LAW

Comparative Constitutional Law

Constitutional Design: Separation of Powers

 Q1: E-TEXT
Module ID 5: Constitutional Design: Separation of Powers

Subject Name: Law

Paper Name: Comparative Constitutional Law

Module ID: 5

Pre-requisites: Knowledge of constitutional law, comparative law.

Objectives:
- Introduce the concept of separation of powers and its place in constitutionalism
- Comparative overview of separation of powers in various jurisdictions

Keywords: comparative constitutional law, comparative law, separation of powers,

constitutionalism
 CONSTITUTIONAL DESIGN : SEPARATION OF POWERS
ANKIT YADAV
ankit.yadav@law.nyu.edu
1. INTRODUCTION
The doctrine of Separation of Powers governs the mutual relations among the three
organs of the Government i.e., legislature, executive and judiciary. Aristotle for the
first time differentiated the functions of the Government into three categories viz.1,
1) deliberative,
2) magisterial and
3) judicial
Similarly, Locke2 gave a three fold classification of the power of the Government
namely:
1) continuous executive power (implies executive and judicial power)
2) discontinuous legislative power (implies rule making power ) and
3) federative power (signifies the power of regulating the foreign affairs)
“Continuous executive power” refers to the executive and the judicial power,
“discontinuous legislative power‟ implies the rule making power and federative
power‟ signifies the power regulating the foreign affairs.3
The term ‘Separation of power’ or ‘trias politica’ was coined by a French scholar
Montesquieu in 1947 in his book ‘Espirit des Louis’ (The spirit of the laws).
According to him, no one person or body should exercise all the three functions of the
government namely, the legislative, the executive and the judiciary. This doctrine
stipulates that limits should be laid on the functions and powers of every branch of the
government so that each branch functions within its own sphere without transgressing
into the domain of other. This doctrine seeks to prevent concentration of power by
providing checks and balances. According to Montesquieu:
“When the legislative and executive powers are united in the same person, or in the
same body or Magistrate, there can be no liberty. Again, there is no liberty if the
judicial power is not separated from the Legislative and Executive power. Where it

1
I.P. Massey, Administrative Law, (7th ed., Eastern Book Company, 2008) at 38.
2
Ibid.
3
Ibid.
joined with the legislative power, the life and liberty of the subject would be exposed
to arbitrary control, for the judge would then be the legislator. Where it joined with
the executive power, the judge might behave with violence and oppression. There
would be an end of everything were the same man or the same body to exercise these
three powers.”4
Thus the theory of separation of power can be explained in the following way5:
 That the same person should not form part of more than one of the three
organs of the government;
 That one organ of the government should not interfere with any other organ
of the government; and
 That one organ of the government should not exercise the functions assigned
to any other organ.

2. DOCTRINE OF SEPARATION OF POWER IN DIFFERENT

COUNTRIES

2.1 United Kingdom

This doctrine was derived by Lock and Montesquieu from the 18th century British
constitutional history. In England, legislative supremacy of the Parliament came after
a long war between the Parliament and the King. Ultimately, legislative and tax
powers of the Parliament and the judicial powers of the court were recognised. Thus,
while the legislative and judicial power resided with the Parliament and the judiciary
respectively, the executive power resided with the King.6 However, later on,
Parliamentary form of government was adopted in England. Consequently, England
does not conform strictly to the doctrine of separation of power as there are visible
overlaps between the legislature, executive and the judiciary.
In UK, the Crown and the Government, including the Prime Minister and Cabinet
ministers forms the executive. The executive formulates and implements policy. The
legislature i.e. the Parliament comprises of the Crown, the House of Commons and

4
Charles de Secondat, Baron de Montesquieu , The Spirit Of Laws [Excerpts] (1748) available at
http://www.ucs.louisiana.edu/~ras2777/conlaw/montesq.html, last accessed on October 3, 2014.
5
A. John, Constitutional and Administrative Law,( 8th ed., Palgrave Macmillan, 2011) at 43.
6
See supra n. 1 at 38.
the House of Lords. The judges in the courts of law form the judiciary. The Prime
Minister and the Cabinet are part of the executive as well as the legislature as they are
members of the House of Commons. Though there are certain overlaps, efforts are
made to provide appropriate checks and balances.
Abolition of the office of Lord Chancellor indicates that this doctrine does hold
relevance in United Kingdom. Earlier in UK, the post of Lord Chancellor combined in
it powers of all three organs of the State and was, thus, an exception to the doctrine of
separation of power. He was the head of the judiciary of England and Wales, a
member of the Cabinet, and the speaker of the House of Lords. However this post was
abolished by the Constitutional Reforms Act, 2005. This Act removed the judicial
functions of the Lord Chancellor. His judicial functions are now performed by Lord
Chief Justice. Also, the Lord Chancellor no longer acts as the Speaker of the House of
Lords as the House elects its own speaker. Thus, the Act created a more formal
separation of powers.7
While there is no strict compartmentalisation of the powers and functions of
executive, legislature and the judiciary in UK, efforts are made to prevent
concentration of powers of all three wings in one person or office. This signifies that
this doctrine does hold relevance in there.

2.2 United States

United States Constitution closely follows the concept of separation of powers. The
legislative, executive and the judicial powers reside in separate organs in the
American Constitution.
Section 1 of Article 1 declares: “All legislative powers herein granted shall be vested
in a Congress of the United State”.
Section 1 of Article II says: “The executive power shall be vested in a President of the
United States of America.”
Section 1 of Article III reads: “The judicial power of the United States, shall be vested
in one Supreme Court and in such inferior courts as the Congress may from time to
time ordain and establish…”

7
R.Benwell and O. Gay, ‘The Separation of Powers’, available at www.parliament.uk/briefing-
papers/sn06053.pdf , last accessed on October 5, 2014.
Despite such segregation of function by the Constitution, United States does not
adhere to the concept of separation of powers completely. The complexity of the
modern day government has shown that strict structural classifications are not
possible.8 For example,
1) Legislative power of the President (Executive) - the (President) possesses the
power to veto bills passed by the Congress. Such bills cannot become law
unless they are subsequently passed again with a two thirds majority by each
House. The President also exercises legislative power in making of treaties.
2) Judicial power of the President (Executive) - The President also appoints the
judges of the Supreme Court.
3) Power of the legislature over the executive- The Congress interferes with the
power of the President by casting vote on the budget. The Budget and
Accounting Act, 1921 established the principle and practice of the executive
budget, under which the President is responsible for formulating and
presenting to Congress a complete and detailed expenditure plan for the
following fiscal year.9
4) Judicial power of the Congress- Congress approves the appointment of the
judges and can also remove judges by impeachment process.
5) The judiciary through its power of judicial review interferes with the power of
the Congress and the President.
In both United Kingdom and United States, the doctrine as propounded by
Montesquieu is not strictly adhered to even though difference in the constitutional set
up of both the countries. While the former is Parliamentary democracy, the later
follows a Presidential system. Given the difference in the government set up and
existence of explicit constitutional provision, it may seem that this doctrine operates
in its strict form in United States However, this is not the case. This is because the
modern day government is too complex to allow strict segregation of powers and
functions. Thus despite the difference in the government setup of the two countries,
we find that there is considerable overlapping of functions in both.

8
Supra n.1 at 40.
9
T.B. Singh, ‘Principle Of Separation Of Powers And Concentration Of Authority’, available at
http://www.ijtr.nic.in/articles/art35.pdf ., last accessed on October 10, 2014.
 2.3 France
Montesquieu’s doctrine of separation of powers was incorporated in Article 16 of the
French Declaration of Rights of the Man. It stipulated that there could be no
constitutional or democratic government without separation of powerss.10
Under the influence of this doctrine, the ordinary courts were prevented from
reviewing the validity of the legislative enactments and administrative actions.
Separate administrative courts were formed for adjudicating disputes between the
citizens and the administration. However, there is no strict adherence to this doctrine
in France.

3. DOCTRINE OF SEPARATION OF POWERS IN INDIA

Article 50 of the Constitution provides that ‘the State should take steps to separate the
judiciary from the executive in the public services of the State’. However, this
Directive Principle does not embody any formalistic or dogmatic division of
powers.11 There is no formal separation of powers in the Indian Constitution, rather a
‘parallelism of power, with hierarchies between the three organs in particular fields’12
3.1 Constituent Assembly Debate on adoption of separation of powers
In the Constituent Assembly Debates suggestion was made by Prof. K.T. Shah a
member of Constituent Assembly to insert by amendment a new Article 40-A
concerned with doctrine of separation of powers. This amendment was supported by
Kazi Syed Karimuddin. This suggested Article read as follows:
“There shall be complete separation of powers as between the principal organs
of the State, viz; the legislative, the executive, and the judicial.”13
K.T. Shah remarked :
“If you maintain the complete independence of all the three, you will secure a
measure of independence between the Judiciary, for example, and the
Executive, or between the Judiciary and the Legislature. This, in my view, is of
the highest importance in maintaining the liberty of the subject, the Civil
Liberties and the rule of law. If there was contract between the Judiciary and
the Legislature, for instance, if it was possible to interchange between the

10
Article 16- “ Any society in which no provision is made for guaranteeing rights or for the separation
of powers, has no Constitution.”- Declaration of Human and Civic Rights of 26 August 1769, available
at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/cst2.pdf., last
accessesd on October 10, 2014.
11
See supra n.1 at 41.
12
M.P Jain, Indian Constitutional Law( 6th ed., Lexis Nexis Butterworths, 2010) at 195.
13
Constituent Assembly Debates, Book No.2, Vol.. VII at 959.
 highest judicial officers and the membership of the legislature, then, I am
afraid, the interpretation of the law will be guided much more by Party
influence than by the intrinsic merits of each case. The Legislature in a
democratic assembly is bound to be influenced by Party reasons rather than by
reasons of principle”14
However, Shri K. Hanumanthiya, a member of Constituent Assembly dissented with
the proposal of Prof. K.T. Shah as he considered this article to sponsor Presidential
form of Government whereas the Drafting Committee had approved Parliamentary
system of Government to be suitable to this country. He remarked that:
“Instead of having a conflicting trinity it is better to have a harmonious
governmental structure. If we completely separate the executive, judiciary and
the legislature conflicts are bound to arise between these three departments of
Government. In any country or in any government, conflicts are suicidal to the
peace and progress of the country..... Therefore in a governmental structure it is
necessary to have what is called “harmony” and not this three-fold conflict.”15
Dr. B.R. Ambedkar, also disagreed with the suggestion forwarded by K.T. Shah. He
opined that:
“There is no dispute whatsoever that the executive should be separated from the
judiciary. With regard to the separation of the executive from the legislature, it
is true that such a separation does exist in the Constitution of United States; but
many Americans themselves were quite dissatisfied with the rigid separation
embodied in the American Constitution between the executive and legislature…
There is not slightest doubt in my mind and in the minds of many students of
Political Science, that the work of Parliament is so complicated, so vast that
unless and until the members of the Legislature receive direct guidance and
initiative from the members of the Executive, sitting in Parliament, it would be
very difficult for Members of Parliament to carry on the work of the Legislature.
I personally therefore, do not think that there is any very great loss that is likely
to occur if we do not adopt the American method of separating the Executive
from the Legislature.”16
Consequently, the motion a new Article 40-A dealing with the separation of powers
was dismissed by the Constituent Assembly. This discussion signifies that the framers
of the Constitution never wanted to adopt the doctrine of separation of powers in its
rigid form. They foresaw that the functioning of government was a complex process
and such a rigorous adoption would impediment the smooth functioning of the
government.

3.2 Present position

14
Constituent assemble debates(proceedings) Vol. VII at para 20.
15
Constituent Assembly Debates Book No.2, Vol. VII at. 962.
16
Constituent Assembly Debates Book No.2, Vol. VII at 967, 968.
Thus, there are significant overlaps between the powers and functions of the three
wings of the government in India. However these overlaps serve as a check on the
unwarranted use of power by one branch of the government.
The overlap between the three branches of the government can be illustrated by the
following examples:
1) The executive, i.e., the Prime Minister and the Council of Ministers is part of
the legislature.
2) President’s/ Governor’s assent is required to transform a legislative bill into an
Act.
3) The President/ Governor has the power to promulgate ordinances when both
the Houses are not in session. The ordinances have the status of law of the
land.
4) The Parliament has the power to punish for contempt those who commit
breach of privilege or defy its order. Thus the Parliament (legislature) has been
vested with judicial power in this regard.
5) Judges can be removed by the President on an address by both the houses of
Parliament presented in the same session. The address must be supported by a
majority of the total membership in each house, and also by majority of not
less than two thirds of the members of each House present and voting.
6) The judiciary through its power of judicial review can void any Act passed by
the legislature if it violates the Constitution. Also, the judiciary can void any
executive action if it is found violative of the Constitution or any other law
passed by the legislature.
An analysis of the provisions of the constitution indicates that every organ is vested
with all three functions, legislative, executive and judiciary and is dependent on
others organs in some respect which check and balance it. 17

3.3 Judicial opinion on doctrine of separation of powers in India

The Supreme Court in Ram Jawaya v. State of Punjab18 opined that:

17
S.P Sathe, Administrative Law (7th edition, Lexis Nexis Butterworths, 2010) at 22.
18
Ram Jawaya v. State of Punjab, (1955) 2 SCR 225.
 “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 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.”19

Similarly, in Indira Gandhi v. Raj Narain20, this doctrine was upheld as a basic
structure of the constitution. In this case Prime Minister Indira Gandhi’s election to
Lok Sabha had been held invalid on the grounds that she violated section 8A of the
Representation of the People Act, 1951. The appeal against this decision was admitted
by the Supreme Court and the High court decision was stayed. While the appeal was
pending, Constitution (Thirty Ninth Amendment) Act, 1975 was passed which
stipulated that no election to either House of the Parliament of a person who held the
office of the Prime Minister at the time of such election shall be called into question,
except before such an authority or body and in such a manner as might be provided
for by or under any law made by the Parliament. It also provided that notwithstanding
any order made by any court before the commencement of the thirty-ninth
constitutional amendment, declaring such election to be void, such election shall
continue to be valid in all respects and any such order or any finding on which such
order was based shall be and shall be deemed always to have been void and of no
effect.21 The Apex Court held that the above provisions violated the basic structure of
the constitution. It opined that ‘Separation of powers is a basic feature of the
Constitution and therefore every dispute involving the adjudication of legal rights
must be left to the decision of the Judiciary’.22
Similarly, in In re Delhi Law Act case23 the Hon’ble Chief Justice of India, Kania J.
observed:
“Although in the Constitution of India there is no express separation of powers,
it is clear that a legislature is created by the Constitution and detailed
provisions are made for making that legislature pass laws. It is then too much to
say that under the Constitution the duty to make laws, the duty to exercise its
own wisdom, judgment and patriotism in making law is primarily cast on the

19
Ibid at para 12.
20
Indira Gandhi v. Raj Narain , AIR 1975 SC 2299.
21
S.4(4), Constitution (Thirty Ninth Amendmenet) Act 1975.
22
Supra n. 20 at para 652.
23
In re Delhi Laws Act 1912, AIR 1951 SC 332.
 legislature? Does it not imply that unless it can be gathered from other
provisions of the Constitution, other bodies executive or judicial are not
intended to discharge legislative functions?”24
The doctrine of separation of powers has strong footing in the constitutional
jurisprudence in India.25 The Apex court in State of West Bengal & Ors. v. Committee
for protection of Democratic Rights, West Bengal & Ors.,26 remarked that;
“It is trite that in the constitutional scheme adopted in India, besides supremacy
of the constitution, the separation of powers between the legislature, the
executive and the judiciary constitutes the basic features of the Constitution.”27
However the Indian concept of separation of powers comes with requisite checks and
balances. India has not adopted this doctrine in its rigidity but it has indeed adopted
the essence of this doctrine. The concept of checks and balances ensures transparency
in the government. With regard to this concept the Supreme Court has opined that:
“Where an Act made by a State Legislature is invalidated by the courts on the
ground that the State Legislature was not competent to enact it, the State
Legislature cannot enact a law declaring that the judgment of the court shall
not operate; it cannot overrule or annul the decision of the court. But this does
not mean that the other legislature which is competent to enact that law cannot
enact that law. It can. Similarly, it is open to a legislature to alter the basis of
the judgment … while adhering to the constitutional limitations; in such a case,
the decision of the court becomes ineffective in the sense that the basis upon
which it is rendered, is changed. The new law or the amended law so made can
be challenged on other grounds but not on the ground that it seeks to
ineffectuate or circumvent the decision of the court. This is what is meant by
“checks and balances” inherent in a system of government incorporating the
concept of separation of powers.”28
Chandrachud J. elaborated the concept further in Indira Nehru Gandhi v. Raj Narain
while observing that :
“No Constitution can survive without a conscious adherence to its fine checks
and balances. Just as Courts ought not to enter into problems entwined in the
"political thicket", 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, inmate in the prudence of self-preservation (even if history has not
repeatedly brought it home), that discretion is the better part of valour.”29

24
Ibid at p.346.
25
See Dr. Justice B.S. Chauhan, ‘The Legislative Aspect of the Judiciary: Judicial Activism and
Judicial Restraint’, available at
http://www.hcmadras.tn.nic.in/jacademy/Article/BS%20Chauhan%20Speech-%20Lucknow.pdf, last
accessed on October 10, 2014.
26
State of West Bengal & Ors. v.Committee for protection of Democratic Rights, West Bengal & Ors.,
AIR 2010 SC 1476.
27
Ibid at para 39.
28
P. Kannadasan & Ors. v. State of Tamil Nadu, (1996) 5 SCC 670 at 685.
29
Supra n.20 at para 688.
 4. CONCLUSION
Though this doctrine cannot be applied in the strict sense to any modern government,
it still serves as a guiding principle for the three wings of the government. The powers
and functions of the executive, legislature and the judiciary cannot be restricted by
water tight compartments. However, this doctrine precludes unwarranted incursions
by one organ of the government into the domain of another.
While strict application of this doctrine might lead to inefficient governance, a
modified application of the same with appropriate checks and balances ensures that
no organ is given unbridled power and each functions cooperatively with the other. In
today’s context, this doctrine can be interpreted as principle of community of powers
exercised in the spirit of cooperation by various organs of the state in the best interest
of the people.30

30
I.P. Massey, Administrative Law, (7th ed., Eastern Book Company, 2008) at 45.