UNIT-2

FEDERAL FORM OF GOVERNMENT

Federal government is a type of national governments in which government have powers to

delegates the power to other elected member of the states. There can be two level of federal
government in a country either it is performing through common institutions or through powers
as prescribed by a constitution of the state. It is totally opposite to the unitary government. In
federation or federal government, provinces or territories enjoys some rights as are available to
the independent states. However international diplomacy, national security, foreign affairs and
other kinds of international dealings are solely made by the federal government. Pakistan, India,
Brazil, Switzerland, Australia, Belgium, Canada, etc., are the significant examples of federal
government. Mostly the federal government system is referred to the United States government.
This government is based on the republicanism and federalism. In the federal system, power is
jointly shared between the state and federal governments. In the federal government system, the
powers never rest with one national government. However, there can be certain powers and
authorities that remain totally with the federal government like policies on defence, budget,
international diplomacy, etc. The hierarchy of power in federal government system starts from
the federal level and then flows to the state and then local level.

Its distinctive feature is given as follows:

1. Division of Powers:

In a federal government the powers of administration are divided between the centre and the
units. The powers may be distributed in two different ways. Either the constitution states what
powers the federal authority shall have, and leaves the remainder to the federating units, or it
states what powers the federating units shall possess and leaves the remainder to the federal
authority. The remainder is generally known as residuary powers. The first method was
employed in America and the second in Canada. The federal government in U.S.A., for example,
is weak in relation to the states whereas the federal government in Canada is more powerful. In a
federation both the federal and state governments are independent and autonomous in the spheres
of their powers. One is not subordinate to the other. Both derive their powers from the
constitution which is the supreme law of the land. The powers enjoyed by the units are,
therefore, original and not delegated by the centre.

2. Separate Government:

In a federal form of government both the centre and the units have their separate set of
governmental apparatus. America is a federation of states. States have therefore separate
legislatures and Separate executives.

3. Written Constitution:
A federal government must have a written constitution. As a federation is a political partnership
of various states and consequently there must be a written agreement in the form of a written
constitution.

4. Rigid Constitution:

The constitution of a federation should be more or less rigid. It is regarded as a sacred

agreement, the spirit of which should not be easily violated. A flexible constitution allows a
scope to the central government to curtail the autonomy of the federating states.

5. Special Judiciary:

In a federation, there are possibilities of constitutional disputes arising between the federal centre
and the units or between one unit and another. All these disputes are to be adjudicated in the light
of the constitution. For this purpose a special judiciary with wide powers must be established. It
should act as the custodian and guardian of the constitution. It should be vested with powers of
declaring any law, national or local, ultra vires if it is at variance with the articles of the
constitution. The constitution is thus the supreme law in a federation to which both the centric
and the state must adhere to.

ADVANTAGES AND DISADVANTAGES OF FEDERAL SYSTEM OF GOVERNMENT

There are some advantages and disadvantages of a federal government system:

Advantages

1. Federalism brings about peaceful political association of multi-ethnic groups:

In a heterogeneous society or a multi-ethnic nation, federalism is the best system of government

to practice because it brings about a peaceful political association between people of different
tribes, languages and beliefs. This is so because there is a national government at the center and
other smaller units of the government at the local level to govern the people.

However, in a unitary system of government where powers are only concentrated in the hands of
a central government, the fear of the majority can lead to crisis. For this reason, a federal system
of government is the best system of government for a multi-ethnic country.

2. Federalism produces a stronger and stable nation:

Another advantage of federalism is the fact that it produces a stronger and stable government in
power. This is so because the association of different component units will make the government
stronger and respected by international organizations. Based on this, political scientists are of the
view that prancing a federal system of government brings about a stronger stable government.

3. There is no fear of majority:

In a federal system of government there is usually no fear of the majority because every unit of
the government is partially independent, and can decide to run its own affairs by itself.
Conversely, there is not possible way for the majority to totally rule over the minority in the
country. Meanwhile, this is possible in a unitary system of government since all the government
powers of the state are concentrated in the hands of the central government.

4. Equitable development and growth of the nation:

One of the major reasons why many countries (including the United States of America), practice
federalism is because the system fosters equitable growth and development in every part of the
nation. Every unit of government is expected to develop its territory and together, the growth and
development of the whole nation will be achieved easily.

5. Rapid and effective government:

Unlike a unitary system where the burden of caring for the whole nation is carried by a single
central government, federal system of government is different. In a federal system of
government, the functions and powers of the central government and its component units are
clearly shared and stipulated in the constitution. Thus, the central government will not be faced
with too many works. This actually makes the government more effective and efficient.

Disadvantages:

1. It is expensive to operate:

Apparently, federalism is an expensive system of government because a lot of money is needed

to maintain the central government and all of its component units. Workers and officials of every
level of government must be paid and maintained by the nation. This is a big disadvantage of
federalism because many nations cannot afford to main a government with different component
units.

2. Federalism usually has a rigid constitution:

A rigid constitution is a constitution that is not easily amended. This type of constitution is
actually the best in a federal system of government. However, the fact that is cannot be easily
amended even in time of emergency is a disadvantage. Depending on the provisions of the
constitution, to amend a rigid constitution, there must be so many consultation and unnecessary
requirements. In light of the above, a unitary system of government is deemed by some scholars
to be better than federalism.

3. Duplicate of government:

Some political scientists have argued that a federal system of government is not actually
advantageous because it brings about an unnecessary duplication of the government which is
also true.
By creating a national government and component units of government, it can lead to instability
and power struggle in the nation even when those powers have been prescribed in the law of the
country.

4. The federal government will become weaker:

Lastly, a federal system of government is disadvantageous because it produces a weaker federal

or central government and a stronger component unit. In light of this, the federal government
may not be able to control its component units of government and that can lead to political crisis
or even disintegration.

MODELS OF FEDERALISM

There are various models of federalism

Centralized Federalism

Centralized federalism centers on the idea that the federal government should be responsible for
setting all national policies and the state and local governments should be responsible for
carrying out these policies. Nowadays, France and Great Britain are good examples of
centralized federalism. In the United States, all governmental responsibilities are divided up
between state and federal governments. The federal government can pass blanket laws or specific
policies that affect each individual state; however, the individual states can govern anyone who
lives within their borders.

Competitive Federalism

This type of federalism is mostly associated with the 1970s and the 1980s, and it began with the
Nixon Administration. In competitive federalism, there were many efforts to reduce federal
control over the grant programs and to revise the federal government’s involvement in spending
on general welfare. Competitive federalism creates competition between a central government
and state governments, mostly regarding the leveling of the overlapping between two or more
state governments in order to advocate for better and common economic interests. It is known
that a successful economy will carry on healthy competition and competition between
governments, which is beneficial. When this competition exists between members of a
federation, it is called competitive federalism.

Cooperative Federalism

Popular in the 1930s after the Great Depression, and lasting up until the 1970s,
miscommunication and power struggles between state and national governments began that led
to the national government taking control of the situation in order to fix certain problems, such as
the economy. Why is the term “marble cake federalism” used? Two cake, marble cake, and layer
cake show two different types of federalism. The marble, or swirly part, symbolizes cooperative
federalism, in which the powers are not divided but instead shared by all levels of government.
The layer cake symbolizes dual federalism because the different layers represent different and
distinct powers that both the states’ governments and the national government have.

Creative Federalism

Creative federalism refers to the type of federalism that gave more power to the national
government and bypassed the state governments to do so, thereby allowing the federal
government to have direct control over statewide programs. Also known as “picket fence
federalism,” it was most prevalent during the Lyndon Johnson years and his Great Society.
During this time, the national government began to interfere more in welfare programs to help
build up the nation and alleviate some of the problems that existed at that time.

Dual Federalism

No longer applicable in many ways, this was the belief that having separate but equally powerful
branches and government levels that allow both the state and national level to have the power to
balance each other out would work. This type of federalism is also known as layer cake
federalism. Many believe that the idea of dual federalism is an optimistic view because it states
that the federal and state authorities are clearly defined and do in fact, exist. It believes that the
two levels of government, state, and federal, can live side by side and be treated equally while
holding the same power.

Fiscal Federalism

Fiscal federalism refers to the use of funds allocated from the national government to the state
governments so that a national program is supported. A good example of fiscal federalism is the
categorical grant, whereby the national government gives money to the states, and that money
has requirements attached.

Judicial Federalism

Judicial federalism refers to the ability of the Supreme Court and judicial review to influence the
type of federalism during certain times in the country. This happens mainly because of the
judiciary and the Supreme Court’s ability to rule on what is constitutional and what is not.

CONCEPT OF QUASI-FEDERALISM

Quasi federal refers to a system of government where the distribution of powers between the
Center and the state are not equal. India is a federation with a unitary bias and is referred as a
quasi-federal state because of strong central machinery. The Constitution of India has not
described India as a federation. On the other hand, Article 1 of the Constitution describes India
as a “Union of States.” This means, India is a union comprising of various States which are
integral parts of it. The Indian Union is not destructible. Here, the States cannot break away from
the union. They do not have the right to secede from the union. In a true federation, the
constituting units or the States have the freedom to come out of the union. India is not a true
federation. It combines the features of a federal government and the features of a unitary
government which can also be called the non-federal features. Because of this, India is regarded
as a semi-federal state. Prof K.C Wheare describes it as “a quasifederal state”. The Supreme
Court of India also describes it as “a federal structure with a strong bias towards the Centre”.

PARLIAMENTARY AND PRESIDENTIAL FORMS OF GOVERNMENT

There are, of course, a variety of constitutional structures of national government throughout the
world. Despite this variety, the most frequently noted distinction involving national structures in
democratic systems is between “presidential” and “parliamentary” arrangements. What are the
central characteristics of each of these models?

In general, in a presidential system the head of government-the president-is popularly elected,

either directly by the people or by means of an electoral college system such as in the United
States. By contrast, the head of government in a parliamentary system often called the prime
minister or premier-is selected by the legislature.

Parliamentary Forms of Government

Most democracies in the world are patterned after Great Britain’s parliamentary system. In this
system, the executive and legislative branches of government are combined and the political
head of state is chosen from within the legislature. This political head of state is usually called
a prime minister, and he or she is chosen by the majority party in Parliament to serve as the head
of the majority party. The prime minister also acts as an advisor to the figurative head of state
who is often a monarch (such as the Queen of England). Of course, not all parliamentary systems
have a monarchy, so the prime minister can be both the political and the figurative head of state
in many countries, which is closer to the role our president plays in a presidential system.

The combining of executive and legislative branches can be both an advantage and a
disadvantage. Some scholars and observers would argue that it is easier to pass laws in a
parliamentary system as the head of state is always chosen from the majority party, so a divided
government is generally not an issue. Others would take issue with the fact that prime ministers
are neither directly elected by the people, nor able to take a popular stand against the majority of
Parliament (because they would be simply removed through a no-confidence vote if they were to
lose the support of their party).

Presidential Forms of Government

Many of the world’s governments are modeled to some degree on the United States and its
presidential system of government. This system is distinguished from others because it has a
chief executive (the president) who is chosen by the people to serve a limited term in office with
a distinct separation of powers (the executive branch) as well as specific limitations on exactly
what he/she can do while in office.

The president serves not only as head of state but he or she is also in charge of the executive
branch of government. He or she has the power to appoint members of his/her executive cabinet
to oversee major bureaucratic departments within the government, serves as the civilian head of
the armed forces, and is responsible for setting foreign policy as well as determining and
influencing domestic policy and legislation.

A major advantage of presidential systems of government is that the powers of a president are
balanced by a legislature, which is not only popularly elected but also acts independently of the
president. Since the president must share his powers with this independent body of elected
legislators, it requires the president and the legislature to work together through a process of
conflict and compromise. While in many cases the president may be from a different party than
the majority of one or both houses of Congress; the only way the president can get his/her policy
agenda made into law is by cooperating and compromising with Congress and vice-versa.

This same scenario of divided government is also a major drawback to the presidential system. If
the president and members of Congress hold different viewpoints and cannot reach a
compromise, the government can come to a grinding halt. This is often referred to as policy
gridlock, and it has been very evident in the past few presidential administrations where, at least
for a portion of a president’s term, there has been a great division between Congress and the
president.

CONSTITUTIONAL FOUNDATIONS

PARLIAMENTARY SOVEREIGNTY

The concept of Parliamentary Sovereignty (also referred to as Parliamentary Supremacy and

Legislative Supremacy) deals with several concurrent principles and this makes it a complicated
concept to grasp in its entirety. Coupled with this, the media portrayal of this subject through the
campaigns on the referendum on exiting the European Union often gave a disingenuous or
incomplete view of the Sovereignty of Parliament and as such there are many misconceptions.

It is important to note that Parliamentary Sovereignty is a multi-faceted concept consisting of

several concurrent powers which are often in tension with one and other. For example, the
constitution of the United Kingdom (UK) is unique, having developed into its current form over
the preceding millennia. In addition to this unique development, the UK’s constitution is also not
codified into a single document.

The History of Parliamentary Sovereignty

The recognition by the Monarch and the courts of Parliament's legislative supremacy was
developed in a series of cases during the 17th century.
In the Case of Proclamations [1611] 12 Co Rep 74; 77 ER1352, Chief Justice Coke stated that he
doubted the King's legislative supremacy since he has only the prerogative that the law allows,
he is also unable to create a new offence in law.

However, in R v. Hampden (1687) 3 State Tr 825 and Godden v. Hales (1686) 11 St Tr 1166 it
was argued that the King’s prerogative allowed him to levy tax without parliamentary consent in
contradiction to Parliament's Petition of right.

In Dr Bonham’s Case (1610) 8 Co Rep 114, Chief Justice Coke argued that it was the common
law as developed by the judiciary which was the ultimate legal protection for the people. Coke
states (at 118) “...when an Act of Parliament is against common right and reason, or repugnant,
or impossible to be performed, the common law will control it, and adjudge such an Act to be
void”.

In Day v. Savadge (1614) Hob 85, it was held that an Act of Parliament would be invalid if it
were ‘made against natural equity’.

The Glorious Revolution of 1688 and constitutional settlement of 1689 changed the nature of
Parliamentary supremacy. Charles, I asserted his exclusive power to rule and to legislate, a
power which derived from God. Years later when the throne was offered to William of Orange
and Mary, subject to their recognition of Parliament's legislative supremacy, the enshrined within
the Bill of Rights 1689, in which Parliamentary supremacy was enshrined in Article 9. The
Monarch lost the power to derive an income from taxes, and thus became dependent on
Parliament to derive an income [e.g. Bowles v. Bank of England [1913] 1 Ch 57]. The powers
of Parliament and Parliamentary privilege are clear in the Bill of Rights 1689, but it has been
developed over a period of time since then in an incremental manner.

The orthodox doctrine is the classic understanding of what Parliamentary Sovereignty is. It
could be thought of as a dictionary definition of Parliamentary Sovereignty. This doctrine states
that the UK (Westminster) Parliament is supreme, and it has unlimited power to legislate on
whatever it sees fit. As such, it is asserted by this doctrine that no one can set aside an Act of
Parliament. A problem with a dictionary definition of any sorts is that it is often vague; the
orthodox doctrine is no different. This view of sovereignty presents a paradox; if Parliament has
unlimited power to legislate, then it can create an Act of Parliament which limits Parliament’s
own power. However, in limiting its power it is no longer supreme therefore it cannot limit its
power as Parliament is always supreme.

RULE OF LAW

In the words of the UN Vienna Declaration of 1993 “human rights are universal, indivisible,
interdependent and interrelated and therefore should be protected and promoted in a fair and
equitable manner by something as fundamental and all-pervasive as the rule of law.’’ The latest
encounter of the gangster Vikas Dubey has sparked the debate regarding rule of law and has also
raised questions on the exercise of violence by the institutions of the state. Criticisms have been
coming from across the nation especially from the opposition that such an act is against the
fundamentals of law, that is, against the rule of law. In the present-day context where incidences
like encounters and mob lynching have started to become obvious for people it gets necessary to
indicate what importance the rule of law has in such situations and hence the main focus of this
article is dedicated towards what does rule of law exactly means and how it has developed
through time to meet with the present scenario.

Meaning Rule of Law: As the term itself connotes, ‘Rule of Law’ means rule of law and not of
men. The expression “Rule of Law” is derived from the French phrase ‘le principe de legalite’
meaning the principle of legality. Defining rule of law Prof Wade expressed- “The rule of law
requires that the government should be subject to the law rather than the law subject to the
government”

According to Black’s law dictionary, Rule of Law may be specifically defined as supremacy of
law where decision is made by applying known principles or laws, where there is no intervention
of discretion in application of such principles or laws.

Rule of law has been defined by many scholars as the symbol of ultimate authority, which no
man can override. As stated by Lord Denning in case Gouriet v. Union of post
office workers,1 Every person in land, no matter how powerful or high in status he may be, law
will always be above them. The rule of Law is one of the basic and general principles of the
constitution. It is characterized in the words of Max Weber as – “legal domination as an idea of
government of law rather than an idea of men.”

The doctrine of rule of law has been described as supremacy of the law. This means that where
there is rule of law no person can be said to be above the law, even the functions and actions of
the executive organ of the state shall be within the ambit of the law. The aim of rule of law like
other constitutional principles is the uplifting of freedom and fundamental rights of the people.
The rule of law has propounded to make sure that the executive doesn’t use law of the land or
country to oppress or curtail freedom of individuals as they are found in the bill of rights.

In the Indian context, the meaning of rule of law has somewhat been much expanded. The
Supreme Court has in various occasions further enunciated and illustrated the rule of law through
its judgement in furtherance of the basic principles as laid down by A.V. Dicey. It is considered
as a part of the basic structure of the Constitution and, hence, it cannot be abrogated or destroyed
even by the Parliament. The ideals of constitution; liberty, equality and fraternity have been
enshrined in the preamble. Rule of law mandates that no person shall be subjected to harsh,
uncivilized or discriminatory treatment even if the object is to protect and secure law and order.

1
[1978] AC 435
Origin of the Rule of Law:

The first proponents of the doctrine of the rule of law are believed to be Greek philosophers
including Aristotle, Plato, Cicero. For instance, Plato in his book known as ‘Complete Works of
Plato’ is found to have written that the collapse of the state is not far where the law is made
subjective to the authorities but the states where the law is considered as supreme all the
blessings of the god falls on such state and it flourishes through all times.

In England, Rule of law began sometimes around 1215 when King John of England signed the
Magna Carta of 1215. The signing of Magna Carta indicated the consent of the Monarchy of
England to be under the law and the law to be supreme. The doctrine of rule of law in England
took a new look after the conflict between the parliament and monarchy or king aroused.

In the United States of America (U.S.A.) the doctrine of rule of law was first introduced in 1776
by the constitutional lawyers known as Paine. He is of the view that America being a free
country considers Law as the king because in every country which is free law should be the king
and no one else.

In the modern sense, the most famous exposition of the concept of rule of law was given by Prof.
Albert Venn Dicey in his book ‘The Law of the Constitution’ in respect to the powers which the
government must exercise in accordance to the law. Rule of law consists of several basic
principles which law and policy makers, judges and law enforcement agencies should consider
while exercising authority in a democratic society. This means all duties, power and functions of
government, including its organs and authorities are done in accordance with the law.

Dicey’s Concept of Rule of Law:

It would be proper to discuss the views of Dicey, as he is known to be the main exponent of the
concept of rule of law. However, the origin of his doctrine was qualified to Sir Edward Coke. He
introduced for the first time that, ‘King is under God and the Law.’ The firm base of rule of law
owes its exposition to Albert Venn Dicey. Dicey, in his book Law and Constitution in the year
1885 further developed this concept given by Coke. According to Dicey’s theory, rule of law has
three pillars based on the concept that “a government should be based on principles of law and
not of men”, these are:

• Supremacy of Law;
• Equality before the Law; and
• Predominance of Legal spirit.

1. Supremacy of Law:

This is the first pillar of Dicey’s concept of rule of law. It means that the law rules over all
people including the persons administering the law. According to Dicey the absolute supremacy
of the law as opposed to the arbitrary power of the government is what constitutes the rule of
law. In other words, a man should only be punished for the distinct breach of law, and not for
anything else. The person cannot be punished by the government merely by its own fiat but only
according to the established law.

2. Equality before Law

The second important pillar of Dicey’s concept of Rule of Law is Equality before Law. In other
words, every man irrespective of his rank or position is subject to the ordinary law and
jurisdiction of the ordinary court and not to any special court. According to him special law and
special courts is a threat to the principles of equality. Therefore, he is of the view that there
should be the same set of laws for all the people and should be adjudicated by the same civil
courts.

3. Predominance of the legal spirit

The third pillar of Dicey’s concept of Rule of Law is predominance of legal spirit. According to
Dicey, for the prevalence of the rule of law there should be an enforcing authority and that
authority he found in the courts. He believed that the courts are the enforcer of the rule of law
and hence it should be free from impartiality and external influence. Independence of the
judiciary is therefore an important pillar for the existence of rule of law. He asserted that the
courts of law and not the written constitution are the ultimate protector of an individual’s
fundamentals.

SEPARATION OF POWERS

The concept of separation of powers is the rudimentary element for the governance of a
democratic country. This principle corroborates fairness, impartiality and uprightness in the
workings of a government. Although it is not followed in its strict sense yet, most of the
democratic countries have adopted its diluted version under their respective constitutions.
Doctrine of separation of power signifies the division of different powers in between various
organs of the State, Executive, Legislature and Judiciary. It minimises the arbitrary
excess by the government since the sanctions of all three branches are required for the making,
executing and administering laws. The Doctrine is a part of the basic structure of the
constitution although not specifically mentioned. Each organ is dependent on the other organ
which checks and balances it.

Meaning of separation of powers:

The concept of separation of powers refers to a system of government in which the powers are
divided among multiple branches of the government, each branch controlling different facet of
government. In most of the democratic countries, it is accepted that the three branches are the
legislature, the executive and the judiciary. According to this theory, the powers and the
functions of these branches must be distinct and separated in a free democracy. These organs
work and perform their functions independently without the interference of one into others in
order to avoid any kind of conflict. It means that the executive cannot exercise legislative and
judicial powers, the legislature cannot exercise executive and judicial powers and the judiciary
cannot exercise legislative and executive powers.

Evolution of separation of powers:

The doctrine of separation of powers emerged in the ancient era. Aristotle, in his book ‘Politics’,
discussed the concept of separation of powers stating that every constitution should have a
heterogeneous form of government consisting of mainly three branches: the deliberative, public
officials and the judiciary. A similar structure of government was observed in the Roman
Republic setting off the principle of checks and balances in the country.

Additional, in the 17th century during the advent of Parliament in England, this theory of three
branches of government was repeated by John Locke, a British Politician in his book ‘Two
Treatises of Government’ but with some different view. According to him, the three branches
neither should have equal powers nor work independently. In his opinion, the legislative branch
must be supreme out of all the three and other branches should be controlled by the monarch.

According to Wade and Phillips, the principle of separation of powers meant three things:

1. One person should not be made part of more than one branch of the government.

2. There should not be any interference and control of any organ of the government by the
other.

3. No organ of the government should exercise the functions and powers of the other organ.

Montesquieu’s Theory:

Montesquieu expounds his theory of separation of powers to set forth the governmental
organization in order to safeguard the political liberty. He believed that the separation of powers
among the different organs of the government is the best safeguard against tyranny. He pleads
that each power must be exercised by a separate organ and a system of checks and balances
should thus be established for solidarity and harmony of the state.

In the 18th century, the term ‘trias politica’ or the doctrine of separation of powers was
conceived meticulously by a French jurist, Baron de Montesquieu. He put more emphasis on the
independence of the judicial branch. He described that rather being ostensible, the judiciary must
be authentic in nature. In his viewpoint, one organ or one person should not discharge the
functions of all the other organ and the reason was to safeguard and protect the freedom of the
individuals and avoidance of tyrannical rule. In his book De L’Esprit des Lois (The Spirit of
Laws, 1748), he propounded that:-

• The Executive should not exercise the legislative or judicial powers because this may
threaten the freedom and liberty of individuals.
• The Legislative should never exercise the executive or judicial powers as this may lead to
arbitrariness and hence, end the liberty.
• The Judiciary should not exercise the executive or legislative powers because then a
judge would behave like a dictator.
When the executive and legislative are united in the same person, there can be no liberty because
apprehensions may arise. If the judiciary power be not separated from the legislative and the
executive then again there will be no liberty. When it is combined with the legislative, the
existence and liberty of people would be exposed to arbitrary rule. When it is combined with
executive organ, then there will be violence and oppression in the capacity of a mortal God.

It is quite obvious from all above cited discussion, that the separation of powers among the three
organs of governments fully ensures liberty and freedom, by imposing healthy checks on the
despotism of the government bureaucrats. Montesquieu was of the view that liberty is an
indispensable fundamental for human progress and glory. Everyone is born to enjoy it without
any distinction of color, creed and religion.

Separation of Powers and Checks and Balances:

Using the theory of separation of powers, we need the adoption of another theory, i.e., the theory
of Checks and Balances. Under this theory, each organ, along with its own power, enjoys some
checking powers over the other two organs. In the process, a system of checks and balances
governs the inter-organ relations.

The theory of checks and balances holds that no organ of power should be given unchecked
power in its sphere. The power of one organ should be restrained and checked with the power of
the other two organs. In this way, a balance should be secured which should prevent any
arbitrary use of power by any organ of the government.

The legislative power should be in the hands of the legislature but the executive and judiciary
should have some checking powers over it with a view to prevent any misuse or arbitrary use of
legislative powers by the legislature. Likewise, the executive powers should be vested with the
executive but legislature and judiciary should be given some checking powers over it. The same
should be the case of the judiciary and its power should be in some respects checked by the
legislature and executive. In fact, the theories of separation of powers and checks and balances
always go together.

Separation of Powers in Practice:

U.K. Constitution

The United Kingdom practices the unitary parliamentary constitutional monarchy. The concept
of separation of powers is applied in the UK but not in its rigid sense because the UK has an
unwritten constitution. The Crown is the head of the state whereas the Prime Minister is
recognised as the head of the government. The executive and the legislature are somehow
interconnected to one another. UK constitution has incorporated the separation of powers just to
keep checks and balances among the three organs of the government but there exist some kind of
interference of one organ in the other.

U.S. Constitution

The US has a written constitution and governed by the Presidential form of government. The
cornerstone of the Constitution of the United States is the doctrine of separation of powers. This
concept is well-defined and clear under the American Constitution.

Article I Section 1 of the American Constitution states that “All the legislative powers are vested
in Congress.” Article II Section 1 of the American Constitution states that “All the executive
powers are vested in the President.” Article III Section 1 of the American Constitution states
that “All the judicial powers are vested in the federal courts and the Supreme Court.”

The President and his ministers are the executive authority and they are not members of the
Congress. The ministers are accountable to the President only and not to the Congress. The
tenure of the President is fixed and independent of the majority in Congress. Congress is the
sovereign legislative authority. It consists of two houses- Senate and House of Representative.
The impeachment of the President can be done by Congress. The Supreme Court of the USA is
independent. It may declare any action of the executive as well as the legislature as
unconstitutional if found so.

In Panama Refining Company v. Ryan,2 Justice Cardozo observed that:-

“The doctrine of separation of power is not a dogmatic concept. It cannot be imposed

with strictness. There must be elasticity in its application with respect to the needs of the
government. Therefore, a practical approach to this theory is required.”

Indian Constitution and Separation of Power

Like the United Kingdom, India also practices the parliamentary form of government in which
executive and legislature are linked to each other. So, the doctrine of separation of powers is not
implemented in its strict sense. However, the composition of our constitution creates no doubt
that the Indian Constitution is bound by the separation of powers. There are various provisions
under the Indian Constitution that clearly demonstrate the existence of the doctrine of separation
of powers.

Justice Mukherjee in the case of Ram Jawaya Kapur v. State of Punjab3. He concluded that:

“The Constitution of India has not acknowledged the doctrine of separation of power
definitely but the functions and powers of all the organs have been adequately
distinguished. Thus, it would not be wrong to say that Indian constitution does not
witness assumptions rather it works in a flexible manner considering the needs of the
country. So, the executive can exercise the law-making power only when delegated by
the legislature and it is also empowered to exercise judicial powers within the limits.”

2
293 U. S. 388 (1935)
3
AIR 1955 SC 549
In another case of Indira Nehru Gandhi v. Raj Narain,4 Justice Ray said that:

“A rigid sense of separation of powers which has been given under the American and
Australian constitution does not apply to India.”

Justice Beg further added that:

“The separation of power is a part of the basic structure of the constitution. So, the
schemes of the constitution cannot be changed even after re-establishing Article 368 of
the Indian Constitution.”

In Golak Nath v. State of Punjab,5 it was observed by Chief Justice Subba Rao that:-

“The three organs of the government have to exercise their functions keeping in mind
certain encroachments assigned by the constitution. The constitution demarcates the
jurisdiction of the three organs minutely and expects them to be exercised within their
respective powers without overstepping their limits. All the organs must function within
the spheres allotted to them by the constitution”.

In Kesavananda Bharti v. State of Kerala,6 Honble Chief Justice Sikri observed:

“Separation of powers between the legislature, the executive and the judiciary is a part of
the basic structure of the Constitution; this structure cannot be destroyed by any form of
amendment.”

Although, there is an explicit provision in Constitution just like American Constitution that
executive power is vested in President under Article 53(1) and in Governor under Article
154(1) but there is no provision which talks about the vesting of legislative and judiciary power
in any organ. We can conclude that there is no rigid separation of power. However, Article 50 of
the Constitution of India talks about the separation of the executive from the judiciary as being a
Directive Principle of State Policy it is not enforceable. Certain privileges, power, immunities are
given to the Member of Parliament under Article 105. this provision makes the legislature
independent.

4
AIR 1975 SC 2299
5
AIR 1967 SC 1643
6
AIR 1973 SC 1461