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Separation of power: A comparative study

By: Sk Jahangir Ali, Asst. Prof., Balurghat Law College

Introduction

The research topic deals with the concept of „the separation of powers‟.

The researcher would like to highlight the concept of separation of

powers and then gradually comes to the point separation of powers in

England and US. After that the researcher would like to articulate the

separation of powers in India.

The doctrine of “the separation of powers” as usually understood is

derived from Montesquieu whose elaboration of it was based on a study

of Locke‟s writings and an imperfect understanding of the eighteen

century English constitution.1

Montesquieu, a research scholar, conceived the principle of

separation of power. He found that concentration of power in one person

or group of persons resulted in tyranny. He therefore, felt that the

governmental power should be vested in three organs, the legislature, the

executive and the judiciary. The principle can be stated as follows:

(1) each organ should be independent of the other;

1. O. Hood Phillips. Constitutional and Administrative Law 6th edition 1978.

Sweet and Maxwell Limited; London, p. 14.

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(2) no one organ should perform functions that belong to the other.2

Lock and Montesquieu derived the contents of this doctrine from

the developments in the British constitutional history of the early 18 th

century. In England after a long war between parliament and the King,

they saw the triumph of Parliament in 1688 which gave Parliament

legislative supremacy culminating in the passage of the Bill of Rights.

This led ultimately to a recognition by the King of legislative and tax

powers of Parliament and the judicial powers of the courts. At that times,

the King exercised executive powers, Parliament exercised legislative

powers and the courts exercised judicial powers, though later on England

did not stick to this structural classification of functions and changed to

the parliamentary form of government.3

Montesquieu was concerned with the preservation of political

liberty. “Political liberty is to be found”, he says,4 only when there is no

abuse of power. But constant experience shows us that every man

invested with power is liable to abuse it, and to carry his authority as far

as it will go …. To prevent this abuse, it is necessary from the nature of

thing that one power should be a check on another…”

2. S.P. Sathe. Administrative Law 4th edition 1984. Tripathy Private Ltd.,
Bombay, pp. 13-14.
3. I.P. Massey. Administrative Law. 5th edition 2001. Eastern Book Company;
New Delhi, p. 33.
4. Supra note 1 at p. 14.

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Writing in 1748, Montesquieu said:

“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 where the same man or the some body to exercise

these three powers.”5

Though in the face of complex socio-economic problem

demanding solution is a modern welfare state, it may no longer be

possible to apply the separation theory strictly, nevertheless, it has not

become completely redundant and its chief value lies in emphasizing that

it is essential to develop adequate check and balance to prevent

administrative arbitrariness.6

5. Montesquieu De L‟Espirit des Lois, 1746 quoted in Durga Das Basu.

Administrative Law. 2nd edn. 1985; Prentice Hall, p. 23.
6. MP Jain & S.N. Jain. Principles of Administrative Law. 4th edn. 1986. Wadha
and Company, Nagpur, p. 23.

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Objective and scope of the study

The objective and scope of this research topic is very wide.

It is very much essential to a democratic country for the smooth

running of the government to protect the individual liberty and

to avoid the confrontation among the legislative, executive and

judiciary, the separation of powers in a check and balance form

is highly needed so that three organ can not trespass with the

confined area of the other. But in a rigid sense it is impossible

and in a balance and check form it is quite possible which makes

filtration of the arbitrariness of the powers of other as because if

any organ gets the three powers in hand definitely it becomes

absolute and despotic which does causes the hardship of the

individuals in a country and the idea of democratic value and

constitutionalism would be jeopardized. With the changing

needs of the society it is important that the reasonable restriction

should be upon the executive, legislative and judiciary in a

compartment form but not in watertight compartment form.

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Research Methodology

The research work has been done with the help of doctrinal

method which carries the legal structure, case analysis and legal

framework. The researcher has made a comparative study on the focus of

check and balance under the separation of powers. The researcher has

described the separation of powers of U.S.A., U.K. and India.

Identification of issues

Issue No. 1:

How far separation of powers is maintainable in accordance with

intermingle of powers among the legislative, executive and judiciary?

Issue No. 2:

Whether in a rigid sense separation of powers is possible in a

country like India?

Issue No. 3:

How far is it correct that separation of powers is a myth rather than

reality?

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Hypothesis

The hypothesis of the researcher is that the protection of the individual

liberty from the arbitrariness and the smooth running of a democratic

government need separation of powers in a check and balance form but

not in a rigid form with changing nature of the society.

Comparative study of the separation of power

(i) Separation of powers in U.S.A.

The doctrine of separation of power is implicit in the American

Constitution. It emphasizes the mutual exclusiveness of the three organ of

the government. According to it, the legislature can not exercise

executive or judicial power; the judiciary cannot exercise the other two

powers.7

The express letters to the U.S.A. constitution says about the

separation of power.

Art. I says

“All legislative powers herein granted shall be vested in a

congress.”

7. Ibid, p. 21.

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Art. II says

“The executive power shall be vested in a President.”

Art. III similarly, states

“Judicial power …… shall be vested in one Supreme Court…..”

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.8

In U.S.A. the President is not a member of the congress. Her

secretaries are appointed by her on the basis not of their party loyalty but

loyalty to herself. Her tenure does not depend upon the confidence of

congress in her and she cannot be removed except by impeachment.9

Though the executive in the U.S.A. is constitutionally not directly

accountable to the legislature, yet it will be wrong to suppose that the

legislature has absolutely no control over the Executive. The congress can

bring indirect pressure over the Executive through its power to levy taxes,

more appropriate for government exposures, enact legislature, investigate

8. Supra note 3 at pp. 34-35.

9. S.P. Sathe. Administrative Law. 7th edn. 2004. Lexis Nexis Butterworth, New
Delhi, p. 21.

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executive work and policies through its committees and the senate‟s

power to conform treaties and appointment.10

On the other hand, the President also is not completely powerless

in relation to congress. Though he cannot dissolve the congress yet he

does exercise some influence over it through his power to sent message

and veto legislation, the efficacy of his veto, however is limited as it can

be overridden by the vote of 2/3 members in each House of Congress.11

It is queer fact of American constitutional history that the power of

judicial review has been usurped by the court. However, American

constitutional developments have shown that in the face of the

complexity of modern government, strict structural classification of the

power of the government is not possible.12

(ii) Separation of power in England

Montesquieu‟s great point was that if the total power of

government is divided among autonomous organs, one will act as a check

upon the other and in the check liberty can survive.13

10. M.P. Jain. Indian Constitutional Law. 5th edn. 2003. Wadha Nagpur, New
Delhi, p. 186.
11. Ibid.
12. Supra note 3 at p. 35.
13. Jaffe and Nathanson. Administrative Law cases and materials. 1961. Little
Brown and Company, Boston, pp. 34-35.

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Since the Glorious Revolution (1968), the king did not control

Parliament, nor Parliament the king. And it was John Lock, in 1690, who

would seem to have been the first to make a point of separation, the

legislative and executive. If both powers he argued are in the same hand,

the ruler will exempt themselves from the law and come to have, “a

distinct interest from the rest of the society.‟ If the legislators are to be

subject to the laws they will “take care that they more than for the public

good.” It is true that at the time Montesquieu was writing (1748) the

cabinet system was developing.14

The law once formulated – however the legislature and executive

combined in the determination of statutory policy – the executive put into

operation. And it is perhaps, still true with the growth of the civil service,

that the legislature and the executive are two autonomous centers of

authority. Most important of all (from Montesquieu‟s point of view),

since the Act of settlement of 1700, the judges have been independent.15

The theory of separation of powers signifies three formulations of

structural classification of governmental powers:

14. Ibid.
15. Ibid.

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(i) The same person should not form part of more than one of the

three organs of the government. For example, ministers should

not sit in parliament.

(ii) One organ of the government should interfere with any other

organ of the government.

(iii) One organ of the government should not exercise the functions

as signed to any other organ.16

It may be pointed out that in none of these senses does a separation

of powers exist in England. The king though an executive head, is also an

integral part of the legislature, and all his ministers are also members of

one or other of the House of Parliament. Furthermore, the Lord

Chancellor is at the same time a member of the House of Loards, a

members of the government, and the senior most member of the

judiciary. Therefore, in England the concept of “parliamentary executive”

is clear negation of the first formulation that the same person should not

form part of more than one of the organs of the government.17

As regards the second formulation, it is clear that the House of

commons ultimately controls the executive. The judiciary is independent

but the judges of the superior courts can be removed on an address from

16. Supra note 3 at p. 34.

17. Ibid.

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the both House of Parliament. As to exercise by one organ of the function

of the other organs, no separation exist in England.18

The House of Loard constitutes, in theory, the highest court of the

country, in practice, however, by constitutional convention, judicial

functions are exercised by specially appointed Law Lords and other

Loards who have held judicial office. Again, legislative and adjudicatory

powers are being increasingly delegated to the executive. This also

distracts from any effective separation of power.19

Montesquieu and the English did not need to worry about the exact

distribution of powers. The goal was the preservation of liberty, not the

maintenance of written constitutional scheme whose reach is declared by

the judges.20

(iii) Separation of powers in India

The India Government has three wings that are the legislative, executive

and judiciary. Article 50 of Indian constitution21 enjoys the separation of

judiciary from the executive. But the Indian constitution does not confer

the doctrine of the separation of power in a water tight compartment.

18. Ibid.
19. Ibid.
20. Supra note 13 at p. 35.
21. Art. 50 separation of judiciary from executive – The State shall take steps to
separate the judiciary from the executive in the public services of the states.

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The executive power of the union and of a state is vested by our

constitution is the President and the Governor, respectively, by Arts.

53(1) and 154(1), there is no corresponding provision in the Indian

Constitution vesting the legislative and judicial powers in any particular

organ. It has been accordingly, been held that there is no rigid separation

of powers.22

In Indira Nehru Gandhi v/s Raj Narain,23 Ray, C.J. also

observed that 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.

In the case of Kesavananda Bharati v/s State of Kerala, Beg. J

added that separation of power is a part of the basic structure of the

constitution.

Regarding the separation of power Beg. J 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 function assigned

to the other. The scheme of the constitution can not be changed even by

restoring to Article 368 of the Constitution.24

22. Ram Jawya v/s State of Punjab, ARI 19955 S.C. 549.
23. AIR 1975 SC 2299.
24. 1975 Supp SCC 1, 61, para 136.

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The Indian Constitution does not strictly follow the principle of

separation of powers. The executive is a part of legislature and is

responsible to it.25

Functionally the President‟s or the Governor‟s assent is required

for all legislation.26

Beside these by the virtue of Art. 123 and 212, the President or the

Governor has the power to making ordinance when both Houses of the

legislature are not in the secession. In the case of AK Roy v/s India,27 it

is said that this is legislative power, and an ordinance has the same status

as that of the law of legislature.

By the virtue of Art 72, the President has the power to grant

pardon. The Governor also has the power to grant pardon.28 The

legislature perform judicial function while committing, for contempt,

those who defy its orders or commit breach of privilege.29

Thus the executive is dependent on the legislature and while it

performs some legislative functions such as subordinate legislation, the

25. Supra note 9 at p. 21.

26. Arts. 111, 200 and 368.
27. AIR 1982, SC 710.
28. Art. 61. Power of Governor to grant pardons, etc., and to suspend, remit or
commute sentences in certain cases. The Governor of a state shall have the
power to grant pardons, reprieves, respites or remissions of punishment or to
suspend, remit or commute the sentence of any person convicted of any
offence against any law relating to a matter to which the executive power of
the state extends.
29. Article 105(3) and 194(3).

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legislature which controls the executive and can even remove it also

performs some executive functions such as those required for maintaining

order in the House.30

Beside this, it is clear that the judges of Supreme court are

appointed by the President in consultation with the Chief Justice of India

and such of the judges of the Supreme Court and the High Courts, as he

deem necessary for the purpose.31 The judges of the Supreme Court and

the High Courts can not be removed except for misconduct or incapacity

and unless an addressed supported by two thirds of the total membership

of the House is passed in each House of Parliament and Presented to the

President.32

In the case of K. Veeraswami v/s Union of India,33 the

impeachment notion was, however, defeated in Lok Sabha as it failed to

get support of the 2/3 majority of the member present and voting. The

congress party obtained from voting. The result was that there was 176

votes in favour of the impeachment but none against.

From the above mention proposition it is very clear that there is no

clear cut separation of power in India.

30. Supra note 9.

31. Art. 124(2).
32. Art. 124(3)
33. (1991) 3 SCC 655

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The salaries payable to the judges are provided in the constitution

or can be laid down by a law made by Parliament.34 Every judge shall be

entitled to such privileges and allowances and to such rights in respect of

leave of absence and pension, as may from time to time be determined, to

such privileges, allowances and rights are specified in the second

schedule.35 Appointment of the person to be, and the posting and

promotion of, district judge in any state shall be made by the Governor of

the state in consulting with the High Court exercising jurisdiction in

relation to such state.36

In the case of AK Gopalan v/s Madras,37 it is held by the court

that the court has powers to make judicial review over the legislative as

well as the executive.

By the virtue of Art 145, the Supreme Court has the power to

makes rules and exercise administrative control over its staff.38

Thus, every organ of the government is required to perform all the

three types of functions namely, the legislative, executive judicial.

34. Arts. 125(1) and 221(2)

35. Arts. 125(2) and 221(2)
36. Art. 233(1)
37. AIR 1950 SC 27
38. Art 146

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Further, each organ in some respect is dependent on the other organ

which check and balance it.39

Recommendation and conclusion

In 1881 the U.S. Supreme Court declared in Kilborne v/s Thompson40

that all powers of government are divided into executive, legislative and

judicial, and that it is „essential to successful working of this system that

the person entrusted with power in any one of these branches shall not be

permitted to encroach upon the power confided to the others, but each

shall by the law of its creation be limited to the exercise of the powers

appropriate to its own department and no other…‟

In U.K. there is no rigid form of the separation of power but main

genesis of the separation of power was to protect the individual liberty

from the arbitrary authority and it is also maintained in U.K.

In India in the case of P. Kannadasan v/s State of T.N.,41 the

Supreme Court held that the constitution has invested the constitutional

courts with the power to invalidate laws made by Parliament and State

Legislature transgressing constitutional limitations. Where an Act made

by legislature is invalidated by the courts on the ground of legislative

incompetence, the legislature can not enact a law declaring that the

39. Supre note 9 at p. 22

40. 103 U.S. 168 (1881).
41. (1996) 5 SCC 670.

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judgement of the court shall not operate; it can not over rule or annul the

decision of the court. But this does not mean that the legislature which is

competent to enact that law cannot re-enact that law. Similarly, it is open

to a legislature to alter the basic of the judgement. The new law or the

amendment law so made can be challenged on other ground but not on

the ground that it seek to in effectuate or circumvent the decision of the

court. This is what is meant by “check and balance” inherent in a system

of government incorporating separation of powers in India.

In India in the case of Indira Nehru Gandhi v/s Raj Narain,42

Chandrachud, J also observed that the political usefulness of the doctrine

of separation of separation of power is now widely recognized. No

constitution can survive without a conscious adherence to its fine checks

and balance. 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 restrain

which has in it the percept, innate in the prudence of self-preservation,

that discretion is the better part of valour.

In the year of 2006, the Supreme Court of India has made directive

to the centre to submit for the scrutiny the parliamentary standing

42. 1975 Supp SCCI, 260 para 688.

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committees report on reservation for OBC in central educational

institution.

The researcher thinks that the function of the judiciary to interpret

the law as and when the law come into force, not before that. But here the

judiciary also interferes in the activities of the legislature before the bill

come into force.

At the present scenario, the researcher thinks that it is very much

essential to enforce the theory of checks and balances among the three

organs of the state.

The confrontation between the legislature and judiciary does not

good for the well for the democracy and it is the time which shows us

need proper checks and balances to run a good government.

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BIBLIOGRAPHY
Books
(1) Basu Durga Das. Administrative Law. 2nd edn. 1985. Prentice Hall;
Delhi.
(2) Jaffe and Nathason. Administrative Law Cases and Materials.
1961. Little Brown and Company; Boston.
(3) Jain M.P. & Jain S.N. Principles of Administrative Law. 4 th edn.
1986. Wadha and Company; Nagpur.
(4) Jain M.P. Indian Constitutional Law. 5th edn. 2003. Wadha Nagpur;
New Delhi.
(5) Massey I.P. Administrative Law. 5th edn. 2001. Eastern Book
Company; New Delhi.
(6) Phillips O. Hood. Constitutional and Administrative Law. 6 th edn.
1978. Sweet and Maxwell Limited, London
(7) State S.P. Administrative Law. 4th edn. 1984. Tripathy Private Ltd.,
Bombay.
(8) Sathe S.P. Administrative Law. 7th edn. 2004. Lexis Nexis Butter
Worth; New Delhi.

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