Separation of Powers

Administrative Law Project

JIKKU SEBAN GEORGE Roll No: 341, 6th semester.

ACKNOWLEDGEMENT

With great pleasure and privilege, I present here with full satisfaction, my project

work titled

Separation of Powers

First, I express our sincere and heartfelt thanks to Almighty God for his blessings to

complete my project work successfully.

I wish to acknowledge our profound gratitude to our Vice Chancellor Dr.

N.Jaykumar and our Registrar for his valuable support and guidance. I thank our

Librarian for the help he rendered for the successful completion of this project. I also

wish to express my indebtedness to all my teachers for their guidance for the

successful completion of my project. Lastly I would like to thank Sir Prashanth for

her guidance in completing this project

Words are inadequate to express my thankfulness to my parents and friends whose

moral support and co-operation enabled me to complete this project.

I once again express my gratitude to all those who have enabled me to complete this

report.

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Separation of Power.

The Separation of Powers is the division of the legislative, executive, and judicial

functions of government among separate and independent bodies. Such a separation

limits the possibility of arbitrary excesses by government, since the sanction of all

three branches is required for the making, executing, and administering of laws. If all

the powers is concentrated in one and the same organ then there would arise the

danger of enactment of tyrannical laws. Separation of powers according to the

French Enlightenment political philosopher Baron de Montesquieu, is a model for

the governance of democratic states, having its origins in an ancient idea of mixed

government. The organs of the government, the executive, the legislature and the

judiciary, in a free democracy have to be kept separate and be exercised by separated

organs of the government.

Historical Background:

The origin of separation of powers can be traced back to Plato and Aristotle. In the

16th and 17th century, French philosopher, John Bodin and British Politician John

Locke respectively had expressed there views about the doctrine of separation on

powers. But it was Montesquieu who formulated who formulated the doctrine

systematically, scientifically and clearly in his book, “Espirit Des Lois, (The spirit of

laws) in 1748

In England after a long war between the parliament and the king, the parliament

triumphed in 1688.The King recognised the Legislative and the tax powers of the

parliament and the judicial powers of the courts. So from then on the King exercised

the executive powers, the parliament exercised the legislative powers and the

judiciary exercised the judicial powers. They did not stick to this structural

classification and so they changed to the parliamentary form of government.

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Separation of powers was a leading idea in medieval Europe under the name of the

‘two swords’. Most thinkers agreed that power should be shared between the State

and the Church. But no convincing argument was produced for the supremacy of one

over the other. Those who argued that the State was superior to the Church faced the

fact that divine authority was supposed to be conferred on kings at their coronation,

and that religious authorities claimed the power to excommunicate kings (as happened

to King John of England). Those who argued that the Church was superior to the State

had to explain away Jesus's command to ‘Render therefore unto Caesar the things

which are Caesar's; and unto God the things that are God's’. Thus there was a de

facto separation of power in medieval Europe.

The idea revived in the seventeenth century in response to renewed claims of divine

right and absolute sovereignty Locke distinguished the executive, legislative, and

federative powers, although he did not intend them to be regarded as separate. He had

in mind the British arrangement where the executive was drawn from

the legislature and answerable to it. Montesquieu developed this into a full-blown

theory of the separation of the legislative, executive, and judicial powers

Both John Locke and Montesquieu derived there concepts of separation of powers

from the British constitutional history.

Division of Powers:

John Locke:

Locke attempted to distinguish between legislature, executive and judiciary was what

he called;

Discontinuous Legislative power

Continuous executive power

Federative power

Discontinuous Legislative power:

This power included the general rule making power called into action from time to

time and not in a continuous fashion.

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Continuous Executive power:

This included all the powers which we now call the executive and judicial.

Federative powers:

By federative powers he meant the power of conducting the foreign affairs.

Montesquieu

The concept received its first modern formulation in the work of Baron de

Montesquieu, who declared it the best way to safeguard liberty.

In the year 1748 Montesquieu stated that,

“When the legislative and the executive powers are united in the same person or body

of magistrates, there can be no liberty because apprehension may arise that the same

monarch or senate will enact tyrannical laws and execute in a tyrannical manner. No

liberty if judicial power is not separate from the legislative and executive, when it

joins with legislative the life and liberty of the subjects would be in exposed to

arbitrary control for the judge would then be the legislative. When it joins with the

executive power, the judge might behave with violence and oppression.”

He divided power into three

The general Legislative Power.

An Executive Power as per the Federative powers as stated by John Locke.

The civil Law Executive Power, including executive and judicial power.

Effects:

The doctrine propounded by Montesquieu had tremendous impact on the

development of administrative law and functions of the government.

It was appreciated by both the English and American Jurists

Blackstone in the year 1765 published a book “ Commentaries on the Laws of

England” observed that if the legislative, the executive and the judicial

functions where given to one man then there was an end of personal liberty.

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Defects:

Theoretically speaking- there was no separation of powers under the British

constitution. At no point of time was this doctrine applied in England. The

philosophers went on to say that, Montesquieu looked across a foggy England

from his sunny vineyard in Paris.

The doctrine was based on the assumption that the three functions of the

government are distinguishable from each other but in fact it is not. It is not

easy to draw a line of separation between one power and another.

President Woodrow Wilson stated that, “The government is not machinery but

a living thing .No living thing can have its organs offset against each other.

But rather life depends upon the co-operation of these organs.

Adoption of this theory cannot be done in its entirety.

It is not applicable in a modern welfare state because a modern welfare state

faces a number of problems dealing with complex issues of socio-economic

nature, which cannot be dealt without mutual co-operation of the organs.

Distinction is possible only if the essential powers are not encroached upon.

The mechanical division of the powers will not ensure to any individual the

liberty and freedom. Even though such a separation was absent in England, the

individual liberty was still protected.

Wades and Philips:

Separation of power according to them was that:

Same person should not form part of more than one of the three organs.

One organ should not control or interfere with the exercise of function of

another organ.

One organ of the government should not exercise the function of another.

Though the doctrine is not fully accepted, the one common factor that the entire jurist

felt was that the judiciary has to be independent from the other organs; there will be

no liberty if the judiciary is not separate from the executive and the legislature.

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Justice Louis D. Brandeis said: “The doctrine of the separation of powers was adopted

by the convention of 1787, not to promote efficiency but to preclude the exercise of

arbitrary power. The purpose was, not to avoid friction, but, by means of the

inevitable friction incident to the distribution of the governmental powers among three

department, to save the people from autocracy”

The value of the doctrine wholly depends upon the check and balances of the organs

of the government which is very much necessary to prevent the abuse of enormous

power.

The Doctrine of Checks and Balances:

The Doctrine of Checks and Balances refers to the idea that no one branch of

government can do something without any other branch of government being able to

review that action and, possibly, stop it. Thus, the legislature can pass a law, but the

President can veto it - that veto power is a check against the power to pass laws.

However, the legislature can pass a bill over a presidential veto, so long as there are

enough votes. Thus, that power is another check against the President's veto power.

These checks create a balance of power, where no one branch of government has too

much authority.

Essence of doctrine is that powers of government are distributed amongst the three

branches so that, in any given exercise of power, one branch has the capacity to check

and balance the powers of another branch.

The Doctrine of check and balances has been a key factor in the separation of powers.

It is the check and balance that restrict the arbitrariness of the organs.

When the executive is not enjoying the confidence of the parliament, as an action of

check the non confidence motion is brought forward and following that a balance is

maintained. Similarly when the legislative act beyond the scope of the powers given

to them the judiciary checks the legislations brought forth and if found ultravires will

deem the legislation as void.

Similarly the executive checks the parliament, when a bill has to be passed the asset

of the president is required and in the president has the powers to veto the bill if he

feels it is unjust.

Separation of power in various Constitutions:

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United States of America:

President Woodrow Wilson stated that, “The government is not machinery but a

living thing .No living thing can have its organs offset against each other. But rather

life depends upon the co-operation of these organs.

The drafters of the constitution felt the need for separation of powers Separation of

powers is implicit in the American constitution, but it is not rigorously applied, a bill

passed by the congress can always be vetoed by the president to this extend the

president may be said to be exercising the legislative functions.

There have a number of loops created with in the theory by the constitution itself;

Delegated legislation (i.e.) the court conceded that the legislative powers could

be confined to the executive. This does not mean that unlimited powers can be

confined upon the executive.

Development of independent statutory commission to regulate the new areas

of activity. They are endowed with the triple function of passing legislations,

executing them and finally there adjudication.

United Kingdom:

Montesquieu had based his doctrine of separation of powers based on the British

scenario, but at no point of time was this doctrine adopted. Though the three powers

are distributed between the three organs it cannot be said that there is no sharing out

of power of the government.

The Lord Chancellor is the head of the judiciary, chairman of the House of Lords and

also a member of the cabinet.

As to the exercise by one organ of the functions of the other organ, no separation

exists in England. The House of Lords combines both judicial and Legislative

functions. The whole house of lords constitutes, in theory, the highest court of the

country. By constitutional conventions the judicial functions are appointed by

specially appointed law lords. Legislative and adjudicatory powers are being

increasingly delegated to the executive, which distracts from an effective separation

of powers.

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France;

Separation of powers has been adopted in the strict sense in France. The system of

administrative law that prevails in France is called as Droit Administratif; this system

itself is a product of separation of powers. The doctrine has meant in France that there

should be separation between the courts and administration. The system of Droit

Administratif has resulted in non interference by the courts in the working of

administrative authorities.

The system of administrative tribunals is distinct from the ordinary courts which have

no jurisdiction on the administration; a person seeking any redress against the

administration has to go to an administrative court and not to an ordinary court. All

tribunals are subject to the supervision of “Consiel d’Etat”, which acts as the court of

appeals from all administrative tribunals.

Most European countries like Belgium, Netherlands, Italy, Spain etc. follow the

French practice of double jurisdiction.

India:

A casual glance at the provisions of the Constitution of India, there is a general

inclination to say that the Doctrine of Separation of Power is accepted in India (i.e.)

The Executive:

The Executive power of the union is vested in the President, who holds office for a

fixed period. Article 53, 74, 75, 77, 78, 299, 320, 310 and 311 of the Constitution deal

with the executive powers of President Further going down to the lower levels of

administration the Governor performs the executive functions within the State as per

Articles162, 154.

Article 53 vests all executive powers in President and empowers him to exercise these

powers directly by himself or through officer’s subordinate to him. As per this article

Supreme Command of the Defence Force of the union shall be vested in the President

and the exercise thereof shall be regulated by law.

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Article 74 says: (i) there shall be Council of Ministers with the Prime Minister at the

head to aid and advise the President who shall act in the exercise of his functions, act

in accordance with such advice. Provided that the President may require the Council

of Ministers to reconsider such advice, either generally or otherwise and the President

shall act in accordance with the advice tendered after such reconsideration. (ii) The

question whether any, and if so what advice was tendered by ministers to the

President shall not be inquired into in any court.

Under Article 75, The Prime Minister shall be appointed by the President and the

other ministers shall be appointed by President on the advice of the Prime-Minister.

By 91st amendment, the total number of Ministers including the Prime Minister in the

Council of Ministers shall not exceed 15 per cent of the total number of members of

the House of the People. It shall be the duty of the Prime Minister. (i) To

communicate to the President all decisions of the Council of Ministers relating to the

administration of the affaires of the union and proposals for legislation. (ii) To furnish

such information relating to the administration of the affairs of the union and

proposals for legislation as President may call for. (iii) If the President so requires to

submit for consideration of the Council of Ministers any matter on which as decision

has been taken by a minister but which has not been considered by the Council.

Article 77 talks about conduct of business of the Government of India. It says (I) All

executive actions of the Government of India shall be expressed to be taken in the

name of the President (II) Orders and other instruments made and executed in the

name of the President shall be authenticated in such manner as may be specified in

rules to be made by the President (III) The President shall make rules for the more

convenient transaction of the business of the Government of India and for the

allocation among ministers of said business.

Under Article 310, except as expressly provided by this Constitution, every person

who is a member of a defence service, or of a Civil Service of the union, or an All-

India Service, or hold any post connected with defence or any civil post under the

union holds during the pleasure of the President.

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Article 311 Says - No person who is a member of a Civil Service of the union or an

All - India Service, or a Civil Service of the state or holds a civil post under the union

or a state shall be dismissed, or removed by an authority subordinate to that by which

he was appointed.

Under Article 320, President appoints Union Public Service Commission and

determines its functions.

Under Article 299 All contracts made in the exercise of the executive power of the

union shall be expressed to be made by the President and all assurances of property

made in the exercise of that power shall be executed on behalf of the President.

Besides above mentioned powers the President appoints Chief Justice and judges of

the Supreme Court and the High Courts, Attorney - General, State Governor and other

high dignitaries of the State.

Under Article 154, the executive power of the State shall be vested in the Governor

and shall be exercised by him either directly or through officers subordinates to him in

accordance with this Constitution.

Under Article 162, states that the executive power of a State shall extend to the

matters with respect to which the Legislature of the State has power to make laws. 

The legislature:

The parliament is competent to make laws subject to the provisions of the

constitution; there is no limitation on the exercise of the legislative power. The

parliament can amend laws prospectively or retrospectively but it cannot declare a

judgment delivered by the court to be void. The main function of both the Houses is to

make laws. Every Bill has to be passed by both the Houses and assented by the

President before it becomes law. The subjects over which Parliament can legislate are

the subjects mentioned under the Union List in the Seventh Schedule of the

Constitution of India. Union subjects are those important subjects which for reasons

of convenience, efficiency and security are administered on all. The principal Union

subjects are defense, foreign affairs, railways, insurance, communications, currency

and coinage, banking, income tax, customs, excise duties, atomic energy, census, etc.

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Apart from the wide range of subjects allotted to it in the Seventh Schedule of

the Constitution, even in normal times Parliament can, under certain circumstances,

assume legislative power over a subject falling within the sphere exclusively reserved

for the States.

Further, in times of grave emergency when the security of India or any part

thereof is threatened by war or external aggression or armed rebellion, and a

Proclamation of Emergency is made by the President, Parliament acquires the power

to make laws for the whole or any part of the territory of India with respect to any of

the matters enumerated in the State List.  Similarly, in the event of the failure of the

constitutional machinery in a State, the powers of the Legislature of that State become

exercisable by or under the authority of Parliament. This apart, the Constitution also

vests in the Parliament the constituent power or the power to initiate amendment of

the Constitution.

          Besides passing laws, Parliament can by means of resolutions, motions for

adjournment, discussions, questions addressed by members to Ministers, system of

committees, etc., exercise control over the administration of the country and safeguard

people's liberties.

The Judiciary:

The Judiciary is also independent in its own way; there is interference by the

executive or the legislature. The judiciary has the power of judicial review and can

declare any laws passed as ultravires.

Judiciary is independent in its field and there can be no interference with its judicial

functions either by the executive or the legislature. Constitution restricts the

discussion of the conduct of any judge in the Parliament. The High Courts and the

Supreme Court has been given the power of judicial review and they can declare any

law passed by parliament as unconstitutional. The judges of the Supreme Court are

appointed by the President in consultation with the Chief Justice of India and judges

of the Supreme Court. The Supreme Court has power to make Rules for efficient

conduction of business.

It is noteworthy that Article 50 of the constitution puts an obligation over state to take

steps to separate the judiciary from the executive.

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Taking these facts into account some of the jurists are of the opinion that the doctrine

of separation of powers was accepted in the constitution of India in its entirety.

So in Kartar Singh v state of Punjab1, it was held that,“The legal sovereign powers

has been distributed between the legislative to make laws, executive to implement the

laws and the judiciary to interpret the laws within the limit set by the constitution.”

But one careful reading it can be clearly seen that the doctrine of separation of power

has not been accepted in India in the strict sense.

There are no provisions in the constitution regarding the division of functions of

government and their exercise. Only the executive has specific provisions stating

about the powers of the state and union 154(1) and 53(1) respectively. Both judiciary

and the legislature do not have specific provisions in the constitution.

Executive Exercise of:

Some of the action of the executive clearly shows that the executive interferes with

the actions of the other organs.

Legislative Powers:

The President has a wide Legislative power, Articles 123 and 356, and is

competent to make laws for the state after the legislature has been dissolved.

Such an exercise of legislative function is immune from judicial review.

Judicial Powers;

The president performs judicial functions also, he decides disputes regarding

the age of judges of the Supreme court and High courts, according to articles

124(2-A) and 217(3) respectively.

Parliamentary Exercise of:

The parliament also infers with some of the functions of the other organs of the

government.

Executive Powers:

The parliament, at times of fixed situations, it delegates the power to make

laws to the executive, this is done in order to reduce the overburden upon the

1 (1994)3 SCC 569

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legislature. Such a method of delegating the power of the legislature to the

executive is known as delegated legislation.

Judicial Powers:

Parliament exercises judicial functions also; it can decide the question as to the

breach of its privileges and the parliament also has the powers to punish the

offender to such privileges according to Article 105.

The proceeding as to the impeachment of the President is initiated in the

parliament, where one house acts as the investigator and the other acts as the

prosecutor and decides the matter, whether proved or not, this is purely a

judicial function.(Article 61).

Judicial Exercise of:

The judiciary exercises both executive and legislative functions.

Executive Powers:

According to the Article 227, The High court has the powers over all the

subordinate courts and tribunals. They also have the power to transfer cases

from a lower tribunal to a higher tribunal.

Legislative Powers:

The Supreme Court and the High court have the powers to frame rules

regarding their own procedure for the conduct and disposal of cases according

to the Articles 145 and 225.

They also have the powers to invalidate the laws passed by the parliament.

So from all this we can draw a conclusion that the Doctrine of Separation of powers

has not been adopted in the strict sense.

In the case of Ram Jawaya v State of Punjab2, it has been held that, “The Indian

Constitution has not indeed recognised the Doctrine of Separation of Powers in its

absolute rigidity.”

In the case of Indira Nehru Gandhi v Raj Narain3, Justice Beg observed that,

“Separation of power is a part of the basic structure of the constitution, none of the

2 (1955)2 SCR2253 AIR 1975 SC 2299

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three organs of the republic can take over the functions assigned to the others. This

scheme of the constitution cannot be changed even by resorting to Article 3684 of the

constitution.”

Conclusion:

Doctrine of Separation of power in today’s context of liberalisation, privatisation, and

globalisation cannot be interpreted to mean either ‘Separation of Powers’ or ‘Check

and Balance’ but ‘Community powers’ exercised by the spirit of co-operation by

various organs of the state in the best interest of the people.

4 Power of the parliament to amend the constitution and the procedure thereof.

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