2.

Separation of Powers

(A) General

If the doctrinaire concept of the Rule of law hampered the recognition administrative law in England,
the doctrine of separation of powers had similar impact a the thinking of administrative process in
the United States.

Davis also says, "Probably the principal doctrinal barrier to the development of administrative
process has been the theory of Separation of Powers."

(B) Meaning

There are generally three categories of governmental powers-

the Legislative,

C the Executive,

(iii) the Judicial.

At the same time there are three organs of the government in a State-

(i) theLegislative
(ii) the Executive and
(iii) the Judiciary

The theory of separation of powers postulates that these three powers of the government must. in a
free democracy, always be kept separate and be exercised by separate organs of the government.

Accordingly the legislature cannot exercise executive or judicial powers. the executive cannot
exercise legislative or judicial powers, and the judiciary cannot exercise legislative or executive
powers of the government.

(C) Historical Background.

The doctrine of separation of powers is of ancient origin. The history of the origin of the doctrine is
traceable to Aristotle

In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke
respectively had expounded the doctrine of separation of powers. But it was Montesquieu who for
the first time gave it a systematic and scientific formulation in his book Esprit des Lois (The Spirit of
the laws) published in the year 1748.

(D) Montesquieu's Theory.

According to this theory, powers are of three kinds Legislative, executive and judiciary and that each
of these powers should be vested in a separate and distinct organ, these powers. of any two of
them. are united in the same organ or individual, there is no liberty.

If for, instance, legislative and executive powers unite, there is at apprehension that the organ
concerned may enact tyrannical laws and execute them in akin rannical manner. Again, there can be
no liberty if the judicial power be not separated, he m the legislative and the executive. Where it
joined with the legislative, the life and property of the subject would be exposed to arbitrary control,
for the judge would then be the ator.
Where it joined with the executive power, the judge might behave with violence and oppression.

and

There would be end of everything if the same man or the same body were to exercise

those three powers, that of enacting laws, that of executing the public resolutions and of

trying the causes of individuals.

According to Wade and Philips48, separation of powers may meaa three different

things-

) 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;

(m) that one organ of the government should not control or interfere with the exercise

of function by another organ, e.g. the judiciary should be independent of the Executive or

that Ministers should not be responsible to Parliament; and

() that one organ of the government should not exercise the functions of another,

8.o the Ministers should not have legislative powers

(E) Effect of the Theory.

The theory of separation of powers as propounded by Montisquieu had tremendous

impact on the growth of administrative faw and functioning of governments. It attracted

English and American jurists as well as politicians. Writing in 1765, Blackstone49 had

observed that if the legislative, the executive and-the judieialHunctions weregiven to one

man, there was an end of personal liberty. According to 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. The doctrine had inftuenced the makers of Constitutions Thus,

the Constituent Assembly of France had announced in 1789 that there would be nothing

like a Constitution in the country where the theory of separation of powers was not

accepted. This doctrine in America is the base of the whole structure of the Constitution.

In this way it exercised a decisive influence in the minds of framers of the Constitution of

United States.

(F) Criticism

In theory the doctrine of separation of powers was very sound. However, in practice

many defects surfaced when it was sought to be applied in real life situations. The defects
which were found in this doctrine when applied were mainly the following :-

() 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.

Professór Uttman rightly says, "England was not the classic home of the separation of

powers." Similar is the observation of Donoughmore Committee. "In British Constitution

[21:38, 12/02/2020] Akki Mummas Princess: there was no such thing as the absolute separation of
the legislative, executive an

judicial powers."

(ii)\Division of functions.-The assumption behind the doctrine is that the thre

functions of the government, namely, legislative, judicial and the executive are divisit

from each other. The fact, however, is that it is not so in reality. There are no watertich

compartments. There is overlapping with each other. AsFriedmann and Benjafield sa

"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 fa

or cause serious inefficiency in government". 50

(iii) (Practical difficulties In its acceptance.-It is difficult to take certain actions t

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 a country. In

3,

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."

(vOrganic separation. Basu's view51 is that "in modern practice, the theory of

-separation of powers means an organic separation and the distinction must be drawn
bętween (essential' and tincidental 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

fone

endles

are necessary to prevent an abuse of the enormous powers of the executive.5 The goal

of the doctrine is to have "a government of law rather than of official will or whim.53

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 with54 the exercise of the judicial function".

(G) Doctrine of Separation of Powers in Practice.

(i) U. S. A.n/America, the doctrine of separation of powers forms the foundation

on which the entire Structure of the Constitution is based. This system of "checks and

balances" prevents any organ from becoming supreme. Thus, the executive power is

vested in the President 55 the legislative power in the Congress56 and the judicial power in

the Supreme Court.5The American Constitution in this way provides for a system of[21:42,
12/02/2020] Akki Mummas Princess: checks and balances' in the sense that the powers vested in
one organ of the

government cannot be exercised by any other organ., The theory is that no one organ of

the government can trench upon or encroach upon the power of the other In America, the

separation doctrine has the following characteristic features:

1.Presidential form of Government.-The doctrine of separation of powers has

the United States a prosidential form of government which is based on.a

dichotomy of the executive and the legislature The President is head of state and the

government. He is neither a member of the congress nor dependent for his tenure upon
produced

fail

the confidence of the congress in him.

) Relaxation of rigours. n course of time with the growth of administrative

process, the rigours of the doctrine of separation of powers have been relaxed. The

President now exercises legislative functions by sending messages to the congress and

to

a.

exercise of the right of veto. he congress has power to exercise judicial function

an

of

neachment to remove the President. Senate discharges executive functions

regarding treaties and in the making of certain appointments. The congress has delegated

bypes

slative powers to numerous administrative agencies and these bodies exercise all

of functions. The Supreme Court has never held that the combination of all the

powers in one agency is unconstitutional.

(c) Pragmatic aspect of the separation doctrine.-Justice Cardozo has rightly

chserved in Panama Refining Company v. Ryan8 that the doctrine of "separation of

DOwers is not a doctrinaire concept to be made use of with pedantic rigour. There must be

sensible approximation, there must be elasticity of adjustment in response the practical

necessities of government which cannot foresee today the development of tomorrow in

their nearly infintte variety." The position in America is that despite the theory that the

legislature cannot delegate its power to the Executive a host of rules and regulations are

passed by non-legislative bodies, which have

llEngland Aithough (Montesquieu derived the contents of his doctrine of

separation of powers from the British Constitution, as a matter of fact at no point of time

this doctrine was accepted in its strict sense in England. On the contrary, in reality, the

theory of integration of powers has been adopted in England. It is true that the three

powers are vested in three organs and each has its own peculiar features, but it cannot be

said that there is 9 'sharing out of the powers of government. Thus, the King though an
executive head is also an integral part of the legislature. Similarly all his Ministers are also

members of one or other of the Houses of Parliament. The Lord Chancellor is head of

judiciary, Chairmian of the House of Lords (Legislature), a member of the executive and

often a member of the cabinet. The House of Commons ultimately controls the executive.

The judiciary is independent but the judges of the superior,courts can be removed on an

address from both Houses of Parliament.

been judicially regognised as valid.

ENGLA

way

(IndiaHa) Constitytional Conspectus.The posítion in India is that the doctrine

a separation of powers has hot been accorded a constitutional status, In the Constituent

sembly there was a proposal to incorporate this doctrine in the Constitution but it was

NiOwingly not accepted and as such dropped. Apart from the directive principles laid down

Aicle 50 which enjoins separation of judiciary from the executive, the constitutional

Suieme does not embody any formalistic and dogmatic division of powers.o0

The Indian Constitution does not speak of the functions of the three organs of state.

Under the entire Constitution only executive power is vested in the Pręsident61 while -

[21:44, 12/02/2020] Akki Mummas Princess: provisions are simply made for a Parliament and
Judiciary without expressly vesting t

legislative and judicial powers in any person or body.

(b) Parliamentary Executive.-Although the executive power of the Union is veste

in President,62 the Constitution provides for parliamentary executive. Under th

Constitution, provisions have been made for a Council of Ministers with the Prime Ministe

at the head to aid and advise the President in the exercise of his functions.63 The Counc

of Ministers including the Prime Minister are members of the Parliament and collectivel

responsible to the House of the People.64 Thus, the President is not head of the

executive. The only validity of the doctrine of separation of powers is in the sense thar

one organ of the state should not assume the essential function of the other This was the

view of the Supreme Court as expressed in Bam Jawaya v. State of Punjab 56

"The Indian Constitution has not indeed recognized the doctrine of separation d

powers in its absolute rigidity but the functions of the different parts or branches d
Government 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 belong to another."

(c) Broad Division of Functions.-On a casual glance at the provisions of the

Constitution of India, one may be inclined to say that the doctrine of broad division of the

Rower of state has been accepted under the Constitution of tndia. ja Golaknath v. State of

Punjab, Subba Rào, C.J. 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".68

In Bandhuva Mukti Morcha v. Union of India p9 Pathak J. (as he then was) said:

65

SOP yes

sop

SOP td.

"The Constitution envisages a broad division of the power of state between the

legislature, the executive and the judiciary. Although the division is not precisely

demarcated, there is general acknowledgment of its limits. The limits can be gathered from

the written text of the Constitution, from conventions and constitutional practice, and from

an entire array of judicial decisions,"

(dFunctional overlappingf/we study the constitutional provisions carefully, it is

clear that the doctrine of separation of powers has not been accepted in India in its strict

sense and there is functional overlapping. The President of India in whom the executive

authority of India is vēsted exercises legislative power in the shape of ordinance-making

power and also the judicial powers under Article 103 (1) and Article 217 (3) to mention only

a few.

The Supreme Court has the power to declare void the laws passed by the legislature

and the 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 constituent
power to amend the Constitution by the Parliament is subject to judicial review. The court has power
to declare any constitutional amendment void if it changes the basic structure

Casels

of the Constitution.70

The legislature exercises not only legislative powers but also judicial powers in

ases of breach of its privilege, impeachment of the President and removal of the judges,

(e) Constitutional recognition.-The question of constitutional recognition the

doctrine of separation of powerş was at length considered by the Supreme Court ik Indira

Nehru Gandhi V. Raj Narain. In this case Ray C.J. has observed that our Constitution

recognises division between three main powers of the government..Judicial power in the

sense of judicial power of the state is vested in the Judiciary. Similarly powers are vested.

in the Executive and the legislature in their respective spheres. However, it is not the

intention that the powers of judiciary should be passed on to or be shared by the

Executive or the Legislature or that the powers of the Legislature or the Executive should

pass to or be shared by the Judiciary.

(f) Source of the doctrine of separation of Powers-Constituent Power.-Under the

Indian Jurisprudence the sourcę of the doctrine of separation of powers is constituent

power which is an amalgam of all the powers.72 When the constituent power exercises

powers, the constituent powęer comprises legislative, executive and judicial powers. All

powers flow from the constituent power through the Constitution to the various

departments or heads. tn the hands of constituent authority there is no demarcation of

powers. It is only when the Constituent authority defines the authorities or demarcates the

areas that separation of powers is discussed. The constituent power is sovereign. It

creates the organs and distributes the powers.3

(g) Separation of powers as a basic featureIn hdira Nehru Gandhi v. Raj Narain'

Beg J. has observed that separation of powers is a feature of the basic structure of the

Constitution. None of the three separate organs of the Republic can take over the

functions assigned to the other. This constitutional scheme cannot be changed even by

resorting to amending process under Article 368 of the Constitution.75

(h) System of checks and balances-If the doctrine of separation of powers in its

classical sense cannot be applied to any modern government, this does not mean that the
doctrine has no significance to day. It has not lost its political significance in the sense

that centre of authority must be dispersed to avoid absolutism. JAccordingly Professor

Wade writes that the objection of Montesquieu was against accumulation and monopoly

rather than interaction.76 In this sense the doctrine can be rather better appreciated as a

system of checks and balances.

In Indtra Nehru Gandhi v. Raj Narain77 Chandrachud, J. (as he then was) also

remarked that political usefulness, of the doctrine of separation of powers is now widely

recognised. No Constitution can survive without a conscious adherence to its fine checks

and balances. Just as courts ought not to enter into probtems entwined in the political

thícket', Parliament must also respect the preserve of the courts. The principle of

separation of powers is a principle of restraint which has in it the precept, innate in the

prudence of self-preservation, that discretion is the better part of valour.

The Supreme Court has observed in Asif Hamid v. State of J. &K.8: "Judicial review

is a powerful weapon to restrain unconstitutional exercise of power by the legislature and

executive.

The expanding horizon of judicial review has taken in its fold the concept of social

and economic justice. While exercise of powers by the legislature and executive is

subject to judicial restraint, the only check on our own exercise of power is the self

imposed discipline of judicial restraint."

Thus, in Krishan Kumar v. Union of India9 the Constitution Bench of the Supreme

Court observed :-"In the matter of expenditure includible in the Annual Financial

Statement, this court has to be loath to pass any order or give any directions, because of

the division of functions between the three co-equal organs of the Government under the

Constitution."

No Court can issue a direction to a legislature to enact a particular law. Similarly a

court cannot direct an executive authority to enact a law which it has been empowered to

do under the delegated legislative authority."

In Mallikarjuna v. State of A.P.81 the facts were that the Andhra Pradesh

Administrative Tribunal directed the State Government "to evolve proper and rational

method of determination of seniority among the veterinary surgeons in the matters of

promotions to next higher rank of Assistant Director of Veterinary surgeons." The

Supreme Court quashed the aforesaid direction and observed that the power under Article

309 of the Constitution to frame rules is the legislative power which has to be exercised by

the President or the Governor of State as the case may be. The High Court or

Administrative Tribunals cannot issue a mandate to the State Government to legislate. In

this way the principle of restraint prevents any organ of the state from becoming superior

to another or others in action.