RAJIV GANDHI NATIONAL

UNIVERSITY OF LAW

ADMINISTRATIVE LA
PROJEC
DOCTRINE OF SEPARATION OF POWERS: COMPARATIVE
STUDY

SUBTOPIC: Comparative analysis of the doctrine between India

and Bangladesh

SUBMITTED TO : SUBMITTED BY:

DR. JASWINDER KAU ROLL NO. 1902
(ASSISTANT PROFESSOR GROUP:
OF LAW) 1
6

 ACKNOWLEDGEMENT

On completion of this project, it is my privilege to express my heartfelt

gratitude and indebtedness towards my teachers for their valuable
suggestion and constructive criticism. Their precious guidance and
unrelenting support kept me on the right path throughout the whole project
so I am immensely thankful to my teacher in charge and project
coordinators for giving me this relevant and knowledgeable topic.

I wish to express my sincere gratitude to my teacher DR. Jaswinder Kaur

for her guidance and encouragement in carrying out this project work.

 RAJIV GANDHI NATIONAL

UNIVERSITY OF LAW, PUNJAB

SUPERVISOR’S CERTIFICATE

Dr. Jaswinder Kaur

Rajiv Gandhi University of law, Punjab

This is to certify that the Dissertation titled: Lok Adalat as an effective

ADR mechanism in Matrimonial Disputes, submitted to Rajiv Gandhi
National University of Law, Patiala, in partial fulfilment of the
requirement of the B.A.LLB (Hons.) Course is an original and bona fide
research work carried out by Mr. Ishaan Sood under my supervision and
guidance. No part of this project has been submitted to any University for
the award of any Degree or Diploma or whatsoever.

 TABLE OF CONTENTS

INTRODUCTIO 5

HISTORICAL DEVELOPMENT OF THE DOCTRINE OF SEPARATION OF

POWER 7

SEPARATION OF POWERS UNDER THE INDIAN CONSTITUTIONAL SCHEM

10

SEPARATION OF POWERS IN BANGLADES 14

CONCLUSIO 16

BIBLIOGRAPH 17

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 INTRODUCTIO

The doctrine of Separation of Powers deals with the mutual relations among the three organs
of the Government namely legislature, executive and judiciary. The origin of this principle
goes back to the period of Plato and Aristotle. It was Aristotle who for the first time classified
the functions of the Government into three categories viz., deliberative, magisterial and
judicial Locks categorised the powers of the Government into three parts namely: continuous
executive power, discontinuous legislative power and federative power. 1

“Continuous executive power” implies the executive and the judicial power, discontinuous
legislative power‟ implies the rule making power, federative power‟ signifies the power
regulating the foreign affairs.2

The French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) published in
1748, for the first time enunciated the principle of separation of powers. That‟s why he is
known as modern exponent of this theory. Montesquieu‟s doctrine, in essence, signifies the
fact that one person or body of persons should not exercise all the three powers of the
Government viz. legislative, executive and judiciary.3 In other words each organ should restrict
itself to its own sphere and restrain from transgressing the province of the other.

RESEARCH METHODOLOGY
There is no specific method of research which has been undertaken for this project. A blend of
different research methods have been employed, the first one is the usage of qualitative
research on the basis of the method of collection of data. The focus was on the non-
datasources. Also on the basis of time period this project can be classified as a one time
research.

1Rossman, George. “The Spirit of Laws: The Doctrine of Separation of Powers.” American Bar Association Journal,
vol. 35, no. 2, American Bar Association, 1949, pp. 93–96, http://www.jstor.org/stable/25716744.
2 Ibid.
3 Ibid.

 RESEARCH QUESTIONS

I
What is the Doctrine of Separation of powers?
II
What characterises the Historical Development of the doctrine of separation of Powers?
III
How does the Doctrine of Separation of Powers Manifest itself in the Indian Constitutional
Scheme?
IV
What has been the significance of the doctrine of Separation of powers in Bangladesh?
V
What are the similarities or contrasts in which the doctrine has manifested itself in India and
Bangladesh?

RESEARCH OBJECTIVES
The objectives of this research are primarily to highlight the significance and connotations of
the doctrine of separation of powers in the Indian context. Furthermore, to elucidate the the
similarities and contracts in which the doctrine has manifested itself in the Indian legal system
and the Bangladeshi Legal System.

 HISTORICAL DEVELOPMENT OF THE

DOCTRINE OF SEPARATION OF POWER

The separation of powers, also known as trias politica, was first developed in ancient Greece
and was widely used by the Roman Republic. The concept was the result of centuries of
political and philosophical development.4 This model divides the state into branches or estates
with independent powers and responsibilities. The usual consists of division into an executive,
a legislature, and a judiciary. After the fall of the Roman Empire, until the 18th century, the
dominant form of governmental structure in Europe was concentrated power resting on the
hereditary ruler. The single exception to this was the development of Parliament in England in
the 17th century.

The principle underlying the doctrine of 'separation of powers' is widely accepted, but the
extent of separation varies from country to country. Classification of powers as legislative,
executive and judicial is not free from difficulty at times. In Constitutions which provide for
parliamentary form of government strict separation of the Legislature and the Executive is not
possible as the Cabinet consist of persons who are Members of Parliament. "A Cabinet" in the
words of Walter Bagehot, "is a combining committee—a hyphen which joins, a buckle which
fastens, the legislative part of the State to the executive part of the State. In its origin it
belongs to the one, in its functions it belongs to the other."5 Such fusion of the legislative and
the executive functions is considered necessary for the harmonious working of parliamentary
democracy

SEPARATION OF POWERS IN ANCIENT INDIA

The roots of separation of power are also found in Vedas. Narad Smiriti has the very principle
of separation of power. 6 In those days, Deewan was head of the Executive
wing. Senapati maintained law and order and Kaji was the judicial head. However, their

4Rao, P. Parameshwar. “SEPARATION OF POWERS IN A DEMOCRACY: THE INDIAN EXPERIENCE.” Peace

Research, vol. 37, no. 1, Canadian Mennonite University, 2005, pp. 113–22, http://www.jstor.org/stable/24469690.
5 The English Constitution (Fontana/Collins, Thirteenth Impression, August 1977), p. 68
6 Supra note 4

 positions were all subordinate to a king, who was the supreme authority. King was the one who
made laws and can be compared to the present form of legislature. Hence, in ancient times
also, one can find a separation of powers and functions.

MEANING OF SEPARATION OF POWERS

The basic premise behind the doctrine of separation of powers is that when power gets
concentrated in a single person or a group of persons, they can be dangerous to the citizens.
Hence, the principle of separation of powers aims at removing the concentrated power and
preventing abuse. Generally, all the powers of the government can be categorized into three
classes:

• Enactment of making laws

• Interpretation of that enacted laws
• Enforcement of the enacted law7

These are simply put as Legislative, Executive and Judicial powers of the government. The
executive makes policy decisions and implement laws. Legislature issue enactments and the
judiciary adjudicate disputes. The doctrine of separation of powers implies independent
functioning of each pillars of the democracy.

Hence, the principle of separation of powers deals with the mutual relations among the three
organs of the government – legislature, executive, and judiciary.8 It states that the three main
categories of government functions – Legislative, Executive and Judicial and three powers in a
democracy must be maintained separately and exercised by separate organs of the government.
It also tries to bring exclusiveness in the functioning of the three organs of the government and
strict demarcation of power among them. It simply implies that three organs of the government
to be independent of the other and none should perform functions belonging to the other.

7Ervin, Sam J. “Separation of Powers: Judicial Independence.” Law and Contemporary Problems, vol. 35, no. 1, Duke
University School of Law, 1970, pp. 108–27, https://doi.org/10.2307/1191032.
8 Supra note 1

 According to Wade and Philips, the concept of Separation of power means three different
things:
• Same person should not form part of more than one of the three organs of the
government. Example: Ministers should not be made to sit in the Parliament.
• One organ of the government should not control or interfere with the exercise of its
functions by another organ. Example: judiciary should be independent or the Ministers
should not be made responsible to the Parliament.
• One organ of the government should not exercise the functions of another. Example:
Ministers not to have legislative powers.9

9 I.P. Massey : Administrative Law, Edn. 1970, p. 35

 SEPARATION OF POWERS UNDER THE

INDIAN CONSTITUTIONAL SCHEME

“The Separation of Powers” is a doctrine that has exercised the minds of many peoples.
Ancient philosophers, political theories and political scientists, framers of constitutions, judges
and academic writers have all had cause to consider the doctrine through the centuries.10 This
mainly signifies the division of different powers in between various organs of the state;
executive, legislature and judiciary. The theory of separation of powers signifies mainly three
formulations of Governmental powers;

i. The same person should not form part of more than one of the three organs of the state.
ii. One organ should not interfere with any other organ of the state.
iii. One organ should not exercise the functions assigned to any other organ.11

There is no exact definition of this doctrine because everybody is interpreting it according to

his own views and it is also not possible to find the exact origin but we can see for the first
time Aristotle was saying about the doctrine of separation of powers in his book Politics as
follows:

“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, 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 discuss everything of common importance; second
the officials…and third the judicial element.” 12

In 1689 the English political theorist John Locke also envisaged a three fold classification of
powers in the book The Second Treatise of Government as:

10 I.P. Massey : Administrative Law, Edn. 1970

11 Ibid.
12 Supra note 4

10

 “May be too great a temptation to human frailty…for the same person to have the power of
making laws, to have also in there hands the power to execute them, where by they may exempt
themselves from obedience to laws they make, and suit the law both in its making and
execution, to make their own private advantage.”

There are no separate provisions regarding the Doctrine of Separation of Powers that has been
given in our Constitution. But there are some directive principles are given in the constitution
as in Part-IV and Part-V and Article 50 of our constitution which provide for separation of the
judiciary from executive in the following words:

“the state shall take steps to separate judiciary from the executive in the public services of the
state,”

Other than this this there is no formal and dogmatic division of powers. In India, there is
prevalence of not only functional overlapping, but also, personal overlapping. Every branch
has a specific function attributed to only that branch.“The Legislative Branch
exercises congressional power, the Executive Branch exercises executive power, and the
Judicial Branch exercises judicial review.”13

THE JUDICIARY
Under Article-142 and Article-145 of our constitution, the SC has the power to declare void the
laws passed by legislature and actions taken by the executive if they violate any provision of
the constitution or the law passed by the legislature in case of executive actions.

Even the power to amend the constitution by Parliament is subject to the scrutiny of the Court.
The Court can declare any amendment void if it changes the basic structure of the
constitution.14 In many cases courts have issued directions for the Parliament to make policies.

13 “Separation of Powers.” Legal Information Institute , Cornell Law School , www.law.cornell.edu/wex/

separation_of_powers.
14 Keshavananda Bharti v. State of Kerla, (1973) 4 SCC 225, AIR 1973 SC 1461.

11

THE EXECUTIVE
The President of India who is the supreme executive authority in India exercise law making
power in the form of ordinance making power under Article-123, also the Judicial powers
under Article-103(1) and Article-217(3), he has the consulting power to the SC of India under
Article-143 and also the pardoning power in Article-72 of the Constitution. The executive also
affects the functioning of the judiciary by making appointments to the office of Chief Justice
of India and other judges.

THE LEGISLATURE
The Council of Minister is selected from the legislature and this Council is responsible for the
legislature. The legislature exercising judicial powers in cases of breach of its privileges,
impeachment of the President under Article-61 and removal of judges. The legislative body has
the punitive powers under Article-105(3). In words of Gledhill:

“constitution of India has not ceremoniously wedded with Doctrine of Separation of Powers,
however, it is whenever possible followed the doctrine of separation of powers.”15

JUDICIAL RESPONSE
There are many cases in which SC has given judgements on basis of the facts related to those
cases but we can understand the position of this doctrine in India by seeing some landmark
opinions given by the Supreme Court in following cases:

In Ram Jawaya v. State of Punjab16 C.J. Mukerjee, said and held:

“Indian Constitution has not indeed recognised the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the government have
been sufficiently differentiated and consequently it can be very well said that our constitution

15 Supra note n-3

16 AIR 1955 SC 549

12

does not contemplate assumption by one organ or part of the State of Functions that
essentially belong to another.”
In Indira Nehru Gandhi v. Raj Narain17 C.J. Ray said and held:

“In the Indian constitution there is separation of powers in a broad sense only. A rigid
separation of powers as under the US constitution or as under Australian constitution does not
apply to India. Separation of powers is the part of the basic structure of constitution. None of
the three separate organs of the republic can take over the functions assigned to the other. This
scheme of the constitution cannot be changed even by restoring to Article-368 of the
constitution.”

The doctrine of separation of powers has no place in strict sense in Indian Constitution, but the
functions of different organs of the Government Dr. B.R. Ambedkar, one of the important
architect of Indian Constitution, advocated thus:

“There is no dispute whatsoever that the executive should be separated from the judiciary.
With regard to the separation of the executive from the legislature, it is true that such a
separation does exist in the Constitution of United States; but many Americans themselves
were quite dissatisfied with the rigid separation embodied in the American Constitution
between the executive and legislature......... There is not slightest doubt in my mind and in the
minds of many students of Political Science, that the work of Parliament is so complicated, so
vast that unless and until the members of the Legislature receive direct guidance and initiative
from the members of the Executive, sitting in Parliament, it would be very difficult for
Members of Parliament to carry on the work of the Legislature. I personally therefore, do not
think that there is any very great loss that is likely to occur if we do not adopt the American
method of separating the Executive from the Legislature.”18

17 AIR 1975 SC 2299.

18 Constituent Assembly Debates Book No.2, Vol. No. VII Second Print 1989, p. 959.

13

 SEPARATION OF POWERS IN
BANGLADES

In a democratic state, the power rests on three separate organs, namely the executive, the
legislature and the judiciary. Most of the newly independent states, while adopting their
constitutions, have been vigilant about giving attention to the type, nature, and powers of the
executive branch of the government.

The constitution of Bangladesh vests the executive power in the executive and the legislative
power in parliament. Several models are there to fashion the details of the executive.
Bangladesh followed in turn the Presidential and the parliamentary models of executive. The
legal basis of the Bangladesh provisional government established on 10 April 1972 which was
provided by the proclamation of independence which was to take effect from 26 March 1971.

The Constitution of Bangladesh vests the executive power of the Republic in the executive and
the legislative power of the Republic in Parliament. Though there is no specific vesting of the
judicial power of the Republic, it is vested in the judiciary. It was held in the case of Mujibur
Rahman v. Bangladesh.19 The divisions of power are not, however, absolute. 20

The executive can legislate under certain circumstances, and in fact, Parliament cannot make
any law relating to the appointment of judicial officers and Magistrates exercising judicial
functions, which has to be provided for by the President. It was held in the case of Secretary,
Ministry of Finance v. Masdar Hossain.21

On the other hand, Parliament can cause a fall of the executive government and impeach the
President. Parliamentary Standing Committees can review the enforcement of laws by the
Ministries and propose measures for such enforcement and in relation to any matter referred to

19Hadley, Sierd. 2004. Separation of Judiciary and Judicial Independence in Bangladesh. Please visit http://www.ais
dhaka.net/School_Library/senior%20Projects/04_Hadley_judiciary.pdf;
20 1993,. 45 DLR (AD) (1993) 98
21 (1999) 52 DLR (AD) 82

14
H

it by Parliament as a matter of public importance, investigate or inquire into the activities or

administration of the Ministries.

While the judiciary has the legislative power to make certain rules, Parliament can adjudicate
certain disputes; it has power to enforce its own privileges and to punish those who offend
against them. This may in certain situations bring it in conflict with the courts. 22

Part VI of the constitution of Bangladesh deals with the Judiciary. Article 7 provides that all
powers in the Republic shall be effective only under and by authority of the constitution. The
responsibility of seeing that no functionary of the state oversteps the limit of his power is a
necessity, on the judiciary. Article 35(3) of the constitution provides “Every person accused of
a criminal offence shall have right to a speedy and public trial by an independent and impartial
court or tribunal established by the law.

Article 116A provides for independence in the subordinate judiciary while Article 94(4)
demands independence of the Supreme Court Judges. Article 116A, while requiring judicial
independence, was part of the detrimental changes to the constitution made in 1974 and 1975
which provides “Subject to the provisions of the constitution, all persons employed in the
judicial service and all magistrates shall be independent in the exercise of their judicial
functions.”23

22 Supra note 19
23 Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed. (Mullick Brothers, Dhaka), p. 64.

15



 CONCLUSION

It is crucial to understand that the doctrine of separation of powers has come a long way from its
theoretical inception. Today, the doctrine in its absolute form is only recognised in letter as it is
entirely unfeasible and impractical for usage in the operational practices of a government. With
the passage of time, States have evolved from being minimal and non-interventionist to being
welfare oriented by playing the multifarious roles of protector, arbiter, controller and provider to
the people. In its omnipresent role, the functions of the State have become diverse and its
problems interdependent hence, any serious attempt to define and separate the functions would
only cause inefficiency in the government.

The modern day interpretation of the doctrine does not recognise the division of Government
into three water-tight compartments but instead provides for crossing rights and duties in order to
establish a system of checks and balances. It has been found that the mere separation of powers
between the three organs is not sufficient for the elimination of the dangers of arbitrary and
capricious government. Even after the distinguishing the functions, if an authority wielding
public power, is provided an absolute and sole discretion within the body in the matters
regarding its sphere of influence, there will be a resultant abuse of such power. Therefore, a
system of checks and balances is a practical necessity in order to achieve the desired ends of the
doctrine of separation of powers. Such a system, contrary to popular notion, is not dilatory to the
doctrine but necessary in order to strengthen its actual usage. It is however, essential to
continuously question whether powers have been appropriately allocated and whether the
checking mechanisms set up both between and within different branches of State sufficiently
safeguard against the misuse of the powers so granted.

16

 BIBLIOGRAPH

(A) BARE ACTS

- The Civil Procedure Code, 1908
- The Constitution of India

(B) BOOKS
❖ Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed. (Mullick Brothers, Dhaka), p.
64.
❖ Constituent Assembly Debates Book No.2, Vol. No. VII Second Print 1989, p. 959.
❖ I.P. Massey : Administrative Law, Edn. 1970

(C) WEBSITES
❖ https://www.mondaq.com
❖ https://www.jstor.org
❖ http://docs.manupatra.in
❖ http://www.legalserviceindia.com/

(E) ARTICLES
❖ Rossman, George. “The Spirit of Laws: The Doctrine of Separation of Powers.”
American Bar Association Journal, vol. 35, no. 2, American Bar Association,
1949, pp. 93–96, http://www.jstor.org/stable/25716744.

❖ Rao, P. Parameshwar. “SEPARATION OF POWERS IN A DEMOCRACY: THE

INDIAN EXPERIENCE.” Peace Research, vol. 37, no. 1, Canadian Mennonite
University, 2005, pp. 113–22, http://www.jstor.org/stable/24469690.

17

❖ Ervin, Sam J. “Separation of Powers: Judicial Independence.” Law and

Contemporary Problems, vol. 35, no. 1, Duke University School of Law, 1970, pp.
108–27, https://doi.org/10.2307/1191032.

❖ “Separation of Powers.” Legal Information Institute , Cornell Law School ,

www.law.cornell.edu/wex/separation_of_powers.

❖ Hadley, Sierd. 2004. Separation of Judiciary and Judicial Independence in

Bangladesh. Please visit http://www.ais dhaka.net/School_Library/
senior%20Projects/04_Hadley_judiciary.pdf;

18