RESEARCH MONOGRAPH

ON
SEPARATION OF POWERS: A COMPARATIVE STUDY
UNDER BANGLADESH, INDIA, UK AND USA
CONSTITUTION.

SUBJECT: RESEARCH MONOGRAPH

COURSE CODE: LLM 6400

SUBMITTED TO: SYED SARFARAJ HAMID

ASSISTANT PROFESSOR & HEAD
DEPARTMENT OF LAW
NORTHERN UNIVERSITY BANGLADESH

SUBMITTED BY: MD. SAYEM PRODHAN

ID: LLM110200712
PROGRAM: LL.M.
SECTION: A
DEPARTMENT OF LAW
NORTHERN UNIVERSITY BANGLADESH

DATE OF SUBMISSION: 7 APRIL, 2012

 DEDICATED TO
My beloved Parents & all Teachers

TABLE OF CONTENTS

LETTER OF TRANSMITTAL ------------------------------------------------------------------------------I

ACKNOWLEDGEMENT------------------------------------------------------------------------------------II

DECLARATION--------------------------------------------------------------------------------------------III

TABLE OF ABBREVIATIONS-----------------------------------------------------------------------------IV

TABLE OF CASES-----------------------------------------------------------------------------------------VI

TABLE OF CONSTITUTIONAL INSTRUMENTS----------------------------------------------------------VII

TABLE OF STATUTES------------------------------------------------------------------------------------VII

ABSTRACT -----------------------------------------------------------------------------------------------VIII

CHAPTER ONE: INTRODUCTORY PART

1.1 PRECLUDE-------------------------------------------------------------------------------------------1-2

1.2 NATURE AND SCOPE OF THE STUDY -------------------------------------------------------------2

1.3 OBJECTIVES OF THE STUDY-----------------------------------------------------------------------2-3

1.4 RESEARCH METHODOLOGY-----------------------------------------------------------------------3

1.5 LIMITATION OF THE STUDY-----------------------------------------------------------------------4

CHAPTER TWO: ORIGIN AND DEVELOPMENT OF SEPARATION OF POWERS

2.1 DEFINING THE DOCTRINE OF ‘SEPARATION OF POWERS’---------------------------------------5-6

2.2 ORIGIN OF THE DOCTRINE OF SEPARATION OF POWERS----------------------------------------6-7

2.3 MONTESQUIEU ON THE SEPARATION OF POWERS AND DEVELOPMENT OF THIS DOCTRINE-7-9

2.4 MODERN SEPARATION OF POWERS COMES WITH CHECKS AND BALANCES------------------9-10

CHAPTER THREE: SEPARATION OF POWERS IN BANGLADESH

3.1 THE EXECUTIVE AND ITS POWERS----------------------------------------------------------------11-12

3.2 THE LEGISLATIVE AND ITS POWERS -------------------------------------------------------------12

3.3 THE JUDICIARY AND ITS POWERS-----------------------------------------------------------------12-13

3.4 JUDICIAL INDEPENDENCE IN THE CONSTITUTION OF BANGLADESH-------------------------14

3.5 SEPARATION OF THE JUDICIARY IN THE CONSTITUTION---------------------------------------14-15

3.6 PRESENT CONDITION OF SEPARATION OF POWERS IN BANGLADESH-------------------------15-17

CHAPTER FOUR: SEPARATION OF POWERS IN INDIA

4.1 SEPARATION OF POWERS: THE INDIAN PLAN---------------------------------------------------18

4.1.1 CONSTITUTIONAL POSITION -----------------------------------------------------------18-20

4.2 PRACTICAL APPLICATION OF THE DOCTRINE IN INDIA -----------------------------------------20-24

4.3 THE SEPARATION OF POWERS DURING PERIODS OF EMERGENCY----------------------------24

4.4 MODERN DEVELOPMENTS ------------------------------------------------------------------------24-25

CHAPTER FIVE: SEPARATION OF POWERS IN UK

5.1 SEPARATION OF EXECUTIVE AND LEGISLATURE------------------------------------------------26-28

5.1.1 RECENT CHANGES-----------------------------------------------------------------------28

5.2 LEGISLATURE AND JUDICIARY--------------------------------------------------------------------28-30

5.2.1 PARLIAMENTARY PRIVILEGE ----------------------------------------------------------30-31

5.2.2 SUB JUDICE ------------------------------------------------------------------------------31

5.3 THE EXECUTIVE AND JUDICIARY -----------------------------------------------------------------32

5.4 THE CONSTITUTIONAL REFORM ACT 2005 -----------------------------------------------------32-33

5.4.1 THE LORD CHANCELLOR---------------------------------------------------------------33

5.4.2 JUDICIAL APPOINTMENTS --------------------------------------------------------------34

5.4.3 THE SUPREME COURT ------------------------------------------------------------------35

5.5 SUPER-INJUNCTIONS -------------------------------------------------------------------------------36-37

CHAPTER SIX: SEPARATION OF POWERS IN THE UNITED STATES

6.1 LEGISLATIVE POWER-------------------------------------------------------------------------------38-39

6.2 EXECUTIVE POWER---------------------------------------------------------------------------------39-40

6.3 JUDICIAL POWER -----------------------------------------------------------------------------------40-41

6.4 SEPARATION OF POWERS WITH PROPER CHECKS AND BALANCES----------------------------41-42

CHAPTER SEVEN: COMPARATIVE ANALYSIS OF THE SEPARATION OF POWERS

7.1 COMPARATIVE ANALYSIS OF THE DOCTRINE OF SEPARATION OF POWERS-----------------43-47

CHAPTER EIGHT: CONSEQUENCES OF SEPARATION OF POWERS

8.1 MERITS OF SEPARATION OF POWERS -----------------------------------------------------------48-49

8.2 DEMERITS OF SEPARATION OF POWERS --------------------------------------------------------49-51

CHAPTER NINE: CONCLUDING PART

9.1 CRITICISM OF SEPARATION OF POWERS --------------------------------------------------------52-53

9.2 RECOMMENDATIONS------------------------------------------------------------------------------53-54

9.3 CONCLUSION---------------------------------------------------------------------------------------54-56

April 07, 2012

To
Syed Sarfaraj Hamid
Assistant Professor &
Head, Department of Law
Northern University Bangladesh

Subject: Letter of Transmittal.

Dear Sir,
It is a matter of great pleasure for me to have the opportunity to submit the research paper on the
topic “Separation of Powers: A Comparative Study Under Bangladesh, India, UK and USA
Constitution”. While conducting my work I tried my level best to make this research paper a
standard one. I hope that my work will make you satisfied and fulfill your expectation.

I do believe you are cordial enough to go through the entire of research paper and make me
assured with your kind evaluation.

Out of my knowledge if there remains any fault, I will be grateful to you if you avail me to
acknowledge my shortcomings and correct those accordingly.

Thanking you

Md. Sayem Prodhan

ID: LLM 110200712
Department of law
Northern University Bangladesh

ACKNOWLEDGEMENT
This research is primarily written for the law department of NUB by whom I was asked &
instructed to make a general research paper on the topic of “Separation of Powers: A
Comparative Study Under Bangladesh, India, UK and USA Constitution” which is one of the
burning issues at present. I cannot but express my joyous feeling as the authority avail me to
write in this topics. It would not be proper if I don’t mention the name of some personalities who
substantially afford me to accomplish this tactful task. Among those my respected tearcher Md.
Jashim Ali Chowdhury, Lecturer, Dept. of Law, Chittagong University and Md. Awal Hossain
Mollah, Lecturer, Dept. of Public Administration, Rajshahi University are influential.
I am very much grateful to my respected Supervisor Syed Sarfaraj Hamid, Assistant Professor &
Head, Department of Law for giving me this topic along with valuable advices. Surely his
inspiring guidance, constant supervision, valuable suggestion, constructive criticism and
wholehearted cooperation in all stages of preparation of this research paper helped me a lot to
complete this paper. I am also very grateful to the websites & authors whose different books and
articles I have mentioned in Bibliography.
At the last moment I would like to offer my thanks to some of my university friends & elder
brother of the university who encourage me in a number of ways to accomplish my research
paper.

Date: 7 April, 2012

Md. Sayem Prodhan
 DECLARATION

This is Md. Sayem Prodhan, ID: LLM110200712, a regular student of Master of Laws Program
under the Department of Law, Northern University Bangladesh hereby declaring that this
Research paper on “Separation of Powers: A Comparative Study Under Bangladesh, India, UK
and USA Constitution” is prepared only for the requirements of the Department and for the
partial fulfillment of the course final dissertation course. This paper is not submitted anywhere
else for any other purpose.

Course Name: Research Monograph

Course Code: LLM 6400
Credit hours: 03
Semester: Spring-2012
Section: A

Signature Signature
…………… … … … … …. …
Md. Sayem Prodhan Syed Sarfaraj Hamid
ID: LLM110200712 Assistant Professor &
Department of Law Head, Department of Law
Northern University Bangladesh Northern University Bangladesh

TABLE OF ABBREVIATIONS
& And
AC Appeals Cases
AD Appellate Division
AIR All India Reporter
Art. Article
C.J. Chief Justice
Cr.P.C Code of Criminal Procedure
Crim LR Criminal Law Review
e.g., exempli gratia

HC Deb House of Commons Debates

HL Deb House of Lords Debates
HRA Human Rights Act
i.e. id est (that is)
Ibid. Ibidem
Ltd. Limited
MPs Members of Parliaments
DLR Dhaka Law Reports

QC Queen's Counsel
SC Supreme Court
SCC Supreme Court of Canada
SCR Supreme Court Reports (Canada)
U.S.A United States of America
UCL University College London
UK United Kingdom
UKHL United Kingdom House of Lords
UN United Nations
V. Versus
VOL Volume

TABLE OF CASES
A

A v Secretary of State for Home Department, (2004) UKHL 56

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)

Aravali Golf club v. Chander Hass and Another, 2008(1)SCC 683

Asif Hamid v. State of Jammu & Kashmir, AIR 1989 SC 1899

Clinton v. City of New York, 524 U.S. 417 (1998)

Council of Civil Service Unions v. Minister for the Civil Service, (1985) AC 374

I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643: (1967) 2 SCR 762

Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983)

Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1: AIR 1975 SC 2299

Jackson v. Her Majesty’s Attorney General, (2005) UKHL 56

Kesavananda Bharati v. State of Kerela, (1973) 4 SCC 225: AIR 1973 SC 1461

Keshav Singh v. Speaker, Legislative Assembly, (1965) 1 SCR 413

L Chandra Kumar v. Union of India, (1995) 1 SCC 400

Madhu Holmagi v. Union of India, 2008(6) ALL MR 94

Magor and St. Mellons Rural District Council v. Newport Corporation, (1952) AC 189 at 191

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

McGonnell v. United Kingdom, (2000) 30 EHRR 289

McLoughlin v. O'Brian, (1983) 1 AC 410

Ministry of Finance v. Masdar Hossain, 2000 BLD (AD) 104

Mujibur Rahman v. Bangladesh, 44 DLR (AD) 111

Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856)

P
Pandit M S M Sharma v. Sri Krishna Sinha, AIR 1960 SC 1186

Pickin v. British Railways Board, (1974) AC 765

R ( Morgan Grenfell & Co.) v. Special Commissioner of Income Tax, (2003) 1 AC 563, para 32

R v. Hinds, (1979) Crim LR 111

R v. Secretary of State for Transport ex parte Factortame Ltd (No 2), (1990) 2 AC 85

Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: (1955) 2 SCR 225

Rameshwar Prasad v. State of Bihar, AIR 1958 Pat 210

S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 125

Shiv Kumar Chadha v. MCD, 1993 (3) SCC 161

Springer v. Govt of Phillipine Islands, 277 U.S. 189 (1928)

Suman Gupta v. State of Jammu and Kashmir, AIR 1983 SC 1235

Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42 (1825)

TABLE OF CONSTITUTINAL INSTRUMENTS

The Constitution of Bangladesh
The Constitution of India
The Constitution of the United States
The Constitution of the United Kingdom (uncodified)
 TABLE OF STATUTES
The Bill of Rights, 1689

The Code of Criminal Procedure, 1898

The Constitutional Reform Act, 2005

The Delhi Laws Act, 1912

The Guardian and Wards Act, 1890

The Human Rights Act, 1998

ABSTRACT
This research paper is written on the topic of “Separation of Powers: A Comparative Study
Under Bangladesh, India, UK and USA Constitution”. ‘Separation of Powers’ is a fundamental
principle whereby powers and responsibilities are divided among the legislative branch,
executive branch, and judicial branch. The officials of each branch are selected by different
procedures and serve different terms of office; each branch may choose to block action of the
other branches through the system of checks and balances. The framers of the
Constitution designed this system to ensure that no one branch would accumulate too much
power and that issues of public policy and welfare would be given comprehensive consideration
before any action was taken. In the ongoing writings, I would like to give an endeavor
demonstrate the concept and application of this important doctrine in Bangladesh, India, UK and
US Constitution. For the betterment of discussion, this research paper have been divided into
several chapters which details of the caption.
Chapter One gives an overall picture of the whole research paper regarding the doctrine of
‘Separation of Powers’.
Chapter Two describes about the origin of the doctrine of ‘Separation of Powers’, as well as its
development.
Chapter Three describes briefly about the application of this doctrine under the Constitution of
Bangladesh as well as its present situation.
Chapter Four describes briefly about the application of this doctrine under the Constitution of
India and its present situation.
Chapter Five describes briefly about the application of this doctrine under the Constitution of
United Kingdom as well as its present situation and developments.
Chapter Six describes briefly about the application of this doctrine under the Constitution of
United States which is known as the homeland of this doctrine & its ‘Checks & Balances’.
Chapter Seven some comparative analysis has been made regarding ‘Separation of Power’.
Chapter Eight describes about the merits and demerits of this doctrine.
And lastly Chapter Nine describes about the findings of this research, some recommendations
and a concluding speech.

Date: 7 April, 2012

Md.Sayem Prodhan

CHAPTER ONE
INTRODUCTORY PART
1.1 PRECLUDE
The ‘Separation of Powers’ is a doctrine that has exercised the minds of many. Ancient
philosophers, political theorists and political scientists, framers of constitutions, judges and
academic writers have all had cause to consider the doctrine through the centuries. The
separation of powers is a doctrine not a legal principle.

The concept of separation of power has played a major role in the formation of constitution. The
extent to which powers can be exercised should be separate and distinct. The essence of the
doctrine is that there should be ideally a clear demarcation in function between the organs.
Generally we have seen separation of power is one of the debating and challenging where there
are so many controversial issues against this doctrine. Some said there must be strict separation
of powers in the state, some body argued no separation, there are fusion of powers. Many
support the theory of cheeks and balances. In general sense every state has the three wings, such
as executive, legislature and judiciary. They are interrelated to each other. Though peoples
theoretically believe there is separation of powers but practically impossible.

On the other hand according to Article 22, 26, 55, 65, 94(4), 107, 109 & 116A of the
Constitution of Bangladesh we can say that the doctrine of separation of power is well
established in Bangladesh constitution. Anchored by the Bangladesh Constitution first three
articles of the country, Legislative, Executive and the Judiciary (judicial) make up our three
branches of government. The Constitution clearly lays down the foundations of a judiciary that is
separate and independent from the other branches of government. It was introduced in
recognition of the fact that the efficiency of the judiciary and the entire justice system depends
largely on the independence of the judiciary.

By distributing the essential business of government among three separate but interdependent
branches, the Constitutional Framers ensured that the principal powers of the government,
legislative, executive and judicial, were not concentrated in the hands of any single branch.
Allocating governmental authority among three separate branches also prevented the formation
of too strong a national government capable of overpowering the individual state governments.
The Separation of Powers, by which the executive, legislative, and judicial branches are to be
independent and not infringe upon each other's rights and duties, is one of the basic doctrines in
the Bangladesh Constitution.

The separation of power also known as ‘Trias Politica’ is a model for the governance of
domestic states. There are so many countries like us followed the separation of power doctrine.
Bangladesh has already taken the step of following separation of power as for example
separation of judiciary. United Kingdom also has adopted the doctrine. In England theory of
integration of powers has been adopted though the three powers are vested in three organs and
each has its pecuniary features. It can not be said that there is no sharing out of the powers of the
government. And the USA doctrine of separation of powers has been accepted and strictly
followed and there system is ’’checks and balances’’. The constitution of India tried to adopt the
middle path between the American system of judicial supremacy and the English principle of
parliamentary supremacy. For this judiciary was empowered with power of judicial review, so
that it can determine the constitutionality of executive and legislative actions but at the same
time the judiciary was not empowered to review wisdom of legislative and executive policies.

1.2 NATURE AND SCOPE OF THE STUDY

The range of this research includes the area of information required to collect and scrutinize of
the topic regarding ‘Separation of Powers: A Comparative Study under Bangladesh, India, UK
and USA Constitution’. This research confined by the significant case laws, print articles, books,
e-books, bare Acts, newspapers and web links of different scholars and jurists.

1.3 OBJECTIVES OF THE STUDY:

The main aim & objective of this research is to search, discuss, compare & scrutinize the
adaptation and application of the doctrine of ‘Separation of Powers’ in the Constitutions of
Bangladesh, India, United States and United Kingdom’. The following are as well as the
objective of this research paper:

 To familiarize with the doctrine of ‘Separation of Powers’ and its evolution.

 To familiarize with the historical background and development of this doctrine.

 To familiarize with the adaptation and application of this doctrine in Bangladesh.

 To familiarize with the adaptation and application of this doctrine in India.

 To familiarize with the adaptation and application of this doctrine in UK.

 To familiarize with the adaptation and application of this doctrine in USA.

 To accumulate the wide-ranging, trustworthy and expressive information about the views &
opinions of different experts and scholars especially who are from Bangladesh, India, UK
and USA.

 To comparatively analyze this doctrine in those countries and other model countries.

 To ascertain the consequences of application this doctrine.

 To make number of recommendations for proper application of the doctrine to make it more
effective.

1.4 RESEARCH METHODOLOGY

This research is conducted on the basis of data collection of primary and secondary sources. This
research paper is not a basic one; it can be treated as a library based experiment. To make the
research paper, the instructions given by the Research Supervisor have been followed. The whole
research paper has been done in an organized way. Firstly the necessary chapters have been
selected. Then every possible effort was made to collect information required for each chapter.
The methodology followed throughout the research paper has been pointed out below:

 Planning the whole research paper.

 Dividing the research paper into chapters.

 Taking advice from honorable Research Supervisor regarding the collection of necessary
information and study materials.

 Collection of respective papers through internet browsing.

 Study and discussion with the concern Supervisor.

 Concentrated study through many books, e-books, journals, e-journals, bare Acts and
international conventions.

 Screening the gathered information.

 Selecting the effective information that can be added in the paper.

1.5 LIMITATION OF THE STUDY:

“Separation of Powers: A Comparative Study under Bangladesh, India, UK and USA
Constitution” is one of the most important topics for research in the present days. I have tried my
level best to collect recent and authenticated information for this research paper, but to prepare
this research paper, I did face some barrier concerning information. On the other hand, it is very
difficult to know the current situation or opinions of experts & general people regarding this
topic by sitting in Bangladesh rather than in India, UK & USA. As a result, I have had to depend
a lot on internet to collect information. The main limitation to prepare this research is time
limitation. To make a full-fledge research on such kind of topic, the time period is not sufficient.
Moreover there were some negligible problems to make this research fruitfully.

CHAPTER TWO
ORIGIN AND DEVELOPMENT OF ‘SEPARATION OF POWERS’
2.1 DEFINING THE DOCTRINE OF SEPARATION OF POWERS

It is generally accepted that there are three main categories of governmental functions- (i)
Legislative, (ii) Executive, and (iii) Judicial. Similarly, there are three main organs of the
Government in a State- (i) Legislature, (ii) Executive, and (iii) Judiciary. According to the theory
of Separation of Powers, these three powers and functions of the Government must, in a free
democracy, always be kept separate and be exercised by three separate organs of the
Government. It means that one person or body of persons should not exercise all three types of
powers of government. The legislature should exercise legislative functions and powers and
should not administer or enforce it. The executive should not control the legislature nor should it
take over the functions of the judiciary.

According to Wade and Philips,1 the theory of separation of the powers signifies the following
three different things:

a) That the same person should not form part of more than one of the three organs of the
government;

b) That one organ of the government should not interfere with any other organ of the
government;

c) That one organ of the government should not exercise the functions assigned to any other
organ.

According to Montesquieu, if the executive and the legislature are the same persons or body of
person there would be a danger of the legislature enacting oppressive laws which the executive
will administer to attain for its own ends. He further said that if one person or body of persons
could exercise both the executive and judicial powers in the same matter there would be arbitrary
power which would amount to complete tyranny and there would be no objectivity of law.

This idea of separation of functions stems from the logical conclusion that if the law-makers
should also be the administrators and dispensers of law and justice, then the people at large will
be left without a remedy in case any injustice is done as there will be no superior authority.

The doctrine of separation of powers has become an integral part of the governmental structure.
But, the practical application of the doctrine differs to a great extent. In theory, the doctrine of
separation of powers is supposed to have a threefold classification of functions and
corresponding organs. But because of the diverse and complex nature of a modern state, where
the process of law making, administration and adjudication cannot be clearly demarcated or
assigned to separate institutions, the application of this doctrine in strict sense is very difficult.

2.2 ORIGIN OF THE DOCTRINE OF SEPARATION OF POWERS

1
Aldar John, Constitutional and Administrative Law, Palgrave Macmillan, New York, 6th Ed, pp. 12-13.
The doctrine of the separation of powers is often assumed to be one of the cornerstones of fair
government.2 It apparently evolved from the desire to limit the concentration of power within
any one branch of government, a problem most famously articulated by Lord Acton:3

“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost
always bad men.”

The principles of separation of power have existed as philosophical constructs since the times of
Aristotle,4 and later expounded upon and articulated by John Locke and Barron Montesquieu
during the 17th and 18th Centuries. Ironically it was Montesquieu’s idealistic regard for the British
parliamentary system that was used by the writers of the American Constitution to justify the
concept of the separation of powers in their revolutionary fight against the British. Within the
British schools of legal philosophy, the concept was further evolved by Blackstone, who
particularly advocated the separation of the judiciary from the state.5

The separation of powers is a model for the governance of both democratic and federative states.
The model was first developed in ancient Greece and came into widespread use by the Roman
Republic as part of the uncodified Constitution of the Roman Republic. 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 Bodin 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’ (The Spirit of the Laws), published in the year 1748.6

2.3 MONTESQUIEU ON THE DOCTRINE OF SEPARATION OF POWERS AND

DEVELOPMENT OF THIS DOCTRINE

2
de Smith and Brazier., Constitional and Administrative Law, 6th ed, (London, Penguin Books, 1989),
p.19
3
Robbins, J.W., Acton on the Papacy, The Trinity Foundation (Online), URL:
http://trinity2.envescent.com/journal.php?id=66; Retrieved on 18.02.12
4
Aristotle., Politics - Book 5, Written 350 B.C.E, Translated by Benjamin Jowett (Online), URL:
http://classics.mit.edu/Aristotle/politics.5.five.html; Retrieved on 18.02.12
5
Daryl Williams, Attorney-General. June 2001, Separation of Power - a comparison of the Australian and UK
experiences (Online), Please visit
http://www.ag.gov.au/agd/WWW/attorneygeneralHome.nsf/Page/Speeches_2001_Speeches_Separation_of_power
s_-_a_comparison_of_the_Australian_and_UK_experiences; Retrieved on 18.02.12
6
Please visit http://legalservicesindia.com/article/article/separation-of-power-in-india-&-usa-483-1.html; Retrieved on
17.02.12
Charles Louis de Secondat, otherwise known as Baron de Montesquieu, was a provincial French
nobleman and parliamentary magistrate. His lasting contribution to political theory, L’Esprit des
Lois (The Spirit of the Laws) was the product of his observations whilst traveling in Europe
between 1728 and 1731, although the book itself was not published until 1748. Much of
Montesquieu’s time during this period was spent in England attending the court of George II and
moving in political circles. His exposure to English political life and the manner in which
government was conducted has accordingly led to speculation as to the extent to which some of
the views expressed in his book were formulated by his English experiences.7

For Montesquieu:

When legislative power is united with executive power in a single person or in a single
body of the magistracy, there is no liberty, because one can fear that the same monarch
or senate that makes tyrannical laws will execute 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.8

The rationale underlying the separation of powers, to prevent the abuse of power, is apparent
throughout this passage. Speculation has sometimes centered upon whether chapter 6 of Book 11
is a description of the constitutional framework which Montesquieu observed in England, or
whether it is his prescription for the features that a constitution ought to exhibit. In addition,
questions have arisen as to the extent to which he was influenced by the opinions of others, most
notably Viscount Bolingbroke, a contemporary English politician and pamphleteer. Whatever the
answers to these questions, the fact remains that Montesquieu has, in the words of the authors of
The Federalist Papers, come to be seen as ‘the oracle who is always consulted and cited on this
subject’. In their opinion, ‘if he be not the author of this invaluable precept in the science of
politics, he has the merit of at least displaying and recommending it most effectually to the
7
Please visit http://bookshop.blackwell.co.uk/extracts/9780199232857_parpworth.pdf; Retrieved on 18.02.12
8
Ibid.
attention of mankind’. It is perhaps not surprising; therefore, that M J C Vile has described
Montesquieu as the ‘father of modern constitutionalism’.9

Though the doctrine of Separation of Powers is traceable to Aristotle but the writings of Locke
and Montesquieu gave it a base on which modern attempts to distinguish between legislative,
executive and judicial power is grounded. Locke distinguished between what he called:

i. Discontinuous legislative power

ii. Continuous executive power

iii. Federative power.

He included within ‘discontinuous legislative power’ the general rule making power called into
action from time to time and not continuously. ‘Continuous executive power’ includes all those
powers which we now call executive and judicial. By ‘federative power’ he meant the power of
conducting foreign affairs.

Montesquieu found that concentration of power in one person or a group of persons results in
tyranny. And therefore for decentralization of power to check arbitrariness, he felt the need for
vesting the governmental power in three different organs, the legislature, the executive, and the
judiciary. The principle implies that each organ should be independent of the other and that no
organ should perform functions that belong to the other.

Montesquieu in the following words stated the Doctrine of Separation of Powers:

“There would be an end of everything, were the same man or same body, whether of the
nobles or of the people, to exercise those three powers, that of enacting laws, that of
executing the public resolutions, and of trying the causes of individuals.”

According to Montesquieu, the doctrine of separation of powers means that no one person or
body should be vested with all three types of powers. There must be a division of functions on
the following basis: the legislature should make laws but not administer or enforce them, the
executive must administer the made laws but neither influence the legislature in the making of
the laws nor stand in judgment of the same and the judiciary must determine rights and uphold
justice without taking over the functions of law-making or administration. 10 He further said that

9
Ibid.
10
Takwani, C.K., Lectures on Administrative Law, Eastern Law Company, Lucknow, 4th Ed, p 45.
such separation is necessary in order to ensure that justice does not become arbitrary and
capricious.

He thought that concentration of power in one person or a group of persons results in tyranny.
And thus, for decentralization of power to check arbitrariness, he thought that there is a need for
vesting the governmental power in three different organs. The principle implies that each organ
should be independent of the other and that no organ should perform functions that belong to the
other.

The value of this doctrine lies in that it attempts to preserve human liberty by avoiding the
concentration of powers in any one person or body of person. As stated by Madison- “The
accumulation of all powers, legislative, executive and judicial, in the same hands whether of one,
a few, or many and whether hereditary, self-appointed or elective, may justly be pronounced the
very definition of tyranny”11. And for the prevention of this tyranny, the doctrine of separation of
power holds its greatest importance.12

Also, the separation proposed by Montesquieu did not apply merely to the organs and their
functions but in regard to their personnel as well. This according to him was for the reason that,
if a person holding office in one wing of the government should wield power in regard to another
wing, it would defeat the purpose of the separation itself. Montesquieu was convinced that it was
only through such a system of separation of powers that a government could be made free from
the dangers of capricious or tyrannical rule.13

This theory has had different application in France, U.S.A., England and India as well as in
Bangladesh. In France, it resulted in the rejection of the power of courts to review the acts of the
legislature or the executive. The doctrine was never accepted in its strict sense in England. About
U.S.A, India and Bangladesh it will be further dealt in brief.

2.4 MODERN SEPARATION OF POWERS COMES WITH CHECKS AND BALANCES

Strictly speaking, the modern ‘doctrine of separation of powers’ proposes that the three functions
of government, legislative (making the law), executive (enacting the law) and judicial
(interpreting the law), be enacted by three autonomous and independent branches of government.
Further, that no member of any one branch should be a member of any other. Early idealistic
11
Aldar John, Constitutional and Administrative Law, Palgrave Macmillan, New York, 6th Ed, p 14.
12
Sathe S.P., Administrative Law, LexisNexis Butterworths, New Delhi, 7th Ed, p 23.
13
Supra note 6
attempts to realize this doctrine appeared in the 18th Century, within some of the rising colonies
of the Americas and the early French Republic, 14 but both failed to produce coherent systems of
government.15 Today, the Constitution of the USA is the only structure that tries to fully adhere
to this doctrine.

Critics of the system point out both practical and conceptual difficulties in realizing such a
separation. For instance, is it really possible to succinctly classify all the functions of modern
government into these three areas? Additionally, providing a coherent structure of government
whilst keeping such functional areas totally separate, can lead to unnecessary complications and
gamesmanship, with a myriad of checks and counter-checks being imposed between the three
branches.16

Checks and balances and the separation of powers are vital mechanisms to ensure the smooth
running of democracy. Checks and balances operate to ensure that no one body or group of
people ever are able to have so much power that they are able to disproportionately influence the
legal system or law making of a country ensuring that any new law has to go through a system of
intense scrutiny, for example, is one way of helping to ensure the long and successful life of
democracy.

The basic concept is that no one part of government should be able to make policy easily.  Every
person or part of government should only have a limited amount of power (separation of powers)
and should have other people/parts of government that can block their actions (checks and
balances).  This is a major founding principle of a modern democratic country - that no part of
government should have the ability to wield uncontrolled power.  The idea was to make it much
harder for government to tyrannize the people.

14
See the 1789 Declaration of the Rights of Man and Citizen
15
Bryan Palmer, 1996-2005, ‘Separation of Powers’, Palmer's Oz Politics (Online), URL:
http://www.ozpolitics.info/rules/sep.htm; Retrieved on 18-02-12 and Aristotle., Politics - Book 5, Written 350
B.C.E, Translated by Benjamin Jowett (Online), URL: http://classics.mit.edu/Aristotle/politics.5.five.html,
Retrieved on 18.02.12
16
Spindler, G., 2000, Separation of Powers: Doctrine and Practice, in Legal Date (Online),
http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/01; Retrieved on 18.02.12
 CHAPTER THREE
SEPARATION OF POWERS IN BANGLADESH
In a democratic state, the power rests on three separate organs, namely the executive, the
legislature and the judiciary. Most of the newly independent states, while adopting their
constitutions, have been vigilant about giving attention to the type, nature, and powers of the
executive branch of the government. The constitution of Bangladesh vests the executive power in
the executive and the legislative power in parliament. Several models are there to fashion the
details of the executive. Bangladesh followed in turn the Presidential and the parliamentary
models of executive. The legal basis of the Bangladesh provisional government established on 10
April 1972 which was provided by the proclamation of independence which was to take effect
from 26 March 1971.

3.1 THE EXECUTIVE AND ITS POWERS

If we analyze and evaluate the theory of separation powers in our national context, then we can
understand that the doctrine of separation of powers has itself been influenced by, and has
influenced, the growth of Administrative Law in Bangladesh. Regarding appointment of persons
to subordinate courts Article 115 of the Constitution of Bangladesh says “Appointments of
persons to offices in the judicial service or as magistrates exercising judicial functions shall be
made by the President in accordance with the rules made by him in that behalf.”17

With regard to the appointment of persons to offices in the judicial functions, it was, among
other, provided in the original Article 115 that the President would make the appointment but in
case of District judges the appointment would be made on the recommendation of the Supreme
Court and in relation to appointments of persons to subordinate courts have been taken away
clearly concentrating the same to the President himself Provision relating to control and
discipline of subordinate courts is given in Article 116 of the Constitution of Bangladesh. This
Article says “The control (including the power of positing, promotion and grant of leave) and
discipline of persons employed in the judicial services and magistrates exercising judicial
functions shall vest in the President and shall be exercised by him in consultation with the
Supreme Court.”18

The Constitution of Bangladesh vests the executive power of the Republic in the executive and
the legislative power of the Republic in Parliament. Though there is no specific vesting of the
judicial power of the Republic, it is vested in the judiciary. It was held in the case of Mujibur
Rahman v. Bangladesh.19 The divisions of power are not, however, absolute. The executive can
legislate under certain circumstances, and in fact, Parliament cannot make any law relating to the
appointment of judicial officers and Magistrates exercising judicial functions, which has to be
provided for by the President. It was held in the case of Secretary, Ministry of Finance v. Masdar
Hossain.20

3.2 THE LEGISLATIVE AND ITS POWERS

On the other hand, Parliament can cause a fall of the executive government and impeach the
President. Parliamentary Standing Committees can review the enforcement of laws by the
Ministries and propose measures for such enforcement and in relation to any matter referred to it
by Parliament as a matter of public importance, investigate or inquire into the activities or
administration of the Ministries. While the judiciary has the legislative power to make certain

17
S.M. Hassan Talukder, Development of Administrative Law in Bangladesh: Outcomes and Prospects, 1st ed. (The
Bangladesh Law Researchers' Association; and The Law Readers, Bangladesh, 1997) pp. 178-9.
18
Ibid, p. 179.
19
44 DLR (AD) 111
20
2000 BLD (AD) 104
rules, Parliament can adjudicate certain disputes; it has power to enforce its own privileges and
to punish those who offend against them. This may in certain situations bring it in conflict with
the courts.21

3.3 THE JUDICIARY AND ITS POWERS

Article 22 of the Constitution of Bangladesh emphasizes independent judiciary by way of
separating the same from the executive organ of the state. This Article provides that the state
shall ensure the separation of the judiciary from the executive organ of state. This principle
involves two consequences first, that a Judge or Magistrate who tries a casa must not be in any
manner connected with the prosecution, or interested in the prosecution. Second, that he must not
be in direct administrative subordination to any one connected with the prosecution. Quite
clearly it is impossible for a judge to take a wholly independent view of the case he is trying if he
feels himself to any extent interested in or responsible for the success of one side or the other.
This is the first aspect. It is equally impossible for him to take an independent view of the case
before him if he knows that his posting, promotion, and prospects generally depend on his
pleasing the executive head. Thus the separation of functions means and involves the elimination
of these two evils.22

During the British days, there was a demand for the separation of the judiciary from the
executive and Article 22 of the Constitution of Bangladesh meets that demand. But very little has
been done by the state in this count in practice. The Deputy Commissioner who is the chief
executive in the district can arrest and prosecute a person. He also acts as a judge and tries
criminal cases. It is, therefore, generally contended that such a practice is not in accordance with
the theory of separation of powers.

What the Constitution has done can very well be described as an assignment or distribution of
the power of the Republic to the three organs of the government and it provides for separation of
powers in the sense that no one organ can transgress the limit set by the constitution or encroach
upon the powers assigned to the other organs. The result is that unless the Constitution has
expressly provided otherwise, no one organ can wield the powers of the other organs. Thus in the
name of interpretation of the Constitution and the laws, the judiciary cannot create a new law or
amend and existing law, which will be offensive as a judicial legislation. Nor can the judiciary
21
Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed. (Mullick Brothers, Dhaka), p. 64.
22
S.M. Hassan Talukder, Constitutional Law of Bangladesh, 2nd ed. (Mullick Brothers, Dhaka), p. 180.
give direction to Parliament to make laws or to the President to make rules. The Appellate
Division held that when there is a Constitutional deviation and Constitutional arrangements have
been interfered with and altered by Parliament by enacting laws and by the government by
issuing various orders, the higher judiciary is within its jurisdiction to bring back Parliament and
the executive from Constitutional derailment and give necessary direction to follow the
Constitutional course by making or amending laws or rules. It is submitted that when there is a
Constitutional deviation in legislative measures, the court can declare such legislative measures
to be ultra vires, but cannot give a direction to repeal or modify it. It may be noted that Article
112 of the Constitution of Bangladesh stipulates that all authorities, executive and judicial (but
not legislative), shall act in aid of the Supreme Court. Parliament may amend a law
retrospectively within certain limits so as to destroy the foundation on which a judicial decision
is based, but it cannot set aside a judgment of a court or declare it to be invalid as it will be void
as legislative judgment.23

3.4 JUDICIAL INDEPENDENCE IN THE CONSTITUTION OF BANGLADESH

Part VI of the constitution of Bangladesh deals with the Judiciary. Article 7 provides that all
powers in the Republic shall be effective only under and by authority of the constitution. The
responsibility of seeing that no functionary of the state oversteps the limit of his power is a
necessity, on the judiciary. Article 35(3) of the constitution provides “Every person accused of a
criminal offence shall have right to a speedy and public trial by an independent and impartial
court or tribunal established by the law. Article 116A provides for independence in the
subordinate judiciary while Article 94(4) demands independence of the Supreme Court Judges.
Article 116A, while requiring judicial independence, was part of the detrimental changes to the
constitution made in 1974 and 1975 which provides “Subject to the provisions of the
constitution, all persons employed in the judicial service and all magistrates shall be independent
in the exercise of their judicial functions.”

3.5 SEPARATION OF THE JUDICIARY IN THE CONSTITUTION

The judicial independence of all judicial officers is unconditional according to the constitution of
Bangladesh. This ideal is protected primarily through the concept of separation of the judiciary
from the other organs of government. Article 22 states directly and unquestionably: The state

23
Supra note 21, pp. 64-5.
shall ensure the separation of the judiciary from the executive organs of state. Article 95(1)
addressed the method of appointment for the Supreme Court: the president shall appoint The
Chief Justice and other Judges. The appointment and control of judges in the subordinate
judiciary (judicial service) are described in Articles 115 and 116 stating respectively:
Appointment of persons to offices in the judicial service or as magistrates exercising judicial be
made by the President with the rules made by him in that behalf. The control (including the
power of posting, promotion and grant of leave) and discipline of persons employed in the
judicial service and magistrates exercising judicial functions shall vest in the President and shall
be exercised by him in consultation with the Supreme Court. It is principally through the above
articles that the executive branch has been able to gradually intrude upon and influence the
judiciary in Bangladesh, creating enormous problems regarding the quality of jurisdiction and
the extent of judicial independence. Recently, separation of the judiciary from the executive has
been argued as a necessity based on the unconstitutionality of the present organization and while
this may well be true, it appears to be he consequential improved functional independence of the
judiciary that is the fundamental reason for separation with unconstitutionality being only an
argument to ensure its enactment.24

3.6 PRESENT CONDITION OF SEPARATION OF POWERS IN BANGLADESH

There is a historical struggle by the people of this being separated from the executive to prevent
mulch-faceted suppression and oppression by various quarters. Even after achieving national
independence, we find the ‘inertia’ of political will to take meaningful initiatives for separation
of judiciary that was done by a non-political caretaker government has taken the initiatives on
November 01, in pursuance of Masder Hossains case.

Separation of the judiciary has been argued both as a cause and a guardian of formal judicial
independence.25 The concept of separation of the judiciary from the executive refers to a situation
in which the judicial branch of government acts as its own body frees from intervention and
influences from the other branches of government particularly the executive. Influence may
originate in the structure of the government system where parts or all of the judiciary are
integrated into another body (in the case of Bangladesh: the executive). For example, in

24
Supra note no. 10
25
Hadley, Sierd. 2004. Separation of Judiciary and Judicial Independence in Bangladesh. Please visit
http://www.ais dhaka.net/School_Library/senior%20Projects/04_Hadley_judiciary.pdf; Retrieved on 30.02.13.
Bangladesh the President in consultation with the Supreme Court according to the constitution
appoints judicial officers other circumstances include functional aspects of the judicial system
when the administration of justice is in some way, affected by executive orders or actions.

Executive abuse of this constitutional order result in biased appointment of judges, and other
officers of the judicial cadre, favoring individuals who support the governing political party. Dr.
Kamal Hossain, a respected advocate of the Supreme Court, explains the concept of separation of
the judiciary through the idea of double standards. An executive officer follows plans, which are
of a vertical nature, with the higher offices guiding the decisions of the lower officers, who look
for the best possible ways to further the plans established by those higher in the pecking order.
Executive decisions are made in lines of policy; law is not a policy. Judges or magistrates
performing judicial functions must examine what evidence is given and find a way to best apply
it to the law; there is less room for an individual’s perceptions in judicial decisions.26

Complete separation is relatively unheard or outside of theory, meaning no judiciary is

completely severed from the administrative and legislative bodies because this reduces the
potency of checks and balances and creates inefficient communication between organs of the
state.27 A high degree of separation, however, can be a strong guardian of judicial independence,
as this paper will attempt to prove.

The constitution of Bangladesh is the first defense of judicial independence, presiding over all
the “Republic’s affairs and framing the organization and administration of the government.
While constitutional flows exist, regarding separation of the judiciary, there are adequate
provisions for formal judicial independence.

Unfortunately, the government of the day with its "promise about change" is taking the wrong
step to jeopardize separation of judiciary via encroaching upon administration of criminal justice.
This would beget conflict among state organs. The decision to take cognizance of the offences by
the executive magistrates u/s 190 of Cr.P.C, 1898 goes against the letter and spirit of the apex
court's decision given in Masdar Hossains case.28 Cognizance is an important, salient stage of
the proceedings of criminal case where a higher degree of care and caution is a must. A criminal
case with flawed cognizance, made ready for trial, would aggravate sufferings of the people as it
26
Dr. Kamal, Hossain, Interview by Sierd Hadely with Dr. Kamal Hossain, most senior lawyer of the Supreme
Court Bar Association and joint-writer of the Constitution of Bangladesh; 5th March 2004
27
Supra note no. 25
28
Supra note no. 20
is quite explicit in the Bangladesh perspective having "as many tables and so much corruption".
Moreover, the executive magistrates devoid of legal background do not understand the nuances
of legal phraseology. This is corroborated by the statistics about the highest acquittal rate about
90% in criminal cases by the then executive magistrates. The whole nation is still carrying the
bitter and dark history of illegality and miscarriage of justice, left by the executive magistrates in
criminal cases in the name of justice. The sufferers have not forgotten how the then executive
magistrates haggled on their order behind the curtain. If the government is true to its
commitment or-premises to the people about a paradigm shift of conventional governance
equation in Bangladesh, the bill for the separation of region for an independent judiciary, at it
was done in the form of an Ordinance, 2007, promulgated during the tenure of the caretaker
government and they are aware of its importance.

It is a matter of great regret for the nation that after long 41 years of independence, the
democratically elected government is apparently dithering on taking the action that is needed to
ensure full-fledged separation of the judiciary and they make the habitual delay.

The dilatory tactics to ensure the separation of judiciary is nothing but a part of the
mechanizations by the vested interests to deny good governance frustrate democracy and subvert
efforts for institutionalizing the rule of law. Efforts to subvert the real separation of judiciary
from the executive would impede the process for sustainable development of a basic institution
like that of judiciary. The logic of the personnel of the administrative cadre in support of
criminal magistracy is devoid of pragmatism and is purported for preserving their domain of
power that can be used to maximize corruption and so on others.29

Throughout history, there has been exhibited a tension between the doctrine of separation of
powers and the need for balanced government - an arrangement depending more on checks and
balances within the system than on a formalistic separation of powers. The ground reality, in
Bangladesh, is that the judiciary possesses neither the financial resource nor the power to extract
the allegiance of the other organs of the State to the constitution and the implementation of its
decision in so far as it relates to the separation of the judiciary from the executive.

As such, in spite of public declarations and commitments to judicial separation from the
executive branch, political groups and the administration have maintained the status quo. Thus

29
Ibid.
the intentions of our constitution have not been carried through. Therefore, although the judiciary
is in the process of separation of late, the civil society and the political class of Bangladesh
should relentlessly pursue the issue until the constitutional dignity and effectiveness of the
supreme judiciary is fully and credibly established. Actually the current constitutional problems
in Bangladesh are related to the lack of separation of powers between executive and judiciary.

CHAPTER FOUR
SEPARATION OF POWERS IN INDIA
4.1 SEPARATION OF POWERS: THE INDIAN PLAN
In India, there are three distinct activities in the Government through which the will of the people
are expressed. The legislative organ of the state makes laws, the executive forces them and the
judiciary applies them to the specific cases arising out of the breach of law. Each organ while
performing its activities tends to interfere in the sphere of working of another functionary
because a strict demarcation of functions is not possible in their dealings with the general public.
Thus, even when acting in ambit of their own power, overlapping functions tend to appear
amongst these organs. The question which is important here is that what should be the relation
among these three organs of the state, i.e. whether there should be complete separation of powers
or there should be co-ordination among them.

4.1.1 CONSTITUTIONAL POSITION

The Constitution of India embraces the idea of separation of powers in an implied manner.
Despite there being no express provision recognizing the doctrine of separation of powers in its
absolute form, the Constitution does make the provisions for a reasonable separation of functions
and powers between the three organs of Government.

By looking into the various provisions of the Constitution, it is evident that the Constitution
intends that the powers of legislation shall be exercised exclusively by the legislature. 30
30
See Delhi Laws Act, 1912, In re, AIR 1951 SC 332 at pp. 346-47
Similarly, the judicial powers can be said to vest with the judiciary. 31 The judiciary is
independent in its field and there can be no interference with its judicial functions either by the
Executive or by the Legislature. Also, the executive powers of the Union and the State are vested
in the President and the Governor respectively.32

The constitution of India lays down a functional separation of the organs of the State in the
following manner:

Article 50 lays down that State shall take steps to separate the judiciary from the executive. This
is for the purpose of ensuring the independence of judiciary. Article 122 and 212 provides
validity of proceedings in Parliament and the Legislatures cannot be called into question in any
Court. This ensures the separation and immunity of the legislatures from judicial intervention on
the allegation of procedural irregularity. 33 Judicial conduct of a judge of the Supreme Court and
the High Courts’ cannot be discussed in the Parliament and the State Legislature, according to
Article 121 and 211 of the Constitution. Articles 53 and 154 respectively, provide that the
executive power of the Union and the State shall be vested with the President and the Governor
and they enjoy immunity from civil and criminal liability.

The legislature besides exercising law making powers exercises judicial powers in cases of
breach of its privilege, impeachment of the President and the removal of the judges. The
executive may further affect the functioning of the judiciary by making appointments to the
office of Chief Justice and other judges. Legislature exercising judicial powers in the case of
amending a law declared ultra vires by the Court and revalidating it.34 While discharging the
function of disqualifying its members and impeachment of the judges, the legislature discharges
the functions of the judiciary. Legislature can impose punishment for exceeding freedom of
speech in the Parliament; this comes under the powers and privileges of the parliament. But
while exercising such power it is always necessary that it should be in conformity with due
process.35 The heads of each governmental ministry is a member of the legislature, thus making
the executive an integral part of the legislature. The council of ministers on whose advice the

31
Ibid, at p. 386 (AIR)
32
Article 53(1), Constitution of India
33
See Pandit M S M Sharma v. Sri Krishna Sinha, AIR 1960 SC 1186
34
See L Chandra Kumar v. Union of India, (1995) 1 SCC 400
35
See Keshav Singh v. Speaker, Legislative Assembly, (1965) 1 SCR 413
President and the Governor acts are elected members of the legislature. Legislative power that is
being vested with the legislature in certain circumstances can be exercised by the executive.36

If the President or the Governor, when the legislature or is not in session and is satisfied that
circumstances exist that necessitate immediate action may promulgate ordinance which has the
same force of the Act made by the Parliament or the State legislature. The Constitution permits,
through Article 118 and Article 208, the Legislature at the Centre and in the States respectively,
the authority to make rules for regulating their respective procedure and conduct of business
subject to the provisions of this Constitution. The executive also exercises law making power
under delegated legislation. The tribunals and other quasi-judicial bodies which are a part of the
executive also discharge judicial functions. Administrative tribunals which are a part of the
executive also discharge judicial functions.37 Higher administrative tribunals should always have
a member of the judiciary.38 The higher judiciary is conferred with the power of supervising the
functioning of subordinate courts.39 It also acts as a legislature while making laws regulating its
conduct and rules regarding disposal of cases.

All this shows that Indian Constitution does not opt for the strict separation of powers because it
is undesirable and impracticable but implications of this concept can be seen in India in its
diluted form.

Besides the functional overlapping, the Indian system also lacks the separation of personnel
amongst the three departments.40

Applying the doctrines of constitutional limitation and trust in the Indian scenario, a system is
created where none of the organs can usurp the functions or powers which are assigned to
another organ by express or necessary provision, neither can they divest themselves of essential
functions which belong to them as under the Constitution.41

Further, the Constitution of India expressly provides for a system of checks and balances in order
to prevent the arbitrary or capricious use of power derived from the said supreme document.
Though such a system appears dilatory of the doctrine of separation of powers, it is essential in
36
Article 123, 213 of the Constitution of India
37
See Shiv Kumar Chadha v. MCD, 1993 (3) SCC 161
38
See S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 125
39
Article 235 of the Indian Constitution
40
Please visit http://www.lawyersclubindia.com/articles/-Separation-of-Powers-Encroaching-Boundaries–3014.asp; Retrieved
on 12.02.12
41
Mittal D.P., Natural Justice Judicial Review & Administrative Law, Taxmann Allied Services (P.) Ltd., New Delhi.
order to enable the just and equitable functioning of such a constitutional system. By giving such
powers, a mechanism for the control over the exercise of constitutional powers by the respective
organs is established.42

This clearly indicates that the Indian Constitution in its plan does not provide for a strict
separation of powers. Instead, it creates a system consisting of the three organs of Government
and confers upon them both exclusive and overlapping powers and functions. Thus, there is no
absolute separation of functions between the three organs of Government.

4.2 PRACTICAL APPLICATION OF THE DOCTRINE IN INDIA

The debate about the doctrine of separation of powers, and exactly what it involves in regard to
Indian governance, is as old as the Constitution itself. Apart from the directive principles laid
down in Part-IV of the constitution which provides for separation of judiciary from the
executive, the constitutional scheme does not provide any formalistic division of powers. It
appeared in various judgments handed down by the Supreme Court after the Constitution was
adopted. It is through these judicial pronouncements, passed from time to time, that the
boundaries of applicability of the doctrine have been determined.

In the re Delhi Laws Act case,43 it was for the first time observed by the Supreme Court that
except where the constitution has vested power in a body, the principle that one organ should not
perform functions which essentially belong to others is followed in India. By a majority of 5:2,
the Court held that the theory of separation of powers though not part and parcel of our
Constitution, in exceptional circumstances is evident in the provisions of the Constitution itself.

As observed by Kania, C.J.:

“Although in the constitution of India there is no express separation of powers, it is clear

that a legislature is created by the constitution and detailed provisions are made for
making that legislature pass laws. 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?”

In essence, this judgment implied that all the three organs of the State, i.e., the Legislature, the
Judiciary, and the Executive are bound by and subject to the provisions of the Constitution,
42
Please visit http://www.pucl.org/Topics/Law/2006/seperation-of-powers.html; Retrieved on 12.02.12
43
See Re Delhi Laws Act, 1912, In re, AIR 1951 SC 332: 1951 SCR 747
which demarcates their respective powers, jurisdictions, responsibilities and relationship with
one another. Also, that it can be assumed that none of the organs of the State, including the
judiciary, would exceed its powers as laid down in the Constitution.

But still, in practice, from time to time, disputes continued to arise as to whether one organ of the
State had exceeded the boundaries assigned to it under the Constitution. This question of what
amounts to an excess, was the basis for action in the landmark Kesavananda Bharti case44 of
1973. The question placed before the Supreme Court in this case was in regard to the extent of
the power of the legislature to amend the Constitution as provided for under the Constitution
itself. It was argued that Parliament was “supreme” and represented the sovereign will of the
people. As such, if the people’s representatives in Parliament decided to change a particular law
to curb individual freedom or limit the scope of judicial scrutiny, the judiciary had no right to
question whether it was constitutional or not. However, the Court did not allow this argument
and instead found in favour of the appellant on the grounds that the doctrine of separation of
powers was a part of the “basic structure” of our Constitution.

The doctrine of separation of powers was further expressly recognized to be a part of the
Constitution in the case of Ram Jawaya Kapur v. State of Punjab, 45 where the Court held that
though the doctrine of separation of powers is not expressly mentioned in the Constitution it
stands to be violated when the functions of one organ of Government are performed by another.
This means the Indian constitution had not indeed recognized the doctrine of separation of
powers in its absolute rigidity but the functions of different parts or branches of the Govt. 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
belongs to another.

In Asif Hamid v. State of Jammu & Kashmir,46 Legislature, executive and judiciary have to
function within their own sphere as demarcated under the constitution. No organ can usurp the
functions assigned to another. The functioning of the democracy depends upon the strength and
independence of each of its organs. Judicial review is a powerful weapon to restrain
unconstitutional exercise of power by the legislature and executive. However the only check on
judicial power is the self-imposed discipline of judicial restraint. Therefore this doctrine cannot
44
See Kesavananda Bharati v. State of Kerela, (1973) 4 SCC 225: AIR 1973 SC 1461
45
AIR 1955 SC 549: (1955) 2 SCR 225
46
AIR 1989 SC 1899
be liberally applied to any modern government, because neither the powers can be kept in water
tight compartments nor can any government can run on strict separation of powers.

In Suman Gupta v. State of Jammu and Kashmir,47 the respective State Government reserved
certain seats in medical colleges for the students residing in the particular state on reciprocal
basis, this policy of state was challenged on the ground that it discriminate among the students
on the ground of place of birth. The Supreme Court rejected the policy on the ground of
discrimination but meanwhile the students who are the beneficiaries of this policy had completed
their substantial education, and now it is not in the interests of justice to cancelled their
admission, therefore here supreme court applied the doctrine of prospective overruling and held
that the government must not apply the impugned policy from next academic year.

Therefore, by using the doctrine of prospective overruling in the above to cases, the Supreme
Court maintained the balance between judiciary and other organs of the government. It can also
be maintained by using the self restraint by the judges.

In Divisional Manager, Aravali Golf club v. Chander Hass and Another, 48 the Supreme Court
warned the High court for it’s over activism. The Supreme Court held that since there was no
sectioned post of tractor driver against which the respondents could be regularized as tractor
driver, the direction of the first appellate court and the single judge to create the post of tractor
driver and regularizing he services was completely beyond their jurisdiction. The court cannot
direct the creation of post. Creation and sanction of post is a prerogative of the executive or
legislative authorities and the court cannot arrogate to itself this purely executive or legislative
function, and direct creation of posts in any organization. The court further said that the creation
of a post is an executive or legislative function and it involves economic factors. Hence, the
courts cannot take upon themselves the power of creation of post.

Similarly, in Madhu Holmagi v. Union of India,49 wherein one Advocate filed a public interest
litigation challenging the “Agreement 123” i.e. Indo-US nuclear treaty proposed to be entered by
the Indian government, petitioner contended that court must have to scrutinize the all documents
relating to the agreement 123 and must have to prevent the Indian government from entering in
to the nuclear deal. In this court dismissed the petition and also imposed a cost of Rs 5000 on the

47
AIR 1983 SC 1235
48
2008(1)SCC 683
49
2008(6) ALL MR 94
petitioner stating that it is an abuse of court proceeding. Because the question raised by the
petitioner is a question of policy decision, which is to be decided by the parliament and not by
the judiciary.

However, it was after the landmark case of Indira Nehru Gandhi v. Raj Narain50 that the place of
this doctrine in the Indian context was made clearer. It was 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 Constitution does not apply to India.
Chandrachud J. also observed that the political usefulness of the doctrine of Separation of Power
is not widely recognized. No Constitution can survive without a conscious adherence to its fine
check and balance.”

In I.C. Golak Nath v. State of Punjab,51 Supreme Court took the help of doctrine of basic
structure as propounded in Kesvananda Bharati case and said that Ninth Schedule is violative of
this doctrine and hence the Ninth Schedule was made amenable to judicial review which also
forms part of the basic structure theory. It was 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.”

Thus, referring to the above content, it proves that Separation of Power is practiced in India but
not that rigidity. It is not embodied in the Constitution, though practiced. The three main powers
do cross their limit and interfere in each other’s task whenever necessary.

4.3 THE SEPARATION OF POWERS DURING PERIODS OF EMERGENCY

It is one thing to discuss the usage of the doctrine of separation of powers in normal governance
and entirely another to examine it under the unique circumstances of a national emergency. In
such a period, the likelihood of any organ trying to exceed its power increases greatly as many of
the checks and balances become suspended. However, it is commonly agreed that even during
emergency, the doctrine must continue to be in force.52
50
1975 Supp SCC 1: AIR 1975 SC 2299
51
AIR 1967 SC 1643: (1967) 2 SCR 762
52
Please visit http://jurisonline.in/2010/11/separation-of-powers-constitutional-plan-and-practice-2; Retrieved on 12.02.12
This scenario was the matter of debate in the case of Rameshwar Prasad v. State of Bihar,53
where the Court was required to determine whether the imposition of Art. 356 in the State
without proper consultation with State authorities or considering the Governor’s report, amounts
to an excessive use of legislative power. Finding that the Central Legislature had sought to step
into the shoes of the State Legislature and thereby usurp the power completely to itself, in the
given case, the Court held there to be a clear violation of the doctrine of separation of powers.
India’s Executive had been found to have committed a constitutional misdemeanor, for which it
needed to apologize to the court and the parliament and then ask the latter to renew it confidence.
If confidence was not renewed, the government would fall and a new government would have to
be formed.54

4.4 MODERN DEVELOPMENTS IN INDIA

The issue of the relative jurisdictional boundaries of the organs of the State has acquired a new
momentum in the recent period in the context of coalition politics at the center and in states. This
can be seen in the instances such as those that occurred in some states in the State elections of
2005, particularly in Jharkhand, Goa and Bihar, where no party or coalition of parties had a clear
majority. The situation was further complicated by the fact that neither the Governors of these
states (who had the final powers to appoint a government) nor the presiding officers of the
legislatures (who had the powers to conduct the proceedings of the House where the majority
claimed by the new government was to be tested) were considered to be impartial in their
decisions.55

In Jharkhand, after the elections in March 2005, the Governor conducted the swearing-in of a
government headed by a member of the Union Cabinet, who however, did not seem to have a
clear majority. He was given a fixed number of days to prove his majority on the floor of the
House. The opposition parties, who claimed to have a majority, were not in favour of such a
grace period being granted and hence filed a writ petition in the Supreme Court challenging the
decision of the Governor. On March 9 2005 the Court passed an order, which inter alia gave
directions to the Speaker to extend the Assembly session by a day and conduct a floor test
between the contending political alliances. In the light of Court’s decision, the earlier

53
AIR 1958 Pat 210
54
Ibid.
55
Ibid.
government formed by the Union minister decided to tender its resignation on the advice of the
central government. An alternative government was then formed by a combination of other
parties which was able to prove its majority on the floor of the House.56

There has been considerable debate about whether the Court was right in taking cognizance of
such a matter, as it might be considered an intrusion into the duties of the executive. However, in
light of the fact that the executive was functioning in a biased manner, there were no other
avenues available for redress apart from the decree of the Court. Hence, it had to be accepted as a
valid action, in consonance with its constitutional powers.57

56
Ibid.
57
Ibid.
 CHAPTER FIVE
SEPARATION OF POWERS IN UNITED KINGDOM
In the United Kingdom, the powers of Parliament, Government and courts are closely
intertwined. In fact, the executive and legislature are seen as a “close union, a nearly complete
fusion of the executive and legislative powers,” which Walter Baghot viewed as the “efficient
secret of the English constitution”.58

Recently, however, the question of the separation of powers has been given new relevance in the
UK by the question of constitutional reform and by the new constitutional questions, largely
arising from the implementation of European laws such as the Human Rights Act 1998.
Professor Vernon Bogdanor has predicted that “issues which, in the past, were decided by
ministers accountable to Parliament will now come to be decided by the courts”.59

Typically, the separation of powers refers to Montequieu’s version of the three main institutions
of state, though this is often complicated by different layers of authority, such as the
supranational Commission, Council, Parliament and Courts of the European Union.

In the UK, the executive comprises the Crown and the Government, including the Prime Minister
and Cabinet ministers. The executive formulates and implements policy. The legislature,
Parliament, comprises the Crown, the House of Commons and the House of Lords. The judiciary
comprises the judges in the courts of law, those who hold judicial office in tribunals and the lay
magistrates who staff the magistrates’ courts. Senior judicial appointments are made by the
Crown.

5.1 SEPARATION OF EXECUTIVE AND LEGISLATURE

58
Bagehot, The English Constitution, 1867, p. 67–68
59
Professor Vernon Bogdanor, ‘Parliament and the Judiciary: The Problem of Accountability’, speech to the UK Public
Administration Consortium, 9 February 2006. See more generally Vernon Bogdanor the New British Constitution 2009
In the UK, and other common law jurisdictions, the executive and legislature are closely
entwined. The Prime Minister and a majority of his or her ministers are Members of Parliament
and sit in the House of Commons. The executive is therefore present at the heart of Parliament.

By contrast, in the USA, the President may not be a member of the legislature (Congress), and is
elected separately from congressional elections. This may result in the President being a member
of a different political party from the majority of members of Congress.

The UK’s integration of executive and legislature is said to provide stability and efficiency in the
operation of government. It has been described as “a system that intentionally promotes
efficiency over abstract concerns about tyranny”. 60 For example, the Prime Minister is usually
both head of the executive branch and leader of the majority party in the legislature, which gives
the executive branch much more freedom of action than a president usually enjoys in a
presidential system of government.

Additionally, Parliament may delegate law-making powers to the Government through powers to
draft secondary or delegated legislation. This can liberate Parliament from the need to scrutinize
small technical details, while maintaining the safeguard of Parliamentary approval.

In this way, in the UK legislature and executive are far from separate powers. On the other hand,
the executive presence in Parliament may actually facilitate scrutiny provided that the necessary
procedures are in place. For example, Question Time can be a powerful procedure for holding
the executive to account, throwing ministers straight into the lion’s den of the legislature.

The former Prime Minister, Gordon Brown, set out some of the arguments for the efficiency of a
mixed system:

“My hon. Friend is proposing the American constitution for Britain. He knows the
deadlock that often happens with the American constitution when Congress, the Senate
and the President cannot agree on what needs to be done. If he looks back to what has
happened over the past few months, he will see that we were able to persuade Parliament
to put our banking reforms through and were able to finance our banks so that we could
rescue them, whereas it took the Americans weeks and months to get those provisions

60
Ronald J Krotoszynski, ‘The separation of legislative and executive powers’ in Tom Ginsburg, Rosalind Dixon (eds);
Comparative Constitutional Law, Cheltenham: Edward Elgar, 2011, p. 248
 through their legislature as a result of the issues that arise from the separation of
powers”.61

Where a government has a large majority of seats in the Commons, the crucial issue is whether
the government can dominate Parliament and ensure that its proposed legislation is enacted, or
whether there are sufficient procedures in place to ensure that proposals are sufficiently
scrutinized and either endorsed or rejected by Parliament.

In order to prevent the executive from controlling Parliament the House of Commons
(Disqualification) Act 1975 created limits on the number of salaried ministers who sit in the
Commons. Additionally, the legislative branch of government retains the formal power to
dismiss executive officers from office. The convention of ministerial responsibility establishes
the accountability of government to Parliament.

Following the decision to cut the number of MPs in the House of Commons from 650 to 600,
enacted in the Parliamentary Voting System and Constituencies Act 2011, the Public
Administration Select Committee examined the role and responsibilities of ministers to see if
there was scope for reductions there too. About 20% of MPs are currently on the “payroll vote”
as ministers or their Parliamentary aides and are obliged to vote with the Government or resign
their position. If this number remains static at the same time as MPs are cut, it could effectively
increase the payroll vote, further strengthening the Executive relative to Parliament. 62 Section 14
of the Parliamentary Voting System and Constituencies Act 2011 requires a review to be
established to examine the effects of the reduction in the number of MPs after the next general
election, expected to be in 2015.63

5.1.1 RECENT CHANGES

One of the most important aspects of the executive’s control over the legislature is the allocation
of time for debates. The Government usually has almost complete control over the agenda of the
legislature. The Backbench Business Committee was created in 2010 as a way of granting the
legislature more operational independence from the executive. The Wright Committee believed
that the Backbench Business Committee would give MPs more control and ownership of the

61
HC Deb 10 June 2009 : Column 808
62
Public Administration Committee, Seventh Report, Smaller government: what do Ministers do?, HC 530, March 2011
63
For further information, see Library Standard Note 5929 Constituency boundaries: the sixth general review; Please visit
http://www.parliament.uk/briefing-papers/SN05929; retrieved on 02.03.12
Parliamentary agenda, make debates more relevant for the public and strengthen the scrutiny role
of Select Committees, which would be able to apply for time on the floor of the House through
the Backbench Business Committee.64 The Coalition Government’s Programme for Government
committed the Government to introducing a Business Committee for all forms of business by the
third year of Government.65

5.2 LEGISLATURE AND JUDICIARY

The second element of the separation of powers is separation between legislature and judiciary.
In the UK, judges are prohibited from standing for election to Parliament under the House of
Commons (Disqualification) Act 1975. Judges are expected to interpret legislation in line with
the intention of Parliament are also responsible for the development of the common law (judge-
made law).

Judges in the higher courts have life tenure, which protects their independence, and a resolution
of both Houses is needed to remove a High Court judge from office, while judges at the lower
levels can only be removed after disciplinary proceedings.66 Judges are also protected by
immunity from legal action in relation to their judicial functions and absolute privilege in
relation with court proceedings.67

Lord Phillips of Worth Maltravers, President of the UK Supreme Court, explained that:

The citizen must be able to challenge the legitimacy of executive action before an
independent judiciary. Because it is the executive that exercises the power of the State
and because it is the executive, in one form or another, that is the most frequent litigator
in the courts, it is from executive pressure or influence that judges require particularly to
be protected.68

64
House of Commons Reform Committee, First Report of Session 2008–09, Rebuilding the House, HC 1117, November 2009,
section 181
65
See The Coalition:Our Programme for Governmen, May 2011; Please visit
http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/documents/digitalasset/dg_187876.pdf;
Retrieved on 02.03.12
66
Lord Phillips of Worth Maltravers, ‘Judicial independence and accountability: a view from the Supreme Court’, Gustave Tuck
Lecture, 8 February 2011, pp 6–7; Please visit http:// www.ucl.ac.uk/constitution-unit/events/judicial-independence-
events/launch; Retrieved on 02.03.12
67
See, for example, R (Morgan Grenfell & Co.) v. Special Commissioner of Income Tax, (2003) 1 AC 563, para 32
68
Lord Phillips of Worth Maltravers, ‘Judicial independence and accountability: a view from the Supreme Court’, Gustave Tuck
Lecture, 8 February 2011
Constitutionally, judges are subordinate to Parliament and may not challenge the validity of Acts
of Parliament.69 However, there remains a some leeway for judges to interpret statutes and this
raises the question of whether the judges are able to “make law”.

There is an element of judicial law-making in the evolution of common law. 70 In Magor and St.
Mellons Rural District Council v. Newport Corporation 71 the House of Lords rejected the
approach of Lord Denning who had stated that, where gaps were apparent in legislation, the
courts should fill those gaps. Lord Simonds commented that this amounted to a ‘naked
usurpation of the legislative function under the guise of interpretation”. 72 Later, however, in his
lecture, The Judge as Lawmaker, Lord Reid said that while it was once “thought almost
indecent” to suggest that judges make law, the notions that judges only declare the law was
outdated.73 Lord Scarman argued a middle course, suggesting that “the objective of judges is the
formulation of principles; policy is the prerogative of Parliament”.74

The Jackson case in 2005 on the application of the Parliament Acts to the Hunting Act 2004
prompted obita (remarks) from the House of Lords which questioned the relationship between
parliamentary sovereignty and the rule of law in a novel manner, suggesting that there were
limits to sovereignty where constitutional fundamentals were at risk.75

The cooperation between judiciary and legislature has been described as a “constitutional
partnership” as Parliament may give tacit approval to judge-made law by not interfering with it.
Lord Woolf, for example, has argued that “the crown's relationship with the courts does not
depend on coercion”, but on a state a trust. 76 Professor Bogdanor has argued, for example, that
the Human Rights Act necessitated a compromise between two doctrines- the sovereignty of
Parliament and the rule of law and that the compromise “depends upon a sense of restraint on the
part of both the judges and of Parliament”.77

69
See Pickin v. British Railways Board, (1974) AC 765
70
Barnett, Hilaire, Constitutional and Administrative Law. Routledge-Cavendish; 6 edition (6 July 2006)
71
(1952) AC 189 at 191
72
Gwyn, W. B. The meaning of the separation of powers (The Hague: Martinus Nijhoff, 1965), p 9
73
Lord Reid, ‘The Judge as Lawmaker’ (1972) 12 Journal of the Society of Public Teachers of Law 22
74
See McLoughlin v. O'Brian, (1983) 1 AC 410
75
See Jackson v. Her Majesty’s Attorney General, (2005) UKHL 56. For a discussion, see Jeffrey Jowell “Parliamentary
sovereignty under the New Constitutional Hypothesis”, ( 2006) Public Law 562
76
House of Lords, In re M.,on appeal from M. v. HOME OFFICE, (1994) 1 A.C. 377
77
Professor Vernon Bogdanor, Human Rights and the New British Constitution, JUSTICE Tom Sargant memorial annual lecture
2009
A further complication has been the incorporation of European Community law into UK
domestic law. In Factortame (no 2) Lord Bridge interpreted the European Communities Act
1972 to mean that UK statute would not apply where it conflicted with European law, a
significant departure from the principle of Parliamentary sovereignty. 78 Further, under section 4
of the Human Rights Act 1998, a court can declare a statute to be incompatible with the European
Convention on Human Rights and the Government is then obliged by the Convention to rectify
the inconsistency.79

5.2.1 PARLIAMENTARY PRIVILEGE

Article 9 of the Bill of Rights 1689 set out the principle of privilege of Parliament: freedom of
speech and debate. According to Lord Neuberger, Master of the Rolls, it is “an absolute privilege
and is of the highest constitutional importance”.80 Any attempt by the courts to contravene
Parliamentary privilege would be unconstitutional. No court order could restrict or prohibit
Parliamentary debate or proceedings.81

On the other side of the coin, there is a convention that Members of Parliament will not criticise
judicial decisions. This is complemented by the sub judice rule that guards against Parliamentary
interference in cases currently before the courts.

5.2.2 SUB JUDICE

The sub judice rule is intended to defend the rule of law and citizens’ right to fair trial. 82 Where
an issue is awaiting determination by the courts, that issue should not be discussed in the House
in any motion, debate or question in case that should affect decisions in court.

However, the sub judice rules are not absolute: the Chair of proceedings of the House of
Commons enjoys the discretion to permit such matters to be discussed. Moreover, sub judice
does not affect the right of Parliament to legislate on any matter.83

78
See R v. Secretary of State for Transport ex parte Factortame Ltd (No 2), (1990) 2 AC 85; For a discussion of Factortame, see
Paul Craig, The Changing Constitution. Chaper 4, 7th ed, Jeffrey Jowell and Dawn Oliver
79
Joint Committee On Human Rights, Sixteenth Report Session 2006–7, Monitoring the Government’s Response to Court
Judgments Finding Breaches of Human Rights, HL 128/HC 728, June 2007
80
Master of the Rolls, Report of the Committee on Super-Injunctions: super-Injunctions, anonymised injunctions and open
justice, p vii. See Library Standard Note 2024, Parliamentary privilege and qualified privilege; Please visit http://
www.parliament.uk/documents/commons/lib/research/briefings/snpc-02024.pdf; Retrieved on 02.03.12
81
Ibid, p vii, conclusion 9(i)
82
Ibid, p vi
83
See Erskine May at 436–438 and 525–526. Standing Orders of the House of Commons, Public Business, HC 700, Session
2010–12, 181 and 182; Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, 2010, 73, 74.
The 1999 Joint Committee on Parliamentary Privilege explained that sub judice rules are
intended “to strike a balance between two sets of principles. On the one hand, the rights of
parties in legal proceedings should not be prejudiced by discussion of their case in Parliament,
and Parliament should not prevent the courts from exercising their functions. On the other hand,
Parliament has a constitutional right to discuss any matter it pleases”. It went on to explain that
the rules strike the balance between Parliament’s constitutional duty and role and the
constitutional role of the courts.84

The proper relationship between Parliament and the courts requires that the courts should be left
to get on with their work. Restrictions on media comment are limited to not prejudicing the trial,
but Parliament needs to be especially careful: it is important constitutionally, and essential for
public confidence, that the judiciary should be seen to be independent of political pressures.
Thus, restrictions on parliamentary debate should sometimes exceed those on media comment.85

5.3 THE EXECUTIVE AND JUDICIARY

The third element of separation is between the executive and the judiciary. The judicial scrutiny
function with regard to the executive is to ensure that any delegated legislation is consistent with
the scope of power granted by Parliament and to ensure the legality of government action and the
actions of other public bodies.86 On the application of an individual, judicial review is a
procedure through which the courts may question lawfulness of actions by public bodies.87 This
requires judges to be independent of government and Parliamentary influence.

The judges have traditionally exercised self-restraint or “deference” in the areas of power that
they regard themselves as competent to review. Some uses of the royal prerogative, for example,
involve issues of “high policy”, such as the appointment of ministers, the allocation of financial
resources, national security, signing of treaties and defence matters and judges would not usually
interfere in these matters. For an example of this traditional view see the case of Council of Civil
Service Unions v. Minister for the Civil Service.88 More recently, in A v Secretary of State for
Home Department, concerning the detention without charge of suspected international terrorists
84
Master of the Rolls, Report of the Committee on Super-Injunctions: super-Injunctions, anonymised injunctions and open
justice, section 5.3
85
Joint Committee on Parliamentary Privilege, Session 1998–1999, Parliamentary privilege, HL 43-I / HC 214-I, section 192
86
By contrast, following the principle of parliamentary supremacy, primary legislation is not usually subject to judicial review.
87
Judiciary of England and Wales, ‘Judicial review’, Please visit http://www.judiciary.gov.uk/you-and-the-judiciary/judicial-
review; Retrieved on 04.03.12
88
(1985) AC 374
in Belmarsh prison, the Attorney General argued in 2004 that “these were matters of a political
character calling for an exercise of political and not judicial judgment” and that “it was not for
the courts to usurp authority properly belonging elsewhere”. However, Lord Bingham, who gave
the leading judgement, rejected this argument, concluding that “the function of independent
judges charged to interpret and apply the law is universally recognized as a cardinal function of
the modern democratic state” and that the Attorney General was “wrong to stigmatize judicial
decision-making as in some way undemocratic”.89

5.4 THE CONSTITUTIONAL REFORM ACT 2005

In the Constitutional Reform Act 2005, the Government and Parliament reformed some of the
areas where, in the UK, the “powers” had been least separated. The Minister responsible for the
bill in the Commons, Christopher Leslie, told the House that “we want to ensure that we clearly
define the separation of powers, where it is appropriate, but that is not incompatible with having
a partnership between the different branches of the state”.90

The Act created a separate Supreme Court and the Lord Chief Justice replaced the Lord
Chancellor as head of the Judiciary in England and Wales. It also placed a statutory duty on
Ministers to uphold judicial independence.91 The Bill was referred to a select committee in the
Lords.92 The Select Committee on the Constitutional Reform Bill produced its report in June
2004 and this contains background information on the arguments over separation of powers. 93
The Commons Constitutional Affairs Select Committee report of 2004-5 is also relevant. 94

5.4.1 THE LORD CHANCELLOR

Before 2005, the office of Lord Chancellor was a bridge between the institutions of the state. He
was head of the judiciary with responsibility for the appointment of judges, a member of the
Cabinet and Speaker of the House of Lords. In McGonnell v. United Kingdom,95 the then Lord

89
See A and others v. Secretary of State for the Home Department, (2004) UKHL 56
90
HC Deb 26 Jan 2004 : c27
91
UCL Constitution Unit, ‘The politics of judicial independence in Britain's changing constitution: January 2011 - December
2013’, Please visit http://www.ucl.ac.uk/constitution-unit/research/judicial-independence; Retrieved on 04.03.12
92
House of Lords Select Committee on the Constitution, 6th Report of Session 2006–07, Relations between the executive, the
judiciary and Parliament: Report with evidence, HL Paper 151, July 2007, Q 184
93
House of Lords Constitutional Reform Bill First Report, HC 125 2003-04; Please visit
http://www.publications.parliament.uk/pa/ld200304/ldselect/ldcref/125/12502.htm; Retrieved on 04.02.12
94
Constitutional Affairs Select Committee Constitutional Reform Bill: the Government’s proposals, HC 275 2004-05; Please visit
http://www.publications.parliament.uk/pa/cm200405/cmselect/cmconst/275/27502.htm; Retrieved on 04.03.12
95
(2000) 30 EHRR 289
Chancellor, Lord Irvine, clarified that “the Lord Chancellor would never sit in any case
concerning legislation in the passage of which he had been directly involved nor in any case
where the interests of the executive were directly engaged”.

The Constitutional Reform Act 2005 removed the judicial functions of the Lord Chancellor and
his former role as head of the judiciary is now filled by the Lord Chief Justice. The Lord
Chancellor no longer sits as Speaker of the House of Lords, which now elects its own Speaker.
This was intended to create a more formal separation of powers. However, others saw the Lord
Chancellor as a voice for the judiciary in Parliament and argued that the Lord Chancellor could
ease tensions between the branches of state. The House of Lords Constitution Committee’s
reported in 2007 on relations between the executive, the judiciary and Parliament and contains
useful background.96

5.4.2 JUDICIAL APPOINTMENTS

Before the Constitutional Reform Act 2005 judicial appointments were made on the
recommendation of the Lord Chancellor who was a Government Minister. The legislation
established an independent Judicial Appointments Commission for England and Wales. Judges
are represented on the Commission, but do not hold a majority and the Commission have to have
a lay Chair. The Commission recommends candidates to the Lord Chancellor, who has a very
limited power of veto. The Act gives the Commission a specific statutory duty to “encourage
diversity in the range of persons available for selection for appointments”. 97 Separate procedures
apply to the appointment of Supreme Court judges, which take account of the fact that the Court
has a UK wide remit.98

Since enactment, concerns have been raised that the Constitutional Reform Act had actually
reduced the diversity of new appointments to the senior judiciary compared to the old informal
system, which sought out candidates rather than depending upon selection from applicants. The
new process has also been criticized for being slow and involving the President and the Deputy

96
House of Lord Constitution Sixth Report 2006-07, Relations between the executive, judiciary and parliament; Please visit
http:// www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15102.htm; ; retrieved on 04.03.12
97
Lord Phillips of Worth Maltravers, ‘Judicial independence and accountability: a view from the Supreme Court’, 8 February
2011, pp 3–4; Please visit http:// www.ucl.ac.uk/constitution-unit/events/judicial-independence-events/launch; Retrieved on
04.03.12
98
See Procedure for appointing a justice of the Supreme Court of the United Kingdom, March 2010 Supreme Court;Please visit
http:// www.supremecourt.gov.uk/docs/appointments-of-justices_V2.pdf; retrieved on 04.03.12
President of the Supreme Court in the selection of their own successors. 99 A research project at
the Constitution Unit, University College London is examining these issues.

The length of time that the new process takes was also criticized, as was the involvement that the
current system currently gives to the President and Deputy President of the Supreme Court in the
process of selecting their own successors, a feature of the appointment process which, it was
pointed out, is almost unique to Britain. 100 In the US, the Senate is involved in appointments to
the Supreme Court and some have suggested that in Britain a parliamentary committee might be
involved in pre-appointment hearings. However, others expressed concern that such proceedings
could be influenced by the media.101

5.4.3 THE SUPREME COURT

Until 2009, the Lords of Appeal in Ordinary (the Law Lords) sat in the legislature as well as
acting as the highest appeal court in the UK. However, the Constitutional Reform Act created a
separate Supreme Court, separating out the judicial role from the upper House.

During the passage of the legislation, Lord Falconer told the House that “the time has come for
the UK’s highest court to move out from under the shadow of the legislature the key objective is
to achieve a full and transparent separation between the judiciary and the legislature the Supreme
Court will be administered as a distinct constitutional entity. Special arrangements will apply to
its budgetary and financial arrangements in order to reflect its unique status”.102

However, there was considerable opposition to the Government proposals. Lord McCluskey QC
was not convinced by the arguments in favour of a separate Supreme Court. He commented that
“a good deal of nonsense is spoken about the separation of powers for 135 years or so, serving
judges have always played an important part in the deliberations of this House. They seldom
vote”.103 Nevertheless, the legal function of the House of Lords was separated from the
legislative function and the Supreme Court was fully established in October 2009.

Since the creation of the Supreme Court, concerns have been raised that the judiciary is still
dependent on the executive in the form of the Ministry of Justice for its funding. Lord Phillips of

99
UCL Constitution Unit, ‘Judicial Independence, Judicial Accountability and the Separation of Powers’, Note of Seminar at
Queen Mary, University of London, 11th May 2011
100
Ibid.
101
Ibid.
102
HC Deb, 9 February 2004, c1131
103
HL Deb 7 March 2004, c 1030
Worth Maltravers commented that “the Court Service of England and Wales has not been able to
provide us with their contribution and we had to call upon the Lord Chancellor to make up the
difference” and argued that “this arrangement clearly does not provide the security of funding
which had been envisaged by Parliament and risks the Court being subject to the kind of annual
negotiations the arrangements were intended to avoid. 104 He suggested that this financial
dependence was “already leading to a tendency on the part of the Ministry of Justice to try to
gain the Supreme Court as an outlying part of its empire”. 105 Independence, he urged, was even
more important since “Over 50 per cent of that workload now consists of public law cases which
involve challenges to the legality of executive action”.106

5.5 SUPER-INJUNCTIONS
In 2011, the question of separation of powers has arisen in relation to the use of injunctions. An
injunction is a court order that requires a party to do or refrain from doing certain acts. For
example, it may order that certain identifies, facts or allegations may not be disclosed. Standard
Note 5978 Privacy provides background as to the development of a new type of injunction
whose very existence may not be disclosed. In some cases, known as “super injunctions”, the
court has provided for anonymity and a prohibition on publishing or disclosing the very
existence of the order. Restrictions may also be placed on access to documents on the court
file.107 Professor Zuckerman has argued that super-injunctions created a new kind of procedure
for an “entire legal process conducted out of the public view” of which the very existence is
“kept permanently secret under pain of contempt”.108

In April 2011, David Cameron said that he felt “uneasy” about super-injunctions and that judges
were developing a privacy law without Parliamentary approval. 109 The Human Rights Act 1998
imposed a duty on the judges to interpret legislation “as far as possible” in a manner to make it
compatible with the European Convention on Human Rights. Article 8 of the Convention sets
out respect for privacy and family life, which the courts have developed as part of the common

104
Lord Phillips of Worth Maltravers, ‘Judicial independence and accountability: a view from the Supreme Court’, 8 February
2011, p 15
105
Ibid, p 16
106
Ibid, p 19
107
Master of the Rolls, Report of the Committee on Super-Injunctions: super-Injunctions, anonymised injunctions and open
justice
108
Zuckerman, Super Injunctions-Curiosity-Suppressant Orders Undermine the Rule of Law, C.J.Q. Vol. 29 (2010) at 134.
109
See BBC News, ‘Q&A: superinjunctions’, Dominic Casciani, http://www.bbc.co.uk/news/mobile/uk-13473070; retrieved on
04.03.12
law in the absence of statutory privacy laws in the UK. Those developments have led some to
argue that the courts have gone beyond their power to develop common law to introduce a right
of privacy into English law.110 Others have suggested that the enactment of the Human Rights
Act effectively created the right of privacy, so the foundations were, in fact, laid by Parliament.111

Parliamentarians have criticized the judiciary for their use of a novel legal instrument. MPs have
used parliamentary privilege to circumvent the injunctions, naming recipients in the House. 112 On
the other hand, members of the judiciary have argued that Parliamentarians have used privilege
to defy the law and that this could undermine the role of judges. Lord Judge suggested that it
may not be advisable for MPs to “flout a court order” even if they did not agree with it. He
insisted that “there has never been any question, in any of these orders, not in any single one of
them, of the court challenging the sovereignty of parliament. We are following the law, as best
we understand it”.113

Some MPs have criticized the use of privilege to name those protected by injunction. Chuka
Ummana said that “if MPs and peers use parliamentary privilege to flout Court injunctions,
which is a serious breach of the separation of powers”.114 Mr. Speaker has said that he strongly
deprecated “the abuse of parliamentary privilege to flout an order or score a particular point.” 115
The Attorney General announced on 23 May 2011 that a joint committee of both Houses would
be established to examine the issues privacy and the use of anonymity injunctions.116

110
Supra note no. 84; section 1.4
111
Injunction review: judges only implementing Parliament’s privacy laws, says Lord Justice 20 May 2011 Telegraph online;
Please visit http:// www.telegraph.co.uk/news/uknews/law-and-order/8525556/Injunctions-review-judges-only-
implementing-parliaments-privacy-laws-says-Lord-Justice.html; Retrieved on 04.03.12
112
John Hemming, HC Deb 23 May 2011, c638.
113
See The Telegraph, ‘Judges accused of gagging bid’, 20 May 2011
114
Ibid.
115
HC Deb 23 May 2011, c653
116
HC Deb 23 May 2011, c635
 CHAPTER SIX
SEPARATION OF POWERS IN THE UNITED STATES
The doctrine of separation finds its home in United States. It forms the basis of the American
constitutional structure. It is in the Constitution of the United States of America that
Montesquieu’s doctrine of separation of powers has found its highest recognition. The US
Constitution accepts the separation in explicit terms and specifically provides for the division of
functions and powers amongst the three organs of government as a part of its basic structure.
Article I of US Constitution vests the legislative power in the Congress; Article II vests
executive power in the President and Article III vests judicial power in the Supreme Court. The
framers of the American constitution believed that the principle of separation of powers would
help to prevent the rise of tyrannical government by making it impossible for a single group of
persons to exercise too much power. Accordingly they intended that the balance of power should
be attained by checks and balances between separate organs of the government. This alternative
system existing with the separation doctrine prevents any organ to become supreme.

Despite of the express mention of this doctrine in the Constitution, U.S. incorporates certain
exceptions to the principle of separation with a view to introduce system of checks and balances.
For example, a bill passed by the Congress may be vetoed by the President in the exercise of his
legislative power. Also treaty making power is with the President but it’s not effective till
approved by the Senate. It was the exercise of executive power of the senate due to which U.S.
couldn’t become a member to League of Nations. The Supreme Court has the power to declare
the acts passed by the congress as unconstitutional. There are other functions of an organ also
which are exercised by the other. India, too, followed U.S. in adoption of the checks and
balances which make sure that the individual organs doesn’t behold the powers absolutely. This
means that functioning of one organ is checked by the other to an extent so that no organ may
misuse the power.

6.1 LEGISLATIVE POWER

Congress has the sole power to legislate for the United States. Under the non delegation doctrine,
Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the
Supreme Court held in the 1998 case Clinton v. City of New York117 that Congress could not
delegate a "line-item veto" to the President, by which he was empowered to selectively nullify
certain provisions of a bill before signing it.

The US Constitution Article I, Section 8; says to give all the power to Congress. Congress has
the exclusive power to legislate, to make laws and in addition to the enumerated powers it has all
other powers vested in the government by the Constitution. Where Congress does not make great
and sweeping delegations of its authority, the Supreme Court has been less stringent. One of the
earliest cases involving the exact limits of non-delegation was Wayman v. Southard.118 Congress
had delegated to the courts the power to prescribe judicial procedure; it was contended that
Congress had thereby unconstitutionally clothed the judiciary with legislative powers. While
Chief Justice John Marshall conceded that the determination of rules of procedure was a
legislative function, he distinguished between "important" subjects and mere details. Marshall
wrote that "a general provision may be made, and power given to those who are to act under such
general provisions, to fill up the details."119

Marshall's words and future court decisions gave Congress much latitude in delegating powers. It
was not until the 1930s that the Supreme Court held a delegation of authority unconstitutional. In
a case involving the creation of the National Recovery Administration called A.L.A. Schechter

117
524 U.S. 417 (1998)
118
23 U.S. (10 Wheat.) 1, 42 (1825).
119
Please visit http://en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_Constitution#Legislative_power;
Retrieved on 17-03012
Poultry Corp. v. United States,120 Congress could not authorize the president to formulate codes
of "fair competition." It was held that Congress must set some standards governing the actions of
executive officers. The Court, however, has deemed that phrases such as "just and reasonable,"
"public interest" and "public convenience" suffice.

6.2 EXECUTIVE POWER

Executive power is vested, with exceptions and qualifications,121 in the president by Article II,
Section 1 of the Constitution. By law (Section 2) the president becomes the Commander in Chief
of the Army and Navy, Militia of several states when called into service, has power to make
treaties and appointments to office "with the Advice and Consent of the Senate", receive
Ambassadors and Public Ministers, and "take care that the laws be faithfully executed" (Section
3.) By using these words, the Constitution does not require the president to personally enforce
the law; rather, officers subordinate to the president may perform such duties. The Constitution
empowers the president to ensure the faithful execution of the laws made by Congress. Congress
may itself terminate such appointments, by impeachment, and restrict the president. The
president's responsibility is to execute whatever instructions he is given by the Congress. Bodies
such as the War Claims Commission, the Interstate Commerce Commission and the Federal
Trade Commission; all quasi-judicial often have direct Congressional oversight.

Congress often writes legislation to restrain executive officials to the performance of their duties,
as authorized by the laws Congress passes. In Immigration and Naturalization Service v.
Chadha,122 the Supreme Court decided that the prescription for legislative action in Article I,
Section 1 requiring all legislative powers to be vested in a Congress consisting of a Senate and a
House of Representatives and Section 7 requiring every bill passed by the House and Senate,
before becoming law, to be presented to the president, and, if he disapproves, to be re-passed by
two-thirds of the Senate and House represents the Framers' decision that the legislative power of
the Federal Government be exercised in accord with a single, finely wrought and exhaustively
considered procedure. This procedure is an integral part of the constitutional design for the
separation of powers. Further rulings clarified the case; even both Houses acting together cannot

120
295 U.S. 495 (1935)
121
See The Constitution of the United States of America: Analysis and Interpretation; pp.436-437; Please visit
http://www.gpoaccess.gov/constitution/pdf2002/012.pdf; Retrieved on 17.03.12
122
462 U.S. 919 (1983)
override Executive veto’s without a 2/3 majority. Legislation may always prescribe regulations
governing executive officer.123

6.3 JUDICIAL POWER

The power to decide cases and controversies is vested in the Supreme Court and inferior courts
established by Congress. The judges must be appointed by the president with the advice and
consent of the Senate, hold office for life and receive compensations that may not be diminished
during their continuance in office. If a court's judges do not have such attributes, the court may
not exercise the judicial power of the United States. Courts exercising the judicial power are
called "constitutional courts." Congress may establish "legislative courts," which do not take the
form of judicial agencies or commissions, whose members do not have the same security of
tenure or compensation as the constitutional court judges. Legislative courts may not exercise the
judicial power of the United States. In Murray's Lessee v. Hoboken Land & Improvement Co.,124
the Supreme Court held that a legislative court may not decide "a suit at the common law, or in
equity, or admiralty," as such a suit is inherently judicial. Legislative courts may only adjudicate
"public rights". Even though of above all, Separation of Powers is not accepted in America in its
strict sense, only it has attracted the makers of most modern Constitution, especially during 19th
Century.

Marbury v. Madison125 is a landmark case in United States law and in the history of law
worldwide. It formed the basis for the exercise of judicial review in the United States under
Article III of the Constitution. It was also the first time in Western history a court invalidated a
law by declaring it "unconstitutional".

This case resulted from a petition to the Supreme Court by William Marbury, who had been
appointed by President John Adams as Justice of the Peace in the District of Columbia but whose
commission was not subsequently delivered. Marbury petitioned the Supreme Court to force
Secretary of State James Madison to deliver the documents, but the court, with John Marshall as
Chief Justice, denied Marbury's petition, holding that the part of the statute upon which he based
his claim, the Judiciary Act of 1789, was unconstitutional.

123
Please visit http://en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_Constitution# Executive_power;
Retrieved on 17.03.12
124
59 U.S. 272 (1856)
125
5 U.S. (1 Cranch) 137 (1803)
6.4 SEPARATION OF POWERS WITH PROPER CHECKS AND BALANCES
Marbury v. Madison126 was the first time the Supreme Court declared something
"unconstitutional", and established the concept of judicial review in the U.S. (the idea that courts
may oversee and nullify the actions of another branch of government). The landmark decision
helped define the "checks and balances" of the American form of government.

Separation of powers has again become a current issue of some controversy concerning debates
about judicial independence and political efforts to increase the accountability of judges for the
quality of their work, avoiding conflicts of interest, and charges that some judges allegedly
disregard procedural rules, statutes, and higher court precedents.

It is said on one side of this debate that separation of powers means that powers are shared
among different branches; no one branch may act unilaterally on issues, but must obtain some
form of agreement across branches. That is, it is argued that "checks and balances" apply to the
Judicial branch as well as to the other branches.

It is said on the other side of this debate that separation of powers means that the Judiciary is
independent and untouchable within the Judiciaries' sphere. In this view, separation of powers
means that the Judiciary alone holds all powers relative to the Judicial function, and that the
Legislative and Executive branches may not interfere in any aspect of the judicial branch.

To prevent one branch from becoming supreme, protect the "opulent minority" from the
majority, and to induce the branches to cooperate, government systems that employ a separation
of powers need a way to balance each of the branches. Typically this was accomplished through
a system of "checks and balances", the origin of which, like separation of powers itself, is
specifically credited to Montesquieu. Checks and balances allow for a system based regulation
that allows one branch to limit another, such as the power of Congress to alter the composition
and jurisdiction of the federal courts. Each branch has powers that it can use to check and
balance the operations and power of the other two branches.

The American system of checks and balances has worked well over the course of America's
history. Even though some huge clashes have occurred when vetoes have been overridden or
appointees have been rejected, these occasions are rare. The system was meant to keep the three
branches in balance. Even though there have been times when one branch has risen preeminent,
126
Ibid.
overall the three branches have achieved a workable balance with no one branch holding all the
governmental power.

CHAPTER SEVEN
COMPARATIVE ANALYSIS OF THE SEPARATION OF POWERS
7.1 COMPARATIVE ANALYSIS OF THE DOCTRINE OF SEPARATION OF POWERS
Of the various controversies between Common Law and Civil Law systems, the important one is
comparative studies is that of administrative law; specially of the doctrine of separation powers,
which is all its forms and purposes, is concerned with the determination of the nature, powers
and functions of the state and its administrative officials in relation to its citizens.127

It is generally accepted that there are three main categories of governmental functions, which is
the legislative, the executive and the judicial. So the question arises: what should be the proper
relation between these organs, whether the three powers should be exercised by the same person
or a body of persons or should be entrusted to separate persons. The separation of powers tries to
answer this question. The idea of this separation of powers is traceable to Aristotle. And we also
find traces of the idea of separation of powers in the writings of Polybious and Cicero. Jean
Bodin also advocated separation of powers. But the writing of Locke and Montesquieu gave the
theory of separation of powers a base on which modem attempts to distinguish between
legislative, executive and judicial power is grounded. The doctrine of separation powers not
received much acceptance in any country. Governmental powers are co-ordinated by the
127
S.L. Khanna, Comparative Law, A general and comparative study of Common Law and Civil Law and Civil Law systems, 3 rd ed.
(Central Law Agency, Allahabad), p 137.
effective part of the executive, the Council of Ministers or Cabinet, which is crated by the
legislature, but in fact controls the legislature in which its members sit. In some countries the
executive is made responsible to the legislature. In totalitarian countries the executive has
complete domination over the legislature as also the judiciary. In democratic countries this
doctrine has received much application in securing the independence of judiciary from the
control of the executive.128

In UK Separation of Powers is found in the existense of ‘judicial supremacy’ since the

eshtablishment of Parliament as supreme maker of law and the independent status of English
Judges. The chief executive, the king is made subject to the law of Parliament or found by the
courts. Thus in British Constitution the Parliament is the supreme legislative authority, and has
full control over the executive. The co-ordination between the Parliament, i.e., the legislature and
the executive is secured through the cabinet, which is collectively responsible to the Parliament.

The doctrine of separation of powers is found applicable in British Constitution in theory as the
legislative, executive and judicial functions are found to be vested in different bodies, namely the
Parliament, the Court and the Cabinet respectively, but in practice the doctrine has little
application. The British Cabinet system joins the executive and legislative powers, and the
members of the cabinet can influence and control the actions of the Parliament. In the modem
age, the functions of the government under English law are classified as legislative, executive or
administrative, judicial and ministerial. Parliament may vest in any public authority a
combination of functions comprised within each of these classes. The scope of judicial review of
administrative action and the remedies available to persons aggrieved depend upon the
appropriate classification of a statutory function. No attempt has however been in English law to
formulate definitions that will be valid for all purposes. It has almost been left entirely to the
courts, and where a definition formulated by the courts for a particular purpose, they have shown
no hesitation in disregarding it and adopting another definition, resulting which, the term used to
characterize the four classes of statutory functions are riddled with ambiguities.129

The American Constitution expressly vests the federal executive power in the President, the
federal legislative power in Congress and the federal judicial power in the Supreme Court of
U.S.A. But the President may veto the measures taken by congress. Presidential veto, however,

128
A.D. Ray Choudhuri, ibid, p 13.
129
Ibid..
may be overridden by a two-thirds vote of both Houses. The judges though appointed for life
may be removed by impeachment. The three organs of the government are inter-related and they
act as checks on each other. It is said that the separation of powers is practiced in United States
of America rather than in United Kingdom. It is in the United States of America that there is a
real division of powers between the three organs and strict adherence to the doctrine of
separation of powers The United States Supreme Court in Springer v. Govt of Phillipine Islands,130
said that the doctrine of separation of power though not expressly provided for in most American
Constitution, is implicit in all, as a conclusion logically following from the separation of three
departments. But in United States also this equilibrium between the three organs have been
disturbed later. The power of executive has growth much at the expense of the other two organs
of the government.131

The difference between the English system and the American system lies in the fact that in UK,
the judiciary has no power to override the will of Parliament expressed in statute from, since no
Act of Parliament can be declared inoperative. Inconvenient decisions of the court can be
reversed by retrospective legislation, if need be, whereas in America the Supreme Court’s
interpretation of the constitution cannot be altered by an act of Congress, but only by the special
machinery for securing amendments to the Constitution. The most apt description of the
difference between the Presidential system and the Cabinet system which is due to the adherence
on the part of the framers of the United States Constitution to the doctrine of separation of
powers, is given in the following extract from the pen of the Earl, of Balfour in Bagehot’s, “The
English Constitution”.132

Under the Presidential system the effective head of the national administration is elected for a
fixed term He is practically irremovable. Even if he is proved to be inefficient, even if he
becomes unpopular, even if his policy is unacceptable to his countrymen, he and his methods
must be endured until the moment comes for a new election. He is aided by Ministers, who,
however able and distinguished have no independent political status, have probably had no
Congressional training, and are by law precluded from obtaining any during their term office.133

130
277 U.S. 189 (1928)
131
A D Ray Choudhuri, Comparative Law, A general and comparative study of Common Law and Civil Law and Civil
Law systems, 3rd ed. (Central Law Agency, Allahabad), pp. 13-14.
132
Ibid., pp. 15-6.
133
A D Ray Choudhuri, ibid, p 16.
Under the Cabinet System everything is different. The head of the administration, commonly
called the Prime Minister (though he has no statutory position), is selected for the place on the
ground that he is the Statesman based qualified to secure a majority in the House of Commons.
He retains it only so long as that support is forthcoming, he is the head of his party. He must be a
member of one or other of the two Houses of Houses of Parliament; and he must competent to
lead the House to which he belongs. While the Cabinet Ministers of a President are merely his
officials, the Prime Minister is Primus inter pares in a cabinet of which (according to peace time
practice) every member must, like himself, have had some Parliamentary experience and gained
some Parliamentary reputation. The President’s powers are defined by the Constitution, and for
their exercise within the law he is responsible to no man. The Prime Minister and his Cabinet, on
the other hand, are restrained by no written Constitution; but they are faced by critics and rivals
whose position, though entirely unofficial is as constitutional as their own; they are subject to a
perpetual stream of unfriendly questions, to which they must make public response, and they
may at any moment be dismissed from power by a hostile vote.134

One thing is found in the English, American and Indian Constitution is that their judiciary is
totally independent. As we know, an independent judiciary is the sine qua non for the protection
and promotion of the rights of the people. In order to make the judiciary really effective, the
judiciary must be independent. An independent judiciary is required for establishing good
governance and justice. The separation of the judiciary from the executive is a pre-requisite for
judicial independence. If the judiciary does not work independently, anarchy will prevail.

A sound judicial system keeps equilibrium of a society. If the judicial strength becomes weak,
the expected democracy will not work and the social fabric will be broken down. No interference
on the independence of judiciary would be expected. In Bangladesh through the landmark event
on 1st November, 2007 the long awaiting separation of judiciary has been accomplished and the
main objective Article 22 of the Constitution of Bangladesh has been achieved. But it is a matter
of great regret that though the judiciary is separated, it is still now under the control of Ministry
of Finance and Ministry of Establishment. For this reason, we cannot say that judiciary is totally
independent.

So, if it is possible, unlike USA, UK and India, our judiciary must also be kept fully separated
from the executive and for the dimension changes must be brought in our constitution. Thus, on
134
Ibid.
the whole, the doctrine of separation of powers in the strict sense is undesirable and
impracticable and, therefore, it is not fully accepted in any country. Nevertheless, its value lies in
the emphasis on those checks and balances which are necessary to prevent an abuse of enormous
powers of the executive. The object of the doctrine is to have “a government of law rather than
of official will or whim”. Montesquieu’s great point was that if the total power of government is
divided among autonomous organs, one will act as a check upon the other and in the check
liberty can survive. Again, almost all the jurists accept one feature of this doctrine that the
judiciary must be independent of and separate from the remaining two organs of the government,
viz., legislature and executive.135

The most important aspect of the doctrine of separation of powers is judicial independence from
administrative direction. There is no liberty, if the judicial power be not separated from the
legislative and executive. The judiciary is beyond comparison the weakest of the three
departments of power. It has no influence over either the sword or the purse; no direction either
of the strength or of the wealth of society and can take no active resolution whatever. It may
truly be said to have neither force nor will, but merely judgment. There is no liberty, if the
judicial power be not separated from the legislative and the executive.136

Judicial Independence is a sine qua non in a democratic society proclaiming the rule of law. For,
the judiciary is charged with the ultimate decision over life, liberty, freedom, rights, duties and
property of citizens. Therefore, in all countries cases, sometimes civil, but more frequently
criminal, arise which involve political issues and excite party feeling. It is than that the courage
and uprightness of the judges become supremely valuable to the nation commanding respect for
the exposition of the law which they have to deliver. In a parliamentary system of government
where the cabinet is comprised of the leaders of the ruling party who command majority in
parliament, the problem of judicial independence from the executive is very significant.
According to Lord Hailsham, it is not less but all the greater when judges have to serve under an
all powerful parliament dominated by a party cabinet, and concentrating all the powers, and more
than all powers, of the executive and legislature combined in one coherent complex. 137 However,
in a free society professing the rule of law, the necessity of an independent judiciary is keenly

135
C.K. Takwani, ibid, pp. 32-33.
136
Ibid.
137
Dr. M. Ershadul Bai, The Dhaka University Studies, Part- F, Vol. IV No. 1 (1993), pp. 3-4.
felt in order to enforce fundamental rights, to secure the people against the usurpations of the
executive and legislative departments and to earn public confidence injudicial impartiality.138

CHAPTER EIGHT
CONSEQUENCES OF SEPARATION OF POWERS
8.1 MERITS OF SEPARATION OF POWERS:
The doctrine of separation of powers as propounded by Montesquieu had tremendous impact on
the development of administrative law and functioning of governments. It was Appreciated by
the English and American jurists and accepted by the politicians. In his book commentaries on
the law of England, published in 1765, Blackstone had observed that if the legislative, the
executive and the judiciary functions were given to one man, there was an end of personal
liberty. Madison also proclaimed that the accumulation of all powers, legislative, executive, and
judicial, in the same hands, whether of one, a few or many and whether hereditary, self appointed
or elective may justly be pronounced the very definition of tyranny. The constitution assembly of
France had declared in 1789that were would be nothing like a constitution in the country where
the doctrine of separation of powers was not accepted. Man appreciated the theory when they
feel the benefits of it. If it work s then corruption may removed from the country. Judicial
accountability also ensured. It arise certainty to the departments for that reason judges can give
their decision early because other organ that time did not interfere one another. Also make sure
the consistency and arises accountability among the officials. High judicial authority for
claiming that the separation of powers is an essential elements in the constitution of UK (R v.
Hinds),139 in which lord Diplock whilst considering the nature of different commonwealth
constitutions in a privy council case, stated that, it is taken for granted that the basic principle of
the separation of powers will apply.140
138
Ibid, p 5.
139
(1979) Crim LR 111
140
Gary Slapper and David Kelly, The English Legal System, Sixth Edition, Published by Cavandish, p-11.
The merits of the theory of separation of powers are stated below:

Protection of Liberty and Rights: The theory of separation of powers protection to the liberty
and rights of the individual, and protects him from different of despotism and oppression.

Increase in Government's Efficiency: As powers are distributed among the government

departments, these departments gain deep knowledge of the matters they with and become more
efficient.

Limited Government: As powers are distributed among different depart these departments
enjoy only limited powers. This prevents rise of dictatorship.

Prevents Abuse of Power: Separation of powers accompanied by check and balance is an

effective check against abuse of power and arrogance of power.

8.2 DEMERITS OF SEPARATION OF POWERS:

Historically the theory is not appropriate. There was no separation of powers under British
constitution. At no point of time, this doctrine was adopted therein. As prof. ullman says: In the
British constitution there is no such thing as the absolute separation of the legislative, executive
and judicial power. It is said that Montesquieu looked across foggy England from his sunny
vineyard in Paris and completely miscontrustrued what he saw.

The separation of powers is that the organs of government were distinguished from one another
and this is the doctrine of separation of powers. But in field situation this is different. According
to Friedman and Benjafield, the truth is that each of the three functions of the government
contains elements of the other two and that any rigid attempt to define and separate those
functions must either fail or cause serious inefficiency in government. 141 It is impossible to take
certain actions if this doctrine is accepted in its entirety .thus, if the legislature can only
legislature, then it can not punish any one, committing a breach of its privilege; nor can it
delegate any legislative function even though it does not know the details of the subject matter of
the legislation and the executive authority has expertise over it; nor could the courts frame rules
of procedure to be adopted by them for the disposal of cases. Separation of powers thus can only
be relative and not absolute.

141
C.K Takwani, Lecture on Administrative Law, Third Edition, Published by Eastern Book Company, p-31.
Modern state is a welfare state and it has to solve many complex socio-economic problems and
in this state of affairs also, it is not possible to stick to this doctrine. As Justice Frankfurters says:
Enforcement of a rigid conception of separation of powers would make modern government
impossible. Strict separation of powers is a theoretical absurdity and practical impossibility.
According to Basu, in modern practice, the theory of separation of powers means an organic
separation and a distinction must be drawn between essential and incidental powers and that one
organ of the government can not usurp or encroach upon the essential functions belonging to
another organ, but may exercise some incidental functions thereof.142

The main object behind Montesquieu's doctrine was the liberty and freedom of an individual; but
that can not be achieved by mechanical division of functions and powers. For freedom and
liberty, it is necessary that there should be rule of law and impartial and independent judiciary
and eternal vigilance on the part of the subjects.

Though theoretically, the doctrine of separation of powers was very sound, many defects
surfaced when it was sought to be applied in real life situations. Mainly the following defects
were found in this doctrine:

Wrong Reading of British System: By the time Montesquieu developed his theory of
separation of powers, there had come into being the Cabinet system of govern" There was not in
Britain then separation of powers. On the contrary, there was 'concentration of responsibility.'
Having witnessed the British people enjoying liberty, Montesquieu wrongly concluded that in
Britain there was separation of powers. He misread British politics.

Not Fully Possible: This theory is not fully possible. The executive has some role in rule-
making, and the legislature also performs some judicial functions. For example, impeachment
which is judicial in nature is done by the legislature.

Administrative Complications: Separation of powers results in administrative complications. It

becomes difficult to forge cooperation, coordination and harmony among the organs of
government. The smooth working of modem governments demands not so much separation of
powers as 'co-ordination' of powers.

Confusion and Deadlock: Separation of powers leads to jealousy, suspicion and friction among
the organs of government. While producing disharmony and confusion, it may paralyze the
142
Ibid, p-31
administration. As a result, the administration often fails to take quick decisions even at a time of
crisis. According to Finer, the theory of separation of powers throws "governments into
alternating conditions of coma and convulsion." Another scholar is of the view that "separation
of powers means confusion of powers."

Inequality of Powers: This theory is based on the principle of equality of powers, but this
principle is flawed. In the parliamentary system, the legislature which represents the people is
most powerful while the executive is most powerful in the presidential system.

Not the Sole Factor of Liberty: Separation of powers may contribute to liberty, but it is not the
only factor of liberty. Liberty also depends a lot on the psyche of people, their outlook, their
political awareness, customs and traditions, fundamental rights, rule of law, independence of
judiciary and economic equality.

Balance Disturbed: The government, performing various important functions, has become
increasingly powerful. Besides being the problem-solver and crisis-manager, it is also required to
provide welfare to people. All this has made the executive very powerful, and disturbed the
balance among the three organs of government. Planning, security and welfare demand not so
much separation of powers as their 'fusion'.

A Misnomer: This theory is a misnomer, because what it means is separation of function, not
separation of powers.

Increased concern for welfare and security has been responsible for transfer of more powers to
the executive, though liberty is significantly dependent upon balance among the three organs of
government. In an ideal system, there should be equal interest in the liberty of the individual as
well as in his welfare and the security of state. This, no doubt, would require a strong
government but this would also call for separation of powers coupled with check and balance.
 CHAPTER NINE
CONCLUDING PART
9.1 CRITICISM OF SEPARATION OF POWERS
Everything in this world has some good sides and bad sides. The popular doctrine of ‘Separation
of Powers’ is also one of those. Separation of powers is criticized a lots. Total separation of
powers is more a myth than reality for most democratic systems of government rather than itself
being a rigid doctrine. It’s because its practical relevance is harder to implement than its theories.
There are many scholars, politicians, law makers who criticized this theory. Without criticism
good or bad things of a subject would never come into the light.

Although Montesquieu has based his doctrine taking into account the British constitution, as a
matter of fact at no point of time was this doctrine accepted in its strict sense in England. Many
writes said apparently separation of powers is very good, but practically, it is totally impossible
and some said model of Montesquieu was in correct, was wrong.

In parliamentary systems such as the United Kingdom the three "powers" are not officially
separated. However, this has not threatened British stability, because the strong traditions of that
system serve a similar purpose. In contrast, many countries which have adopted separation of
powers have suffered from instability. Some observers believe that no obvious case exists in
which such instability was prevented by the separation of powers.

In United Kingdom the judiciary supervises administration. Under Guardian and Wards Act and
Trust Act, the judges are the administrator of the trust property and the guardian of the minor.
The judges also exercise legislative functions in making rules of courts for regulating their own
procedure or conduct.
The judges exercise legislative function in making rules of courts for regulating their own
procedure or conduct. So, the criticism is that there is no absolute Separation of powers as like as
British Lord Chancellor holding all the organs functions.

The United States uses a presidential system of government, but around the world, a more
common system is the parliamentary system. In parliamentary democracies, the executive branch
is dependent or is in some sense part of the legislature.143

Some countries take the doctrine further than the three-branch system. The government of the
Republic of China, for example, has five branches: the Executive Yuan, Legislative, Judicial,
Control and Examination Yuan. (Some European countries have rough analogues to the Control
in the forms of ombudsmen, separate from the executive and the legislature.)

The doctrine of separation of powers is recognized in Bangladesh, especially in the constitution

of Bangladesh. But there is fusion of powers. Such as under Guardian and Wards Act, the judges
exercise executive powers as administrator of the trust property and guardian of the minor.144

In Bangladesh the Chief Justice is appointed by the President and other judges is appointed by
the President after consultation with Chief Justice but in practical they are appointed by the
Prime Minister indirectly. So we can say that it is a political appointment. If political parties do
this type of work then theory of Montesquieu never succeeds.

9.2 RECOMMENDATIONS
At first for the proper effective establishment of separation of powers in a democratic country as
well as other countries ‘Rule of Law’ as well as ‘Good Governance’ must be ensured.

All kinds of biasness' such as personal, direct must be removed and accountability must be
ensured among the organs and official in every department because there are some persons who
create the problem and breakdown the separation of powers.

If all the government body is accountable such as, executive, judiciary and legislature then
separation of powers established and maintain easily.

The citizenry and government must have more respect for judicial decisions. This would go a
long way in centralizing the notions of the rule of law, defining the limits of government,

143
Md. Shahidul Islam, Administrative Law in Bangladesh, Shams Publication. p 249.
144
Ibid, p-256
creating parameters of accountability, and ensuring other necessary pre-conditions for an ordered
and predictable society.145

There are some countries that are beyond the separation of powers theory like China, Taiwan
though they said they had also separation of powers. But specifically they did not follow. So here
in this situation government should take the initiative to ensure particular countries follow the
separation of powers doctrine.

In Bangladesh proper Constitutional change is necessary if any one established separation of

powers. Such as in our constitution Article 107 gives the judges for exercise legislative functions
in making rules of court. Article 26 prescribed, courts can declare any act unconstitutional. So
for the separation of power constitutional change is important. Not only our constitution violates
the separation but also other constitution follows that procedure.

In Bangladesh the appointment of Judges of the Supreme Court, currently done by the President,
is susceptible to external influences in a selection process that is nontransparent. A change in the
system of selecting and appointing judges of High Court Division is another aspect requiring
attention. The courts themselves must encourage ordinary citizens to seek justice through their
chambers. At present, lower courts are mistrusted and the judiciary in general, if it is to be
effective, must encourage and support citizens’ access to justice.

In Bangladesh at the district level, to reduce the administrative workload of the District Judges,
the administrative officer and other staff, on whom the judge relics in administrative matters
would be upgraded, in part by developing career path for them. The District Court’s
administrative office would be modernized and would have appropriate and trained staff.

9.3 CONCLUSION
It is crucial to understand that the doctrine of separation of powers has come a long way from its
theoretical inception. Today, the doctrine in its absolute form is only recognized in letter as it is
entirely unfeasible and impractical for usage in the operational practices of a government. With
the passage of time, States have evolved from being minimal and non-interventionist to being
welfare oriented by playing the multifarious roles of protector, arbiter, controller and provider to
the people. In its omnipresent role, the functions of the State have become diverse and its

145
Asian Development Bank. 2003. Judicial Independence Overview and Country-level Summaries. Please visit
http://www.adb.org/Documents/Events/2003/RETA5987/Final_overview_Report_pdf; Retrived on 23.03.12
problems interdependent hence, any serious attempt to define and separate the functions would
only cause inefficiency in the government.

The modern day interpretation of the doctrine does not recognize the division of Government
into three water-tight compartments but instead provides for crossing rights and duties in order to
establish a system of checks and balances. It has been found that the mere separation of powers
between the three organs is not sufficient for the elimination of the dangers of arbitrary and
capricious government. Even after the distinguishing the functions, if an authority wielding
public power, is provided an absolute and sole discretion within the body in the matters
regarding its sphere of influence, there will be a resultant abuse of such power. Therefore, a
system of checks and balances is a practical necessity in order to achieve the desired ends of the
doctrine of separation of powers. Such a system, contrary to popular notion, is not dilatory to the
doctrine but necessary in order to strengthen its actual usage. It is however, essential to
continuously question whether powers have been appropriately allocated and whether the
checking mechanisms set up both between and within different branches of State sufficiently
safeguard against the misuse of the powers so granted.

All the above discussion it is clear that there is no strict separation of powers and it is difficult to
establish that because all the organs of the government are inter related about their works,
activities. Such as executive related to the legislature but we should maintain fairness regarding
our works and officials are accountable to an authority. On the other hand separation of powers
are also problematic because we have already seen that if every power are in one hand that
absolute power also creates problem that time abuse of power occur. In this circumstances check
and balances system is appropriate. While the doctrine of the separation of powers and its
practice will not necessarily be the same thing, the purpose behind the doctrine can be seen to be
embedded in democracies. In the Westminster system, as practiced in Australia, discussion of the
doctrine is riddled with exceptions and variations. Certainly, in its classical form it exists here
only partially at best; but in practice mechanisms for avoiding the over concentration of power
exist in many ways, through constitutions and conventions; the bicameral system; multiple
political parties; elections; the media; courts and tribunals; the federal system itself; and the
active, ongoing participation of citizens. The doctrine is part of a simultaneously robust and
delicate constant interplay between the arms of government. A tension between separation and
concentration of powers will always exist, and the greatest danger will always lie with the
executive are not judges or legislatures, because in the executive lies the greatest potential and
practice for power and for its corruption. Preventing this in our system relies as much upon
conventions as constitutions and the alarm bells should ring loudly when government leaders
dismiss or profess ignorance of the concept, and it is not taken by our political leaders easily and
not appreciate the separation. Theoretically separation may be intact, but practically we follow
others countries policies such as fusion of powers, checks and balances or mixed separation of
powers that will be more effective for the life of separation of power theory.

Strengthening the judiciary by separation of judiciary in 2007 Bangladesh entails a dynamic

gamut of tasks and challenges that must be taken head on. There are no short cuts but strategies
can be conceived to facilitate the reform process and overcome obstacles. Needless to say, the
judiciary cannot do this alone. The other branches of government and the people in general must
all support and cooperate to hasten the accomplishment of this long - cherished goal. It is
important to inculcate this mind set in the members of the judiciary so that they can contribute
without fear or favour in avoiding accusations of incompetence, corruption, or court
mismanagement among judges.

In conclusion, it is evident that governments in their actual operation do not opt for the strict
separation of powers because it is undesirable and impracticable, however, implications of this
concept can be seen in almost all the countries in its diluted form. The discrepancies between the
plan and practice, if any, are based on these very grounds that the ideal plan is impractical for
everyday use. Otherwise, the doctrine is itself a part of the founding structure of the Constitution
of all democratic nations. Whether in its theoretical conception or its practical usage, the
Doctrine of Separation of Powers is essential for the effective functioning of a democracy.
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