Acknowledgement

A research work of such great scope and precision could never have been possible without
great co-operation from all sides. Contributions of various people have resulted in this effort.
Firstly, I would like to thank God for the knowledge she has bestowed upon me.

I would also like to take this opportunity to thank Mrs. Ruchi Agarwal (Assistant Professor in
Law) without whose valuable support and guidance, this project would have been impossible.
I would like to thank the library staff for having put up with my persistent queries and having
helped me out with the voluminous materials needed for this work. I would also like to thank
my seniors for having guided me and culminate this acknowledgement by thanking my
friends for having kept the flame of competition burning, which spurred me on through these
days.

And finally my parents, who have been a support to me throughout my life and have helped
me, guided me to perform my best in all interests of my life, my grandparents who have
always inculcated the best of their qualities in me.

Saurav Prasad
B.B.A., L.L.B
Roll no: 102/BBA/LLB/14007

[1]
 Table of Contents

Sl.No Particulars Pg. No

1. Introduction 04
2. Montesquieus Theory
05
3. Effect of Montesquieus Theory 06
4. Criticism of Montesquieus Theory 07
5. Analysis of powers in practice in countries 08
6. Conclusion 12
7. Bibliography 13

[2]
 Research Methodology
Research Aim and Objective:

The research work is concerned with the contentious topic of “Separation of Powers”. The
basic objective behind the concerned research is to succeed in perceiving the fair image of the
separation of powers. The research aims at discovering the several aspects of the

Separation of powers and its practices in different countries.

Research Hypothesis

There are three categories of Governmental powers:

1. The Legislative,
2. The Executive,
3. The Judicial.

At the same time there are three organs of the Government in a state which are The
Legislative, Executive and the Judiciary.

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

Research Question

The question that emerges through the research is that to what extent is it applied and
practiced in different countries and how far the theory is practical.

Methodology

The research methodology in the concerned research clearly reflects Doctrinal, as well as
Analytical Research. The stated methods were considered for the given research; because of
its aptness towards the topic. The doctrinal method of research is preferred as compared to
non-doctrinal method of research. The paper is analytical as well as descriptive in nature.

Mode of Citation:

[3]
 The Uniform Mode of Citation has been adopted throughout the course of the paper.

Introduction

If the doctrinaire concept of the Rule of Law hampered the recognition of administrative law
in England, the doctrine of separation of powers had similar impact on the thinking of
administrative process in the United States. Davis says, “Probably the principal doctrinal
barrier to the development of administrative process has been the theory of Separation of
Powers”.

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

French philosopher John Bodin and British politician Locke brought into light the doctrine of
separation of powers in the 16th and 17th centuries. But, the first systematic and scientific
formulation of separation of powers was given by Montesquieu in his book “Espirit des lois”
(The Spirit of the Laws) published in the year 1748.

The concept of Separation of Powers is a model for the governance of democratic states. The
three branches of the government- the legislative, the executive and the judiciary are the three
distinct activities in every government through which the will of the people are expressed.
The legislature makes laws, the executive enforces them and the judiciary applies them to the
specific cases arising out of the breach of law. Thus, it has become a model for the
governance of democratic States. This model is also known as Trias Politica, which in the
non-political context means ‘separation of duties’ which, for example, includes the
segregation of accounting and custodial functions.

As mentioned there are three categories of governmental powers-

1. The legislative,
2. The Executive,
3. The Judiciary.

These are also the three organs of the Government in a state. 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

[4]
the legislature cannot exercise executive or judicial powers, the executive cannot exercise
legislative or executive powers of the government.

Montesquieus Theory

It was, however, Montesquieu who systematically developed the theory of separation of

powers in the 18th century. Montesquieu who was a champion of the dignity and liberty of
the individual raised his voice against the despotic rule of the king. He realized that it was in
the nature of authority to abuse itself. "Constant experience shows us that every man invested
with power is apt to abuse it, and to carry his authority until he is confronted with limits."
This made him believe that moderation in exercise of governmental authority is the essence
of good government. He, therefore, advocated separation of powers coupled with a device of
checks and balances.

He observed that if the legislative and executive powers are united in the same person or in
the same body of magistrates, there can be no liberty. The same monarch or senate would
enact tyrannical laws and execute them in a tyrannical manner." He argued that there would
be no liberty if judiciary was not separated from legislative and executive powers.

In his opinion, if judiciary were combined with legislative power, the life and liberty of
individuals would be vulnerable to arbitrary control. If it is combined with executive powers,
judges would be oppressive and violent. He warned that there would be end of everything if
the same person or body exercised all the three powers.

While advocating that these three powers should be exercised by different organs of the
government, he favoured these organs checking and balancing one another. He believed that
'separation of powers' and 'check and balance' among the three organs of government would
best safeguard the liberty of the individual.

The British jurist Blackstone argued in the same vain that there would be no public liberty if
the right of making and enforcing law was vested in the same man or in the same body of
men. Madison, the American statesman and constitutional expert, observed that the
accumulation of legislative, executive and judicial powers in the same hands would lead to
tyranny.

[5]
 Effect of Montesquieu’s theory

Montesquieu’s theory had a great impact on the American constitution and revolutionary
France. The French constitution of 1791 made the executive, the legislature and the judiciary
independent of one another. The framers of the American constitution took sufficient care to
ensure that powers were separated and that there was in place check and balance.

As Finer observes, the American constitution "was consciously and elaborately made an
essay in the separation of powers and is today the most important policy in the world which
operates on that principle." In the United States of America, the three organs of government
have been made largely independent of one another. The President is not accountable to the
Congress. But neither he nor his secretaries (ministers) are present in the Congress members
to influence its deliberation and decisions.

Similarly, the President and Con have little control over the functioning of the judiciary
which enjoys considerable independence. However, there is, to quote Madison, some amount
of "connecting blending" among these three organs of government. The President not only
sends legislative proposals to the Congress. He has also the power to veto a bill approved by
the Con Similarly, the international agreements signed by the President need to be ratified by
Senate.

Further, while the Congress has the power to make law, it is the Supreme Court which has the
power to determine whether this law is in conformity with the constitution. Thus, there is an
effective mechanism of 'check and balance' which makes power limited controlled and
diffused. The framers of the American constitution, by resorting the device of check and
balance, have substantially modified Montesquieu theory of separation of powers. Today,
there is hardly any democracy which has not adopted the theory of separation of powers.

[6]
Criticism of Montesquieu’s Theory
In the theory the doctrine of Separation of Powers was very sound. However, in practice
many deficits surfaced when it was sought to be applied in real life situations.

1. Historical incongruity- Historically, the theory was not correct. His exposition of this
theory is based on British constitution of the first part of the 18 th century. In reality
there was no separation of powers under the constitution of England whereas the
British constitution never adopted it

2. Divisions of functions- The assumption behind the doctrine is that three functions of
the Government, namely legislative, judiciary and the executive are divisible from
each other.

3. 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 acts as an overseer
of the executive and the administrative organ has legislative function.

4. Adherence to it not possible in welfare state- The modern state is a welfare state and it
has to solve many complex socio-politic-economic problems of a country. In this state
of affairs it is not possible to stick to this doctrine.

5. Organic Separation- Basu’s review 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
encroach upon the functions belonging to another organ.

Thus, the position is that the doctrine of separation of powers in a strict sense is
undesirable and impracticable. Thereof it is not fully accepted in any country of the
world. 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.

[7]
Analysis of Separation of Powers in Practice in Countries.

Position in U.S.A

The framers of constitution of USA believed that only by allocating the three basic functions
of the government; legislative, executive and judicial, in to three separate, coordinate
branches could power be appropriately dispersed. Thus the US Constitution allocates the
three powers in separate branches. The first three article of their constitution, known as the
distributive articles, define the structure and powers of the congress (legislative body),
executive and the judiciary.

They were aware of the Montesquieu’s idea about separation of powers and the fact that the
new constitution adopted was based on separation of powers. Yet they were equally aware
that in most states the legislature dominated the executive and judiciary. The system of
checks and balances created by the framers and ensures that Congress cannot dominate the
executive and judicial branches of the national government. Moreover, constitutional
limitations are not to be defined entirely independently of majoritarian preferences.

The Supreme Court of US has not been given power to decide political questions, so that the
Court may not interfere with the exercise of powers of the executive branch of the
government.

The President of USA interferes with the exercise of the powers by the congress through the
exercise of Veto power. He also exercises the law making with the use of his treaty making
power. The President also interferes with the functioning of the Supreme Court through the
exercise of his power to appoint judges.

In the same manner Congress interferes with the powers of the President through vote on
budget, approval of appointments by the senate and the ratification of the treaty. Congress
also interferes with the working of courts by passing procedural laws, creating special courts
and by approving the appointment of judges.

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In this turn, the judiciary interferes with the powers of the Congress and the President through
the exercise of its power of judicial review. It is correct to say the SC of USA made more
amendments to US Constitution than the Congress itself.

In brief we can say that the condition in US by the words of CORWIN, “separation of powers
are more specifically seen in USA but absolute separation of powers does not exists in USA.”

Position in UK

A separation of powers in the purest form is not and never has been a feature in functioning
of the organs of government in UK and since UK has no written constitution so there is no
written document regarding this matter. An examination of the three powers reveals that in
practice, they are exercised by persons or bodies which exercise more than one such power

There are too many examples that overlap between three functions of the government. We
can see the several examples as follows:

 Parliament exercises a legislative function and to lesser extent a judicial function is

that it is responsible for the regulation of its own internal affairs;

 Government ministers are member of the executive who exercise a legislative

function not only in Parliament but also in delegate legislation;

 In addition to exercise the judicial function, courts legislate in the sense that they
develop principles of the common law;

 Magistrates exercise administrative as well as judicial functions in that they grant

licenses.

Of all instances of overlap, however, it is the position of Lord Chancellor which is most
commonly cited in support of the argument that there is no separation of powers in UK as the
office of Lord Chancellor has existed for many centuries and occupies the unique position as
the incumbent is a member of all three branches of the government with dominating powers
in hand. The judiciary is the weakest among all organs in UK.

[9]
Therefore it can be said that there is partial separation of powers in UK. But, there has not
been a strict separation of powers in the UK constitution.”

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 doctrinaire 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).

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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 Punjab1

C.J. Mukerjee, said and held that “The 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 Narain2

C.J. Ray said and held that “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.”

From the above discussion we can conclude that though there is a definitional crisis for this
doctrine but every state interpreted the doctrine of separation of powers according to their
understanding and need of the state. There are various advantages the disadvantages present
with the doctrine but it is alive from the time of Aristotle no matter the basic structure is been
changed according to the modern governments. USA is following it in a spirit and known as
the champions of the doctrine of separation of powers along with France. There is never ever
this doctrine been followed in UK in its purest form. In India there is not any clear-cut
description of the doctrine in the constitution but we have followed it whenever is needed and
it is been clear on seeing various judgements given by the Supreme Court. In brief we can say
that the Doctrine of Separation Powers; is followed in US with a spirit, never followed in UK
purely, and India has followed it with large exceptions.

[11]
 1. AIR 1955 SC 549

2. AIR 2299 = 1976 (2) SCR 347

Conclusion
By this we can conclude that Separation of Power is one part of the fundamental basic
concepts (mainly constitutional). It was brought into light by French philosopher john Bodin
and British Politician Locke during the 16th and 17th centuries. But it was Montesquieu’s
contribution who gave it a systematic formulation.

Though there is a definitional crisis for this doctrine but every state interpreted the doctrine of
separation of powers according to their understanding and need of the state. There are various
advantages the disadvantages present with the doctrine but it is alive from the time of
Aristotle no matter the basic structure is been changed according to the modern governments.
USA is following it in a spirit and known as the champions of the doctrine of separation of
powers along with France. There is never ever this doctrine been followed in UK in its purest
form. In India there is not any clear-cut description of the doctrine in the constitution but we
have followed it whenever is needed and it is been clear on seeing various judgements given
by the Supreme Court. In brief we can say that the Doctrine of Separation Powers; is
followed in US with a spirit, never followed in UK purely, and India has followed it with
large exceptions.

It has been well said by Lord Acton:- Power corrupts and absolute Power tends to corrupt
absolutely. Conferment of power in a single body leads to absolutism. But, even after
distinguishing the functions, when an authority wields public power, then providing absolute
and sole discretion to the body in the matters regarding its sphere of influence may also cause
abuse of such power. Therefore, the doctrine of separation of powers is a theoretical concept
and is impracticable to follow it absolutely.

[12]
 Bibliography

Books:

1. Jain M.P & Jain S.N, “Principles of Administrative Law”, Wadhwa Nagpur, fith Edition,
2007
2. Kumar Narender, “Nature & Concept Of Administrative Law”, Allahabad Law Agency,
Delhi, First Edition, 2011
3. Massey I.P., “Administrative law”, Eastern Book Company, Lucknow, 2008
Basu Das Durga & Nandi A.K., “Administrative Law”, Kamal Law House, Kolkata, 2010

Websites:

 http://www.legalservicesindia.com/article/article/administrative-law-separation-of-
powers-1878-1.html

 http://www.enotes.com/topics/montesquieu/critical-essays

 http://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-
overview.aspx

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