THAKUR RAMNARAYAN COLLEGE OF LAW

FARHAN HAMEED KHAN

FOURTH YEAR BLS/LLB

SEM- VII SEMESTER

SUB:- ADMINISTRATIVE LAW

TOPIC:- A Critical Analysis on Doctrine of separation of Power

A/23

SEPTEMBER 14 2022
PROFESSOR; Ms. Shovonita Achariya
 INDEX
Sr. No. Content Pg. No.
1. INTRODUCTION 3-4

2. Evolution of Doctrine of Separation of Power 5–6

3. Critical Analysis: The Indian Prespective of Separation of 7

Power
4. Separation of Judiciary From Executive 8

5. Constitutional Provision 9

6. Judicial Opinion of the Doctrine of Separation of power 10 - 12

7. Critical Analysis - Practical Application 13

8. System of Checks and Balances 14

9. CONCLUSION 15

10. Biblography 16
 Introduction

Separation of powers is a key feature of any democratic system of government. This

system divides state into three core branches the legislature, the executive and the judicial
branch, these branches have powers to fulfill different tasks assigned to them. These branches
are also knowns as organs of the government. Tasks assigned to each organ and their
institutions are in such way that each of them can check the exercise of power by the others
as result no one branch or institution can become so powerful to control the system
completely. Before starting the analysis it is very important to understand the meaning of
three organs of the government. Legislative organ makes laws, executive organ carries out
laws and judicial organ interprets laws.

Lord Acton, the ‘magistrate of history’, has rightly aphorized- “Power corrupts and absolute
Power tends to corrupt absolutely”. In the context of governance, it indicates that absolute
power conferred upon a single authority is inclined to yield arbitrariness. The concept of
separation of power provides a bulwark against this corruption and entails the apportionment
of power and delineation of boundaries between three distinct branches of the government, as
opposed to concentrating power in a single person or group of persons.

Being an ancient doctrine and not a legal principle, separation of powers has undergone
evolution to reach the state in which it exists today. Under the modern view, the legislative,
the executive and the judiciary have been generally accepted to constitute these three wings
of the Government and different powers, functions and responsibilities are equally and
independently accorded to each of them. The legislative corresponds to the making of laws,
rules and regulations and their amendment. The executive corresponds to the enforcement
and implementation of the laws so made. The judiciary corresponds to the application of the
laws and the protection of the rights of individuals. A pure form of this theory consists of the
following features-

1. Division of Governmental functions between the Legislature, Executive and

Judiciary.

2. Independence in the exercise of functions of these branches in a way that no organ

encroaches the functions of another.
 3. Separate and distinct individuals in all branches with no person being a member of
more than one branch.
Thus, in essence, this doctrine prescribes that the legislature cannot exercise executive or
judicial powers, the executive cannot exercise legislative or judicial powers, and the judiciary
cannot exercise legislative or executive powers.

Different constitutional systems showcase different variations and forms of this theory, suited
to their specific requirements. Thus, the doctrine is not rigid in nature and can be flexibly
moulded to fit into the unique situations of different states. Nonetheless, in all its many
forms, the spirit of this theory remains intact and is commonly shared by most modern
democracies – that all power should not be conferred upon a single institution and should be
divided within multiple institutions.
 Evolution of Doctrine of Separation of Powers

The first allusion to this doctrine can be found in the 4th Century B.C. under Aristotle’s
treatise called ‘Politics’. In the treatise, Aristotle propounds that every constitution consists of
three agencies, namely, the deliberative, the magistracies and the judiciary. Around the same
time, the Roman republic also observed a somewhat similar form of political structure
wherein the public assemblies, senate and public officials constituted the three branches of
their government and functioned on a system of checks and balances. The fall of the Roman
empire saw the fragmentation of Europe into nation states, where the political system mostly
concentrated all the power upon a single entity, that is, the ruler.

powers and it also placed a limit on king’s powers by establishing law as power itself.
The concept of separation of power was introduced by Aristotle. Aristotle was the first
person who categorized functions of government into three elements first deliberative, second
officials and third judicial.Viscount Henry St. John Bolinbroke advanced Aristotle’s idea of
separation of powers, he argued that the protection of security, liberty within the state totally
depends upon achieving and maintaining an equilibrium (a state in which opposing forces or
influences are balanced) between the people, crown and parliament.

In the 17th Century, England witnessed the emergence of the Parliament, and a semblance of
the tripartite governmental structure was expounded by the British politician John Locke in
his book titled ‘Two Treatises of the Government’. Locke described the three powers as
being legislative, executive and federative, but did not envision a coequal or independent
distribution of functions among them. Rather, he regarded the legislative as the supreme
branch, while the executive and federative branches were only concerned with the internal
and external affairs of the country respectively, operating under the control and authority of
the King. His theory was more in consonance with the prevailing dual form of government in
England at that point of time, which fixated upon the Parliament and the King. Furthermore,
Locke’s theory evidences a noticeable absence of the mention of the judiciary as a separate
branch of the government. It regards the judicial functions under the ambit of ‘Executive
functions’, thereby bestowing the same to the control of the King. Therefore, it has been
pinpointed that Locke’s theory, in a strict sense, does not truly qualify as an explication of the
doctrine of separation of powers.
Fortesquie, a political thinker of the same time as Locke, emphasized upon the independence
of the judiciary from the clutches of the King and to some extent, influenced the demand for
the same through his writings. Nonetheless, the 17th and 18th century saw a flurry of
scattered expositions on the separation of powers until a concrete and influential expansion of
the theory emerged through Montesquieu.

all democratic nations use Montesquieu’s theory of separation of power in various forms.
Baron-de-Montesquieu is a French philosopher credited with expounding a systematic and
holistic theory of separation of powers in his book De L’Esprit des Lois (The Spirit of the
Laws) in 1748. His theory of separation of powers was inspired by his observations of the
English system which had by then acquired a higher degree of distinction between its three
branches. Montesquieu’s idea of separation of powers laid great emphasis on the concept of
‘political liberty’. According to him, political liberty could be safeguarded only when the
government is such that citizens do not fear one another, which in turn can only be ensured
when there is no abuse of power by the Government. This also meant that for preventing this
abuse of power the Government should be structured in a manner that balances and checks
power against power.

Montesquieu divided governmental power into the categories of legislative, executive and
judicial and outlined how liberty is affected if these powers are vested upon the same person,
leading to tyranny. Unlike Locke, he did not overlook the role of the independence of the
judiciary and instead deemed it as the most important of all. Moreover, he took Locke’s ideas
of legislative, executive and federative functions and modified them for the sake of political
liberty, considering the judiciary as a branch separate from the broadly categorized executive
in Locke’s theory.
 Critical analysis: The Indian perspective – Separation of Power

Indian constitution is world's largest constitution. Creators of Indian constitution has adopted
the concept of separation of powers in a very beautiful way. In year 1947 India became an
independent democratic nation and there were many challenges in front of India and creating
a new constitution was the biggest challenge after independence. During constitution
assembly discussions it was an important point of discussion that "should we have a complete
separation of power or not?"

In India, the doctrine of Separation of Powers has not been accorded a constitutional status.
Apart from the directive principle laid down in Article 50 which enjoins separation of
judiciary from the executive, the constitutional scheme does not embody any formalistic and
dogmatic division of powers.

As a general provision, Parliament is entrusted to make the law for the union. Executive is
entrusted with duty of implementation of law and judiciary is also considered to be
independent under the constitutional scheme in India. However, there are many exceptions
which negate the application of this doctrine.

The Indian Constitution does not expressly mention the theory of separation of powers. In
fact, the Constituent Assembly Debates indicate that separation of powers in its rigid or literal
sense was never intended to be adopted by the constitution makers at all. This was evident
when the insertion of a new Article 40-A, that prescribed a complete separation of powers
between the three branches, to the Constitution was proposed by Prof. K T Shah in the
Constituent Assembly. This proposition was declined by the Assembly, which took into
account the agreed Parliamentary-government structure of India and vouched for a
harmonious system as opposed to a three-fold conflict. Dr. B.R Ambedkar, while
acknowledging the separation of the executive from the judiciary, emphasized upon the
importance of interdependence between the executive and legislature for the proper
functioning of their complicated duties in the government.
 Separation of Judiciary from Executive

Judiciary is the only way for a common citizen to obtain justice, it is judiciary's work to
protect the fundamental rights of citizens, protect citizens from misuse of powers by other
organs so it is must that judiciary should be able to function independently without influence
from anything or anyone in the country. In simple words judiciary can be called as a guardian
angel of the people and the law.

Separation of judiciary from the executive or from the legislature guarantees an un biased
justice system in any country. Separation of Judiciary from other organs gives power to
judicial system in any country and if it is separated then it becomes very difficult to
manipulate it even for the president and by functioning separately judiciary can serve better
to the citizens of country.

Protecting the constitution is the most important function of judiciary. Because constitution
prevents organs of government to overpower the judiciary and if anything is against the
constitution then judiciary can reject it without getting any pressure from executive or
legislature and it is important advantage of separating judiciary from the executive.

India’s model of separation of powers

 Constitutional Provisions

Under Article 53 the executive powers of the union are vested with the President and under
Article 154 the Governor is vested with execution powers but they do exercise their powers
with the aid and advice of the council of ministers at the Centre (Article 74) and at the State,
as the case may be. Both President and Governor exercise the power of ordinance making
under the constitution thus performing legislative functions. President makes laws for a State,
after the dissolution of the State Legislature, following the imposition of the President’s Rule
(Article 356). President has the power to disqualify any member of the house under Article
103. The judges of the Supreme Court are appointed by the President, while the parliament
has the power to impeach the judges. The President has the power to decide a disputed
question of the age of a judge of Supreme Court or any High Court for purpose of set restrain
from the judicial service.

The Union Council of Ministers is responsible to the Lok Sabha (Article 75). This house has
the powers to start impeachment proceedings against the President (Article 61) and the judges
of the Supreme Court. The members of Council of Ministers will be members of either house
of Parliament under Article 75(5) which means there is overlapping of personnel also.

The judicial function of Parliament is too substantial in certain respects. It can consider the
question of breach of any known parliamentary privilege; and in a case where the charge is
established have power to punish for their contempt.

The High Courts in certain marginal spheres perform such functions which are administrative
rather than judicial. Their power of supervision over other subordinate courts under Article
227 is more of the administrative nature than judicial. When under Article 228 they have
power to make transfer of cases, they exercise administrative control over the State district
courts as well. The legislative power of the High Courts and the Supreme Court includes their
power to frame rules which is fairly wide.

The Executive in India is authorized to legislate in the name of delegated legislation. In the
name of administrative adjudication of the right of individual citizens, the administrative
agencies, which are statutory tribunals and domestic tribunals have been constituted and
perform judicial function.
 Judicial Opinion Of The Doctrine Of Separation Of Powers

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 [AIR 1955 SC 549], 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 [AIR 1973 SC 1461], and the judicial
articulation of th1e 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 [AIR 1951 SC 332], 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 2make 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?”

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 [AIR 1975 SC 2299],

1
[AIR 1973 SC 1461], [AIR 1955 SC 549]
2
[AIR 1951 SC 332], [AIR 1975 SC 2299]
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 [AIR 1967 SC 1643], 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 India [AIR 1984 SC 802], 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 Pradesh, when the
Andhra Pradesh Administrative Tribunal directed the State Government “to evolve proper
and rational method of determination of seniority among the veterinary surgeons 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 3issue a mandate to the State Government to legislate on any
3
[AIR 1967 SC 1643], [AIR 1984 SC 802]
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 Emp4loyees’ Welfare Association v. Union of India [AIR 1990
SC 334], 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.

4
[AIR 1990 SC 334]
 Critical analysis – Practical application

The practical application of the doctrine in India is found to realize it in a purposive sense, as
opposed to a literal sense. It abides by the basic philosophy of the doctrine but modifies its
features to complement India’s unique governmental structure. As substantiated in the
landmark case of Ram Jawaya Kapur v. State of Punjab, India’s constitutional structure
sufficiently differentiates the functions and branches of the Government to prevent the
assumption of functions of one organ by another. In one of the earliest cases that touched
upon this subject – In the Re Delhi Laws Act case – it was highlighted how the British
Parliamentary system adopted by India entails the responsibility of the executive to the
legislature as its essential feature, and does not strictly follow the doctrine. Chief Justice
Kania, however, stated that despite there not being any express separation of powers in the
Indian Constitution as in the USA or Australia, there is still an implied acceptance of the
same. A detailed assessment on this doctrine was carried out in the case of Indira Gandhi
Nehru v. Raj Narain, wherein a parliamentary amendment was deemed unconstitutional by
the Supreme Court, on account of it breaching separation of powers, as it had the effect of
invalidating a court order, which is a primarily judicial function. The Court held that India
recognizes separation of powers in a broad sense by demarcating spheres of judicial and
legislative functions, and these spheres cannot be encroached by the other as the doctrine
constitutes the basic structure of the Constitution. This position of there being a broad form of
separation existing in the Indian structure, was further affirmed in other cases that
conceptualized the presence of constitutional limits to the powers of each branch, which
cannot be overstepped.
 System of Checks and Balances

Many people, authors think that India has not adopted the system of checks and balances like
America adopted it. but it is not true. Till now we know that our constitution is mixture of
few constitutions of other countries and we had adopted best things from constitutions of
other countries. So how can we say that there is no system of checks and balances? Actually
framers of Indian constitution has brilliantly developed system of checks and balances and
they had included it in the constitution. For example, instantly after adoption of our
constitution Article 13 demolished all the laws that were inconsistent with or la derogation of
the fundamental rights, Article 32 and Article 130 gives powers to the Supreme Court and
Article 220 and 227 gives power to the High Courts for a judicial review of any act of the
executive or legislature of the country". By looking at these examples we might think that
there is no check on judiciary but it is not true. Article 124(2) of Indian Constitution says that
every judge of Supreme Court shall be appointed by the president you might think that
president can be manipulative and appoint judges who will favor his view but Article 124(2)
aho says that the chief justice of tadia shall always be consulted while appointing judges in
Supreme Court. Alo the president has power to remove any judge from the office but he can
achieve this only if at least 100 members of Loksabba or 50 members of Rajyasabha gives a
written notice to the speaker, so there are various provisions in our constitution which puts
limit on the power of president, now we might think that 50 or 100 member can be
manipulated by doing this the president can misuse his/her powers but the process does not
end here after getting a written notice an investigation is conducted and if judge is found
guilty then a motion for removal is issued and it has to be adopted by each house of
parliament by majority of the total members of the house and a majority of at least two third
of members of that house present and voting once this motion is adopted in both houses then
only the president can issue an order for the removal of judge!
 Conclusion

When it came to the application of separation of powers in Indian Constitution few members
of constitution assembly were concern that we are not using complete separation of power
and because of it judicial system of independent India will become vulnerable to the other
organs of the government and it will be manipulated and only rich people will be able to
afford the luxury of justice. But during debate it was clarified that judiciary will be
independent and will not get manipulated. Also even if we have adopted the presidential form
of government Judiciary would have manipulated. In conclusion we can say that Indian
constitution did not adopt the separation of powers rigidly, but it is pretty clear that Indian
constitution has adopted the division of powers. Also if we look at the current situation of our
country it is pretty clear that judiciary is getting influenced even after having many provision
to protect the judicial system from being influenced. Also, the theory of separation of powers
adopted or not adopted by us. there are many unconstitutional things are happening in our
country and according to my point of view is very sad to see that day by day the most
important organ judiciary" which is the only ray of hope for justice for a common citizen is
being manipulated.
The modern interpretation of the doctrine of separation of powers is not a mere theoretical
philosopher’s conception. It is a practical work-a-day principle. The division of Government
into three branches does not imply, as its critics would have us think, three water-tight
compartments. The machinery and procedure of legislative impeachment of executive
officers and judges, executive veto over legislation and appointment of judges and judicial
review 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.
Separation of powers is a doctrine founded upon the distribution of governmental powers
among distinct institutions. This doctrine evolved with the changing views of various
theorists and is applied uniquely in different jurisdictions. India’s application of this doctrine
leans away from its strict form, and instead reflects a purposive adaptation of this theory
coupled with the principle of checks and balances. This is in consonance with the modern
view of this doctrine that highlights the need of straying away from its pure form and
implementing it in a flexible and broad manner.
 BIBLOGRAPHY

 M. J. C. Vile, Constitutionalism and the separation of powers (1967)

 C.K. Takwani, Lectures on Administrative Law, 31 (2008).

 Shashank Krishna, Separation of Powers in the Indian Constitution & Why the
Supreme Court was Right in Sir Ernest Barker, Politics 73 (8 ed. 1958) New
York.

 Sam J. Ervin Jr., Separation of Powers: Judicial Independence, 108 Law

and Contemporary Problems Vol. 35 (1970)

 Parpworth Neil, Constitutional & Administrative Law 18, 19 (10th ed. 2012)
Oxford University Press

 Montesquieu, The Spirit of Laws (Nugent) 152 (1748).

 Commentary: Jain M.P & S.N Jain, “Principles of Administrative Law”, Wadhwa
& Company Nagpur, 2007, pp 31,32.
 Parpworth Neil, “Constitutional & Administrative Law”, Oxford University Press
United Kingdom, 2012, pp 18,19.
 Jain Kagzi M.C., “The Indian Administrative Law”, University Law Publishing
Co. Pvt. Ltd., 2002, pp 15,16.
 Supranote 2, pp 19,20.
 Massey I.P, “Administrative Law”, Eastern Book Company, Lucknow, 2012, p
40.
 Kumar Devinder, “Administrative Law”, Allahabad Law Agency, Faridabad,
2007, p 19.