Aligarh Muslim University

Malappuram Centre, Kerala

Administrative law

PROJECT

TOPIC:- Separation of power

Submitted to; - Submitted by;-

Prof Shahnawaz Malik Sir Amir khan

ASST. PROF (AMU-MC)

Table of content

 Introduction
 Historical Background
 Montesquieu’s theory
 Defects
 The Indian Approach
 Analysis of the doctrine
 Conclusion
 References
Introduction
Separation of powers is based on tres politica. Doctrine of separation of power
is the foundation of all the constitutions of the countries in the world, which
came into being since the “Magna Carta”. While Aristotle gave the idea of
separation of powers, it was Montesquieu who laid the doctrine systematically,
scientifically and clearly in his book “Espirite des Lois” (Spirit of the Laws) in
1748. Montesquieu thought his theory to be the political panacea for all
governments however the same is not true. With changing times, the doctrine
has been modified by various nations to cater to the political, legal and societal
needs.

Historical Background
The three-pronged model had its origin in Ancient Greece and Rome. Though
the doctrine can be traced back to Aristotle and Plato, it was Montesquieu and
Locke who gave it a base on which distinction has been made between
legislature, executive and judiciary.

Locke distinguished between what he called:

1. Discontinuous legislative power

2. Continuous executive power

3. Federative power

Discontinuous legislative power includes the general rule-making power called

into action from time to time, in a discontinuous fashion. On the other hand
continuous executive power refers to the powers are known to be executive and
judicial in modern parlance. Federative power is the power of conducting
foreign or external affairs. While Montesquieu’s classification included a
general legislative power and two kinds of executive powers, Locke’s
classification provided federative power and a civil law in the domain of
executive power, which also included judicial powers.

Both Montesquieu and Locke derived their inspiration for the doctrine from
developments in Constitutional History in 18th century England. After the long
tussle between the Parliament and the Monarchy, in 1688 the King recognised
legislative and taxation powers of the Parliament, judicial powers of the Courts
and restricted itself to the executive functions. However, England later switched
over to being a Parliamentary democracy.

The Founding Fathers of American Constitution drafted doctrine of separation

of powers into the Constitution itself in 1787. By this the US became the first
country to have implemented the doctrine.

The doctrine was on and off in the Constitution of France. While Constituent
Assembly in 1789 found the doctrine of separation of power indispensible,
Jacobins, Napolean I and Napolean III discarded the theory in favour of
concentration of powers. But the doctrine finally found a place in the French
Constitution in 1871.

In Indian Constitution there is express provision under article 50 which states

that the State should take necessary steps to separate judiciary from executive,
i.e. judiciary’s independence has to be maintained. 

Montesquieu’s theory
According to Montesquieu power is of three kinds- legislative, executive and
judicial- and that these powers should be vested in separate entities to prevent
tyranny of the powerful. There would be an end of everything where the same
man or body, whether of nobles or of the people, to exercise those three powers,
that of enacting laws, that of executing the public resolutions and of trying the
causes of individuals.

The theory of separation of powers signifies three formulations of structural

classification of powers of the sovereign:

1.      The same person shouldn’t be part of more than one organ of the
government.

2.      One organ of the government shouldn’t interfere with the working of the
other wing

3.      One organ will not exercise the functions assigned to the other organs.

Principle of Checks and Balances

The doctrine of separation of powers is known to have derived from antique

theory knows as the theory mixed government, given by Polybius. He explained
the exceptional stability of Roman Government in his theory. He advanced that
the strength of Roman administration lied in her mixed government which
prevented rapid degeneration. It counteracted instability by having a propitious
mix of principles drawn from all three primary forms of government. The
powers were distributed amongst the various government entities so that each
checked and was checked by others to maintain equipoise in the constitutional
structure. This is the principle of checks and balances.

Blackstone in “Commentaries on the Laws of England” (1765) observed that if

legislative, judicial and executive functions were given to one man, there was
end of personal liberty. Madison also proclaimed that accumulation of powers
in the same hands, whether hereditary, self-appointed or elective may justly be
pronounced the definition of tyranny.

Defects
Theoretically, the doctrine of separation of powers is very sound yet many
defects crop up once the doctrine is applied in real life, such as;

1. The doctrine is based on the assumption that the three wings of the
government are independent and distinguishable of each other. However, there
is no such water tight compartmentalising in real life.

2. Certain actions would be impossible to undertake if the doctrine is followed

to each detail. For instance, the legislature wouldn’t be able to delegate any
function even though it wouldn’t know the details of the subject matter whereas
executive would be having expertise over it. Separation of powers cannot be
absolute. Frankfurter, J has said, “Enforcement of a rigid concept of separation
of powers would make modern government impossible”

3. The modern interpretation of the doctrine of separation of powers means that

discretion must be drawn between ‘essential’ and ‘incidental’ powers and that
one wing cant usurp the essential functions of the other wing but may exercise
some incidental functions thereof.

4. The fundamental object behind Montesquieu’s doctrine was liberty and

freedom of individual, which can’t be achieved by mechanical division of
functions and powers. In England, for example, separation of powers is not
accepted even if it’s known for protection of individual’s liberty. For freedom
and liberty, there should be rule of law, independent and impartial judiciary and
external vigilance on the part of citizens.

The Indian Approach

In India the principle isn’t laid down in a formalistic way in the constitutional
scheme but it has been often referred to by way of Art 50 and judicial
pronouncements

The Supreme Court in Ram Jawaya Kapur v State of Punjab held that the Indian
Constitution hasn’t recognized the doctrine in its absolute rigidity but the
different functions of the different branches of the government have been
sufficiently differentiated and consequently it can be very well said that our
Constitution doesn’t contemplate that functions of one organ essentially belong
to another.

In Indira Nehru Gandhi v. Raj Narain, Ray C.J. observed that even in the
Indian Constitution there is separation of powers in a broad sense only. A rigid
separation of powers as under the American Constitution or under the
Australian Constitution does not apply to India. Beg, J. in Kesavananda Bharati
v. State of Kerela added that separation of powers is a part 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 scheme of the Constitution cannot
be changed even by resorting to Article 368 of the Constitution.

Later in I.C. Golak Nath v State of Punjab, Subha Rao, C.J opined that the
constitution brought different constitutional entities into existence, namely the
union, the state and the union territories. It created three major instruments of
power, namely the Legislature, the Executive and the Judiciary. There is minute
demarcation amongst the three and they are expected to exercise their respective
powers without overstepping there limits

In India there exists a functional and personnel overlapping amongst the wings
of the government. The Supreme Court has the power to strike down laws
passed by the legislature actions taken by the executive if they are in
contravention of the Constitution. The President, executive head of the country
has lawmaking powers by virtue of ordinance making power and clemency
powers, inter alia. The Legislature apart from exercising its law-making powers
exercises judicial control in cases of breach of privileges provided to the
legislators, impeachment of the President and judges. The Executive wing also
affects the functioning of the judiciary by making appointments to the office of
the Chief Justice and other Judges of the High Courts and lower judiciary.

Analysis of the doctrine

It can be followed from the above discussion that the doctrine of separation
can’t be applied in any modern government, like UK, US, India, France or
Australia in the strictest sense. But that doesn’t render the doctrine completely
irrelevant. The government is an organic entity, ever-changing, not capable of
being put into airtight compartment.

If there is a complete separation of powers, the government won’t be able to

function efficiently. There needs to be cooperation and mutual adjustment
amongst the organs of the government. To quote Prof. Garner, “the doctrine is
impracticable as a working principle of a successful government.”  It’s not
possible to categorize the functions of all three branches into a mathematical
equation. It can be observed that Montesquieu’s theory is not completely
redundant; rather it needs to be fine tuned as per a country’s socio-political and
legal needs. The feature of checks and ensures that governments don’t turn
despotic power-wielders. Prof. Laski has rightly put that it is not necessary to
have a separation of functions which need not imply a separation of personnel.
Conclusion
The doctrine of separation of powers must be interpreted in a relative form. In
the era of liberalisation, privatisation and globalisation, separation of power has
to be expounded in a wider perspective. It should not be curb to the principle of
restraint or strict classification only but a group power exercised in the spirit of
cooperation, coordination and in the interest of the welfare of the state. Though
this doctrine is unfeasible in its rigid perception nevertheless its effectiveness
lies in the prominence on those checks and balances which are necessary in
order to avert maladroit government and to prevent abuse of powers by the
different organs of the government.
References
1. 293 U. S. 388 (1935)
2. (1931) HCA 34
3. AIR 1955 SC 549
4. AIR 1975 SC 2299
5. AIR 1967 SC 1643
6. 1950 AIR 27
7. AIR 1989 SC 1899
8. Administrative Law by I. P. Massey