MD.

SHAHNAWAZ
SECTION – B
EMAIL – Shahnawazvm@gmail.com

ADMINISTRATIVE LAW
LAW PROJECT
INTRODUCTION
The three organs of the government—Legislature, Executive and Judiciary— perform the
three essential functions of law-making, law-application and law- adjudication. This threefold
division of governmental functions is universally accepted as the best way of organizing the
government. These three functions are inter-related and inter-dependent. But these are
performed by three different organs.
I. CENTRAL IDEA OF THE THEORY OF SEPARATION OF POWERS:
The Theory of Separation of Powers holds that the three organs of government must be
separate and independent from one another. Any combination of these three functions into a
single or two organs is harmful and dangerous for individual liberty. Separation of powers of
the three organs is essential for the efficiency of the government and the liberty of the people.
Government can work systematically and efficiently only when each of its organs exercises
its own powers and functions. Similarly, the liberty of the people can be protected only when
there is no concentration or combination of the three governmental powers in the hands of
one or two organs.
The theory of Separation of Powers holds that for keeping the government limited, which is
necessary for protecting the liberty of the people, the three functions of government should be
separated and performed by three separate organs.
II. MEANING OF SEPARATION OF POWERS:
In simple words, the theory of Separation of Powers advocates that the three powers of the
government should be used by three separate organs. Legislature should use only law-making
powers, Executive should undertake only law enforcement functions, and Judiciary should
perform only adjudication/Judicial functions. Their powers and responsibilities should be
clearly defined and kept separate. This is essential for securing the liberty of the people.
MAIN SUPPORTERS OF THE THEORY OF SEPARATION OF POWERS
The British jurist Blackstone and the founding fathers of the American constitution,
particularly, Madison, Hamilton and Jefferson, extended their full support to the theory of
separation of powers. They regarded Separation of Powers essential for protecting the liberty
of the people.
 USE OF SEPARATION OF POWERS IN MODERN CONSTITUTIONS
The theory of Separation of Powers guided the Declaration of Rights adopted after the French
Revolution of 1789. It clearly stated that, “every society in which separation of powers is not
determined has no constitution.”
The real and big support to this theory came from the founding fathers of the Constitution of
the USA. They accepted its importance as the essential safeguard for preserving liberties and
property.’ The Constitution of USA adopted the theory of separation of powers as its guiding
principle.
It laid down a governmental structure based on this theory. It gave the legislative powers to
the US Congress, the executive powers to the US President and the judicial powers to the US
Supreme Court. Each organ was kept separate from the other two.
The Universal Declaration of Human Rights, as adopted by the UN General Assembly on 10
December 1948, also accepted the principle of separation of powers. In fact, all contemporary
democratic constitutions do provide for a separation of powers in one way or the other.

THEORY OF SEPARATION OF POWERS

CRITICISM
1. COMPLETE SEPARATION IS NOT POSSIBLE:
The government is a single entity. Its three organs can never be completely separated. The
legislative, executive and judicial functions are interdependent and inter-related functions and
hence cannot be fully separated.
2. COMPLETE SEPARATION IS NOT DESIRABLE:
Complete separation of three organs of government is neither possible nor desirable. It is not
desirable because without among mutual coordination these cannot carry out its functions
effectively and efficiently. Complete separation of powers can seriously limit the unity and
coordination needed by the three organs.
3. IMPRACTICABLE IN ITSELF:
We cannot fully use separation of powers. The function of law-making cannot be entrusted
only to the legislature. The needs of our times have made it essential to provide for law-
making by the executive under the system of delegated legislation. Likewise, no one can or
should prevent law-making by the judges in the form of case law and equity law.
4. UNHISTORICAL:
The theory of Separation of Powers is unhistorical since it has never been operative in
England. While formulating and advocating this theory, Montesquieu advocated that it was at
work in England. Under the British parliamentary system of government, there was and
continues to be a close relationship between the British Parliament and the Cabinet. Even
there is no separation of judiciary from legislature in so far, the British House of Lords acts as
the highest court of appeals. The British Constitution has never been based on the theory
separation of powers.
5. THE THREE ORGANS OF GOVERNMENT ARE NOT EQUAL:
The Theory of Separation of Powers wrongly assumes the equality of all the three organs of
the government. The legislature of the state is always regarded as the primary organ of
government. The work of the government begins by law-making. However, in actual practice
the executive acts the most powerful organ of the government. The judiciary is the weakest of
the three organs, yet it is always held in high esteem by the people. Hence the three organs
are neither equal nor equally respected.
6. SEPARATION OF POWERS CAN LEAD TO DEADLOCKS AND
INEFFICIENCY:
Separation of powers can lead to deadlocks and inefficiency in the working of the
government. It can create a situation in which each organ can get engaged in conflict and
deadlocks with other two organs.
7. LIBERTY DOES NOT DEPEND ONLY UPON SEPARATION OF POWERS:
The critics reject the view that liberty can be safeguarded only when there is a separation of
powers among the three organs of the government. They argue that in the absence of
fundamental rights, independence of judiciary, rule of law, economic equality and a spirit of
democracy, there can be no liberty even when there may be present full separation of powers.
8. SEPARATION OF FUNCTIONS AND NOT OF POWERS:
The name ‘Separation of Powers’ is wrong because this theory really advocates a separation
of functions. Power of the government is one whole. It cannot be separated into three separate
parts. It is at the back of the functions of all the three organs of government.
The theory of separation of powers is really a theory of separation of functions. Thus, the
theory of Separation of Powers has several limitations. All scholars accept that absolute and
rigid separation of powers is neither possible nor desirable. Three organs of government
cannot be and should not be totally separated into unrelated water-tight compartments.

POSITION IN INDIA
CONSTITUTIONAL PROVISIONS
There are no separate provisions regarding the Doctrine of Separation of Powers has been
given in our Constitution. But there are some directive principles are given in the constitution
as in Part-IV and Part-V and Articale-50 of our constitution is separating the judiciary from
executive as, “the state shall take steps to separate judiciary from the executive in the public
services of the state,” and except this there is no formal and dogmatic division of powers. In
India, not only functional overlapping is there but also the personal overlapping is prevailing.

JUDICIARY
Under Article-142 and Article-145 of our constitution, the SC has the power to declare void
the laws passed by legislature and actions taken by the executive if they violate any provision
of the constitution or the law passed by the legislature in case of executive actions. Even the
power to amend the constitution by Parliament is subject to the scrutiny of the Court. The
Court can declare any amendment void if it changes the basic structure of the constitution. In
many cases courts have issued directions for the Parliament to make policies.
EXECUTIVE
The President of India who is the supreme executive authority in India exercise law making
power in the form of ordinance making power under Article-123, also the Judicial powers
under Article-103(1) and Article-217(3), he has the consulting power to the SC of India under
Article-143 and also the pardoning power in Article-72 of the Constitution. The executive
also affecting functioning of the judiciary by making appointments to the office of Chief
Justice of India and other judges.
LEGISLATURE
The Council of Minister is selected from the legislature and this Council is responsible for the
legislature. The legislature exercising judicial powers in cases of breach of its privileges,
impeachment of the President under Article-61 and removal of judges. The legislative body
has the punitive powers under Article-105(3). In words of Gledhill, “constitution of India has
not ceremoniously wedded with Doctrine of Separation of Powers; however, it is whenever
possible followed the doctrine of separation of powers.”
JUDICIAL RESPONSE
There are many cases in which SC has given judgements on basis of the facts related to those
cases but we can understand the position of this doctrine in India by seeing some landmark
opinions given by the Supreme Court in following cases;
In Ram Jawaya v. State of Punjab
C.J. Mukerjee, said and held:
“Indian Constitution has not indeed recognized the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the government have
been sufficiently differentiated and consequently it can be very well said that our constitution
does not contemplate assumption by one organ or part of the State of Functions that
essentially belong to another.”
In Indira Nehru Gandhi v. Raj Narain
C.J. Ray said and held:
“In the Indian constitution there is separation of powers in a broad sense only. A rigid
separation of powers as under the US constitution or as under Australian constitution does not
apply to India.”
ADVANTAGES
There are various advantages with the acceptance of this doctrine in the system; 1. The
efficiency of the organs of state increased due to separation of works hence time consumption
decreases.
2. Since the experts will handle the matters of their parts so the degree of purity and
correctness increases.
3. There is the division of work and hence division of skill and labour occurs.
4. Due to division of work there is no overlapping remains in the system and hence nobody
interferes with others working area.
5. Since the overlapping removed then there is no possibility of the competition in between
different organs.
DISADVANTAGES
As there are advantages attached to this doctrine, there are some disadvantages can also occur
due to this doctrine;
1. As I have said there will be increased efficiency but reverse effect can also be seen because
of the overlapping between rights of the organs if we are not following the doctrine in its
strict sense because organs may fight for the supremacy over each other.
2. There is also a possibility of competition between organs again for proving one’s
supremacy over the other organ.
3. There is also possibility of delay of process because there will not be any supervisor over
other hence the actions of the organs can become arbitrary.