DT: 18/1/22

BASIC CONSTITUTION PRINCIPLE

The fundamental principles of Administrative Law are derived from different principles/concepts
of Constitutional law namely, the Rule of Law, the rule/doctrine of Separation of Powers,
Sovereignty of the Constitution, Independence Of Judiciary, Fundamental Rights etc. This

1. THEORY OF SEPARATION OF POWER

1. INTRODUCTION
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 respectively had 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’ i.e. The Spirit of the Laws,
published in the year 1748.

According to M. P. Jain the doctrine of ‘rule of law’ propounded by Dicey affected the growth of
administrative law in Britain whereas the doctrine of separation of powers had an intimate
impact on the development of administrative law in the U. S. A. According to Davis theory of
separation of power was a probable principal barrier to a development of administrative process.

2. MEANING OF SEPARATION OF POWER

State is an artificial person having enormous powers. Like any other artificial person, state also
needs the help of human agents to perform its functions. These human agents of the state are
called the government.

In federal nations like India, the government is divided into three organs: legislature, executive
and judiciary. They are all assigned the different functions of the State.
It is generally accepted that State has to carry three main functions i.e
(i) the Legislative,
(ii) the Executive, and
(iii) the Judicial.
Therefore there are three main organs of the State and each is carrying a distinct, separate
function as under
(i) the Legislature empowers to make law,
(ii) the Executive to maintain law and order and
(iii) the Judiciary to adjudicate the dispute.

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 separate
Organ of the Government. Thus, the legislature cannot exercise executive or judicial power; the
executive cannot exercise legislative or judicial power and the judiciary cannot exercise
legislative or executive power of the Government.
The main object of doctrine of separation of power is to avoid concentration of all the powers in
one organ. It is universally accepted principle that absolute power corrupt and exploit absolutely.
This doctrine of separation of power is an exception to administration, as the legislative,
executive and judicial powers are concentrated in administrative authority created under statute
by Government.

The theory of separation of power signifies three formulation of structural classification of

Governmental power
(i) The same person should not form part of more than one of the three organs’ of the
government
For example. ministers should not sit in Parliament.
(ii) One organ of the government should not interfere with any other organ of the government.
(iii) One organ of the government should not exercise the functions assigned to any other organ.

3. MONTESQUIEU’S THEORY OF SEPARATION OF POWER

The term “ TRIAS POLITICA” or Separation of power was coined by Montenquie in the 18th
Century. He was the French Social & Political Philosopher.

During 18th Century Louis the ruler of France enjoyed the absolute power of the state. He
combined himself all the powers of the 3 organs of the Government. Eg: legislative , Executive
and Judiciary.
As a result of these people had no liberty under such oppressive and despotic Government.

The rule (or doctrine) of separation of powers was propounded/expounded for the first time by
the French Jurist, montesquieus. He formulates this theory in his famous book “Esprit des Lois”
(The Spirit of Laws) published in 1748.1 According to him, there are three main organs of the |
Government in a State namely: i) the Legislature; ii) the Executive; and iii) the Judiciary. Hence,
the governmental machinery must be divided into three parts and must be vested in these three a
organs namely:
1.the Legislature;
2. the Executive; and
3. the Judiciary.

Under the constitutional scheme of the doctrine, every organ (the tree organs) of the State has
been vested/conferred with certain core functions as stated below:

i) Essential Legislative Functions

Monitoring and supervising the policy of the government.
Passing of budgets.
Ratification of treaties and international covenants.
Passing of laws and discussing various actions and policies of the government.

ii) Essential Executive Functions

Maintaining law and order.
Administration of the state.
Dealing with foreign countries.
Ensuring implementation of the policies and programmes.

iii) Essential Judicial Functions

Deciding disputes. Interpretation of laws.
Determining the legality of government actions.
Determining civil and criminal liability of private persons and state officials.

According to this theory of separation of powers, these three powers and functions of the
Government in a free democracy must be kept separate and exercised by separate organs of the
Government. In other words, the legislative (law making) functions should be exercised by the
legislature alone. The executive functions should be exercised by the executive alone and the
judicial functions should be exercised by the judiciary alone.

One organ of the Government should not exercise the functions of the other two organs. One
organ of the Government should not encroach/intervene upon the affairs of the other two organs,
In other words:
i) The legislature cannot exercise the powers of the Executive or Judiciary;
ii) The executive cannot exercise the powers of the Legislature or Judiciary; and
iii) The judiciary cannot exercise the powers of the Legislature or Executive.

In his writing in 1748, Montesquieu had elaborately explained the doctrine of separation of
power. He has stated in his writing “When the legislative and executive powers are united in the
same person, or in the same body of magistrates, there can be no liberty, because apprehensions
may arise, least the same monarch of senate should enact tyrannical laws, to execute them in a
tyrannical manner. Again, there is no liberty if the judicial power be not separated from the
legislative and the executive. Where it joined with the legislative, the life and liberty of the
subject would be exposed to arbitrary control; for the judge would then be the legislator. Where
it joined with the executive power, the judge might behave with violence and oppression;

Miserable indeed would be the case, were the same man or the 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 that of judging the crimes or differences of individuals.”

Lord Acton rightly said: “Every power tends to corrupt and absolute power tends to corrupt
absolutely." In the l8th century, there was complete and full-fledged monarchy in France. Louis
XIV was well-known for his absolute and autocratic powers; The King and his administrators
were acting arbitrarily. The subjects had no right or liberty at all. On the other hand,
Montesquieu was very much impressed by the liberal thoughts of Locke and he also based his
doctrine on analysis of the British Constitution during the first part of the 18th century, as he
understood it. According to him, the secret of an Englishman’s liberty was the separation and
functional independence of the three departments of the Government from one another.

According to Wade and Phillips, separation of powers may mean three different things
(i) that the same persons should not form part of more than one of the three organs of
Government, e.g. the Ministers should not sit in Parliament;
(ii) that one organ of the Government should not control or interfere with the exercise of its
function by another organ, e.g. the Judiciary should be independent of the Executive or that
Ministers should not be responsible to Parliament; and

(iii) that one organ of the Government should not exercise the functions of another, e.g. the
Ministers should not have legislative powers.

Object: The main object of this theory of Separation of Powers is to distribute the powers
between different organs, and to avoid or minimize arbitrariness in the Government functions.

Basic Principles: The doctrine of separation of powers is based on the following principles:

1. No Concentration of powers: The theory of separations of powers involves that powers should
not be concentrated in the same person or in the same body of persons. If all powers are placed in
the same branch of government, there is bound to be tyranny.

2. Diffusion of powers needed: The theory of separation of powers implies that powers are to be
diffused by bringing about a division of powers on the basis of functions.

3. System of checks and balances: The theory of separation of powers involves a complex system
of checks and balances. It means the executive organs “Welds some control over the legislature
and the judiciary; the legislature over the executive and the judiciary; and the judiciary over the
executive and the legislative. This method of one branch having the power of the other branches
will act as an antidote to despotism.

4. EFFECT OF DOCTRINE OF SEPARATION OF POWER

The doctrine of separation of power is founded on the ground that concentration of governmental
power on one authority / organ gives room for unregulated and tyrannical exercise of power,
which threatens the right and liberties of the citizens. This Doctrine is very useful in theory
because it ensures smooth functioning of the government. Otherwise there can be friction within
the government. It also makes clear who has to perform which function. In the absence of this
doctrine, any organ can carry out function of any other organ and that will create confusion
among the people as to from whom they should get the work done.

Further, the persons in the government may use this opportunity to avoid their
responsibilities by making other organs responsible. The Doctrine of Separation of power had a
very good impact on the development of Administrative Law and in the functioning of the
Government. It is well appreciated and accepted by the jurists and politicians in England and
America.
 Thus, The practical utility of this doctrine attracted the frames of many constitutions all
over the world during the 19th century and many constitutions, such as those of England and the
U.S.A. have adopted it.

In his book ‘Commentaries on the Laws of England; published in 1765. Blackstone had
observed that if the legislative, the executive and the judicial functions were given to one man,
there was an end of personal liberty. Madison also proclaimed “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 Constituent Assembly of France had declared in 1789 that there would be nothing like a
Constitution in the country where the doctrine of separation of power was not accepted.

5. DEFECTS OF DOCTRINE OF SEPARATION OF POWER

Though theoretically, the doctrine of separation of powers was very sound and good there are
many defects found when it was sought to be applied in real-life situations. The following
defects were found in this doctrine:

(i) Historical incongruity : Historically speaking, the theory was not correct. His exposition of
this theory is based on the British Constitution of the first part of the eighteenth century as he
understood it. In reality there was no separation of powers under the Constitution of England. In
British Constitution, this doctrine was never adopted.

Professor Ullman rightly says, “England was not the classic home of the separation of powers.”
Similar is the observation of Donoughmore Committee. “In British Constitution there was no
such thing as the absolute separation of the legislative, executive and judicial powers.”

(ii) Division of functions: The assumption behind the doctrine is that the three functions of the
government, namely, legislative, judicial and the executive are divisible from each other. The
fact, however, is that it is not so in reality. There are no watertight compartments. There is
overlapping with each other.
As Friedmann and Benjafield say, “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”.

(iii) Practical difficulties in its acceptance: It is difficult to take certain actions if this doctrine
is accepted in its entirety. In practice it has not been found possible to concentrate power of one
kind in one organ only. The legislature does not act merely as a law-making body, but also acts
as an overseer of the executive, the administrative organ has legislative function. The judiciary
has not only judicial functions but also has some rule-making powers.

(iv) Adherence to it not possible in welfare state: The modern state is a welfare state and it has
to solve many complex socio-politico-economic problems of a country. In this state of affairs it
is not possible to stick to this doctrine.
As Justice Frankfurter says: “Enforcement of rigid conception of separation of powers would
make modern government impossible.”

(v) Organic separation: Basu's view is that “in modern practice, the theory of separation of
powers means an organic separation and the distinction must be drawn between ‘essential’ and
‘incidental’ powers and that one organ of government cannot usurp or encroach upon the
essential functions belonging to another organ, but may exercise some incidental function
thereof”.

Thus, the position is that the doctrine of separation of powers in the strict sense is undesirable
and impracticable. Therefore it is not fully accepted in any country of the world. Nevertheless, its
value lies in the emphasis on those checks and balances which are necessary to prevent an abuse
of the enormous powers of the executive. The goal of the doctrine is to have “a government of
law rather than of official-will or whim."

One feature of this doctrine is accepted by all the jurists that the judiciary must be
independent of and separate from the remaining two organs of the government viz. legislative
and executive.

In the Report of International Congress of jurists held at New Delhi in 1959, it is stated :
“An independent judiciary is an indispensable requisite of a free society under the Rule of Law.
Such independence implies freedom from interference by the Executive or the legislature with
the exercise of the judicial function”.

6. CASE LAW
In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 In this case Ray, C. J . 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. J Mathew in this case has accepted this theory of separation of power.

Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461

In this case Beg, J observed that doctrine of separation of power is a part of the basic structure
of the constitution.
7. CONCLUSION
The doctrine of separation of power cannot be accepted fully in its strict sense in any country.
But it does not mean that it has no value. Its value lies in the emphasis on those checks and
balances which are necessary to prevent and abuse of enormous powers of executive. The object
of the doctrine is to have a Government of law rather than official will or whim (craze).
Montesquieu was of the view that if the total power of the Government is divided among
autonomous organs, one will act as a check upon the other and in the check liberty can survive. It
has been accepted by almost all the jurists that the judiciary must be independent of and separate
from legislature and executive.

The most important aspect of the doctrine of separation of powers is judicial independence
from administrative discretion. Friedmann in his book ‘Law in a changing society’ has stated that
there is no liberty, if the judicial power is not separated from legislative and the executive.

 DOCTRINE OF SEPARATION OF POWER IN USA , ENGLAND AND INDIA

INTRODUCTION
According to the theory "separation of powers three powers and functions of the Government
must in a free democracy always be kept separate and be exercised by separate organs of the
Government. Thus, the legislature cannot exercise executive or judicial power, executive cannot
exercise legislative or judicial power and the judiciary cannot exercise legislative or executive
Power of the Government. The main object of doctrine of separation of power is to avoid
concentration of all the powers in one organ. It is universally accepted principle that absolute
power corrupt & exploit absolutely. This doctrine of separation of power is an exception to
administration as the legislative, executive and judicial powers are concentrated in administrative
authority created under statute by Government.

DOCTRINE 0F SEPARATION OF POWER :

a) US.A.
The doctrine of separation of power has been accepted and adopted in the Constitution of the
United States of America. In America this doctrine forms the foundation on which the whole
structure of Constitution is based. In America, the legislative powers are vested in the Congress
(Article 1), the Executive Powers in the President (Article 2) and the Judicial Powers in the
Supreme Court and its subordinate Courts (Article 3).

It is on the basis of this theory of separation of powers that the supreme Court of the United
States has not been given power to decide political questions, so that the Court may not interfere
with the exercise of power of the executive branch of the government. The Constitution of
America has also not given overriding power of judicial review to the Supreme Court.

However, American Constitutional developments have shown that because of the complexity of
the modern Government, strict structural classification of the powers of the Government is not
possible.

The President of the United States interferes with the exercise of the power by the Congress
through the exercise of his veto power. He also exercises the law making power in exercise of his
treaty-making power. The President also interferes with the functioning of Supreme Court
through the exercise of his powers to appoint Judges.

In past President Roosevelt did interfere with the function of Court when he threatened to pack
the Court in order to get support of the Court for his New Deal Legislation as President of U.S.A.

As an executive interferes in the affairs of legislature and judiciary, in the same manner Congress
interferes with the power of President through vote on budget, approval of appointment by the
Senate and the ratification of the treaty.”

Congress also interferes with the exercise of powers by the Courts by passing procedural laws,
creating Special Courts and by approving the appointment of Judges.
The judiciary too, interferes with the powers of the Congress and the President through the
exercise of its power of judicial review. It is pertinent to note that the Supreme Court of United
States has made more amendments to the American Constitution than the Congress itself.

In America, there is a system of ‘Checks and Balance’ to see that one organ should not encroach
upon the powers of the other organ, However, in view of the development of Administrative Law
and expansion of the Government Machinery strict compliance to this doctrine is impracticable
(not Possible ). Therefore, the doctrine of Separation of Powers has been relaxed in certain cases.
For instance, the President being the Executive Head encroaches (intervenes) upon the legislative
power, while giving assent to Bills. Similarly, the Congress being the legislative Organ controls
the executive by the power of impeachment of the President (Executive Head). It (the Congress)
also controls the judiciary in appointment and impeachment of the judges, Likewise, the
Judiciary, by exercising the power of Judicial Review over legislations, controls the Legislature.

Thus, The American Constitution was drafted in the year 1787, it incorporated and adopted
doctrine of separation of power but with the growth of administrative process the rigours of the
doctrine have been relaxed. The Congress has delegated legislative powers to various
administrative authorities and regulatory agencies and these bodies exercised all types of
functions. Hence, a single agency acts as legislators, investigator, prosecutor, jury, judge and
appellate tribunal and Supreme Court has never held that the combination of all the powers in
one agency is unconstitutional.

b) Doctrine of separation of power and England

Montesquieu has based his doctrine of separation of powers after taking into consideration the
British system, but at no point of time this doctrine was accepted in its strict sense in England.
On the Contrary in reality the theory of concentration or integration of power was adopted in
England. Though In England three powers i.e. legislative, executive and judiciary were vested in
three organs, and it has its own peculiar features, therefore it cannot be said that there is no
sharing out of the power of the Government.

It was found that in England the Judges exercise the executive functions under the Trust Act and
also legislative function in making rules of Courts, regulating their own procedure.

For instance, Lord Chancellor who was the head of the judiciary, chairman of the House of Lords
i.e. legislature, was a member of executive and often a member of Cabinet. It showed that all the
three powers were concentrated, vested in Lord Chancellor Members of the Cabinet are also
members of the Legislature and are responsible to it and they plan a very important part in
legislative activities.

Powers are conferred on them to make subordinate legislations and they also exercise judicial
powers in different forms of administrative tribunals. The House of Commons is not exclusively
concerned with legislative activities, as it exercises judicial powers also, in cases of breach of its
own privileges.

In U.K. there is complete confusion of the executive and legislative powers. The legislation of
Great Britain enjoys judicial powers as well. The House of Lords, the upper house of legislature
is the highest court of appeal in Great Britain. The Cabinet through the King can dissolve the
House of Commons. Cabinet through the King introduces the Bill in parliament. Certain Bills
can only be introduced by cabinet through the King. It is the cabinet, which formulates
ordinances through the King. However, these three powers are vested in different organs. But,
one organ controls the powers of the others. E.g.: The House of Lords, being a legislative body
exercises Judicial Functions also.

c) India
In India, the doctrine of separation of powers has not been given a Constitutional status. Though
Art. 50 of the Indian Constitution in Part IV of Directive Principles of State Policies provides for
separation of judiciary from executive, the Constitutional scheme does not embody any
formalistic and dogmatic (strict) division of powers.

If we see the provisions of the Constitution of India then there exists a doctrine of separation of
powers. Under the Indian Constitution,
i. the executive powers are with the President,
ii. the legislative powers with Parliament and
iii. the judicial powers with the judiciary.

The President holds his office for a fixed period. His functions and powers are enumerated in the
Constitution itself.
Parliament is competent to make any law subject to the provisions of the Constitution and there
is no other limitation on its legislative power. It can amend the law prospectively or even
retrospectively but it cannot declare a judgment delivered by a competent Court void or of no
effect. Parliament has also inherited all the powers, privileges and immunities of the British
House of Commons.

Similarly, 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. The Supreme Court and High
Courts are given the power of judicial review and they can declare any law passed by Parliament
or Legislature as ultra vires or unconstitutional.

Taking into account these factors, some jurists are of the opinion that the doctrine of
separation of powers has been accepted in the Constitution of India and is a part of the basic
structure of the Constitution. Separation of functions is not confined to the doctrine of separation
of powers. It is a part of essential structure of any developed legal system. In every democratic
society the process of administration, legislation and adjudication are more clearly distinct than
in a totalitarian society.

But, in practice, it is not possible to implement the rule of separation of powers due to inter
dependence of one organ/ authority on another organ/authority. Further, there is no Provision in
the Indian Constitution to adopt this doctrine. Article 50 of the Indian Constitution speaks about
the Separation of Powers.

There are several provisions, which reveal that there are many deviations from the application of
this doctrine since one organ encroaches upon the other.

For instance, (i) Parliament exercises judicial powers by punishing a person for breach of
privilege. It also controls the judiciary by exercising the power of impeachment of Judges.
ii. Similarly, the Judiciary by reviewing legislations controls the Parliament.
iii. The Legislature, besides law/making powers, exercises judicial powers in cases of breach of
its privileges, impeachment of the President and the removal of Judges of the Supreme Court and
High Courts.

As such, the Executive (President) is vested with law making (delegated legislation) and judicial
functions (Quasi Judicial) and also controls the appointment of judges. He may refer any
question of law or fact for the advisory opinion of the Supreme Court. The President may after
consultation with the Chief Justice of India, transfer a Judge from one High Court to another.
Any question as to the age of Judge of the High Court is determined by the President.

The Courts may, in their turn, are vested with power of judicial review, in the exercise of which
they may declare void any action taken by the President or other executive agencies.

In India, the doctrine of ‘Separation of powers’, in its literal sense does not operate. Though the
Constitution of India recognizes, the need for the separation of the Executive from the Judiciary,
in actual practice, it provides ‘Checks and balance’ and not any rigid Separation of Powers.

In view of various deviations stated above, the doctrine of Separation of Powers is not fully
accepted in the Indian Constitution.

3. CASE LAW
a) In Kartar Singh v. State of Punjab, AIR 1995 SC 1726, K. Ramaswamy J., stated: “It is
the basic postulate under the Indian Constitution that the legal sovereign power has been
distributed between the legislature to make the law, the executive to implement the law and
judiciary to interpret the law and to adjudicate the dispute.

b) In Golakhnath v. State of Punjab, AIR 1967 SC I 643, Subba Rao CJ ., observed that
Constitution creates three major instruments of power, namely, legislature, executive and
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. But if we study Constitutional provisions carefully, then it is clear that the doctrine of
separation of powers has not been accepted in India in a strict sense. Nowhere a provision is
made in the Constitution regarding the division of functions of the Government. Though Art. 53(
1) and 154(1) of the Indian Constitution provides that the executive power of the Union and of
the States is vested in the President and the Governors respectively, there is no corresponding
provision vesting the legislative and judicial powers in any particular organ. Under A11. 123,
213 & 356 of the Constitution, wide legislative powers are vested with the President. President
can promulgate ordinance, can make laws for State when State legislature is dissolved, adopt the
laws or make necessary modifications and exercise of this legislative power is beyond the
purview of judicial review. President also performs judicial functions such as decides disputes
regarding the age of a judge of High Court or the Supreme Court for the purpose of retiring him,
the cases of disqualification of members of any House of Parliament. Parliament of India
exercises legislative functions but many legislative functions are delegated to the executives.
Parliament also exercises judicial functions in certain matters. For e.g., decide the question of
breach of its privilege and to punish the person concerned. The power of Parliament to

impeach President is purely judicial function. It could be seen that many judicial powers have
been excluded from the purview of the Courts.

So far judiciary is concerned, it has to exercise all judicial powers, but it exercises certain
executive and administrative functions also. Under Art. 227 of the Constitution the High Court
has supervisory powers over all subordinate Courts and Tribunals and power to transfer cases.
Supreme Court and HighCourts frame rules relating to their own procedure for the conduct and
disposal of the cases. Thus they exercises legislative powers.

4. CONCLUSION .
All the above discussed provisions in the Indian Constitution showed that doctrine of separation
of power is not accepted fully in the Constitution of India. Thus Indian Constitution has not
indeed recognized the doctrine of separation of powers in its absolute rigidity. In Indira Nehru
Gandhi v. Raj Narain, AIR 1975 S C 2299, CJ. Ray observed that in the Indian

Constitution there is separation of power in a broad sense only. A rigid separation of powers as
um the American Constitution or under the Australian Constitution does not apply to India.

 MODERN VIEW OF SEPARATION OF POWERS

Though doctrine of separation of powers is laudable in its object, its application in its purest
form is not only impossible, but also undesirable. Therefore, the modern view of the doctrine
makes some modifications to the classical doctrine of separation of powers as propounded by
Montesquieu. The following are two instances of the modern form of separation of powers:

i. Essential and Incidental Functions

In any system, it is possible broadly to identify the separate functions of lawmaking,
administering and judging and to ensure that each is carried out only by the proper body
according to an appropriate procedure. It is widely accepted that a rigid distinction of function
between the three branches is not practicable in contemporary society. This is by virtue of the
amount and complexity of business that governments are expected to handle.

Most common examples are delegation of lawmaking powers by legislatures to the executive,
lawmaking by judges by way of precedents, advisory role of judiciary to executive, etc.

This calls for the classification of functions of each branch as essential functions and incidental
functions.
Essential functions are those which can be discharged by only that organ whose functions they
are, and therefore, they cannot be discharged by the other organs.
As a logical consequence, that organ cannot delegate those functions to the other organs.
Incidental functions are those functions which are not the essential functions of the organ, but are
incidental to, and necessary for, the discharge of essential functions. They are the functions
which may be discharged by other organs. Therefore, they may be delegated to the other organs.

Doctrine of Checks and Balances

The third aspect of the separation of powers is that one organ of the government shall not
interfere in the functioning of another organ.

However, the modern view is that there cannot be separation of powers to that extent. Each organ
should have some control over the other to some extent. This is called a system of ‘checks and
balances’. This lies at the heart of the republican version of constitutionalism and the rule of law.

Therefore, the modern view of separation of powers involves each branch having some control
over the others but also requires each branch to be protected against undue interference by the
others thus entailing the need for pragmatic compromise. Some of the examples of checks and
balances are :

• judicial review of legislative and executive actions

• abrogation of precedents by legislatures
• Government being responsible to the legislature in a responsible government.