Doctrine India, United
States of America and England

Abstract :

The doctrine of separation of powers is essentially what fortifies the three pillars of democracy.
Without such a demarcation, the point of such offices and such pillars is redundant, and the
nation might as well be a dictatorial state, with all three pillars working in collusion. This paper
compares the doctrine of separation of powers in India, the U.S.A. and England, and the
reiteration of this demarcation in the three nations by the judiciary.

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 Chapter - I

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.1

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:

1
Commentary: Jain M.P & S.N Jain, Principles of Administrative Law, Wadhwa & Company Nagpur, 2007, pp
31,32.

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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, JohnLocke (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.2

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 Majestys Government was, even though the cabinet system was not yet developed,

2
Parpworth Neil, Constitutional & Administrative Law, Oxford University Press United Kingdom, 2012, pp
18,19.

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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.3

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.4

3
Jain Kagzi M.C., The Indian Administrative Law, University Law Publishing Co. Pvt. Ltd., 2002, pp 15,16.
4
Supranote 2, pp 19,20.

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 Chapter -II

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.5

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.6

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

5
Massey I.P, Administrative Law, Eastern Book Company, Lucknow, 2012, p 40.
6
Kumar Devinder, Administrative Law, Allahabad Law Agency, Faridabad, 2007, p 19.

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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.7

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.8

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 have been
sufficiently differentiated and consequently it can very well be said that our Constitution does not

7
Kumar Devinder, Administrative Law, Allahabad Law Agency, Faridabad, 2007, p 19.
8
Id, p 20

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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 Kerala9 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 10 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 Narain11 , 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 Courts. On a casual glance at the
provisions of the Constitution of India, one may be inclined to say that the doctrine of broad

9
AIR 1973 SC 1461
10
AIR 1951 SC 332
11
AIR 1975 SC 2299
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division of the power of state has been accepted under the Constitution of India. In Golaknath v.
State of Punjab 12, 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 13, 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.14

Essential functions were defined in Mallikarjuna v. State of Andhra Pradesh 15, 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 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 16, 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

12
AIR 1967 SC 1643
13
AIR 1984 SC 802
14
Upadhaya J.J.R, Administrative Law, Central Law Agency, Allahabad, 2006, p 40.
15
AIR 1990 SC 1251
16
AIR 1990 SC 334

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 Chapter - III

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.

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 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

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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.[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

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response the practical necessities of government which cannot foresee today the development of
tomorrow in their nearly infinite variety.17

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.18

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 [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.

17
Upadhaya J.J.R, Administrative Law, Central Law Agency, Allahabad, 2006, p 40.
18
Supra

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 Chapter -IV

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
Englandadvanced 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

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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 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.

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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.

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