S.N.D.T.

WOMEN’S UNIVERSITY, LAW SCHOOL, SANTACRUZ

NAME : TRUPTI SHRIKRISHNA DABKE.

CLASS : SECOND YEAR, LLM.

GROUP : BUSINESS LAW

ROLL NO : 7

SUBJECT : COMPARATIVE STUDY OF

CONSTITUTION

TOPIC : SEPERATION OF POWERS IN

INDIA AND USA

PROFESSOR : PROF. RAJESH WANKHEDE

ACADEMIC YEAR : 2021-22

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ACKNOWLEDGEMENT:-

In the accomplishment of this project successfully, many people have best owned upon me
their blessings and the heart pledged support, this time I am utilizing to thank all the people
who have been concerned with this project.

I would like to express my special thanks of gratitude to my Principal, Head of the Department,
Law School, Prof. Rajesh Wankhede and teaching staff for their guidance and constant
supervisions as well as for providing necessary information regarding the project and their
support in completing the project. It has helped me in doing a lot of Research and I came to
know about so many new things. I am really thankful to them.

Then I would like to thank my parents and friends who have helped me with their valuable
suggestions and guidance has been helpful in various phases of the completion of the project.

My thanks and appreciation also go to my classmates in developing the project and to the
people who have willingly helped me out with their abilities.

Trupti Dabke.

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 INDEX

SR. NO. PARTICULAR PAGE NO.

1 INTRODUCTION 5
2 ORIGIN 6
3 MONTESQUIEU THEORY 7
4 CONCEPT 12
5 DOCTRINE OF SEPERATION IN INDIA 15
5.1 CONSTITUTIONAL PROVISIONS IN INDIA 16
5.2 JUDICIAL DECISIONS IN INDIA 18
5.3 SEPARATION OF PERSONNEL 21
5.4 DOCTRINE OF CHECKS AND BALANCES 22
6 SEPARATION OF POWERS IN THE UNITED 24
STATES OF AMERICA
6.1 CONSTITUTIONAL PROVISIONS IN USA 25
6.2 THE PRACTICAL SCENARIO IN USA 27
6.3 JUDICIAL PRONOUNCEMENTS IN USA 28
6.4 DELEGATED LEGISLATIONS 33
6.5 DOCTRINE OF CHECKS AND BALANCES 34
7 JUDICIAL RE4VIEW IN INDIA AND USA 36
7.1 JUDICIAL RE4VIEW IN INDIA AND USA- 37
COMPARISON
8 DIFFERENCE BETWEEN SEPARATION OF 42
POWERS IN INDIA AND USA
9 SIMILARITIES BETWEEN INDIA AND USA 43
10 CRITISISM 45
11 SUGGESTION 47
12 CONCLUSION 48
13 REFERENCES 51

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 Table of cases

1. Golak Nath v. State of Punjab

2. Ram Jawaya Kapur v. State of Punjab

3. Kesavananda Bharti v. State of Kerala

4. Re Delhi Laws Act case

5. Indira Nehru Gandhi v. Raj Narain

6. Golaknath v. State of Punjab

7. Bandhuva Mukti Morcha v. Union of India

8. Mallikarjuna v. State of Andhra Pradesh

9. Supreme Court Employees’ Welfare Association v. Union of India

10. Kilbourn v. Thompson

11. Marbury v. Madison

12. Satinger v. Philippine Islands

13. Buckley v. Valeo

14. Immigration and Naturalization Service v. Jagdish Rai Chadha.

4
Introduction-
 “The Separation of Powers” is a doctrine that has exercised the minds of many
peoples. The doctrine of Separation of Powers deals with the mutual relations among
the three organs of the Government namely legislature, executive and judiciary.

 The doctrine aims for a strict demarcation of power between the three organs. It
signifies the very fact that one person or body of persons mustn’t exercise all the three
powers of government.

 For the smooth functioning of a democratic system, it is essential to avoid any conflict
among the three vital organs of the government. Liberty of an individual would be
guaranteed only when there exists a system of separation of powers among the three
organs of the government, viz. Legislative, Executive, and Judiciary.

 A further system of checks and balances is highly needed to ensure the liberty of the
individual. But in a rigid sense, it is impossible and, in a check and balance form it is
quite possible which makes filtration of the arbitrariness of the powers of others as
because if any organ gets the three powers in hand definitely it becomes absolute and
despotic which does cause the hardship of the individuals in a country and the idea of
democratic value and constitutionalism would be jeopardized.

 However, the doctrine has undergone significant changes over time with the changing
needs of society.

 In constitutional democracies like India and US, a constitution can be construed to be

a power limiting document in its ultimate analysis. It is an organic document which
seeks to uphold natural justice and keep a check on the government to ensure that the
country does not slip into a tyrannical structure.

 From the perspective of constitutionalism, the ultimate sovereignty lies with the
people and the government exercises this sovereign power on behalf of the people.
This spirit of constitutionalism can be ensured by the process of separation of power
with respect to the three primary functions of the government i.e. making the laws,
executing the laws and interpreting the laws.

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Origin-

 There is an old adage containing a lot of truth that “power corrupts and absolute power
corrupts absolutely”. To evolve effective control mechanism, man had been looking
for devices to contain the forces of tyranny and authoritarianism. “Separation of
Powers” was conceived to be one such device.

 It may not be possible to state precisely the origins of the doctrine of separation of
powers. However, if we look to the writings of the Greek philosopher Aristotle, it is
possible to discern a rudimentary separation of powers doctrine.

 Thus in his Politics, Aristotle remarked that: There are three elements in each
constitution in respect of which every serious lawgiver must look for what is
advantageous to it; if these are well arranged, the constitution is bound to be well
arranged, and the differences in constitutions are bound to correspond to the differences
between each of these three elements.

 The three are, first the deliberative, which discusses everything of common importance;
second, the officials . . .; and third, the judicial element.

 The English political theorist, John Locke (1632-1704), also envisaged a threefold
classification of powers. Writing in The Second Treatise of Government (1689), Locke
drew a distinction between three types of power: legislative, executive and federative.

 In Locke’s analysis, the legislative power was supreme and although the executive and
federative powers were distinct, the one concerned with the execution of domestic law
within the state and the other with a state’s security and external relations, he
nevertheless took the view that ‘they are always almost united’ in the hands of the same
persons.

 Absent from his classification is any mention of a separate judicial power. Moreover,
the proper exercise of these powers is achieved not through separation but on the basis
of trust i.e., that a community has entrusted political power to a government. Thus,
Locke’s analysis does not, strictly speaking, amount to the exposition of a doctrine of
the separation of powers. The doctrine saw its full expansion in the hands of Charles
Louis de Secondat, otherwise known as Baron de Montesquieu (1689-1755).

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MONTESQUIEU THEORY

 The Montesquieu separation of powers is a model that involves the separation of

political power between the executive, the legislature, and the judiciary. In this
separation of powers, each branch is limited from intervening in the area of
responsibility of any other branch.

 So, the separation of powers refers to the division of government responsibilities into
different branches to constraint any one branch from exercising the major functions of
another branch.

 The main intention is to avert the concentration of power and to provide for the
checks and balances.

 According to Montesquieu's theory, it means that nobody should be vested with all
the three powers in their hands, it means that every organ of the government should
exercise its power alone.

 Those three organs of the government are:

1. Legislature (the Legislature should only make laws but should not enforce or
administer them)
2. Executive (the executive should administer the laws which are made but
should not influence the legislature in the law-making process or stand in
judgment of the same)
3. Judiciary (judiciary should determine rights and uphold justice without
involving in the functions of law-making or administration process)

 Montesquieu expressed that "when the legislature and executive powers are united in
the same persons or the same body of magistrates there can be no liberty, because
apprehensions may arise lest the same monarch or separate should enact tyrannical
laws".

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Effects of Montesquieu’s theory:

 Since powers are distributed among these different government departments these
departments gained very deep knowledge of the matters with which they were
concerned.

 These departments enjoy only limited powers because powers are distributed among
different government departments which prevent the rise of dictatorship.

 Separation of powers is an effective check against the exploit of power and ignorance
of power which is accompanied by checks and balances.

Defects of Montesquieu’s Theory:

 This Montesquieu theory is a mistake because what it means is the separation of

function and not the separation of powers.

 Though this theory is adopted by most of the countries, it suffers from defects,
separation of powers leads to jealousy, friction, and suspicion between these three
organs.

 This theory is not fully possible because the executor has some role in rulemaking
and even the legislature also performs some judicial functions, so it is not possible to
the extent fully.

Executive

 The President is the head of the executive branch who commands the military and he
makes political appointments under the checks and balances system.

 The checks and balances system instead of concentrating it in one person or branch it
distributes power among these.

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  It curtails one branch from gaining too much power; The Executive can command the
military, can veto laws, make decrees or declarations, promulgate lawful regulations
and executive orders, can appoint judges, and has the power to grant pardons to
convicted criminals, can refuse to spend money allocated for certain purposes.

 Though the Indian Constitution allocates executive powers to the President and
Governors they are empowered with certain legislative powers and certain judicial
powers.

 Similarly, the legislature exercises certain judicial functions and the judiciary
exercises few legislative and executive functions.

Legislature

 The Legislature is primarily concerned with enactment and change of general rules of
law regarding the aspects of the conduct of its citizens and institutions.

 The Legislature of India is the Parliament which comprises two bodies namely Lok
Sabha and the Rajya Sabha.

 It enacts the laws, imposes taxes, authorizes borrowing, and it prepares the budget
and it has the sole power to declare war, can also start investigations, mainly against
the executive branch, it appoints the heads of the executive branch and sometimes
even appoints judges as well and it has the power to ratify treaties.

 The powers and functions of these legislative organs also differ from country to
country.

 As in the case of the US, the legislative branch is the American Congress which is a
bicameral legislature and it also consists of the House of Representatives and also the
Senate.

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  Indian Parliament also consists of two houses, the house of people or the Lok Sabha
which is the lower house, and the Rajya Sabha (House of states), the upper house.

 As in the case of the American Congress and that of the Indian Parliament here, the
legislative power may be limited but it is kind of unlimited in the case of the British
Parliament.

Judiciary
 The constitutional framers drafted it so meticulously that to provide an independent
and impartial Judiciary.

 The judiciary is mandated to interpret the laws but not to make them. Judiciary is not
to lay down the general norms of behaviour for the government.

 Judiciary is the third pillar of government. In a democratic state, the judiciary has a
very important role that is to safeguards individual liberties and to enforce the laws
made by the executive and the legislature.

 Judiciary can declare an act carried out by the executive or legislature as

unconstitutional and invalid keeping in mind certain constitutionally assigned
encroachments the three organs have to exercise their functions.

 In Golak Nath v. State of Punjab 1 said that “they should function within the spheres
which were allotted to them to exercise their respective powers by not overstepping
their limits and also said that no authority created under the constitution is supreme”.

 Therefore if any of the three organs try to expand its jurisdiction it would affect the
harmonious efficacy of the tripartite system of the government. No organ has to
superintend the other organ over the exercise of the powers and functions of another
unless the Constitution strictly mandates.

1
Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643
10
Advantages
1. Because of the division of work there is no overlapping in the system and hence
nobody interferes with the other's working area.

2. There is no possibility of competition between different organs as the overlapping is

removed.

3. Due to the separation of works the efficiency of the organs of the state increased
hence the time consumption decreases.

4. The degree of purity and correctness increases because the experts will deal with the
concerned matters of their parts.

Disadvantages
1. For proving one's supremacy over the other organ there might occur a possibility of
competition between organs.

2. As there is no supervisor over other organs there is the possibility of delay of the
process hence the actions of the organs can become arbitrary.

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CONCEPT-

 In any democratic set-up, the most common theoretical model for governance calls for
the division of powers between three organs namely legislature, executive and
judiciary.

 If not in practice, at least in theory, separation of powers is essential for the success of
any democracy.

 Just like the definition of the concept of ‘rule of law’, separation of powers has a simple
definition with complex implications making it a paradoxical concept.

 In simple words, it means that no single person or single body should be vested with all
the powers – legislative, executive and judicial.

 This doctrine tries to bring exclusiveness in the administration by different organs of

administration and therefore a strict demarcation of the above-mentioned powers is
what is sought to be achieved by applying this doctrine.

The basic concept behind the doctrine can be summarized in the following:

1. The same person should not be a part of more than one of the organs of the State.
2. One organ of the State should not control or interfere with the work of another.
3. One organ of the State should not exercise functions of another.

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 Over the course of several years, the doctrine has faced significant amount of criticism
as well. Many jurists and scholars have pointed out that even after differentiating the
organs on the basis of their functions and defining a sphere for each of them within
which they may perform these functions and use discretion, there is a wide scope for
abuse of power.

 In practice, there is a tendency of each of the organs to overstep the boundaries and
interfere with another organ’s sphere.

 The doctrine is criticized as far too much of a theoretical concept, impractical to follow
absolutely.

 A much important component of the doctrine of separation of powers is the concept of

checks and balances. It is often regarded as the source of the doctrine of separation of
powers.

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 It is a mechanism designed to ensure that each of the three organs of the State function
within the scope of their jurisdiction and discretion and there is no abuse of power by
either of them.

 The checks and balance system allows on kind of authority to keep a check on the
working of another authority so as to ensure the balance of power within a State.

 An example of checks and balance would be any law that is made by the legislature
such that it gets declared invalid by the Judiciary for being beyond the powers of the
organ.

 The legislature cannot overrule this decision by simply enacting another law declaring
the judgment invalid.

 Therefore, one may say that this is a check on the powers of the Legislature in order to
maintain the balance of powers. In several countries, especially India, the doctrine of
checks and balances is far more appreciated than that of separation of powers.

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Doctrine of separation in India-

 On a casual glance at the provisions of the Constitution of India, one may be inclined
to say that the doctrine of Separation of Powers is accepted in India.

 Under the Indian Constitution, Executive powers are with the President, Legislative
powers with the Parliament, and Judicial powers with the Judiciary i.e., Supreme Court,
High Courts, and Subordinate Courts.

 The Parliament has the power to subject any law to the provisions of the Constitution,
and its legislative power is not restricted. The powers and functions of the President are
contained in the Constitution itself (Articles 62-72).

 The judiciary is independent in its field, and its judicial functions are not hindered by
the legislature or the executive. Thus, many jurists believe that the doctrine of
separation of power is accepted in India.

 However, if we take a closer look at the provisions of the Indian Constitution, we will
find that India does not recognize the doctrine of the separation of powers in an absolute
and strict sense.

 There is personnel overlapping along with the functional overlapping. If any law
enacted by the legislature violates the basic structure of the Constitution, the Supreme
Court can invalidate it.

 The executive branch also influences the operation of the judiciary by appointing chief
justices and judges. Such overlapping may be observed in many other provisions of the
Constitution.

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Constitutional provisions in India-

 India, like any other democracy, enshrines the supreme power in its Constitution. It is
under this Constitution that the governing machinery is set-up, the three organs of
powers and functions of the State.

 While there are no express provisions in the Constitution that recognize the doctrine in
its absolute form, over the many years it has been read into the various provisions
therein.

 The lack of express provisions recognizing the doctrine is evidence that the Constituent
Assembly never actually wanted the doctrine to be applied absolutely.

 The Assembly had had many debates regarding the inclusion of this doctrine in a
separate section, perhaps Article 40(A), but rejected them too.

 As viewed by Dr B R Ambedkar, the Indian Constitution is ‘pro-responsibility’ and

such is preferred over the idea of stability.

 The Constitution enumerates the various powers of the three organs of the State in
several of its provisions in an implied manner and does not provide for the assumption
of powers by any organ that primarily belongs to another.

 Firstly, the Constitution vests the executive power of the Centre and the States in the
President and Governor by means of Article 53(1) and Article 154(1) respectively.
Under Article 50, the State is expected to make efforts to ensure the independence of
the judiciary.

 While there are no corresponding provisions for Legislature, there are other provisions
that define its powers and functions exclusively. Articles 122 and 212 provide validity
to all kinds of proceedings in the Parliament and the same cannot be questioned before
any Court within India.

 Similarly, judicial conduct of any of the judges of the Court cannot be discussed in the
Parliament and the State Legislature under Article 121 and 211. Further, Article 361
provides immunity from civil and criminal liability to the President and the Governor,
the bearers of the country’s executive powers.

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 Some of the instances that show functional overlapping in the Constitutional, against
the principles of the pure doctrine are discussed hereon.

 The legislature assumes law-making powers as well as judicial powers in case of breach
of its privileges and impeachment of the President.

 The executive influences the working of the judiciary by exercising the power to make
appointments to the office of the Chief Justice and other high-level judges.

 Constitutionally, the legislature may disqualify its members, impeach judges, punish
those exceeding their freedom of speech in the Parliament, etc.

 Over the years, the concept of ‘essential powers’ and ‘incidental powers’ came into
existence that pose a certain limitation on the functional overlapping by the organs.

 After a thorough reading of all of the provisions mentioned above, the authors feel that
the Constitution does not favour the adoption of the pure doctrine, instead, it only
embraces the doctrine in a broad sense, focusing on the use of checks and balances in
the system.

 The same is evident from the fact that the executive is accountable to the Legislature
and enjoys office until its (legislature’s) pleasure. Similarly, the judiciary can exercise
checks i.e. judicial review, on the legislature under Article 137 of the Constitution by
determining the constitutionality of the laws enacted by them.

 It provides for such a mechanism under the parliamentary form that makes it difficult
for following the doctrine rigidly. The three organs are conferred with exclusive and
overlapping powers.

17
Judicial Decision-

 There have been several landmark judgements that have changed the face of the
doctrine of separation of powers in India. These are discussed in this section.

 The only validity of the doctrine of separation of powers is in the sense that one organ
should not assume the essential functions of the other. This was the view of Supreme
Court in Ram Jawaya Kapur v. State of Punjab 2, it was held that the“…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.”

 Since after the Kesavananda Bharti v. State of Kerala 3, and the judicial articulation of
the doctrine of basic structure and essential features of the Constitution therein, the
separation of powers is spoken as a structural basis of the constitutional framework and
cannot be destroyed by any amendment.

 The doctrine puts less and less emphasis on organizational pattern, and seeks to effect
increasingly functional division.

 In re Delhi Laws Act case 4, Hon’ble Kania, CJ, observed that “Although in the
Constitution of India. . . . . . there is no express separation of power, it is clear that a
legislature is created by the Constitution and detailed provisions are made for making
that legislature pass laws. Is it 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 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?”

2
[AIR 1955 SC 549]
3 [AIR 1973 SC 1461]
4 [AIR 1951 SC 332]

18
  Therefore, the functions of different organs are clearly earmarked so that one organ
does not usurp the functions of another.

 In Indira Nehru Gandhi v. Raj Narain 5, Ray CJ., also observed that in the Indian
Constitution there is separation of powers in broad sense only. Beg, J., has observed
that basic structure also embodies the separation of powers doctrine and none of the
pillars of the Indian Republic can take over the other functions, even under Article 368.
Chandrachud, J., reiterated this view and held that this doctrine is useful as a means of
checks and balances in a political setup. For examples the judiciary should shy away
from the politics of the Parliament and the latter should revere the opinion of the Courts.

 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 power of state has been accepted under
the Constitution of India.

 In Golaknath v. State of Punjab 6, Subba Rao, CJ, 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.”

 In Bandhuva Mukti Morcha v. Union of India7, Pathak J., said: “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.”

 Essential functions were defined in Mallikarjuna v. State of Andhra Pradesh8, when

the Andhra Pradesh Administrative Tribunal directed the State Government “to evolve
proper and rational method of determination of seniority among the veterinary surgeons

5 [AIR 1975 SC 2299]

6
[AIR 1967 SC 1643]
7 [AIR 1984 SC 802]
8 [AIR 1990 SC 1251]

19
 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 the State as the case may be.

 The High Court or Administrative Tribunals cannot issue a mandate to the State
Government to legislate on any matter. In this way the principle of restraint prevents
any organ of the State from becoming superior to another or others in action.

 Similarly, in Supreme Court Employees’ Welfare Association v. Union of India 9, it

was held that no court can issue a direction to a legislature to enact a particular law
neither it can direct an executive authority to enact a law which it has been empowered
to do under the delegated legislative authority.

9
[AIR 1990 SC 334]
20
Separation of personnel

 As has been highlighted earlier, the doctrine of separation of power entails two
important features – there should be no overlap between the departments, and same
persons should not be a part of more than one department.

 It has already been established that in India, certain degree of overlapping in the
functioning of the departments of government is pertinent and has been duly provided
in the Constitution.

 The principle of separation of personnel is violated in case of India with regards to the
president of India who is a part of both the legislation and the executive body.

21
Doctrine of Checks and Balances

 The framers of the Indian constitution have ingeniously developed a system of checks
and balances and they had included checks and balances in the constitution.

 The system of checks and balances is very important for the proper functioning of the
three organs of the government.

 All the three organs of the state impose checks and balances on the other for
decentralization of powers.

 Every judge of the Supreme Court shall be appointed by the president as said in
Article 124(2) of the Indian Constitution.

 General people might think that there is the possibility that the president can be
manipulative and appoint judges who will favor his view but Article 124(2) of the
Indian Constitution says that the chief justice of India mandatorily is consulted while
appointing judges in the Supreme Court.

 The president has the power to remove any judge from the office but he can exercise
this power only if at least 100 members of Loksabha or 50 members of Rajyasabha
give written notice to the speaker.

 So numerous provisions in our constitution puts a bar on the power of the president,
after getting written notice an investigation is also conducted and that if the judge is
found guilty then a motion for removal is issued and it has to be adopted by each
house of parliament by a majority of the total members of the house and a majority of
at least two-thirds of members of that house present and voting once this motion is
adopted in both houses only then the president can issue an order for the removal of a
judge.

 Checks and balances act in a way that no organ of the state becomes too powerful.

22
 By looking above it is very crystal clear that the Indian Constitution has a system for
checks and balances.

23
SEPARATION OF POWERS IN THE UNITED STATES OF AMERICA

 The theory of Separation of Powers; as it was originally enunciated, aimed at a

personal separation of powers.

 This is the sense in which Montesquieu, the modern exponent of the doctrine,
asserted- "When the legislative and executive powers are united in the same person,
or in the same body or magistrates, there can be no liberty. Again, there is no liberty if
the judicial power is not separated from the legislative and executive powers. Where it
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 was the same man or the same body to exercise these
three powers”

 It is in this sense that the framers of the American Constitution imported the doctrine
in framing that Constitution. Thus, Madison said- “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.”

24
The constitutional provisions

 The framers of the American Constitution vested the legislative, executive and
judicial powers in three distinct authorities, by the express letters of the Constitution.

 Thus,

 Art. I states- “All legislative powers herein granted shall be vested in a

Congress.”

 Art. II states – “The executive power shall be vested in a President.”

 Art. III, similarly, states – “The judicial power shall be vested in one Supreme
Court...”

 The form of government, characterized as presidential, is based on the theory of

separation between the executive and the legislature.

 The executive power is vested in the President, the legislative power in the Congress
and the judicial power in a hierarchy of courts with the Supreme Court at the apex.

 It is on the basis of this theory of separation of powers that the Supreme Court of the
United States has not been given power to decide political questions, so that the Court
may not interfere with the exercise of power of the executive branch of the
government.

 The Constitution of America has also not given overriding power of judicial review to
the Supreme Court. It is a queer fact of American constitutional history that the power
of judicial review has been usurped by the Court.

 The President is both the head of the state as well as its chief executive.

 He appoints and dismisses other executive officers and thus controls the policies and
actions of government departments.

25
 The persons in charge of the various departments, designated as the Secretaries of
State, hold office at his pleasure, are responsible to him and are more like his personal
advisers.

 The President is not bound to accept the advice of a Secretary and the ultimate
decision rests with the President.

 Neither the President nor any member of the executive is a member of the Congress
and a separation is maintained between the legislative and executive organs.

 The cabinet is collectively responsible to the Parliament and holds office so long as it
enjoys the confidence of the majority there.

26
The practical scenario

 The President of the United States however, in practicality interferes with the exercise
of powers by the Congress through the exercise of his veto power. He also exercises
the law-making power in exercise 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 fact, President Roosevelt did interfere with the functions of the Court when he
threatened to pack the Court in order to get the Court's support for his New Deal
legislation.

 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 treaty.
Congress also interferes with the exercise of powers by the courts by passing
procedural laws, creating special courts and by approving the appointment of judges.

 In its 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 that the Supreme Court of the United States has made more
amendments to the American Constitution than the Congress itself.

 The impossibility of having a rigid personal separation of powers has, however, been
illustrated by the American Constitution under which the President has got legislative
powers in his right to send messages to Congress and the right to, veto, while
Congress has the judicial power of trying impeachments and the Senate participates in
the executive power of treaty making and making appointments.

 In modern practice, therefore, the theory of Separation of Powers has come to mean
an organic separation or a separation of functions, viz., that one organ of government
should not usurp or combine functions belonging to another organ.

27
Judicial pronouncements

 The American Supreme Court observed in 1881 in the case of Kilbourn v.

Thompson10 "It is essential to the successful working of this system that the persons
entrusted with power in anyone 'of these branches shall not be permitted to encroach
upon the powers confided to the others, but that each shall by the law of its creation
be limited to the exercise of the powers appropriate to its department and no other….
It may be stated …as a general rule inherent in the American Constitutional system,
that unless otherwise expressly provided or incidental to the powers conferred, the
legislature cannot exercise either executive or· judicial power; the executive cannot
exercise either legislative or judicial power; the judiciary cannot exercise either
executive or legislative power."

 An eminent authority illustrated this interaction among the different organs with
reference to modern conditions thus: "Functions have been allowed to courts, as to
which Congress itself might have legislated; matters have been withdrawn from
courts and vested in the executive; laws have been sustained which are contingent
upon executive judgment on highly complicated facts. By this means Congress has
been able to move with freedom in modern fields of· legislation, with their great
complexity and shifting facts, calling for technical knowledge and skill in
administration. Enforcement of a rigid conception of separation of powers would
make modern government impossible."

 The most glaring violation of the strict theory of separation of powers is to be found
in the administrative agencies in the American system of government today.

 Most of these administrative bodies combine in themselves the legislative function of

subordinate legislation; the executive function of investigation and prevention of
complaints against breaches of the statute which it has to administer as well as of the
rules and regulations made by itself; and the judicial function of adjudicating disputes
and complaints arising under such statute and subordinate legislation.

10
(1881) 103 U.S. 168 (190)
28
  The American Supreme Court has upheld such concentration of functions by resorting
to some quibbles:

1. It has said that the functions of subordinate legislation and administrative

adjudication are not essential1y legislative or judicial functions, but only
quasi-legislative and quasi-judicial.

2. The Court has also said that it is necessary for effectuating the policy of the
Legislature in a matter requiring administrative determination, the subject
being not fit for determination by a court of law. Even the charge of bias
against an administrative tribunal because of its having preconceived views on
the subject-matter of adjudication has been brushed aside on the same ground.

 Marbury v. Madison11 is often cited as the case that established the power of the
Courts to invalidate legislation. The case effectively settled the issue of whether
judicial review of some sort may legitimately be exercised.

 By ruling that Congress could not expand the Supreme Court’s original jurisdiction
Chief Justice Marshall invalidated a piece of legislation.

 It was stated in the case of Satinger v. Philippine Islands 12 that: “it may be stated …
as a general rule inherent in the American constitutional system, that, unless otherwise
expressly provided or incidental to the powers conferred, the legislature cannot
exercise either executive or judicial power, the executive cannot exercise either
legislative or judicial power, the judiciary cannot exercise either executive or
legislative power”.

 It needs to be emphasized that although the separation doctrine has been very much
diluted over the years because of the emergence of administrative process, the
doctrine at times manifests itself with all its force in judicial decisions.

11 (1803) 1 Cranch 137 (United States)

12
(1928) 103 U.S. 168(192)
29
  One instance of this is found in Buckley v. Valeo 13, where the Supreme Court held a
congressional act to be unconstitutional because it breached the separation doctrine in
so far as the Congress sought to claim the administrative power of making
appointments to a federal body, viz, the Federal Election Commission.

 The Supreme Court has also applied the separation doctrine in Immigration and
Naturalization Service v. Jagdish Rai Chadha. 14

 Section 244(c)(2) of the Immigration and Nationality Act authorizes either House of
Congress by resolution to invalidate the decision of the Executive Branch, pursuant to
authority delegated by Congress to the attorney general, to allow a particular
deportable alien to remain in the United States.

 The Attorney General suspended the deportation order passed on Chadha. Thereafter,
the House of Representatives passed a resolution pursuant to Section 244(c) (2)
vetoing the suspension.

 The Immigration judge consequently reopened the proceedings. Chadha moved to

terminate the proceedings on the ground that Section 224(c) (2) was unconstitutional.

 The matter ultimately reached the Supreme Court which ruled that the Congressional
veto provision in Section 244(c) (2) was unconstitutional.

 This pronouncement may have far-reaching repercussions on the fabric of

administrative process in the U.S.A., particularly, on the question of Congressional
supervision and control over the actions of the Administration.

 Congress confers broad powers on administrative bodies and then imposes veto either
by one House or both Houses over the exercise of those powers.

13 424 U.S. I (1977)

14
462 U.S. 919 (1983)
30
  It is regarded as an essential check on the expanding powers of the agencies, as they
engage in exercising authority delegated by Congress.

 Thus, even in the United States of America, the position is that one organ or
department of government should not usurp the functions, which essentially belong to
another organ.

 Thus, the formulation of legislative policy or the general principles of law is an

essential function of the Legislature and cannot be usurped by another organ, say, the
Executive.15

 It also includes the converse of this proposition, namely, that no organ can abdicate its
essential functions. In order to function efficiently, each department must exercise
some incidental powers which may be said to be strictly of a different character than
its essential functions.

 For example, the Courts must, in order to function efficiently possess the power of
making rules for maintaining discipline or regulating procedure, even though that
power may be of the nature of a legislative power.

 The power of making rules of procedure in the Courts is not regarded as of the
essence of the functions of the Legislature.

 Again, in interpreting laws and in formulating case laws, the Courts do, in fact,
perform a function analogous to law making.

 In particular, in dealing with new problems where authority is lacking, the Courts
have to create the law, even though under colour of interpretation of and deduction
from the existing law.

15Mutual Film Corporation v. Industrial Commission, (1915) 236 U.S. 230; Yakus v. U.S.
(1943) 321 U.S. 414
31
 Similarly, the ascertainment of a state of facts upon the testimony of witnesses may be
incidental to some executive action and is not confined to the judicial powers.

32
Delegated legislations

 Delegated legislations are considered by some to be faulty in its functioning as they

undermine the spirit of separation of powers.

 This is because, if other departments and their constituent bodies frame laws under
delegated legislations, it would create functional overlap between the departments and
this would be against the principle of separation of power.

 The constitution of the USA applies separation of power somewhat more strictly than
that in India. Thus, in theory the legislature cannot delegate its rule making power to
any other department or its constituents.

 However, there have been many instances where the congress has delegated its rule
making power and the rules thus framed are upheld by the apex court.

33
Doctrine of Checks and Balance

 One of the significant features of the Constitution of USA is that though the
separation of power doctrine is implicit in the political philosophy of the constitution
and the basis for its establishment, the rule of checks and balances is so embedded in
the constitution so as to make it an inseparable structure of the document.

 Thus the checks kept on one department by the others has very well been established
in the constitution.

 The power to legislate by the Congress is kept under check by the executive i.e. the
President by exercising his veto power to legislate in certain matters. The President
can also call on Congress meets at his disposal.

 The provision of judicial review, which like in India, can be implied from the text of
the constitution, also keeps a check on the Congress and in this regard the apex court
can declare any law to be unconstitutional and hence void.

 In America the president is considered to be the real head of the executive. The
president has a fixed tenure and can be removed only through a difficult process of
impeachment.

 The president is not answerable to congress and the president is not required to
consider the decisions of the secretary and in this sense is different from India.

 However, this should not be construed to mean that the president has absolutely
unlimited powers and there is absolutely no check kept on the President by the other
departments.

 The rules framed by the president can be checked for constitutionality and any rule
inconsistent with the constitution can be declared to be unenforceable by the apex
court.

34
 The Congress also keeps a check on the executive by deciding upon the payment to be
received by the personnel of the executive and framing rules for functioning of the
executive.

 This in no way implies that the Congress can frame arbitrary and unreasonable rules
with respect to the executive department and its functioning.

 This power is limited by the judiciary which can declare any rule made by the
Congress or the executive to be unconstitutional.

 Though judicial independence is kept in consideration, some checks are kept on this
department. The Congress encroaches upon the judicial decisions in accordance with
the constitution.

 The phrase “with such exceptions, and under such regulations as the Congress shall
make” in Article III Section 2 of the constitution of USA evidences for the same.

 Also the Congress has the power to make inferior courts and also specify their
jurisdiction and with this power not vested within the judiciary, a check is maintained
as per Article III Section 1.

35
Judicial Review in India and USA

 One of the most important features of the judiciary is the power of judicial review.
Judicial review is the power of the Supreme Court and the High Courts to examine the
constitutionality of the Acts of the Parliament and the state legislatures and executive
orders both of the centre and state governments.

 If it is found that any of its provisions are in violation of the provisions of the
constitution, they can be declared unconstitutional or ultra-vires of the constitution
and a law declared by the Supreme Court as unconstitutional cannot be enforced by
the government.

 According to Redform, “Judicial review is the power of a court to enquire whether a

law, executive order or other official action conflicts with written constitution and if
the court concludes that it does, declare it unconstitutional and void”

 Judicial review could be understood in terms of two different legal systems – The
Civil Law System and the Common Law System OR by theories on democracy – the
Legislative Supremacy and the Separation of Powers theory.

 For instance in United Kingdom which is a common law country, Parliamentary

Supremacy has been established and thus Judicial Review of Legislative Acts is not
permitted. On the other hand in the United States of America [the “US’],
Constitutional Supremacy prevails.

 Similarly in India the Doctrine of Separation of Powers has been held as the Basic
Structure of Constitution and Constitutional Supremacy established, permits the
review of the legislative acts as well.

 The doctrine of judicial review is one of the invaluable contributions of the U.S.A. to
the political theory. Its origin has been the result of a judicial decision and its
continuance has been possible due to some conventions.

36
  The concept of judicial review was developed by Chief Justice Marshall of the
American Supreme Court in the famous Marbury v. Madison case (1803).

Judicial Review in India and USA: Comparison

 The scope of judicial review in India is narrower than that of what exists in USA,
though the American Constitution does not explicitly mention the concept of judicial
review in any of its provisions.

 In USA the judges exercise judicial review in a very aggressive manner. If the judges
think that a particular law and the philosophy of it is not liked by the judges then, also
the judiciary may reject the law. But such a thing never happens in India. The Indian
judges reject a law only on the basis of unconstitutionality.

 Moreover, it has also been seen that in USA, if a law is rejected by the Supreme Court
then the court will make a new law in its place. Although law making is not the
responsibility of the judiciary, the judiciary makes laws.

 Such judge-made laws are very common in USA. But in India if a law is rejected by
the Supreme Court, the Court leaves the matter of making new laws to the legislative.

 This has also been described as Judicial Activism by some of the constitutional
experts.

 The American Constitution provides for ‘due process of law’ against that of
‘procedure established by law’ which is contained in the Indian Constitution.

 The difference between the two is: the ‘due process of law’ gives wide scope to the
Supreme Court to grant protection to the rights of its citizens.

 It can declare laws violative of these rights void not only on substantive grounds of
being unlawful, but also on procedural grounds of being unreasonable.

37
 Our Supreme Court, while determining the constitutionality of a law, however
examines only the substantive question i.e., whether the law is within the powers of
the authority concerned or not.

 It is not expected to go into the question of its reasonableness, suitability or policy

implications.

 The American principle of judicial supremacy is also recognised in our constitutional

system, but to a limited extent. Nor do we fully follow the British Principle of
parliamentary supremacy.

 There are many limitations on the sovereignty of the Parliament in our country, like
the written character of the Constitution, the federalism with division of powers, the
Fundamental Rights and the Judicial Review.

 In effect, what exists in India is a synthesis both that is, the American principle of
judicial supremacy and the British principle of parliamentary supremacy.

 The scope of judicial review in India is somewhat circumscribed as compared to that

in the USA.

 In India the fundamental rights are not so broadly coded as in the USA and the
limitations there on have been stated in the constitution itself and this task has not
been left to the courts.

 The constitution makers adopted this strategy as they felt that the courts might find it
difficult to work out the limitations on the fundamental rights and the same better be
laid down in the constitution itself.

 The constitution makers also felt that the judiciary should not be raised at the level of
‘Super Legislature’, whatever the justification for the methodology adopted by the
makers of the Constitution, the inevitable result of this has been to restrict the range of
judicial review in India.

38
 It must, however, be conceded that the American Supreme Court has consumed its
power to interpret the constitution liberally and has made so thorough a use of the due
process of law clause that it has become more than a mere interpreter of law.

 It has, in fact come to occupy the position of a maker of law and has been correctly
described as a ‘third chamber of the legislature, indeed, as a super legislature.’ Of
course, the US Supreme Court has assumed this position; it has not been specifically
conferred upon it by the constitution.

 The framers of the Indian constitution took good care not to embody the due process
of law clause in the constitution. On the contrary, the Indian constitution refers it to
‘procedure established by law’.

 It can invalidate laws if they violate provisions of the constitution but not on the
ground that they are bad laws.

 In other words the Indian Judiciary including the Supreme Court is not a Third
Chamber claiming the power to sit in judgement on the policy embodied in the
legislation passed by the legislature.

 The power of judicial review is exercised differently in different political systems. In

countries like the United Kingdom where the constitution is largely unwritten and
unitary in character and parliament is sovereign, the courts can declare an act of
parliament to be incompatible with the constitution, but they cannot invalidate a law
for being inconsistent with the constitution. In other words, the judiciary can only
interpret the constitution.

 In Germany, the Constitutional Court is empowered to shoot down not only ordinary
laws but also constitutional amendments for being inconsistent with the fundamental
character of the constitution.

 The situation is different in countries where a written and federal constitution limits
the powers of parliament. For instance, in the USA, the Supreme Court can strike

39
 down legislation enacted by Congress if it finds the same to be incompatible with the
constitution.

 However in India, there has been a long tussle between parliament and the Supreme
Court on the scope and limits of judicial review.

 The twenty-fourth amendment to the constitution passed in 1971 authorised

parliament to amend any provision of the constitution.

 However, the Supreme Court subsequently declared that while parliament was
competent to amend any provision of the constitution, any amendment had to conform
to the basic framework of the constitution.

 This led the government of Prime Minister Indira Gandhi to introduce the forty-
second amendment to the constitution during the proclamation of emergency, which
stripped the apex court of the power of reviewing an amendment to the constitution.

 However, the forty-third and forty-fourth amendments undid the provisions of the
forty-second amendment regarding powers of the Supreme Court to judge the validity
of constitutional amendments.

 Thus we see that the scope of Judicial Review in India is somewhat circumscribed as
compared to that in the U.S.A.

 In India the fundamental rights are not so broadly coded as in the U.S.A and
limitations there on have been stated in the constitution itself and this task has not
been left to the courts.

 The constitution makers adopted this strategy as they felt that the courts might find it
difficult to work act the limitations on the fundamental rights and the same better be
laid down in the constitution itself.

 The constitution makers also felt that the Judiciary should not be raised at the level of
'Super legislature', whatever the justification for the methods logy adopted by the

40
 constitution makers, the inevitable result of this has been to restrict the range of
judicial review in India.

 It must, however, be conceded that the American Supreme Court has consumed its
power to interpret the constitution liberally and has made so thorough a use of the due
process of law clause that it has become more than a more interpreter of law.

 It has, in fact come to occupy the position of a maker of law and has been correctly
described as a 'third chamber of the legislature, indeed, as a super legislature.

 Of course, the U.S. Supreme Court has assumed this position; it has not been
specifically conferred upon it by the constitution.

 Like the American Supreme Court, the Supreme Court of India enjoys the power of
Judicial Review' and this power has been specifically recognized by the constitution.

 However its authority in relation to 'judicial review of legislation is more restricted

than that of the American Supreme Court.

 The framers of the Indian constitution took, good care not to embody the due process
of law clause in the constitution on the contrary, the Indian constitution refers to
'procedure established by law' consequently, there has been no scope for the
development "Alexandrowicz is not conceived as an additional constitution maker but
as a body to apply express law."

 It can invalidate laws if they violate provisions of the constitution but not on the
ground that they are bad laws. In other words the Indian Judiciary including the
Supreme Court is not a Third Chamber claiming the power to sit in judgement on the
policy embodied in the legislation passed by the legislature.

41
DIFFERENCE BETWEEN SEPARATION OF POWERS IN INDIA AND
US

 The Constitution of both the countries i.e., India and United States of America have
adopted the Doctrine of Separation of power.

 The Constitution of United States of America, adopted this doctrine in its entirety
meaning thereby that the three organs of the government i.e., the executive, the
legislative and the judiciary work well within their scope and authority without
encroaching upon or interfering with another organ’s work and functions.

 Whereas as per the provisions in India, though the powers are separated but not
absolutely or in an absolute manner.

 If ever there arises a situation of misuse or power by any organ of the state or if one
organ doesn’t function well or within its ambit, then the other organs would be well
within their constitutional powers to interfere in it functions.

 There are major differences in the functioning and procedure of works of the organs
of system in both the countries.

 Judicial powers in USA are given to courts and none other than Courts can
exercise such powers but in India, judicial powers are given to the courts and
also to the tribunals (essentially quasi-judicial authority), in some matters to
the executive (pardoning power of the President and the governor) and also to
the legislature (to decide on matters of removal of executive and judicial
officers by law).

 In the U.S judge can hold office if he can perform his duties but in India, a
judge can hold office only till the age of retirement. In the U.S each and
individual states have their constitutions to regulate their governance but then
in India, Indian Constitution is followed by all individual states except Jammu
& Kashmir.

42
  The legislative powers in Unites States of America are exclusively given to the
Congress i.e., the Senate and the House of Representatives, and in India,
legislative power is given to Parliament and the State Legislature but in India,
legislative powers are also exercised by executive (ordinance making power of
the President and the Governor) and in some matters even by the Judiciary.

SIMILARITIES BETWEEN INDIA AND US:

 The Indian legislature is known as a parliament and the U.S. legislature is known as
congress. Both India and America have a bicameral legislature.

 There is a well-organized judiciary in both U.S. and India having the Supreme Court
as the apex court.

43
Criticism

 Every doctrine has its consequences and shortcomings. In theory, the doctrine of
separation of powers may be ideal, but it cannot be completely applied in the actual
functions of any organization.

 The doctrine of separation of powers clearly runs on the lines that a single person or
body should not be conferred with the responsibility of all the powers of the
government. It acts as a safeguard against tyranny or oppression that might arise as a
result of arbitrary decision making.

 The essence of this doctrine is derived from the ‘Doctrine of Non-Delegation’ which
states that one branch of the government must not delegate its power to another by
authorizing the other entity to exercise its own functions or powers.

 This doctrine reflects both explicit and implicit forms in the Constitution of
countries that impose a strict structural Separation of Powers.

 There are certain shortcomings and limitations.

1. The doctrine of the separation of powers is anti-historical because it has never

been applied in the UK. Montesquieu formulated and defended this theory and
believed that it was valid in England. The British Constitution has never been
based on the principle of separation of powers.

2. Montesquieu, who put forward this theory, tried to protect individual’s

freedom, which was impossible due to the strict demarcation of powers.

3. The government is a single unit. Its three organs can never be fully divided.
The legislative, executive and judicial functions are symbiotic and inter-
related functions and thus, cannot be fully separated.

44
 4. A smooth and stable government can only exist when there is cooperation
among the three organs. Therefore, separating these organs into sealed
compartments may lead to failure and inefficiency in the government.

5. In the current times, a government works for the welfare and prosperity of the
people. It has to solve the complicated issues of society. In such
circumstances, the precept of separation of powers appears to be impossible.

6. The imposition of this doctrine in its rigid form will now no longer cause the
effectuation of the goals of the modern government. Thus, separation of
powers is theoretically uncertain and realistically almost impossible.

7. If the doctrine of separation of powers is rigidly adopted then there will be no

flexibility in functioning of the organs of the government.

8. If the legislature can only legislate, then it cannot penalize anyone, committing
a breach of its privilege; nor can it delegate any legislative function even
though it does not know the details of the subject-matter of the legislation and
the executive authority has expertise over it; nor could the courts frame rules
of procedure to be adopted by them for the disposal of cases.

9. Separation of Powers thus can only be relative and not absolute. Modern State
is a welfare State and it has to solve complex socio-economic problems and in
this state of affairs also, it is not possible to stick to this doctrine rigidly.

 Important information obtained through this analysis is that the extensive application
of this doctrine into our political, social and legal structure is a
constantly evolutionary process and is not finite.

 The modern day states are very different from the state that used to exist few decades
ago. They have witnessed drastic changes from being minimal, non-interventionist
states to welfare states. This had lead to increase in the number of roles that the state
has to cater to.

45
 These multifarious roles include protector, arbiter, controller and provider. This
omnipresent nature has diversified the functions and has increased interdependence
within the organs.

 This has also developed a key notion of essential and incidental functions of each
organ. The primary aim of this distinction is to prevent encroachment of an organ into
the essential sphere of activity of the other.

 The judicial review power acts as a preventive measure to strengthen the foundations
of democracy and prevent the administrators and law-makers to exercise their whims
and caprices, turning it into a despotic regime.

 However, the power of judiciary to review shouldn’t be exercised arbitrarily too. An

important aspect in this regard is that the power of judicial review doesn’t establish
the judiciary as a ‘super-legislature’ or a ‘super-executive’ as stated by Sir A.K.
Aiyar.

46
Suggestion

 In strict sense the principle of separation of powers cannot be applied in any modern
Government either U.S.A. or India. But it does not mean that the principle has no
relevance now a days. Government is an organic unity.

 It cannot be divided into water tight compartments.

 History proves this fact. If there is a complete separation of powers the government
cannot run smoothly and effectively.

 Smooth running of government is possible only by co-operation and mutual

adjustment of all the three organs of the government.

 Prof. Garner has rightly said, “The doctrine is impracticable as a working principle of
Government.” It is not possible to categorize the functions of all three branches of
Government on mathematical basis. The observation of Frankfurter is notable in this
connection. According to him “Enforcement of a rigid conception of separation of
powers would make Government impossible.”

 It is my opinion that the doctrine of Montesquieu is not merely a “myth” it also carries
a truth, but in the sense that each organ of the Government should exercise its power
on the principle of “Checks and Balances” signifying the fact that none of the organs
of Government should usurp the essential functions of the other organs.

 Professor Laski has aptly remarked: “It is necessary to have a separation of functions
which need not imply a separation of personnel.”

47
Conclusion

 “Power corrupts and absolute power tends to corrupt absolutely”.- Lord Acton

 Granting power to a single body can lead to absolutism, but even after the separation
of functions, if the organs exercise public power, granting absolute and sole authority
within its sphere of influence may lead to abuse.

 Therefore, the theory of the separation of powers is a theoretical concept, and it is

almost impossible to follow it completely.

 The Constitution is the supreme law of the land and no organ should go beyond the
role assigned to that particular organ by the Constitution.

 Judiciary, Executive, and Legislature are obliged to strictly adhere to one of the most
fundamental features of the Constitution ‘Separation of Powers’.

 There must be the separation of power but there must be some reserved power with all
organs which enable them to control the arbitrary use of power.

 There are various advantages as well as disadvantages present with the doctrine. In
practice, most constitutions put in place a system of checks and balances
characterized by a partial separation of powers.

 This is essentially because the problems and working of the government in a present
day scenario are interdependent.

 Therefore, it is not possible or practical to create watertight compartments and define

the functions of the three organs with mathematical precision and say that the
business of the Legislature is to make the law, of the Executive, to execute it, and of
the Judiciary to interpret and apply the law to particular cases.

 The machinery and procedure of legislative impeachment of executive officers and

judges, executive veto over legislation and appointment of judges and judicial review

48
 of legislation and executive action are essential features of any sound constitutional
system.

 It is said that instead of applying the doctrine in a strict sense of the functional
machinery and procedures of the Government, the doctrine should be deemed to
require a system of checks and balances among the three departments of the
Government while opposing the concentration of governmental powers in any of the
three departments.

 Exercising the doctrine of separation power cannot be applied in the strict sense in
any contemporary countries like The United States, India, U.K., etc. But still, this
doctrine has relevance today.

 Our government is an organized system and it is very difficult to divide into

watertight compartments.

 The theory of separation of power in its strict sense does not apply to any modern
country, such as the United States, India, and the United Kingdom. But this theory
still applies today.

 Our government is an organized system and it is difficult to divide the powers of the
organs into sealed compartments.

 In conclusion, I can say this very clearly that the Indian constitution did not adopt the
separation of powers very rigidly, but it is crystal clear that the Indian constitution has
adopted the division of powers.

 This doctrine signifies the fact that one organ or body of organs should not exercise
all the three powers of the government.

 After considering all the aspects I have come to the conclusion that the doctrine of
separation of power is not accepted in any country till now due to many critical issues
involved in it.

49
 And on comparing the Indian Constitution and U.S.A Constitution it can be said that
on face it seems that both the Constitution has adopted the doctrine of separation of
power but after through study it can be said that the doctrine is not strictly accepted in
both the countries.

50
References-

 Bibliography-

 The Constitution of India- Dr. J. N. Pandey

 Webliography-

 Comparative study on separation of power in India and USA-

https://blog.ipleaders.in/comparative-study-separation-power-india-
usa/#Separation_of_personnel

 Separation of Powers: A Comparative Study under India, UK and USA

Constitution- https://articles.manupatra.com/article-details/Separation-of-
Powers-A-Comparative-Study-under-India-UK-and-USA-Constitution

 SEPARATION OF POWERS: A COMPARATIVE STUDY OF INDIA,

USA, UK AND FRANCE - https://nliulawreview.nliu.ac.in/wp-
content/uploads/2021/11/SEPARATION-OF-POWERS-A-COMPARATIVE-
STUDY-OF-INDIA-USA-UK-AND-FRANCE-Article-6.pdf

 Separation of Powers: A Comparative Analysis of the Doctrine India, United

States of America and England-
https://www.lawctopus.com/academike/separation-of-powers-a-comparative-
analysis-of-the-doctrine-india-united-states-of-america-and-england/

 THE DOCTRINE OF SEPARATION OF POWERS IN INDIA, USA AND

FRANCE - HTTPS://LEXFORTI.COM/LEGAL-NEWS/SEPARATION-OF-
POWERS-IN-INDIA/#CONCLUSION

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