Administrative Law

2/6/2021
Separation of Powers

SUBMITTED BY: TANYA (18/18)

B.A.LL.B. (SECTION A)

SUBMITTED TO: DR. JASMEET WALIA

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ACKNOWLEGDEMENT
I would like to express my sincere gratitude to Dr. Jasneet Walia who bestowed upon me the
golden opportunity to prepare this erudite project under her aegis. The topic of my project is
“Separation of Powers”. As I worked on this assigned task, I got an opportunity to unearth
various contours of the subject and I got to understand the nuances of the topic. It led to a lot
of research and hence I was able to gain extensive knowledge.

I would also like to extend my thanks to my family and friends who backed me with moral
strength and were constant pillars of support.
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INDEX
Serial No, TOPIC PAGE NO.
1. INTRODUCTION 3

2. POSITION IN THE UNITED KINGDOM 3-4

3. POSITION IN THE UNITED STATES OF 4-5

AMERICA
4.
POSITION IN INDIA 5
5.
OPINION OF THE INDIAN JUDICIARY 5-6
6.
CONCLUSION 6

TABLE OF CASES
SERIAL NO. CASE LAW PAGE NO.

1. Rai Sahib Ram Jawaya v. State of Punjab 5

2. Chandra Mohan v. State of U.P. 5

3. Kesavananda Bharti v. State of Kerala 6

4. Smt. Indira Nehru Gandhi v. Raj Narain 6

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SEPERATION OF POWERS

…I say, that Power must never be trusted without a check.

~John Adams

Introduction

The doctrine of Separation of Powers is rooted in the idea that all the power should not be
conferred on a single authority and therefore, it deals with the mutual relations and the
division of powers and responsibilities among the three different organs of the government
namely Legislature, Executive and Judiciary. The genesis of this doctrine can be traced back
to the times as ancient as those of Plato and Aristotle. The base for the doctrine of Separation
of Powers was established with Aristotle classifying for the first time the functions of the
Government into three categories viz., deliberative, magisterial and judicial. But it was
Montesquieu, the French jurist, who for the first time enunciated the principle of Separation
of Powers in his book L. Esprit Des Lois (Spirit of Laws) published in 1748.

In its purest form, Montesquieu’s theory propounded the idea that one person or body of
persons should not exercise all the three functions of the government viz. legislative,
executive and judiciary and that each organ should restrict itself to its own sphere and not
transgress the province of other. But as the evolution hit and the requirements of pragmatism
demanded, it took the form, not of impassable barriers and unalterable frontiers, but of
mutual restraints, or of what afterwards came to be known as “checks and balances”. The
theory then propounded that the three organs must act in concert and not in such a way that
their functions should never touch one another.

The doctrine of Separation of Powers does not have the uniform application to all the
countries of the world. The nation-states have applied this theory based on their own sui
generis conditions and circumstances.

Position in the United Kingdom

The doctrine of Separation of Powers as interpreted by Wade and Phillips implies the
following:

a) The same person should not form more than one organ of the Government.
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b) One organ of the Government should not exercise the function of other organs of the
Government.
c) One organ of the Government should not encroach with the function of the other two
organs of the Government.

Applying this interpretation in the context of British scenario, it becomes clear that doctrine
of separation of powers is not an essential feature of British Constitution and there’s no
absolute separation of powers in Britain. In England the King along with being the executive
head is also an integral part of the legislature. His ministers are also members of one or other
Houses of Parliament. This concept goes against the idea that same person should not form
part of more than one organ of the Government. So far as judiciary is concerned, in theory
House of Lords is the highest Court of the country but in practice judicial functions are
discharged by persons who are appointed specially for this purpose, they are known as Law
Lords and other persons who hold judicial post.

Position in the United States of America

Based on the theory of separation of powers as propounded by Montesquieu, Madison

remarked: “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 of the USA provides a good mention of the separation of powers and it
appears, prima facie, that legislative, executive and judicial powers are vested in separate
entities. But on the analysis of the actual position prevailing in the country, it is found that
there is no rigid application of the doctrine of Separation of Powers in the USA either.

In USA, President is the head of the executive. The legislative powers are vested in the
Congress and the judicial powers are vested in the Supreme Court and its subordinate courts.
But the President also have the power to veto bills passed by the Congress which then can not
become laws unless they are subsequently passed by both the houses of the Congress by a
two-thirds majority. The President also exercises legislative power in making of treaties
regarding foreign affairs. Likewise, the Congress interferes with the powers of President by
casting vote on Budget which the President is responsible for formulating and presenting to
Congress. Congress also plays important role in ratification of treaties, as well as in
appointments through its senators. Congress has also judicial powers. Each house may expel
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its members by a two-thirds, votes or punish them for “disorderly behaviour”. Congress is the
sole judge of the reason for expulsion. Also, the Courts have supervisory control over both
the Congress and the President, by way of judicial review. It is true that legislature enacts the
Law, but it is also true that in dealing with the new problems, where Law is silent, the Courts
have to create the Law. Hence, there’s no absolute application of the rigid separation of
powers in USA even its constitution confers the different powers on different entities.

Position in India

The different types of functions for different organs of the government as prescribed by the
Constitution of India though point to the doctrine of Separation of Powers but this doctrine is
not applicable in India in its strict sense.

The Indian constitution expressly provides that the Executive power of the Union is vested in
the President and that of the states is vested in the respective Governors. But there are no
express provisions that legislative and judicial powers shall be vested in any person or organ.
But functionally, the functions of all the three organs of the government coincide. For
instance, the President’s or Governor’s assent is required to turn the bills into laws. The
President and the Governors also have the power to promulgate ordinances when the
legislature is not in session. The President and the Governors also exercise judicial powers to
a certain extent as they have the power to grant pardon. The legislature also exercises Judicial
function in removal of President (Article 56) in the prescribed manner. Judiciary also
exercises legislative power, High Court and Supreme Court are empowered to make certain
rules legislative in character.

Opinion of the Indian Judiciary

In Rai Sahib Ram Jawaya v. State of Punjab, the Supreme Court of India observed that “the
Indian Constitution has not indeed recognised the doctrine of separation of powers in the
absolute rigidity but the functions of the different parts or branches of the Government have
been sufficiently differentiated.”

In Chandra Mohan v. State of U.P., the Supreme Court held: “The Indian Constitution,
though it does not accept the strict doctrine of separation of powers, provides for an
independent judiciary.”
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In Kesavananda Bharti v. State of Kerala, Hon’ble Chief Justice Sikri observed: “Separation
of powers between the legislature, the executive and the judiciary is a part of the basic
structure of the Constitution; this structure cannot be destroyed by any form of amendment.”

In Smt. Indira Nehru Gandhi v. Raj Narain, Hon’ble Justice Chandrachud observed, “the
principle of separation of powers is not a magic formula for keeping the three organs of the
State within the strict confines of their functions.”

Conclusion

In strict sense the principle of separation of powers cannot be applied in any modern
Government either may be U.K., U.S.A., France, India or Australia. But it does not mean that
the principle has no relevance now a days. Government is an organic unity. It cannot be
divided into water tight compartments. History proves this fact. If there is a complete
separation of powers the government cannot run smoothly and effectively. Smooth running of
government is possible only by co-operation and mutual adjustment of all the three organs of
the government.

Hence, it can rightly be quoted that “Enforcement of a rigid conception of separation of

powers would make Government impossible.”
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REFERENCES

1. Tej Bahadur Singh, “Principle of Separation of Powers and Concentration of

Authority”.
2. M.P. Jain, “Indian Constitutional Law”
3. https://www.legalbites.in/law-notes-administrative-law-separation-powers/ accessed
on May 25th at 07:39 pm.
4. https://lawtimesjournal.in/doctrine-of-separation-of-powers-and-its-relevance-in-
contemporary-times/ accessed on May 25th at 09:15 pm.
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