Amity University Lucknow Campus

2020-2021

Project on the topic

“Comparative study on the Constitution of England and India”

For the subject

{Comparative Public Law}

Submitted to: Submitted by:

Dr. J.P. Yadav Sir Margaret Rose

Professor (Law) LLM- 1st Semester

Amity University Enroll-

A8101820110

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 Table of Contents

 Introduction…………………………………………………..(3)
 Comparative analysis of the constitution of England and India with
special reference to Separation of Power…………………….(5)
 Conclusion…………………………………………………….(11)
 Bibliography………………………………………………….(11)

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 Introduction
A constitution is a set of rules through which a country or state operates. Some countries have
unwritten constitutions which means there is no formal constitution written in one particular
document. Their constitutional rules are originated from a number of sources. Britain sources its
constitution from a number of important statutes, or laws, as well as principles decided in legal
cases and conventions. New Zealand and Israel are two other countries that do not have formal
written constitutions. Other nations have formal written constitutions in which the structure of
government is defined and the respective powers of the nation and the states are written in one
single document. These systems may also include unwritten conventions and constitutional law
which can inform how the constitution is interpreted. Australia, India and the United States are
examples of countries with a written constitution.

Some constitutions may be modified without any special process. The documents that make up
the New Zealand Constitution may be amended simply by a majority vote of its Parliament. In
other countries a special procedure is adopted before their constitution can be changed. Australia
has a constitution which requires a referendum in order to change it.

Indian Constitution has many sources that include the imaginative ambitions of the nationalist
leaders, the actual working of the Government of India Act, 1935, and the experience gained
from the genuine working of some of the Constitutions of significant countries of the world. Its
sources include not only the sources upon which the founding fathers of our Constitution drew
but also the developmental sources such as the judicial decisions, constitutional amendments,
constitutional practices and others.

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FEATURE BRITISH INDIAN

Nature Unwritten Written Constitution and lengthiest

Flexible and can be amended by 50% of the

Amend ability Hybrid of Rigid and flexible
members present and voting

DPSP and
Absent Present
Duties

Seen evolutionary development and not formed

Origin Was formed by constituent assembly
by a constituent assembly

Unitary in character – All powers of the Quasi federal and works on competitive
Federalism government are vested in the British Parliament, federalism   Distribution of powers between
which is a sovereign body     centre and states

Constitutional monarchy with the king as the

Nature of Republic with president as the nominal head.  
nominal head. It has no discretionary powers. He
state President enjoys discretionary powers.
is known as ‘Golden Zero’  

 British Parliament is the only legislative body in Judicial review is the basic structure of
the country with unfettered power of legislation   constitution and parliament is not sovereign,
Parliament
Has two houses namely House of lords and House instead people of India are Sovereign   Has
of commons. Lok sabha and Rajya sabha

It consists of King Prime Minister Council of

Executive Ministers (COM) Permanent Executive, the Civil Ministers and Bureaucrats form the Executive
Servants Privy Council    

Office of
P.M. will always be a member of the Lower PM can be a member of either House of
Prime
House    Parliament
Minister

Judiciary lacks the intrinsic power to strike down

Judicial review is the basic structure of Indian
an Act of Parliament as Parliament is Sovereign  
Judiciary constitution   Laws in India has codified in the
British legal system is completely based on
form of IPC and CrPC
‘Common Law System’

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 Comparative Analysis on the Doctrine of India and England with reference to
Separation of Power
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.

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

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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.

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 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.

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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], 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?”

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 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 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.”

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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 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 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,
King’s 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

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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 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.

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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
philosopher’s 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.

BIBILIOGRAPHY

 https://www.lawctopus.com/academike/separation-of-powers-a-

comparative-analysis-of-the-doctrine-india-united-states-of-america-and-
england/
 https://www.civilsdaily.com/british-constitution-features-comparison-with-

indian-constitution/#:~:text=In%20Britain%2C%20the%20Parliament
%20can,hand%2C%20has%20a%20written
%20constitution.&text=However%2C%20within%20its%20own%20sphere
%2C%20the%20Parliament%20is%20supreme.
 https://legatoapp.com/blog-in-detail.php?bp_id=137

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